Exhibit 4.2
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of
October 17, 1995
among
CENTURY TELEPHONE ENTERPRISES, INC.,
THE BANKS NAMED HEREIN,
and
BANK ONE, TEXAS, N.A.,
as Agent
and
as Auction Administration Agent
TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................... 1
1.1 Certain Defined Terms.................................... 1
SECTION 2. COMMITMENT...................................... 12
2.1 Commitments.............................................. 12
2.2 Competitive Bid Procedure................................ 12
2.3 Committed Borrowing Procedure............................ 15
2.4 Refinancings............................................. 15
2.5 Fees..................................................... 16
2.6 Termination and Reduction of Commitments................. 16
2.7 Loans.................................................... 17
2.8 Notes.................................................... 18
2.9 Interest on Loans........................................ 18
2.10 Interest on Overdue Amounts.............................. 19
2.11 Alternate Rate of Interest............................... 19
2.12 Prepayment of Loans...................................... 19
2.13 Reserve Requirements; Change in Circumstances............ 20
2.14 Change in Legality....................................... 22
2.15 Indemnity................................................ 22
2.16 Pro Rata Treatment....................................... 23
2.17 Sharing of Setoffs....................................... 23
2.18 Payments................................................. 24
2.19 Calculation of LIBO...................................... 25
2.20 Booking Loans............................................ 25
2.21 Quotation of Rates....................................... 25
SECTION 3. REPRESENTATIONS AND WARRANTIES.................. 25
3.1 Purpose of Credit Facility............................... 25
3.2 Corporate Existence, Good Standing, and Authority........ 25
3.3 Subsidiaries............................................. 26
3.4 Financial Statements..................................... 26
3.5 Compliance with Laws, Charter, and Agreements............ 26
3.6 Litigation............................................... 27
3.7 Taxes.................................................... 27
3.8 Environmental Matters.................................... 27
3.9 Employee Benefit Plans................................... 27
3.10 Properties; Liens........................................ 27
3.11 Holding Company and Investment Company Status............ 27
3.12 Transactions with Affiliates............................. 28
3.13 Leases................................................... 28
3.14 Labor Matters............................................ 28
3.15 Insurance................................................ 28
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3.16 Solvency................................................. 28
3.17 Business................................................. 28
3.18 General.................................................. 28
SECTION 4. CONDITIONS PRECEDENT............................ 29
4.1 Initial Loan............................................. 29
4.2 Each Loan................................................ 29
4.3 Materiality of Conditions................................ 30
4.4 Waiver of Conditions..................................... 30
SECTION 5. COVENANTS....................................... 30
5.1 Use of Proceeds.......................................... 30
5.2 Books and Records........................................ 30
5.3 Items to be Furnished.................................... 30
5.4 Inspection............................................... 31
5.5 Taxes.................................................... 31
5.6 Payment of Obligations................................... 31
5.7 Expenses of Agent........................................ 32
5.8 Maintenance of Existence, Assets,
Business, and Insurance............................... 32
5.9 Preservation and Protection of Rights.................... 32
5.10 Employee Benefit Plans................................... 32
5.11 Liens.................................................... 32
5.12 Acquisitions, Mergers, and Dissolutions.................. 32
5.13 Loans, Advances, and Investments......................... 32
5.14 Transactions with Affiliates............................. 33
5.15 Sale of Assets........................................... 34
5.16 Compliance with Laws and Documents....................... 34
5.17 New Businesses........................................... 34
5.18 Assignment............................................... 34
5.19 Fiscal Year and Accounting Methods....................... 34
5.20 Holding Company and Investment Company Status............ 34
5.21 Environmental Laws....................................... 35
5.22 Environmental Indemnification............................ 35
5.23 Ratio of Funded Debt to Net Worth........................ 35
5.24 Ratio of EBIT to Interest Expense and
Preferred Stock Dividends............................. 35
5.25 Tax Consolidation........................................ 35
SECTION 6. DEFAULT......................................... 36
6.1 Payment of Obligation.................................... 36
6.2 Covenants................................................ 36
6.3 Debtor Relief............................................ 37
6.4 Attachment............................................... 37
6.5 Payment of Judgments..................................... 37
6.6 Default Under Other Agreements........................... 37
6.7 Antitrust Proceedings.................................... 37
6.8 Misrepresentation........................................ 37
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SECTION 7. RIGHTS AND REMEDIES............................. 38
7.1 Remedies Upon Event of Default........................... 38
7.2 Waivers.................................................. 38
7.3 Performance by Agent..................................... 38
7.4 Delegation of Duties and Rights.......................... 39
7.5 Banks Not in Control..................................... 39
7.6 Waivers by Banks......................................... 39
7.7 Cumulative Rights........................................ 39
7.8 Application of Proceeds.................................. 39
7.9 Certain Proceedings...................................... 39
SECTION 8. AGREEMENT AMONG BANKS........................... 40
8.1 Agents................................................... 40
8.2 Expenses................................................. 42
8.3 Proportionate Absorption of Losses....................... 42
8.4 Delegation of Duties; Reliance........................... 42
8.5 Limitation of Agents' Liability.......................... 42
8.6 Default.................................................. 43
8.7 Limitation of Liability of Banks......................... 44
8.8 Relationship of Banks.................................... 44
8.9 Foreign Banks............................................ 44
8.10 Benefits of Agreement.................................... 44
SECTION 9. MISCELLANEOUS................................... 44
9.1 Changes in GAAP.......................................... 44
9.2 Money and Interest....................................... 45
9.3 Number and Gender of Words............................... 45
9.4 Headings................................................. 45
9.5 Exhibits................................................. 45
9.6 Communications........................................... 45
9.7 Form and Number of Documents............................. 45
9.8 Exceptions to Covenants.................................. 45
9.9 Survival................................................. 46
9.10 Governing Law............................................ 46
9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL.................... 46
9.12 Maximum Interest Rate.................................... 46
9.13 Invalid Provisions....................................... 47
9.14 Entirety................................................. 47
9.15 Amendments, Etc.......................................... 48
9.16 Waivers.................................................. 48
9.17 Taxes.................................................... 48
9.18 Governmental Regulation.................................. 48
9.19 Multiple Counterparts.................................... 48
9.20 Successors and Assigns; Participations; Assignments...... 49
9.21 Confidentiality.......................................... 52
9.22 Conflicts and Ambiguities................................ 52
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9.23 General Indemnification.................................. 52
9.24 Investment Representation................................ 53
SCHEDULES
Parties, Addresses, Commitments, Wiring Information Schedule 1
Permitted Liens Schedule 2
Litigation Schedule 3.6
Transactions with Affiliates Schedule 3.12
Business of Companies Schedule 3.17
EXHIBITS
Competitive Bid Request Exhibit A-1
Notice of Committed Borrowing Exhibit A-2
Notice to Banks of Competitive Bid Request Exhibit B
Competitive Bid Exhibit C
Competitive Note Exhibit D-1
Committed Note Exhibit D-2
Opinion of Borrower's Counsel Exhibit E
Financial Report Certificate Exhibit F
Designation Agreement Exhibit G
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COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT dated as of October 17, 1995, among CENTURY TELEPHONE
ENTERPRISES, INC., a Louisiana corporation (the "Borrower"), the banks listed on
the signature pages hereof (the "Banks"), BANK ONE, TEXAS, N.A., a national
banking association, as agent for the Banks (in such capacity, the "Agent"), and
as auction administration agent (in such capacity, the "Auction Administration
Agent").
The Borrower has requested the Banks to extend credit to the Borrower
in order to enable it to borrow on a revolving credit basis on and after the
date hereof and at any time and from time to time prior to the Termination Date
(as herein defined) a principal amount not in excess of $70,000,000 at any time
outstanding. The Borrower has also requested the Banks to provide a procedure
pursuant to which the Borrower may designate that all of the Banks be invited to
bid on an uncommitted basis on borrowings by the Borrower scheduled to mature on
or prior to the Termination Date. The Banks are willing to extend such credit to
the Borrower on the terms and conditions herein set forth. Accordingly, the
Borrower, the Agents, and the Banks agree as follows:
SECTION 1. DEFINITIONS.
1.1 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Adjusted Consolidated Net Worth" means, as of the date of
determination, Consolidated Net Worth minus (i) deferred assets other than
prepaid insurance, prepaid taxes, prepaid interest, extraordinary retirements,
and deferred charges where such deferred charges are considered by Tribunals
when setting rates, (ii) patents, copyrights, trademarks, tradenames,
franchises, experimental expense, goodwill (other than goodwill arising from the
purchase of capital stock or assets of a Person engaged in the telephone or
cellular mobile communications business) and similar intangible or intellectual
property, and (iii) unamortized debt discount and expense (other than debt
discount and expense of the Companies located in jurisdictions where such items
are considered by Tribunals when
setting rates).
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with another Person.
"Agent" is defined in the introduction to this Agreement.
"Agents" means the Agent and the Auction Administration Agent.
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"Agreement" means this Competitive Advance and Revolving Credit
Facility Agreement, as the same may be amended, supplemented, or modified from
time to time.
"Applicable Lending Office" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of a Base Loan, or a Fixed Rate Loan
and such Bank's Eurodollar Lending Office in the case of a Eurodollar Loan.
"Auction Administration Agent" is defined in the introduction to this
Agreement.
"Banks" means those banks signatory hereto and other banks and
financial institutions which from time to time become party hereto pursuant to
the provisions of this Agreement, and, except when used in reference to a
Committed Loan, a Committed Borrowing, a Committed Note, the Commitment of any
Bank or a related term, each Designated Lender.
"Base Loan" means any Committed Loan with respect to which the Borrower
shall have selected an interest rate based on the Base Rate in accordance with
the provisions of Section 2.
"Base Rate" means, for any date, a rate per annum (rounded upwards, if
not already a whole multiple of 1/16 of 1%, to the next higher 1/16 of 1%) equal
to the greatest of (a) the Prime Rate in effect on such day or (b) the Federal
Funds Effective Rate in effect for such day plus 1/2 of 1%. For purposes hereof,
the term "Prime Rate" means that rate of interest established from time to time
by the Agent as its general reference rate of interest, after taking into
account such factors as the Agent may from time to time, in its sole discretion,
deem appropriate, it being understood, however, that the Agent may from time to
time make various loans at rates of interest having no relationship to such
general reference rate of interest. "Federal Funds Effective Rate" means, for
any period, a fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for the day of such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it. Any change in the Base Rate due to a change
in the Federal Funds Effective Rate shall be effective on the effective date of
such change in the Federal Funds Effective Rate. If for any reason the Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including, without limitation, the inability or failure of the Agent to
obtain sufficient bids or publications in accordance with the terms hereof, the
Base Rate shall be the Prime Rate until the circumstances giving rise to such
inability no longer exist.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Borrower" is defined in the introduction to this Agreement.
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"Borrowing" means a Competitive Borrowing or a Committed Borrowing.
"Borrowing Date" means the Business Day upon which the proceeds of any
Borrowing are to be made available to the Borrower.
"Business Day" means a day when the Agents and each Bank are open for
business, and if the applicable Business Day relates to any Eurodollar Loan, a
day on which dealings are carried on in the Eurodollar Interbank Market and
commercial banks are open for domestic or international business in London,
England, in New York, New York, and in Dallas, Texas.
"Code" means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on Schedule 1, as amended from time to time.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans from each of the Banks distributed ratably among the Banks in
accordance with their respective Commitments.
"Committed Loan" means a Loan by a Bank to the Borrower pursuant to
Section 2.3, and shall be either a Eurodollar Loan or a Base Loan.
"Committed Note" means a promissory note of the Borrower payable to the
order of each Bank, in substantially the form of Exhibit D-2 hereto, with the
blanks appropriately completed, evidencing the aggregate indebtedness of the
Borrower to such Bank resulting from the Committed Loans made by such Bank to
the Borrower, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Companies" means, collectively, Borrower and its Subsidiaries and
"Company" means any of the same.
"Competitive Bid" means an offer by a Bank to make a Competitive Loan
pursuant to Section 2.2.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Bank
pursuant to Section 2.2(b), (i) in the case of a Eurodollar Loan, the Margin
(which will be added to or subtracted from the LIBO Rate), and (ii) in the case
of a Fixed Rate Loan, the fixed rate of interest, in each case, offered by the
Bank making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids made
pursuant to Section 2.2(a) substantially in the form of Exhibit A-1.
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"Competitive Borrowing" means a borrowing consisting of a single
Competitive Loan from a Bank or simultaneous Competitive Loans from a number of
Banks, in each case, whose Competitive Bid as all or as a part of such
Borrowing, as the case may be, has been accepted by the Borrower under the
bidding procedure described in Section 2.2.
"Competitive Loan" means a Loan from a Bank to the Borrower pursuant to
the bidding procedure described in Section 2.2, and shall be either a Eurodollar
Loan or a Fixed Rate Loan.
"Competitive Note" means a promissory note of the Borrower payable to
the order of each Bank, in substantially the form of Exhibit D-1 hereto, with
the blanks appropriately completed, evidencing the aggregate indebtedness of the
Borrower to such Bank resulting from the Competitive Loans made by such Bank to
the Borrower, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Competitive Reduction" is defined in Section 2.1.
"Consolidated Net Worth" means, as of the date of determination, the
amount of stated capital plus (or minus, in the case of a deficit) the capital
surplus and earned surplus of the Companies, as calculated in accordance with
GAAP (but treating Minority Interests in Subsidiaries as liabilities and
excluding the contra-equity account resulting from the Borrower's obligations
under its employee stock ownership plan commitments). For purposes of this
Agreement, Consolidated Net Worth shall exclude the effect of Statement No. 106
of the Financial Accounting Standards Board.
"Current Date" means any date after the date hereof.
"Current Financials" means the consolidated Financial Statements of the
Companies for the fiscal year ended December 31, 1994, and the fiscal quarter
ended June 30, 1995.
"Debt" of any Person means, from time to time and without duplication,
all indebtedness, liabilities, and obligations of such Person (including,
without limitation, indebtedness, liabilities, and obligations secured by any
assets of such Person regardless whether such Person has assumed the liability
so secured), whether or not considered as liabilities according to GAAP and
whether matured or unmatured, liquidated or unliquidated, primary or secondary,
direct or indirect, or absolute, fixed, or contingent.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
"Default" means the occurrence of any event which with the giving of
notice or the passage of time or both would become an Event of Default.
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"Default Rate" means an annual interest rate equal to the lesser of (a)
2% plus the Base Rate and (b) the Highest Lawful Rate.
"Designated Lender" means a special purpose corporation which is an
Affiliate of a Bank that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and that issues (or
the parent of which issues) commercial paper rated at least ""Prime-1" (or the
then equivalent grade) by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or "A-1"
(or the then equivalent grade) by Standard and Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") that, in either case, (i) is
organized under the laws of the United States or any state thereof, (ii) shall
have become a party to this Agreement pursuant to Section 9.20(d) and (iii) is
not otherwise a Bank.
"Designation Agreement" means a designation agreement entered into by a
Bank (other than a Designated Lender), a Designated Lender, and the Borrower,
and accepted by the Agent and the Auction Administration Agent, in substantially
the form of Exhibit G hereto.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" on Schedule 1 to this
Agreement or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
"EBIT" means, for the applicable period, net income before tax expense
and interest expense and excluding the effects of nonrecurring and/or unusual
non-cash transactions that reduce net income and items that do not reduce the
cash flow of the Companies (e.g., write-off of intangibles, write-down of
assets, effects of new accounting pronouncements, etc.).
"Eligible Assignee" means (i) a commercial bank organized under the
Laws of the United States, or any state thereof, and having total assets in
excess of $1,000,000,000; (ii) a commercial bank organized under the Laws of any
other country which is a member of the OECD, or a political subdivision of any
such country, and having total assets in excess of $1,000,000,000; provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD; and (iii)
the central bank of any country which is a member of the OECD.
"Environmental Law" means any Law that relates to the environment or
handling or control of Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any company or trade or business (whether or
not incorporated) which is, or has been within the last five (5) years, a member
of a group of which Borrower is a member and which is, or has been within the
last five (5) years, under common control with Borrower within the meaning of
section 414 of the Code.
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"Eurocurrency Liabilities" is defined in Regulation D.
"Eurodollar Interbank Market" means the eurodollar interbank market
selected by the Agent in its sole discretion, acting in good faith.
"Eurodollar Lending Office" means, with respect to each Bank, the
branches or affiliates of such Bank which such Bank has designated on Schedule 1
as it "Eurodollar Lending Office" or may hereafter designate from time to time
as its "Eurodollar Lending Office" by notice to the Borrower and the Agent.
"Eurodollar Loan" means any Loan with respect to which the Borrower
shall have selected an interest rate based on the LIBO Rate in accordance with
the provisions of Section 2.
"Event of Default" means any of the events described in Section 6,
provided there has been satisfied any requirement in connection therewith for
the giving of notice, lapse of time, or happening of any further condition,
event, or act.
"Facility Fee" is defined in Section 2.5.
"Federal Funds Effective Rate" has the meaning specified in the definition
of Base Rate.
"Financial Report Certificate" means a certificate substantially in the
form of Exhibit F.
"Financial Statements" means balance sheets, profit and loss
statements, statements of capital and surplus, and statements of cash flow
prepared in comparative form to the corresponding period of the preceding fiscal
year.
"Fixed Rate Loan" means any Competitive Loan made by a Bank pursuant to
Section 2.2 based upon an actual percentage rate per annum offered by such Bank,
expressed as a decimal (to no more than four decimal places), and accepted by
the Borrower.
"Funded Debt" shall mean and include, as of any date as of which the
amount thereof is to be determined, (i) all funded indebtedness of the
Companies, (ii) all funded indebtedness of any Subsidiary (other than funded
indebtedness of such Subsidiary owing to the Borrower or another Subsidiary),
and (iii) all indebtedness for borrowed money, but not indebtedness secured by
or borrowed against the cash surrender value of life insurance policies up to
the amount of such cash surrender value.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable as of the date of
the Financial Statements in question.
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"Guaranty" means by any particular Person, all obligations of such
Person guaranteeing or in effect guaranteeing any Debt, dividend or other
obligation of any other Person (the "primary obligor") in any manner whether
directly or indirectly, including, without limitation of the generality of the
foregoing, obligations incurred through an agreement, contingent or otherwise,
by such particular Person (i) to purchase such Debt or obligation or any
property or assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Debt or obligation or (y) to
maintain working capital or equity capital or otherwise to advance or make
available funds for the purchase or payment of such Debt or obligation, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of such Debt or obligation of the ability of the primary obligor to
make payment of the Debt or obligation or (iv) otherwise to assure the owner of
the Debt or obligation of the primary obligor against loss in respect thereof.
"Hazardous Substance" means any hazardous or toxic waste, pollutant,
contaminant, or substance.
"Highest Lawful Rate" means, at the particular time in question, the
maximum rate of interest which, under applicable Law, the Banks are then
permitted to charge the Borrower on the Obligation. If the maximum rate of
interest which, under applicable Law, the Banks are permitted to charge the
Borrower on the Obligation shall change after the date hereof, the Highest
Lawful Rate shall be automatically increased or decreased, as the case may be,
as of the effective time of such change without notice to the Borrower.
"Interest Payment Date" means (i) with respect to any Base Loan or
Eurodollar Loan, the last day of the Interest Period applicable thereto and, in
addition in the case of a Eurodollar Loan or Base Loan with an Interest Period
longer than three months or 90 days, as applicable, each day that would have
been the Interest Payment Date for such Loan had an Interest Period of three
months been applicable to such Loan, and (ii) in the case of a Fixed Rate Loan,
the last day of the Interest Period applicable thereto and, in the case of a
Fixed Rate Loan with an Interest Period of more than 90 days, on the numerically
corresponding day which occurs during such Interest Period every three months
from the first day of such Interest Period (or, if there is no such
corresponding day in any such month, the last day of such month).
"Interest Period" means, with respect to each Loan, the duration of
such Loan and:
(i) as to any Eurodollar Loan, the period commencing on the
date of such Loan and ending on the numerically corresponding day (or
if there is no corresponding day, the last day) in the calendar month
that is one, two, three, or six months thereafter, as the Borrower may
elect; provided, however, that the Interest Period for a Eurodollar
Loan subject to a Competitive Bid shall not exceed 3 months;
(ii) as to any Base Loan, the period commencing on the date of
such Loan and ending not later than 90 days later or, if earlier, on
the Termination Date, or the date of prepayment of such Loan; and
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(iii) as to any Fixed Rate Loan, the period commencing on the
date of such Loan and ending on the date specified in the Competitive
Bid in which the offer to make the Fixed Rate Loan was extended;
provided, however, that each such period shall have a duration of not
more than 90 calendar days;
provided, further, that (x) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar Loans only, 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 (y) no
Interest Period may be selected that ends later than the Termination Date.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period
"Laws" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, or opinions
of any Tribunal.
"LIBO Rate" means the rate (rounded upwards, if not already a whole
multiple of 1/16 of 1%, to the next higher 1/16 of 1%) equal to the annual rate
of interest at which dollar deposits approximately equal to the principal amount
of the applicable Eurodollar Loan and with a maturity equal to the applicable
Interest Period are offered in immediately available funds to the principal
office of the Agent in London, England (or if the Agent does not at the time any
such determination is made maintain an office in London, England, the principal
office of any Affiliate of the Agent in London, England), at 11:00 a.m., London
time (or as soon thereafter as practicable), two Business Days before the first
day of such Interest Period.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor to have his claim satisfied out of any
property or assets, or the proceeds therefrom, prior to the general creditors of
the owner thereof.
"Litigation" means any action conducted, pending, or threatened by or
before any Tribunal.
"Loan" means a Competitive Loan, a Committed Loan, a Eurodollar Loan,
a Fixed Rate Loan, or a Base Loan.
"Loan Papers" means (i) this Agreement, certificates delivered pursuant
to this Agreement, and exhibits and schedules hereto, (ii) any notes, security
documents, guaranties, and other agreements in favor of the Agents or the Banks
ever delivered in connection with this Agreement, and (iii) all renewals,
extensions, or restatements of, or amendments or supplements to, any of the
foregoing.
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"Majority Banks" means at any time (a) the Majority Committed Banks and
(b) Banks holding at least 66-2/3% of the then aggregate unpaid principal amount
of the Competitive Loans.
"Majority Committed Banks" means the Banks holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Committed Loans or if no
Committed Loans are outstanding, the Banks having at least 66-2/3% of the
available Commitments (determined without considering the effect of any
Competitive Reduction).
"Margin" means,
(a) as to any Competitive Bid relating to a Eurodollar Loan,
the margin (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) to be added to or
subtracted from the LIBO Rate in order to determine the interest rate
acceptable to such Bank with respect to such Eurodollar Loan; and
(b) as to any Committed Loan which is a Eurodollar Loan the
following percentages in the following contexts:
=====================================================================
Borrower's Senior Unsecured
Long-Term Debt as Rated by Margin
Standard & Poor's Ratings Group
---------------------------------------------------------------------
AA- or better 14 basis points
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A or A+ 17 basis points
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BBB+ or ▇- ▇▇ basis points
---------------------------------------------------------------------
BBB 28 basis points
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BBB- or below or is not rated 31.5 basis points
=====================================================================
"Material Adverse Effect" means any set of one or more circumstances or
events which, individually or collectively, will result in any of the following
(a) a material and adverse effect upon the validity or enforceability of any
Loan Paper, (b) a material and adverse effect on the consolidated financial
condition of the Companies represented in the latter of the Current Financials
or the most recent audited consolidated Financial Statements, (c) a Default or
(d) the issuance of an accountant's report on the Companies' consolidated
Financial Statements containing an explanatory paragraph about the entity's
ability to continue as a going concern (as defined in accordance with Generally
Accepted Auditing Standards).
"Material Agreement" of any Person means any material written or oral
agreement, contract, commitment, or understanding to which such Person is a
party, by which such
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Person is directly or indirectly bound, or to which any assets of such Person
may be subject, and which is not cancelable by such Person upon 30 days or less
notice without liability for further payment other than nominal penalty, and
which requires such Person to pay more than 1 percent of Consolidated Net Worth
during any 12-month period.
"Minority Interest" means, with respect to any Subsidiary, an amount
determined by valuing preferred stock held by Persons other than the Borrower
and its wholly-owned Subsidiaries at the voluntary or involuntary liquidating
value of such preferred stock, whichever is greater, and by valuing common stock
or partnership interests held by Persons other than the Borrower and its
wholly-owned Subsidiaries at the book value of capital and surplus applicable
thereto on the books of such Subsidiary adjusted, if necessary, to reflect any
changes from the book value of common stock required by the foregoing method of
valuing Minority Interest attributable to preferred stock.
"Multiemployer Plan" means a multiemployer plan as defined in sections
3(37) or 4001(a)(3) of ERISA or section 414 of the Code to which any Company or
any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an
obligation to make contributions.
"Note" means a Competitive Note or a Committed Note.
"Notice of Committed Borrowing" is defined in Section 2.3.
"Obligation" means all present and future indebtedness, obligations,
and liabilities, and all renewals, extensions, and modifications thereof, owed
to the Agents or the Banks by the Borrower, arising pursuant to any Loan Paper,
together with all interest thereon and costs, expenses, and attorneys' fees
incurred in the enforcement or collection thereof.
"OECD" means the Organization for Economic Cooperation and Development
(or any successor).
"Participant" is defined in Section 9.20(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"Permitted Liens" means the Liens described on Schedule 2.
"Person" means and includes an individual, partnership, limited
liability company, joint venture, corporation, trust, Tribunal, unincorporated
organization, or government, or any department, agency, or political subdivision
thereof.
"Plan" means any plan defined in Section 4021(a) of ERISA in respect of
which the Borrower is an "employer" or a "substantial employer" as such terms
are defined in ERISA.
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"Prime Rate" has the meaning specified in the definition of Base Rate.
"Purchaser" is defined in Section 9.20(c).
"Regulation D" means Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Rights" means rights, remedies, powers, and privileges.
"Significant Subsidiary" means a Subsidiary of the Borrower (i) the
assets of which equal or exceed 5% of all assets of the Borrower and its
Subsidiaries as shown on a consolidated balance sheet of the Borrower and its
Subsidiaries, (ii) the operating revenue of which, for the most recently ended
period of twelve consecutive months, equals or exceeds 5% of the operating
revenues of the Borrower and its Subsidiaries for such period, or (iii) the net
income of which, for the most recently ended period of twelve consecutive
months, equals or exceeds 5% of the net income of the Borrower and its
Subsidiaries for such period.
"Solvent" means, as to any Person at the time of determination, that
(a) the aggregate fair value of such Person's assets exceeds the present value
of its liabilities (whether contingent, subordinated, unmatured, unliquidated,
or otherwise), and (b) such Person has sufficient cash flow to enable it to pay
its Debts as they mature.
"Subsidiary" means any Person with respect to which Borrower or any one
or more Subsidiaries owns directly or indirectly 50% or more of the issued and
outstanding voting stock (or equivalent interests).
"Taxes" means all taxes, assessments, fees, or other charges at any
time imposed by any Laws or Tribunal.
"Termination Date" means, at any time, August 31, 2000, or the earlier
date of termination in whole of the Total Commitment pursuant to Section 2.6.
"Total Commitment" means at any time the aggregate amount of the Banks'
Commitments, as in effect at such time.
"Tribunal" means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision, agency, department,
commission, board, bureau, or instrumentality.
"United States" and "U.S." each means United States of America.
-11-
SECTION 2. COMMITMENT.
2.1 Commitments. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Bank, severally and
not jointly, agrees to make revolving credit loans ("Committed Loans") to the
Borrower, at any time and from time to time on and after the date hereof and
until the Termination Date. Notwithstanding the foregoing, (a) the aggregate
outstanding principal amount of all Committed Loans of a Bank shall not exceed
at any time such Bank's Commitment and (b) the Commitment of a Bank which makes
a Competitive Loan and the Total Commitment shall be deemed used from time to
time to the extent of the aggregate principal amount of the Competitive Loans
then outstanding from such Bank (such deemed use of such Bank's Commitment and
the Total Commitment being a "Competitive Reduction"), subject, however, to the
conditions that (i) at no time shall (A) the sum of (x) the outstanding
aggregate principal amount of all Committed Loans made by all Banks plus (y) the
outstanding aggregate principal amount of all Competitive Loans made by all
Banks exceed (B) the Total Commitment and (ii) the principal amount of Committed
Loans to be made by a Bank pursuant to a Committed Borrowing (whether pursuant
to Section 2.3 or as part of a refinancing under Section 2.4) shall equal the
product of (x) the percentage which its Commitment (after a Competitive
Reduction for its Competitive Loans outstanding) represents of the Total
Commitment (after a Competitive Reduction for all Competitive Loans outstanding
times (y) the outstanding aggregate principal amount of all Committed Loans
obligated to be made by all Banks in connection with such Committed Borrowing.
Within the foregoing limits, the Borrower may borrow, repay, prepay,
and reborrow hereunder, on and after the date hereof and prior to the
Termination Date, subject to the terms, provisions, and limitations set forth
herein.
2.2 Competitive Bid Procedure. (a) In order to request Competitive
Bids, the Borrower shall hand deliver, telex, or telecopy to the Agents a duly
completed Competitive Bid Request, to be received by the Agents (i) in the case
of Eurodollar Loans, not later than 10:00 a.m., Dallas, Texas time, four
Business Days before the Borrowing Date specified for a proposed Competitive
Borrowing and (ii) in the case of Fixed Rate Loans, not later than 10:00 a.m.,
Dallas, Texas time, two Business Days before the Borrowing Date specified for a
proposed Competitive Borrowing. No Base Loan shall be requested in, or, except
pursuant to Section 2.11 or Section 2.14, made pursuant to, a Competitive Bid
Request. A Competitive Bid Request that does not conform substantially to the
format of Exhibit A-1 may be rejected at the Auction Administration Agent's sole
discretion, and the Auction Administration Agent shall, not later than noon on
the date of delivery of the Competitive Bid Request, notify the Borrower of such
rejection by telex or telecopier. Each Competitive Bid Request shall in each
case refer to this Agreement and specify (x) whether the Competitive Loans then
being requested are to be Eurodollar Loans or Fixed Rate Loans, or both, (y) the
Borrowing Date of such Competitive Loans (which shall be a Business Day) and the
aggregate principal amount thereof (which shall not be less than $3,000,000 or
greater than the unused Total Commitment on such Borrowing Date and shall be an
integral multiple of $1,000,000), and (z) the Interest Period with respect
thereto (which may not end after the
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Termination Date). Promptly after its receipt of a Competitive Bid Request that
is not rejected as aforesaid, the Auction Administration Agent shall invite by
telex or telecopier (substantially in the form set forth in Exhibit B hereto)
the Banks to bid, on the terms and conditions of this Agreement, to make
Competitive Loans pursuant to such Competitive Bid Request.
(b) Each Bank may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to each Competitive Bid Request.
Each Competitive Bid by a Bank must be received by the Auction Administration
Agent via telex or telecopier, substantially in the form of Exhibit C hereto,
(i) in the case of Eurodollar Loans, not later than 11:00 a.m., Dallas, Texas
time, three Business Days before the Borrowing Date specified for a proposed
Competitive Borrowing and (ii) in the case of Fixed Rate Loans, not later than
11:00 a.m., Dallas, Texas time, one Business Day before the Borrowing Date of a
proposed Competitive Borrowing. Competitive Bids that do not conform
substantially to the format of Exhibit C may be rejected by the Auction
Administration Agent after conferring with, and upon the instruction of, the
Borrower, and the Auction Administration Agent shall notify the Bank that
submitted the non-conforming Competitive Bid of such rejection as soon as
practicable. Each Competitive Bid shall refer to this Agreement and (x) specify
the principal amount (which shall be in a minimum principal amount of $3,000,000
and in an integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan the Bank is willing to make to the Borrower, (y) specify the
Competitive Bid Rate(s) at which the Bank is prepared to make the Competitive
Loan, and (z) confirm the Interest Period with respect thereto specified by the
Borrower in its Competitive Bid Request. If any Bank shall elect not to make a
Competitive Bid, such Bank shall so notify the Auction Administration Agent via
telex or telecopier (I) in the case of Eurodollar Loans, not later than 11:00
a.m., Dallas, Texas time, three Business Days before the Borrowing Date
specified for a proposed Competitive Borrowing, and (II) in the case of Fixed
Rate Loans, not later than 11:00 a.m., Dallas, Texas time, one Business Day
before the Borrowing Date of a proposed Competitive Borrowing; provided,
however, that failure by any Bank to give such notice shall not cause such Bank
to be obligated to make any Competitive Loan as part of such Competitive
Borrowing. A Competitive Bid submitted by a Bank pursuant to this paragraph (b)
shall be irrevocable.
(c) The Auction Administration Agent shall promptly notify the
Borrower by telex or telecopier of all the Competitive Bids made, the
Competitive Bid Rate and the principal amount of each Competitive Loan in
respect of which a Competitive Bid was made and the identity of the Bank that
made each bid on the date of delivery of Competitive Bids pursuant to Section
2.2(b). The Auction Administration Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after completion of
the bidding process set forth in this Section 2.2.
(d) The Borrower may in its sole and absolute discretion,
subject only to provisions of this Section 2.2(d), accept or reject any or all
of the Competitive Bids referred to in paragraph (c) above; provided, however,
that the aggregate amount of the Competitive
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Bids so accepted by the Borrower may not exceed the principal amount of the
Competitive Borrowing requested by the Borrower. The Borrower shall notify the
Auction Administration Agent by telex or telecopier whether and to what extent
it has decided to accept or reject any or all of the bids referred to in
paragraph (c) above, (i) in the case of Eurodollar Loans, not later than 11:00
a.m., Dallas, Texas time, two Business Days before the Borrowing Date specified
for a proposed Competitive Borrowing and (ii) in the case of Fixed Rate Loans,
not later than 11:00 a.m., Dallas, Texas time, on the Borrowing Date specified
for a proposed Competitive Borrowing; provided, however, that (w) the failure by
the Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (x) the Borrower shall not accept a bid
made at a particular Competitive Bid Rate if the Borrower has decided to reject
a bid made at a lower Competitive Bid Rate, (y) if the Borrower shall accept
bids made at a particular Competitive Bid Rate but shall be restricted by other
conditions hereof from borrowing the principal amount of Competitive Loans in
respect of which bids at such Competitive Bid Rate have been made, then the
Borrower shall accept a pro rata portion of each bid made at such Competitive
Bid Rate based as nearly as possible on the respective principal amounts of
Competitive Loans for which such bids were made, and (z) no bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $3,000,000 and an integral multiple of $1,000,000.
Notwithstanding the foregoing, if it is necessary for the Borrower to accept a
pro rata allocation of the bids made in response to a Competitive Bid Request
(whether pursuant to the events specified in clause (y) above or otherwise) and
the available principal amount of Competitive Loans to be allocated among the
Banks is not sufficient to enable Competitive Loans to be allocated to each Bank
in a minimum principal amount of $3,000,000 and in integral multiples of
$1,000,000, then the Borrower shall select the Banks to be allocated such
Competitive Loans and shall round allocations up or down to the next higher or
lower multiple of $1,000,000 as it shall deem appropriate. A notice given by the
Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Auction Administration Agent shall promptly notify
each bidding Bank whether or not its Competitive Bid has been accepted (and if
so, in what amount and at what Competitive Bid Rate) by telex or telecopier, and
each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its bid has been accepted. After completing the notifications referred to in the
immediately preceding sentence, the Auction Administration Agent shall (i)
notify the Agent of each Competitive Bid that has been accepted, the amount
thereof, and the Competitive Bid Rate therefor and (ii) notify each Bank of the
aggregate principal amount of all Competitive Bids accepted.
(f) Upon receipt from the Agent of the LIBO Rate applicable to
any Eurodollar Loan to be made by any Bank pursuant to a Competitive Bid that
has been accepted by the Borrower pursuant to Section 2.2(d), the Auction
Administration Agent shall notify such Bank of (i) the applicable LIBO Rate and
(ii) the sum of the applicable LIBO Rate plus the Margin bid by such Bank.
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(g) No Competitive Borrowing shall be made within three
Business Days of the date of any other Competitive Borrowing, unless the
Borrower and the Auction Administration Agent shall mutually agree otherwise.
(h) If the Auction Administration Agent shall at any time have
a Commitment hereunder and shall elect to submit a Competitive Bid in its
capacity as a Bank, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Banks are
required to submit their bids to the Auction Administration Agent pursuant to
paragraph (b) above.
(i) All notices required by this Section 2.2 shall be made in accordance
with Section 9.6.
2.3 Committed Borrowing Procedure. In order to effect a Committed
Borrowing, the Borrower shall hand deliver, telex, or telecopy to the Agent a
duly completed request for Committed Borrowing, substantially in the form of
Exhibit A-2 hereto (a "Notice of Committed Borrowing"), (i) in the case of
Eurodollar Loans, not later than 11:00 a.m., Dallas, Texas time, two Business
Days before the Borrowing Date specified for a proposed Committed Borrowing, and
(ii) in the case of Base Loans, not later than 11:00 a.m., Dallas, Texas time,
on the Business Day which is the Borrowing Date specified for a proposed
Committed Borrowing. No Fixed Rate Loan shall be requested or made pursuant to a
Notice of Committed Borrowing. Such notice shall be irrevocable and shall in
each case refer to this Agreement and specify (x) whether the Loans then being
requested are to be Eurodollar Loans or Base Loans, (y) the Borrowing Date of
such Loans (which shall be a Business Day) and the aggregate amount thereof
(which shall not be less than $500,000 and shall be an integral multiple of
$100,000), and (z) the Interest Period with respect thereto (which shall not end
later than the Termination Date). If no Interest Period with respect to any
Eurodollar Loan is specified in any such Notice of Committed Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly, and in any event on the same day the Agent receives a Notice
of Committed Borrowing pursuant to this Section 2.3, the Agent shall advise the
other Banks of such Notice of Committed Borrowing and of each Bank's portion of
the requested Committed Borrowing by telex or telecopier. Each Committed
Borrowing shall consist of Loans of the same type made as of the same day and
having the same Interest Period.
2.4 Refinancings. The Borrower may refinance all or any part of any
Loan with a Loan of the same or a different type made pursuant to Section 2.2 or
Section 2.3, subject to the conditions and limitations set forth herein and
elsewhere in this Agreement, including, without limitation, refinancings of
Competitive Loans with Committed Loans and Committed Loans with Competitive
Loans. Any Loan or part thereof so refinanced shall be deemed to be repaid in
accordance with Section 2.8 with the proceeds of a new Borrowing hereunder and
the proceeds of the new Loan, to the extent they do not exceed the principal
amount of the Loan being refinanced, shall not be paid by the Banks to the Agent
or by the Agent to the Borrower pursuant to Section 2.7(c); provided, however,
that (i) if the principal amount extended by a Bank in a refinancing is greater
than the principal amount extended by such
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Bank in the Borrowing being refinanced, then such Bank shall pay such difference
to the Agent for distribution to the Banks described in (ii) below, (ii) if the
principal amount extended by a Bank in the Borrowing being refinanced is greater
than the principal amount being extended by such Bank in the refinancing, the
Agent shall return the difference to such Bank out of amounts received pursuant
to (i) above, (iii) to the extent any Bank fails to pay the Agent amounts due
from it pursuant to (i) above, any Loan or portion thereof being refinanced
shall not be deemed repaid in accordance with Section 2.8 to the extent of such
failure and the Borrower shall pay such amount to the Agent pursuant to Section
2.8, and (iv) to the extent the Borrower fails to pay to the Agent any amounts
due in accordance with Section 2.8 as a result of the failure of a Bank to pay
the Agent any amounts due as described in (iii) above, the portion of any
refinanced Loan deemed not repaid shall be deemed to be outstanding solely to
the Bank which has failed to pay the Agent amounts due from it pursuant to (i)
above to the full extent of such Bank's portion of such refinanced Loan.
2.5 Fees. The Borrower agrees to pay to each Bank, through the Agent,
on each March 31, June 30, September 30, and December 31 and on the Termination
Date, in immediately available funds, a facility fee (a "Facility Fee")
calculated by multiplying the percentages set forth below in the contexts set
forth below by the Commitment of such Bank, during the preceding quarter (or
shorter period commencing with the date hereof and/or ending with the
Termination Date):
==========================================================================
Borrower's Senior Unsecured
Long-Term Debt as Rated by Percentage
Standard & Poor's Ratings Group
--------------------------------------------------------------------------
AA- or better .09 percent
--------------------------------------------------------------------------
A or A+ .11 percent
--------------------------------------------------------------------------
BBB+ or ▇- .▇▇▇ percent
--------------------------------------------------------------------------
BBB .17 percent
--------------------------------------------------------------------------
BBB- or below or is not rated .21 percent
==========================================================================
All Facility Fees shall be computed by the Agent on the basis of the actual
number of days elapsed in a year of 365 days, and shall be conclusive and
binding for all purposes, absent manifest error. The Facility Fee due to each
Bank shall commence to accrue on the date hereof and shall cease to accrue on
the earlier of the Termination Date and the termination of the Commitment of
such Bank as provided herein. Notwithstanding the foregoing, in no event shall
any Bank be permitted to receive any compensation hereunder constituting
interest in excess of the Highest Lawful Rate.
2.6 Termination and Reduction of Commitments. (a) Subject to Section
2.12(b), the Borrower may permanently terminate, or from time to time in part
permanently reduce, the Total Commitment, in each case upon at least ten
Business Days' prior written or telex
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notice to the Agent (who shall promptly forward a copy thereof to each Bank and
the Auction Administration Agent). Such notice shall specify the date and the
amount of the termination or reduction of the Total Commitment. Each such
partial reduction of the Total Commitment shall be in a minimum aggregate
principal amount of $5,000,000 and in an integral multiple of $1,000,000.
(b) On the Termination Date the Total Commitment shall be
zero.
(c) Each reduction in the Total Commitment pursuant to this
paragraph shall be made ratably among the Banks in accordance with their
respective Commitments. Simultaneously with any termination or reduction of
commitments pursuant to this paragraph, the Borrower shall pay to the Agent for
the accounts of the Banks the Facility Fees on the amount of the Total
Commitment so terminated or reduced, accrued through the date of such
termination or reduction.
2.7 Loans. (a) Each Borrowing made by the Borrower on any date shall be
(i) in the case of Competitive Loans, in an integral multiple of $1,000,000 and
in a minimum aggregate principal amount of $3,000,000 and (ii) in the case of
Committed Loans, in an integral multiple of $100,000 and in a minimum aggregate
principal amount of $500,000. Competitive Loans shall be made by the Banks in
accordance with Section 2.2(d), and Committed Loans shall be made by the Banks
ratably in accordance with their respective Commitments on the Borrowing Date of
the Committed Borrowing; provided, however, that the failure of any Bank to make
any Loan shall not in itself relieve any other Bank of its obligation to lend
hereunder. The initial Competitive Loan and Committed Loan by each Bank shall be
made against delivery to such Bank of an appropriate Competitive Note and
Committed Note, respectively, payable to the order of such Bank, as referred to
in Section 2.8.
(b) Each Competitive Loan shall be a Eurodollar Loan or a
Fixed Rate Loan, and each Committed Loan shall be a Eurodollar Loan or a Base
Loan, as the Borrower may request subject to and in accordance with Section 2.2
or Section 2.3, as applicable. Each Bank may at its option make any Eurodollar
Loan by causing a foreign branch of such Bank to make such Loan; provided,
however, that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of the applicable Note
and this Agreement. Loans of more than one interest rate option may be
outstanding at the same time; provided, however, that the Borrower shall not be
entitled to request any Loan which, if made, would result in an aggregate of
more than 10 separate Borrowings being outstanding hereunder at any one time.
For purposes of the foregoing, Loans having different interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Loans.
(c) Subject to Section 2.4, each Bank shall make its portion
of each Competitive Borrowing and each Committed Borrowing on the proposed
Borrowing Date thereof by paying the amount required to the Agent in Dallas, in
immediately available funds not later than 12:00 noon, Dallas, Texas time, and
the Agent shall by 2:00 p.m., Dallas,
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Texas time, credit the amounts so received to the general deposit account of the
Borrower with the Agent or, if Loans are not made on such date because any
condition precedent to a Borrowing herein specified shall not have been met,
return the amounts so received to the respective Banks as soon as practicable;
provided, however, if and to the extent the Agent fails to return any such
amounts to a Bank on the Borrowing Date for such Borrowing, the Agent shall pay
interest on such unreturned amounts, for each day from such Borrowing Date to
the date such amounts are returned to such Bank, at the Federal Funds Effective
Rate.
2.8 Notes. The Competitive Loans made by each Bank shall be evidenced
by a single Competitive Note, payable to the order of such Bank in a principal
amount equal to the Total Commitment. The Committed Loans made by each Bank
shall be evidenced by a single Committed Note payable to the order of such Bank
in a principal amount equal to the Commitment of such Bank. The outstanding
principal balance of each Competitive Loan and Committed Loan, as evidenced by
the relevant Note, shall be payable on the last day of the Interest Period
applicable to such Loan. Each Note shall bear interest from the date thereof on
the outstanding principal balance thereof as set forth in Section 2.9 and
Section 2.10. Each Bank shall, and is hereby authorized by the Borrower to,
endorse on the schedule attached to the relevant Note held by such Bank (or on a
continuation of such schedule attached to each such Note and made a part
thereof) or in its records relating such Note an appropriate notation evidencing
the date and amount of each Competitive Loan or Committed Loan, as applicable,
of such Bank, each payment or prepayment of principal of any Competitive Loan or
Committed Loan, as applicable, and the other information provided for on such
schedule. The aggregate unpaid principal amount so recorded shall be presumptive
evidence of the principal amount owing by the Borrower to a Bank and unpaid
under the Note of such Bank. The failure of any Bank to make such a notation or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Competitive Loans or Committed Loans, as applicable, made by such
Bank in accordance with the terms of the relevant Note.
2.9 Interest on Loans. (a) Subject to the provisions of Section 2.10,
each Eurodollar Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to the
lesser of (i) the Highest Lawful Rate and (ii) the LIBO Rate for the Interest
Period in effect for such Loan (A) plus or minus, as the case may be, in the
case of each Competitive Loan, the Margin specified by a Bank with respect to
such Loan in its Competitive Bid submitted pursuant to Section 2.2(b) and (B)
plus, in the case of each Committed Loan, the Margin. Interest on each
Eurodollar Loan shall be payable on each Interest Payment Date applicable
thereto. The applicable LIBO Rate for each Interest Period shall be determined
by the Agent, and such determination shall be conclusive absent manifest error.
(b) Subject to the provisions of Section 2.10, each Base Loan
shall bear interest at the rate per annum (computed on the basis of the actual
number of days elapsed over a year of (x) 365 or 366 days, as the case may be if
the Base Rate is based on the Prime Rate or (y) 360 days if the Base Rate is
based on the Federal Funds Effective Rate)
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equal to the lesser of (i) the Highest Lawful Rate and (ii) the Base Rate.
Interest on each Base Loan shall be payable on each Interest Payment Date
applicable thereto. The applicable Base Rate during each Interest Period shall
be determined by the Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.10, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Bank making such Loan and accepted by the Borrower
pursuant to Section 2.2. Interest on each Fixed Rate Loan shall be payable on
each Interest Payment Date applicable thereto.
2.10 Interest on Overdue Amounts. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, the Borrower shall on demand from time to time pay interest, to
the extent permitted by Law, on such defaulted amount up to (but not including)
the date of actual payment (after as well as before judgment) at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the Default
Rate.
2.11 Alternate Rate of Interest. In the event, and on each occasion,
that on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Loan, the Agent shall have determined that dollar
deposits in the amount of the requested principal amount of such Eurodollar Loan
are not generally available in the Eurodollar Interbank Market, or that dollar
deposits of such Eurodollar Loan are not generally available in the Eurodollar
Interbank Market for the requested Interest Period, or that the rate at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Bank of making or maintaining such Eurodollar Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the LIBO
Rate, the Agent shall, as soon as practicable thereafter, give written or telex
notice of such determination, stating the specific reasons therefor, to the
Borrower, the Auction Administration Agent, and the Banks. In the event of any
such determination, any request by the Borrower for a Eurodollar Loan shall,
until the circumstances giving rise to such notice no longer exist, be deemed to
be a request for a Base Loan. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
2.12 Prepayment of Loans. (a) Prior to the Termination Date, the
Borrower shall have the right at any time to prepay any Committed Borrowing, in
whole or in part, subject to the requirements of Section 2.15 but otherwise
without premium or penalty, but prepayment of Eurodollar Loans shall require at
least five Business Days prior written or telex notice to the Agent; provided,
however, that each such partial prepayment shall be in an integral multiple of
$100,000 and in a minimum aggregate principal amount of $100,000. Each notice of
prepayment shall specify the prepayment date and the aggregate principal amount
of each Borrowing to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein. The Borrower
shall not have the right to prepay any Competitive Borrowing.
-19-
(b) On the date of any termination or reduction of the Total
Commitment pursuant to Section 2.6(a), the Borrower shall pay or prepay so much
of the Loans as shall be necessary in order that the aggregate principal amount
of the Loans outstanding will not exceed the Total Commitment following such
termination or reduction. Subject to the foregoing, any such payment or
prepayment shall be applied to such Borrowing or Borrowings as the Borrower
shall select. All prepayments under this paragraph shall be subject to Section
2.15 and Section 2.16.
(c) All prepayments under this Section 2.12 shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment.
2.13 Reserve Requirements; Change in Circumstances. (a) Notwithstanding
any other provision herein, if after the date of this Agreement any change in
applicable Law or regulation or in the interpretation or administration thereof
by any Tribunal charged with the interpretation or administration thereof
(whether or not having the force of Law) (i) shall change the basis of taxation
of payments to any Bank of the principal of or interest on any Eurodollar Loan
or Fixed Rate Loan made by such Bank or any other fees or amounts payable
hereunder (other than (x) Taxes imposed on the overall net income of such Bank
by the jurisdiction in which such Bank has its principal office or by any
political subdivision or taxing authority therein (or any Tax which is enacted
or adopted by such jurisdiction, political subdivision, or taxing authority as a
direct substitute for any such Taxes) or (y) any Tax, assessment, or other
governmental charge that would not have been imposed but for the failure of any
Bank to comply with any certification, information, documentation, or other
reporting requirement), (ii) shall 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, such Bank, or (iii) shall
impose on such Bank or the Eurodollar Interbank Market any other condition
affecting this Agreement or any Eurodollar Loan or Fixed Rate Loan made by such
Bank, and the result of any of the foregoing shall be to increase the cost to
such Bank of maintaining its Commitment or of making or maintaining any
Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Bank hereunder (whether of principal, interest, or
otherwise) in respect thereof by an amount deemed in good faith by such Bank to
be material, then the Borrower shall pay to the Agent for the account of such
Bank such additional amount or amounts as will compensate such Bank for such
increase or reduction to such Bank upon demand by such Bank (through the Agent).
Notwithstanding the foregoing, in no event shall any Bank be permitted to
receive any compensation hereunder constituting interest in excess of the
Highest Lawful Rate.
(b) If any Bank shall have determined in good faith that the
adoption of any applicable law, rule, regulation, or guideline regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Tribunal, central bank, or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Bank (or any lending office of such Bank) with any request or directive
regarding capital adequacy (whether or not having the force of Law) of any such
authority, central bank, or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital as a consequence of its
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, change, or compliance
-20-
(taking into consideration such Bank's policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, the Borrower shall pay to the Agent for the account of such Bank such
additional amount or amounts as will compensate such Bank for such reduction
upon demand by such Bank (through the Agent). Notwithstanding the foregoing, in
no event shall any Bank be permitted to receive any compensation hereunder
constituting interest in excess of the Highest Lawful Rate.
(c) A certificate of a Bank setting forth in reasonable detail
(i) such amount or amounts as shall be necessary to compensate such Bank as
specified in paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (a)(i), shall be delivered to
the Borrower (with a copy to the Agent) promptly after such Bank determines it
is entitled to compensation under this Section 2.13, and shall be conclusive and
binding absent manifest error. The Borrower shall pay to the Agent for the
account of such Bank the amount shown as due on any such certificate within 15
days after its receipt of the same. In preparing such certificate, such Bank may
employ such assumptions and allocations of costs and expenses as it shall in
good ▇▇▇▇▇ ▇▇▇▇ reasonable and may use any reasonable averaging and attribution
method.
(d) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any Interest Period shall not constitute a
waiver of such Bank's rights to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to such Interest Period or any other Interest Period. The
protection of this Section 2.13 shall be available to each Bank regardless of
any possible contention of invalidity or inapplicability of the law, regulation,
or condition which shall have been imposed.
(e) In the event any Bank shall seek compensation pursuant to
this Section 2.13, the Borrower may give notice to such Bank (with copies to the
Agents) that it wishes to seek one or more Eligible Assignees (which may be one
or more of the Banks) to assume the Commitment of such Bank and to purchase its
outstanding Loans and Notes. Each Bank requesting compensation pursuant to this
Section 2.13 agrees to sell its Commitment, Loans, Notes, and interest in this
Agreement and the other Loan Papers to any such Eligible Assignee for an amount
equal to the sum of the outstanding unpaid principal of and accrued interest on
such Loans and Notes plus all other fees and amounts (including, without
limitation, any compensation claimed by such Bank under this Section 2.13 and as
to which such Bank has delivered the certificate required by Section 2.13(c) on
or before the date such Commitment, Loans, and Notes are purchased) due such
Bank hereunder calculated, in each case, to the date such Commitment, Loans,
Notes, and interest are purchased. Following any such sale, such Bank shall have
no further Commitment or other obligation to the Borrower hereunder or under any
other Loan Paper.
(f) Notwithstanding anything herein to the contrary, no Bank
shall be entitled to any compensation under this Section 2.13 with respect to
any Competitive Loan.
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(g) Without prejudice to the survival of any other obligations
of the Borrower hereunder, the obligations of the Borrower under this Section
2.13 shall survive for one year after the termination of this Agreement and/or
the payment or assignment of any of the Notes.
2.14 Change in Legality. (a) Notwithstanding anything to the contrary
herein contained, if any change in any or regulation or in the interpretation
thereof by any Tribunal charged with the administration or interpretation
thereof shall make it unlawful for any Bank to make or maintain any Eurodollar
Loan or to give effect to its obligations as contemplated hereby, then, by
written notice to the Borrower and to the Agents, such Bank may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Bank hereunder, whereupon the Borrower shall be prohibited from
requesting Eurodollar Loans from such Bank hereunder unless such
declaration is subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to Base Loans, in which event (A) all such Eurodollar
Loans shall be automatically converted to Base Loans as of the
effective date of such notice as provided in paragraph (b) below and
(B) all payments and prepayments of principal which would otherwise
have been applied to repay the converted Eurodollar Loans shall instead
be applied to repay the Base Loans resulting from the conversion of
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the
Borrower (with a copy to the Agent) by any Bank pursuant to paragraph (a) above
shall be effective on the date of receipt thereof by the Borrower.
2.15 Indemnity. The Borrower shall indemnify each Bank against any loss
or reasonable expense which such Bank may sustain or incur as a consequence of
(a) any failure by the Borrower to borrow hereunder after a Notice of Committed
Borrowing pursuant to Section 2 has been given or after Competitive Bids have
been accepted, (b) any payment, prepayment, or conversion, other than
conversions under Section 2.14(a)(ii), of a Eurodollar Loan or Fixed Rate Loan
required by any other provision of this Agreement or otherwise made on a date
other than the last day of the applicable Interest Period, (c) any default in
the payment or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, by notice of prepayment, or otherwise), or (d) the occurrence of
any Event of Default. The indemnity of the Borrower pursuant to the immediately
preceding sentence shall include, but not be limited to, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such Loan
or any part thereof as a Eurodollar Loan or Fixed Rate Loan. Such loss or
reasonable expense shall include, without limitation, an amount equal to the
excess, if any, as reasonably determined by each Bank of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, or converted or not
borrowed (based on the LIBO Rate or, in the case of a Fixed Rate Loan, the fixed
rate of interest applicable thereto) for the period from the date of
-22-
such payment, prepayment, or conversion or failure to borrow to the last day of
the Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for the Loan which would have commenced on the date of such
failure to borrow) over (ii) the amount of interest (as reasonably determined by
such Bank) that would be realized by such Bank in reemploying the funds so paid,
prepaid, or converted or not borrowed for such period or Interest Period, as the
case may be. A certificate of each Bank setting forth any amount or amounts
which such Bank is entitled to receive pursuant to this Section 2.15 shall be
delivered to the Borrower (with a copy to the Agent) and shall be conclusive, if
made in good faith, absent manifest error. The Borrower shall pay to the Agent
for the account of each Bank the amount shown as due on any certificate within
30 days after its receipt of the same. Notwithstanding the foregoing, in no
event shall any Bank be permitted to receive any compensation hereunder
constituting interest in excess of the Highest Lawful Rate. Without prejudice to
the survival of any other obligations of the Borrower hereunder, the obligations
of the Borrower under this Section 2.15 shall survive for one year after the
termination of this Agreement and/or the payment or assignment of any of the
Notes.
2.16 Pro Rata Treatment. (a) Each payment or prepayment of principal
and each payment of interest with respect to a Competitive Borrowing (at a
particular Competitive Bid Rate) or a Committed Borrowing shall be made pro rata
among the Banks in accordance with the respective principal amounts of the Loans
extended by each Bank, if any, with respect to such Competitive Borrowing or
Committed Borrowing, and (b) refinancings of Committed Loans with Committed
Loans of any type, refinancings of Competitive Loans with Committed Loans, and
Committed Loans which are not refinancings of other Loans shall be made pro rata
among the Banks in accordance with then respective Commitments.
2.17 Sharing of Setoffs. Each Bank agrees that if it shall, through the
exercise of a right of banker's lien, setoff, or counterclaim against the
Borrower, including, but not limited to, a secured claim under Section 506 of
Title 11 of the United States Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Bank under any applicable
Debtor Relief Law or otherwise, obtain payment (voluntary or involuntary) in
respect of the Committed Note held by it (other than pursuant to Section 2.13 or
Section 2.15) as a result of which the unpaid principal portion of the Committed
Note held by it shall be proportionately less than the unpaid principal portion
of the Committed Note held by any other Bank, it shall be deemed to have
simultaneously purchased from such other Bank a participation in the Committed
Note held by such other Bank, so that the aggregate unpaid principal amount of
the Committed Note and participations in Committed Notes held by each Bank shall
be in the same proportion to the aggregate unpaid principal amount of all
Committed Notes then outstanding as the principal amount of the Committed Note
held by it prior to such exercise of banker's lien, setoff, or counterclaim was
to the principal amount of all Committed Notes outstanding prior to such
exercise of banker's lien, setoff, or counterclaim; provided, however, that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.17 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any
-23-
Bank holding a participation in a Committed Note deemed to have been so
purchased may, upon the existence of an Event of Default, exercise any and all
rights of banker's lien, setoff, or counterclaim with respect to any and all
moneys owing by the Borrower to such Bank as fully as if such Bank had made a
Committed Loan directly to the Borrower in the amount of such participation.
2.18 Payments. (a) The Borrower shall make each payment hereunder and
under any instrument delivered hereunder not later than 1:00 p.m. (Dallas, Texas
time) on the day when due in dollars to the Agent at its address referred to on
Schedule 1 for the account of the Banks, in immediately available funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal of or interest on Committed Loans (other than pursuant
to Section 2.13 and Section 2.15) or Facility Fees ratably to the Banks and like
funds relating to the payment of any other amount (including, without
limitation, payments of principal or interest on Competitive Loans which are not
made ratably to the Banks) payable to any Bank to such Bank for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement.
(b) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in all
such cases be included in the computation of payment of interest or Facility
Fee, as the case may be; provided, however, if such extension would cause
payment of interest on or principal of a Eurodollar Loan to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(c) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made or will make such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so made such payment
in full to the Agent, each Bank shall repay to the Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Agent, at the Federal Funds Effective Rate.
(d) All payments (whether of principal, interest, fees,
reimbursements, or otherwise) by the Borrower under this Agreement shall be made
without setoff or counterclaim and shall be made free and clear of and without
deduction for any present or future Tax, levy, impost, or any other charge
against the Borrower, if any, of any nature whatsoever now or hereafter imposed
by any Tribunal. If the making of such payments by the Borrower is prohibited by
Law unless such a Tax, levy, impost, or other charge is deducted or withheld
therefrom, the Borrower shall pay to the Agent, on the date of each such
payment, such additional amounts (without duplication of any other amounts
required to be paid by the Borrower pursuant to Section 2.13) as may be
necessary in order that the net amounts received by the Banks after such
deduction or withholding shall equal the amounts
-24-
which would have been received if such deduction or withholding were not
required. The Borrower shall confirm that all applicable Taxes, if any, imposed
on this Agreement or transactions hereunder shall have been properly and legally
paid by it to the appropriate taxing authorities by sending official Tax
receipts or notarized copies of such receipts to the Agent within 30 days after
payment of any applicable Tax.
(e) So long as no Event of Default has occurred and is
continuing, payments and prepayments of the Obligation shall be applied first to
accrued interest then due and payable and to the remaining Obligation in the
order and manner as the Borrower may direct. At any time during which an Event
of Default has occurred and is continuing or if the Borrower fails to give
direction, any payment or prepayment shall be applied in the following order:
(i) to expenses and fees for which the Agents and the Banks have not been
reimbursed in accordance with the Loan Papers; (ii) to accrued interest; and
(iii) to the remaining Obligation in the order and manner as the Majority Banks
deem appropriate.
2.19 Calculation of LIBO. The provisions of this Agreement relating to
calculation of the LIBO Rate are included only for the purpose of determining
the rate of interest or other amounts to be paid hereunder that are based upon
such rate, it being understood that each Bank shall be entitled to fund and
maintain its funding of all or any part of a Eurodollar Loan as it sees fit. All
such determinations hereunder, however, shall be made as if each Bank had
actually funded and maintained funding of each Eurodollar Loan through the
purchase in the Eurodollar InterBank Market of one or more eurodollar deposits
in an amount equal to the principal amount of such Loan and having a maturity
corresponding to the Interest Period for such Loan.
2.20 Booking Loans. Any Bank may make, carry, or transfer Loans at,
to, or for the account of any of its branch offices.
2.21 Quotation of Rates. It is hereby acknowledged that the Borrower
may call the Agent on or before the date on which notice of a Borrowing is to be
delivered by the Borrower in order to receive an indication of the rate or rates
then in effect, but that such projection shall not be binding upon the Agent or
any Bank nor affect the rate of interest which thereafter is actually in effect
when the election is made.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agents and the Banks as follows:
3.1 Purpose of Credit Facility. The Borrower will use Loan proceeds
only for working capital and general corporate purposes of the Companies. The
proceeds loaned hereunder will not be used directly or indirectly for the
purpose of purchasing or carrying, or for the purpose of extending credit to
others for the purpose of purchasing or carrying any "margin stock" as that term
is defined in Regulation G, T, U, or X of the Board, as amended, or to repay any
Debt which was created for such purposes.
3.2 Corporate Existence, Good Standing, and Authority. Each Company
is, to the best of the Borrower's knowledge, duly organized, validly existing,
and in good standing
-25-
under the Laws of its state of incorporation (such jurisdictions being
identified on Exhibit 21 of Borrower's most recent annual report filed with the
Securities and Exchange Commission on Form 10K). Except where failure would not
reasonably be expected to have a Material Adverse Effect, each Company (a) is
duly qualified to transact business and is in good standing as a foreign
corporation in each jurisdiction where the nature and extent of its business and
properties require the same and (b) possesses all requisite authority, power,
licenses, permits, and franchises to conduct its business as is now being, or is
contemplated herein to be, conducted. The Borrower possesses all requisite
authority, power, licenses, permits, and franchises to execute, deliver, and
comply with the terms of the Loan Papers, all which have been duly authorized
and approved by all necessary corporate action and, except where failure would
not reasonably be expected to have a Material Adverse Effect, for which no
approval or consent of any Person or Tribunal is required which has not been
obtained and no filing or other notification to any Person or Tribunal is
required which has not been properly completed.
3.3 Subsidiaries. Exhibit 21 of the Borrower's most recent annual
report filed with the Securities and Exchange Commission on Form 10K sets forth,
in all material respects, all existing Subsidiaries of the Borrower and
correctly lists, as to each Subsidiary, (a) its name and (b) its jurisdiction of
incorporation. The shares of capital stock of each Subsidiary owned by the
Borrower (either directly or indirectly through another Subsidiary), as set
forth on Exhibit 21 of the Borrower's most recent annual report filed with the
Securities and Exchange Commission on Form 10K, are the duly authorized, validly
issued, fully paid, and nonassessable shares of such Subsidiary and are owned by
the Borrower free and clear of all Liens except Permitted Liens.
3.4 Financial Statements. The Current Financials were prepared in
accordance with GAAP and present fairly the consolidated financial condition and
the results of operations of the Company as of, and for the periods ended, the
dates thereof. There were no material (to the Companies taken as a whole)
liabilities, direct or indirect, fixed or contingent, of any Company as of the
date of the Current Financials which are not reflected therein. There have been
no changes in the consolidated financial condition of the Companies from that
shown in the Current Financials between such dates and the date hereof which
could reasonably be expected to have a Material Adverse Effect. No Company has
incurred any material (to the Companies taken as a whole) liability, direct or
indirect, fixed or contingent, between the dates of the Current Financials and
the date hereof, except in the ordinary course of business, such as in
connection with acquisitions and financing activities.
3.5 Compliance with Laws, Charter, and Agreements. No Company is, nor
will the execution, delivery, performance, or observance of the Loan Papers
cause any Company to be, in violation of any Laws or any Material Agreements to
which it is a party, other than such violations which would not reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any
Significant Subsidiary is, nor will the execution, delivery, performance, or
observance of the Loan Papers cause the Borrower or any Significant Subsidiary
to be, in violation of its bylaws or charter.
-26-
3.6 Litigation. Except as described on Schedule 3.6 and to the
knowledge of the Borrower, no Company is aware of any "Material" Litigation, and
there are no Material outstanding or unpaid judgments against any Company.
Material for purpose of this Section 3.6 in relation to Litigation would include
any actions or proceedings pending or threatened against any Company before any
court or Tribunal seeking damages, net of insurance proceeds to the Company, in
excess of $1,000,000 in any case or 1% of Consolidated Net Worth in the
aggregate, or which might result in any Material Adverse Effect.
3.7 Taxes. All returns of each Company required to be filed have been
filed (or extensions have been granted) except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect, and all Taxes
imposed upon each Company which are due and payable have been paid other than
Taxes for which the criteria for Permitted Liens have been satisfied.
3.8 Environmental Matters. No Company's ownership of its assets
violates any applicable Environmental Law, other than such violations which
would not reasonably be expected to have a Material Adverse Effect. To the
Borrower's knowledge, no investigation or review is pending or threatened by any
Tribunal with respect to any alleged violation of any Environmental Law in
connection with any Company's assets. None of any Company's assets have been
used by such Company or, to the Borrower's knowledge, any other Person as a dump
site for any Hazardous Substance.
3.9 Employee Benefit Plans. (a) No employee benefit plan as defined in
the Code and Title IV of ERISA of any Company has incurred an accumulated
funding deficiency in an amount sufficient to have a Material Adverse Effect,
(b) no Company has incurred material liability to the PBGC in connection with
any such plan, (c) no Company has withdrawn in whole or in part from
participation in a Multiemployer Plan, and (d) to the best of the Borrower's
knowledge, no "prohibited transaction" (as defined in section 406 of ERISA or
section 4975 of the Code) or "reportable event" (as defined in section 4043 of
ERISA) has occurred which could reasonably be expected to have a Material
Adverse Effect.
3.10 Properties; Liens. Each Company has good and marketable (except
for Permitted Liens) title to all its property reflected on the Current
Financials (except for dispositions of property in the ordinary course of
business between the date or dates thereof and the date hereof). Except for
Permitted Liens, there is no Lien on any property of any Company, and the
execution, delivery, performance, or observance of the Loan Papers will not
require or result in the creation of any Lien other than Permitted Liens.
3.11 Holding Company and Investment Company Status. The Borrower is not
(a) a "holding company," a "subsidiary company" of a "holding company," an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, (b) a "public utility" within the meaning of
the Federal Power Act, as amended, (c) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (d) an "investment
adviser" within the meaning of the Investment Advisers Act of
-27-
1940, as amended, or (e) subject to the jurisdiction of the Federal
Communications Commission or any public service commission.
3.12 Transactions with Affiliates. Except as disclosed on Schedule
3.12, no Company is a party to a material transaction with any of its Affiliates
other than transactions in the ordinary course of business and upon fair and
reasonable terms not materially less favorable than such Company could obtain or
could become entitled to in an arm's-length transaction with a Person that was
not its Affiliate. For purposes of this Section 3.12, such transactions are
"material" if they, individually or in the aggregate, require any Company to pay
more than 1 percent of Consolidated Net Worth over the course of such
transactions.
3.13 Leases. All material leases under which any Company is lessee or
tenant are in full force and effect, and no default or potential default exists
thereunder, the effect of which would have a Material Adverse Effect.
3.14 Labor Matters. There are no actual or, to the Borrower's
knowledge, threatened strikes, labor disputes, slow downs, walkouts, or other
concerted interruptions of operations by any Company's employees, the effect of
which would have a Material Adverse Effect.
3.15 Insurance. Each Company maintains with financially sound insurance
companies or associations (or, as to workers' compensation or similar insurance,
with an insurance fund or by self-insurance authorized by the jurisdictions in
which it operates) insurance concerning its properties and businesses against
such casualties and contingencies and of such types and in such amounts (and
with co-insurance and deductibles) as is customary in the case of same or
similar businesses; provided, however, a program of self-insurance in such
amounts and such risks as are prudent and which is consistent with accepted
business practice shall constitute compliance with this Section 3.15.
3.16 Solvency. The Companies are, and after giving effect to the
transactions contemplated under the Loan Papers will be, solvent.
3.17 Business. The business of the Borrower, as presently
conducted and as proposed to be conducted, is set forth on Schedule 3.17.
3.18 General. There is no material fact or condition relating
to the Loan Papers or the financial condition and business of any Company
which could reasonably be expected to have a Material Adverse Effect and which
has not been related, in writing, to the Agent, other than industry-wide risks
in the ordinary course of business associated with the types of business
conducted by any Company. All writings exhibited or delivered to the Agent by
or on behalf of any Company are and will be genuine and in all material
respects what they purport and appear to be.
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SECTION 4. CONDITIONS PRECEDENT.
4.1 Initial Loan. No Bank will be obligated to fund the initial
Loan unless the Agent has received all of the following in form and substance
satisfactory to the Agent and its special counsel:
(a) Loan Papers. This Agreement, the Notes, a Notice of
Committed Borrowing or a Competitive Bid Request, and the Current Financials.
(b) Officers' Certificates. A certificate dated as of the date
hereof, executed and delivered by the Borrower, certifying that (i)
attached is a true, correct, and complete copy of (A) the Borrower's
charter, certified by the appropriate state official and dated no more
than ten (10) days prior to the date hereof, (B) the Borrower's bylaws,
and (C) resolutions of the Borrower's board of directors authorizing
the execution and delivery of each Loan Paper to which the Borrower is
a party and (ii) the officers whose specimen signatures appear on such
certificate hold the corporate office indicated and are authorized to
sign agreements, documents, and instruments on behalf of the Borrower.
(c) Good Standing, Existence, and Authority. Certificates
(dated no more than ten (10) days prior to the date hereof) relating to
the Borrower's existence, good standing, and authority to transact
business issued by appropriate state officials as set forth on Exhibit
21 of the Borrower's most recent annual report filed with the
Securities and Exchange Commission on Form 10K.
(d) Opinions of Counsel. The favorable opinion, dated the
Closing Date and substantially in the form of Exhibit E of ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇, special counsel to the Borrower.
(e) Fees and Expenses. Payment from the Borrower of all
fees then due the Agents or the Banks pursuant to this Agreement or
any other agreement.
(f) Other. Such other agreements, documents, instruments,
opinions, certificates, and evidences as the Agent may reasonably
request.
4.2 Each Loan. In addition, the Banks will not be obligated to fund any
Loan unless at the time of such funding (a) the representations and warranties
made in the Loan Papers (other than, after the initial Loan, those contained in
the penultimate sentence of Section 3.4 and the first sentence of Section 3.18)
are true and correct in all material respects (except to the extent that (i) the
representations and warranties speak to a specific date or (ii) the facts on
which such representations and warranties are based have been changed by
transactions contemplated or permitted by this Agreement), (b) no Default or
Event of Default shall have occurred and shall be continuing, (c) the funding of
such Loan is permitted by Law and (d) if requested by the Agent or the Majority
Banks, the Borrower shall have delivered to the Agent evidence substantiating
any of the matters contained in this Agreement which are necessary to enable the
Borrower to qualify for such Loan.
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4.3 Materiality of Conditions. Each condition precedent herein
is material to the transactions contemplated herein, and time is of the essence
in respect of each thereof.
4.4 Waiver of Conditions. Subject to the provisions of Section
9.15, the Majority Banks may elect to fund any Loan without all conditions being
satisfied, but this shall not be deemed to be a waiver of the requirement that
each such condition precedent be satisfied as a prerequisite for any subsequent
Loan, unless the Majority Banks (or, if required by Section 9.15, all Banks)
specifically waive each such item in writing.
SECTION 5. COVENANTS. So long as the Banks are committed to make Loans under
this Agreement and thereafter until the Obligation is paid and performed in
full, unless the Borrower receives a prior written notice from the Majority
Banks (or, if required by Section 9.15, all Banks) that they do not object to a
deviation, the Borrower covenants and agrees with the Agents and the Banks as
follows:
5.1 Use of Proceeds. Proceeds advanced hereunder shall be used
only as represented herein.
5.2 Books and Records. Each Company shall keep, in accordance
with GAAP, proper and complete books, records, and accounts.
5.3 Items to be Furnished. The Borrower shall cause the
following to be furnished to the Agent:
(a) Promptly after preparation, and no later than 120 days
after the last day of each fiscal year of the Borrower, Financial
Statements showing the consolidated financial condition and results of
operations of the Companies as of, and for the year ended on, such last
day, accompanied by (i) the opinion of KPMG Peat Marwick Main (or
another firm of nationally-recognized independent certified public
accountants reasonably acceptable to Majority Banks), based on an audit
using generally accepted auditing standards, that such Financial
Statements were prepared in accordance with GAAP and present fairly the
consolidated financial condition and results of operations of the
Companies (and such accountants shall indicate in a letter to the
Agent, that during their audit no Default or Event of Default not
already reported was discovered or, if such Default or Event of Default
was discovered, the nature and period of existence thereof) and (ii) a
Financial Report Certificate with respect to such Financial Statements.
(b) Promptly after preparation, and no later than 60 days
after the last day of each of the first three quarters of each fiscal
year of the Borrower, (i) Financial Statements showing the consolidated
financial condition and results of operations of the Companies as of,
and for the period from the beginning of the current fiscal year to,
such last day, and (ii) a Financial Report Certificate with respect to
such Financial Statements.
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(c) Promptly after preparation (and no later than the later of
15 days (a) after such filing is due or (b) after timely filing, if
filed with the Securities and Exchange Commission), true copies of all
regular and periodic reports, statements, documents, plans, and other
written communications furnished by or on behalf of any Company to
stockholders or to the Securities and Exchange Commission. However,
only registration statements covering more than 2 percent of the
Borrower's outstanding shares of common stock shall be required to be
furnished unless specifically requested by the Agent.
(d) Promptly upon receipt thereof, copies of any notices
received from any Tribunal (including, without limitation, state
regulatory agencies) relating to the possible violation or violation of
any Law which might materially and adversely affect the franchises,
permits, or rights for the operation of the business of any Company.
(e) Notice, promptly after the Borrower knows or has reason to
know of, (i) the existence of any Material Litigation as defined in
Section 3.6, (ii) any material change in any material fact or
circumstance represented or warranted in any Loan Paper, or (iii) a
Default or Event of Default, specifying the nature thereof and what
action the Borrower or any other Company has taken, is taking, or
proposes to take with respect thereto.
(f) Promptly upon the Agent's reasonable request, such
information (not otherwise required to be furnished under the Loan
Papers) respecting the business affairs, assets, and liabilities of any
Company, and any opinions, certifications, and documents, in addition
to those mentioned herein.
5.4 Inspection. The Borrower shall allow the Agent and each Bank, when
the Agent or such Bank reasonably deems necessary, at such Bank's own expense if
no Default then exists, to inspect any of its properties, to review reports,
files, and other records and to make and take away copies thereof, to conduct
tests or investigations, and to discuss any of its affairs, conditions, and
finances with any director, officer, or employee of such Company from time to
time, upon reasonable notice during reasonable business hours, or otherwise when
reasonably considered necessary.
5.5 Taxes. Each Company shall promptly pay when due any Taxes, except
those which if unpaid would not cause a Material Adverse Effect and Taxes for
which the criteria for Permitted Liens have been satisfied. No Company shall use
any proceeds of Loans to pay the wages of employees unless a timely payment to
or deposit with the United States of America of all amounts of Tax required to
be deducted and withheld with respect to such wages is also made.
5.6 Payment of Obligations. Each Company shall promptly pay (or renew
and extend) all of its material obligations as the same become due, but no
Company will make any voluntary prepayment of the principal of any Debt other
than the Obligation, whether subordinate to the Obligation or not, if a Default
or Event of Default exists under any Loan Paper.
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5.7 Expenses of Agent. The Borrower shall promptly pay all reasonable
and necessary out-of-pocket costs, fees, and expenses paid or incurred by the
Agent incident to any Loan Paper (including, but not limited to, the reasonable
fees and expenses of counsel to the Agent in connection with the negotiation,
preparation, delivery, and execution of the Loan Papers and any related
amendment, waiver, or consent) or to the enforcement of the obligations of any
Company or the exercise of any Rights (including, but not limited to, reasonable
attorneys' fees and court costs), all of which shall be a part of the
Obligation.
5.8 Maintenance of Existence, Assets, Business, and Insurance. Except
as permitted by Section 5.12, each Company shall at all times: Maintain its
corporate existence and authority to transact business and good standing in its
jurisdiction of incorporation or organization and all other jurisdictions where
the failure to so maintain could reasonably be expected to have a Material
Adverse Effect; maintain all licenses, permits, and franchises necessary for its
business, where the failure to so maintain could reasonably be expected to have
a Material Adverse Effect; keep all of its assets which are necessary to its
business in good working order and condition (ordinary wear and tear excepted),
and make all necessary repairs and replacements thereto; and maintain either (a)
insurance with such insurers, in such amounts, and covering such risks, as shall
be ordinary and customary in the industry or (b) a comparable self-insurance
program.
5.9 Preservation and Protection of Rights. Each Company shall perform
such acts and duly authorize, execute, acknowledge, deliver, file, and record
any additional agreements, documents, instruments, and certificates as the Agent
may reasonably deem necessary or appropriate in order to preserve and protect
the Rights of the Agents or the Banks under any Loan Paper.
5.10 Employee Benefit Plans. No Company will, directly or indirectly,
if it would have a Material Adverse Effect, (a) engage in any "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the Code),
(b) permit the funding requirements under ERISA with respect to any employee
benefit plan established or maintained by any Company to ever be less than the
minimum required by ERISA, (c) permit any employee benefit plan established or
maintained by any Company to ever be subject to involuntary termination
proceedings, or (d) fully or partially withdraw from any Multiemployer Plan.
5.11 Liens. No Company will create, incur, or suffer or permit to be
created or incurred or to exist any Lien (other than Permitted Liens) upon any
of its assets.
5.12 Acquisitions, Mergers, and Dissolutions. No Company will merge or
consolidate with any Person other than any merger or consolidation whereby the
Borrower (or another Company, if the Borrower is not a party thereto) is the
surviving corporation and immediately after such merger or consolidation there
shall not exist any Default or Event of Default.
5.13 Loans, Advances, and Investments. Except as permitted by
Section 5.12, no Company will make any loan, Guaranties, advance, extension of
credit, or capital contribution to, make any investment in, or purchase or
commit to purchase any stock or
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other securities or evidences of Debt of, or interests in, any other Person,
other than (a) expense accounts for and other advances to directors, officers,
and employees of such Company in the ordinary course of business not to exceed
$1,000,000 in the aggregate outstanding at any time; (b) investments in (or
secured by) obligations of the United States of America and agencies thereof and
obligations guaranteed by the United States of America maturing within one year
from the date of acquisition; (c) certificates of deposit issued by any of the
Banks; (d) certificates of deposit which are fully insured by the Federal
Deposit Insurance Corporation or are issued by commercial banks organized under
the Laws of the United States of America or any state thereof and having
combined capital, surplus, and undivided profits of not less than $100,000,000
(as shown on such Person's most recently published statement of condition), and,
unless Borrower has a written commitment to borrow funds from such commercial
bank, which certificates of deposit have one of the two highest ratings from
▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's Ratings Group; (e)
commercial paper rated A-1 by ▇▇▇▇▇'▇ Investors Service, Inc., or P-1 by
Standard & Poor's Ratings Group; (f) investments having one of the two highest
ratings from ▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's Ratings
Group; (g) extensions of credit in connection with trade receivables and
overpayments of trade payables, in each case resulting from transactions in the
ordinary course of business; (h) loans from any Company to any other Company and
investments by any Company in any other Company and Guaranties by any Company of
the Debt of any other Company; (i) investments in the cash surrender value of
life insurance policies issued by Persons with a financial rating from A.M. Best
Company (as reported in Best's Insurance Reports) of at least "A+"; provided,
however, that if such Person's financial rating is downgraded to less than "A+",
then within 90 days following such downgrading, either (i) such cash value life
insurance policies will be transferred to another insurance company with a
financial rating of at least "A+", (ii) such cash value insurance policies will
be collapsed and the cash value thereof will be collected by the investing
Company, or (iii) such investment will become an investment subject to the
limitations of subparagraph (m) of this Section 5.13; (j) investments in the
capital stock or securities of or loans to or Guaranties of the Debt of any
Person engaged in business comparable to the general business of any Company (x)
in which a Company possesses (or will possess, after such investment) an equity
ownership interest in such Person or (y) secured by the borrower's interest in
such business; (k) in the ordinary course of business and investments in the
capital stock of the Rural Telephone Bank, National Bank for Cooperatives, or
the National Rural Utilities Cooperative Finance Corporation, or any other
lender from whom the investing Company is intending to borrow money which
requires such Company to make an equity investment in such lender in order to so
borrow; (l) Guaranties of the Debt of the Borrower's Employee Stock Ownership
Plan; and (m) other loans, advances, Guaranties, and investments which never
exceed in the aggregate at any time 25% of Adjusted Consolidated Net Worth
(valued on the basis of original cost, plus subsequent cash and stock additions,
less any write-down in value).
5.14 Transactions with Affiliates. No Company will enter into any
material transaction with any of its Affiliates, other than transactions in the
ordinary course of business and upon fair and reasonable terms not materially
less favorable than such Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate. For purposes
of this Section 5.14, such transactions are "material" if
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they, individually or in the aggregate, require any Company to pay more than 1
percent of Consolidated Net Worth over the course of such transactions.
5.15 Sale of Assets. No Company will sell, lease, or otherwise dispose
of all or any substantial part of its assets other than (a) sales of inventory
in the ordinary course of business, (b) sales of equipment for a fair and
adequate consideration, provided that if any such equipment is sold, and a
replacement is necessary for the proper operation of the business of such
Company, such Company will replace such equipment with adequate equipment, (c)
the exchange of assets -- other than equipment -- for similar assets of equal or
greater value, (d) the sale, discount, or transfer of delinquent notes or
accounts receivable in the ordinary course of business for purposes of
collection, and (e) in any 12-month period, dispositions of assets (net of
acquisitions of similar assets) that, when added to all other such dispositions
by all Companies, do not exceed 10 percent of Consolidated Net Worth.
5.16 Compliance with Laws and Documents. No Company will violate the
provisions of any laws or any Material Agreement if such violation alone, or
when aggregated with all other such violations, could reasonably be expected to
have a Material Adverse Effect. No Company will violate the provisions of its
charter or bylaws or modify, repeal, replace, or amend any provision of its
charter or bylaws if such action could reasonably be expected to have a Material
Adverse Effect. The Borrower will provide to the Agent a copy of each document
that materially modifies, repeals, replaces, or amends the charter or bylaws of
the Borrower.
5.17 New Businesses. No Company will engage in any material
business other than the businesses in which it is presently engaged or
businesses related thereto, as described on Schedule 3.17.
5.18 Assignment. The Borrower will not assign or transfer any of
its Rights, duties, or obligations under any of the Loan Papers.
5.19 Fiscal Year and Accounting Methods. The Borrower will not change
its fiscal year or accounting methods (other than immaterial changes and changes
required by changes in GAAP) without the prior written consent of the Agent
(which shall not be unreasonably withheld).
5.20 Holding Company and Investment Company Status. The Borrower will
not conduct its business in such a way that it will become (a) a "holding
company," a "subsidiary company" of a "holding company," an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company," or a
"public utility" within the meaning of the Public Utility Holding Company Act of
1935, as amended, (b) a "public utility" within the meaning of the Federal Power
Act, as amended, (c) an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (d) an "investment adviser"
within the meaning of the Investment Advisers Act of 1940, as amended.
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5.21 Environmental Laws. Each Company shall conduct its business so as
to comply with all applicable Environmental laws and shall promptly take
corrective action to remedy any non-compliance with any Environmental Law,
except where failure to so comply or take such action would not reasonably be
expected to have a Material Adverse Effect. Each Company shall maintain a system
which, in its reasonable business judgment, will assure its continued compliance
with Environmental Laws.
5.22 Environmental Indemnification. Borrower shall indemnify, protect,
and hold each Indemnified Party harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, proceedings, costs, expenses (including, without limitation, all
reasonable attorneys' fees and legal expenses whether or not suit is brought),
and disbursements of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against such Indemnified Parties, with
respect to or as a direct or indirect result of the violation by any Company of
any Environmental Law; or with respect to or as a direct or indirect result of
any Company's generation, manufacture, production, storage, release, threatened
release, discharge, disposal or presence in connection with its properties of a
Hazardous Substance including, without limitation, (a) all damages of any such
use, generation, manufacture, production, storage, release, threatened release,
discharge, disposal, or presence, or (b) the costs of any required or necessary
environmental investigation, monitoring, repair, cleanup, or detoxification and
the preparation and implementation of any closure, remedial, or other plans. The
provisions of and undertakings and indemnification set forth in this paragraph
shall survive the satisfaction and payment of the Obligation and termination of
this Agreement for a period of time set forth in the statute of limitations in
any applicable Environmental Law.
5.23 Ratio of Funded Debt to Net Worth. As calculated at the end of
each fiscal quarter of the Borrower, the Borrower shall not permit (a) Funded
Debt of the Companies to exceed 185% of Consolidated Net Worth or (b) Funded
Debt of the Companies other than the Borrower to exceed 150% of Consolidated Net
Worth (excluding Borrower's portion thereof). For purposes of this Section 5.23,
Funded Debt shall include any Company's Guaranty of Funded Debt of any Person
other than another Company or the Borrower's Employee Stock Ownership Plan.
5.24 Ratio of EBIT to Interest Expense and Preferred Stock Dividends.
As calculated at the end of each fiscal quarter of the Borrower (but computed
for the four fiscal quarters ending on the last day of such fiscal quarter), the
Borrower shall not permit EBIT of the Companies to be less than 150% of the sum
of (a) consolidated interest expense of the Companies and (b) dividends declared
or paid by any Company (other than to another Company) on its preferred capital
stock (but if such dividends are declared and paid during such four-quarter
period, the amount shall not be counted twice).
5.25 Tax Consolidation. If the Borrower is acquired by another Person
and, as a result of such acquisition, the Borrower or the Borrower and any
Subsidiary becomes an "includible corporation" within the meaning of section
1504(b) of the Code and files a consolidated federal income tax return as a
member of an "affiliated group" of corporations within the meaning of section
1504(a) of the Code, the Borrower shall require the parent
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corporation of the affiliated group to enter into an agreement which shall
provide that if the Borrower or such Subsidiary shall sustain any loss that may
be applied to reduce the consolidated taxable income of the affiliated group of
which the Borrower or the Borrower and such Subsidiary is or was a member, such
parent corporation will pay, or cause all corporations (other than the Borrower
and the Subsidiaries) which were members of the affiliated group for the year in
which such loss is applied to pay, to the Borrower or such Subsidiary, as the
case may be, promptly after filing the consolidated federal income tax return
for such taxable year, an amount equal to the excess of (i) the consolidated
federal income tax liability of the affiliated group for such year, computed
without reducing the consolidated taxable income of such group by the amount of
the Borrower's or such Subsidiary's loss, over (ii) the consolidated federal
income tax liability of such group for such year computed by including the
Borrower's or such Subsidiary's loss in consolidated taxable income. If any
corporation (other than the Borrower or a Subsidiary) which is a member of such
affiliated group shall sustain any such loss in a taxable year, the Borrower and
each Subsidiary which is or was a member of such affiliated group for such year
may agree to pay to the member sustaining such loss, or to pay to the parent
corporation of such affiliated group for distribution to such member, an amount
equal to the excess of (i) the consolidated federal income tax liability which
the Borrower and said Subsidiaries would have incurred for such year, if such
liability had been computed on a basis which was not consolidated with the other
members of such affiliated group, over (ii) the total federal income tax
liability (taking into account such member's loss) which the Borrower and said
Subsidiaries actually were required to pay for such year.
SECTION 6. DEFAULT. The term "Event of Default" means the occurrence and
continuance of any one or more of the following events (including the passage of
time, if any, specified therefor) (provided that, if any such event occurs and
the Banks or Majority Banks, as required by the provisions of Section 9.15,
subsequently agree in writing that they will not exercise any remedies hereunder
as a result thereof, the occurrence and continuance of such event shall no
longer be deemed an Event of Default hereunder insofar as the state of facts
giving rise to such event is concerned):
6.1 Payment of Obligation. The failure or refusal of the Borrower to
pay any portion of the Obligation, as the same become due in accordance with the
terms of the Loan Papers and, in the case of an interest payment, such failure
or refusal continues for a period of 5 Business Days (no grace period being
given for failure or refusal to make a principal payment). Notwithstanding the
foregoing, the Borrower's failure to pay, if caused solely by a wire transfer
malfunction or similar problem outside the Borrower's control, shall not be
deemed an Event of Default.
6.2 Covenants.
(a) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition
contained in Sections 5.11, 5.12, 5.14, 5.17, 5.18, 5.19, 5.20, 5.23,
and 5.24.
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(b) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition
contained in any of the Loan Papers to which such Company is a party,
other than covenants to pay the Obligation and the covenants listed in
clause (a) preceding, and such failure or refusal continues for 10 days
after notice from the Agent to the Borrower.
6.3 Debtor Relief. The Companies shall not be Solvent, or any Company
(a) fails to pay its Debts generally as they become due, (b) voluntarily seeks,
consents to, or acquiesces in the benefit of any Debtor Relief Law, or (c)
becomes a party to or is made the subject of any proceeding provided for by any
Debtor Relief Law, other than as a creditor or claimant, that could suspend or
otherwise adversely affect the Rights of the Agents or the Banks granted in the
Loan Papers (unless, in the event such proceeding is involuntary, the petition
instituting same is dismissed within 60 days after its filing).
6.4 Attachment. The failure of any Company to have discharged within 60
days after commencement any attachment, sequestration, or similar proceeding
which, individually or together with all such other proceedings then pending,
affects assets of such Company having a value (individually or collectively) of
1 percent of Consolidated Net Worth or more.
6.5 Payment of Judgments. Any Company fails to pay any judgments or
orders for the payment of money in excess of 1 percent of Consolidated Net Worth
(individually or collectively) rendered against it or any of its assets and
either (a) any enforcement proceedings shall have been commenced by any creditor
upon any such judgment or order or (b) a stay of enforcement of any such
judgment or order, by reason of pending appeal or otherwise, shall not be in
effect prior to the time its assets may be lawfully sold to satisfy such
judgment.
6.6 Default Under Other Agreements. A default exists under any Material
Agreement to which any Company is a party, the effect of which is to cause, or
which permits the holder thereof (or a trustee or representative of such holder)
to cause, unpaid consideration of at least 1 percent of Consolidated Net Worth
(individually or in the aggregate) to become due prior to the stated maturity or
prior to the regularly scheduled dates of payment.
6.7 Antitrust Proceedings. A petition or complaint is filed before or
by any Tribunal (including, without limitation, the Federal Trade Commission,
the United States Justice Department, or the Federal Communications Commission)
seeking to cause the Borrower or any Subsidiary to divest a significant portion
of its assets or any of its Subsidiaries pursuant to any antitrust, restraint of
trade, unfair competition, or similar laws, and such petition or complaint is
not dismissed or discharged within 270 days after the filing thereof.
6.8 Misrepresentation. Either Agent or any Bank discovers that any
statement, representation, or warranty in the Loan Papers, other than, after the
initial Loan, those contained in the penultimate sentence of Section 3.4 and the
first sentence of Section 3.18,
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any Financial Statement of the Borrower, or any writing ever delivered to either
Agent or any Bank pursuant to the Loan Papers is false, misleading, or erroneous
when made or delivered in any material respect.
SECTION 7. RIGHTS AND REMEDIES.
7.1 Remedies Upon Event of Default.
(a) Should an Event of Default occur and be continuing under
Section 6.3, the commitment of the Banks to make Loans shall
automatically terminate and the entire unpaid balance of the Obligation
shall automatically become due and payable without any action of any
kind whatsoever.
(b) Should any other Event of Default occur and be continuing,
subject to any agreement among the Banks, the Agent may (and shall upon
the request of the Majority Banks), at its (or the Majority Banks')
election, do any one or more of the following: (i) If the maturity of
the Obligation has not already been accelerated under Section 7.1(a),
declare the entire unpaid balance of the Obligation, or any part
thereof, immediately due and payable, whereupon it shall be due and
payable (and notice of such declaration shall promptly be given
thereafter by the Agent to the Borrower); (ii) terminate commitments to
make Loans hereunder; (iii) reduce any claim to judgment; (iv) exercise
(or request each Bank to exercise) the Rights of offset or banker's
Lien against the interest of the Borrower in and to every account and
other property of the Borrower which are in the possession of any Bank
to the extent of the full amount of the Obligation; and (v) exercise
any and all other legal or equitable Rights afforded by the Loan
Papers, the laws of the State of Texas or any other jurisdiction as the
Agent shall deem appropriate, or otherwise, including, but not limited
to, the Right to bring suit or other proceedings before any Tribunal
either for specific performance of any covenant or condition contained
in any of the Loan Papers or in aid of the exercise of any Right
granted to the Banks in any of the Loan Papers.
7.2 Waivers. The Borrower hereby waives presentment and demand for
payment, protest, notice of intention to accelerate, notice of acceleration, and
notice of protest and nonpayment, and agrees that its liability with respect to
the Obligation, or any part thereof, shall not be affected by any renewal or
extension in the time of payment of the Obligation, by any indulgence, or by any
release or change in any security for the payment of the Obligation.
7.3 Performance by Agent. If any covenant, duty, or agreement of any
Company is not performed in accordance with the terms of the Loan Papers, the
Agent may, at its option (but subject to the approval of the Majority Banks),
perform or attempt to perform such covenant, duty, or agreement on behalf of
such Company. In such event, any amount expended by the Agent in such
performance or attempted performance shall be reasonable, payable by the
Borrower to the Agent on demand, shall become part of the Obligation, and shall
bear interest at the Default Rate from the date of such expenditure by the Agent
until
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paid. Notwithstanding the foregoing, it is expressly understood that the Agent
does not assume and shall never have, except by its express written consent, any
liability or responsibility for the performance of any covenant, duty, or
agreement of any Company.
7.4 Delegation of Duties and Rights. The Agents and the Banks may
perform any of their duties or exercise any of their Rights under the Loan
Papers by or through the Agent and their and the Agent's officers, directors,
employees, attorneys, agents, or other representatives.
7.5 Banks Not in Control. None of the covenants or other provisions
contained in this Agreement or in any other Loan Paper shall, or shall be deemed
to, give the Agents or the Banks the Right to exercise control over the assets
(including, without limitation, real property), affairs, or management of any
Company, the power of the Agents and the Banks being limited to the Right to
exercise the remedies provided in this Section 7.
7.6 Waivers by Banks. The acceptance by the Agents or the Banks at any
time and from time to time of partial payment on the Obligation shall not be
deemed to be a waiver of any Event of Default then existing. No waiver by the
Agents, the Majority Banks, or all of the Banks of any Event of Default shall be
deemed to be a waiver of any other then-existing or subsequent Event of Default.
No delay or omission by the Agents, the Majority Banks, or all of the Banks in
exercising any Right under the Loan Papers shall impair such Right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
7.7 Cumulative Rights. All Rights available to the Agents and the Banks
under the Loan Papers are cumulative of and in addition to all other Rights
granted to the Agents and the Banks at law or in equity, whether or not the
Obligation is due and payable and whether or not the Agents or the Banks have
instituted any suit for collection, foreclosure, or other action in connection
with the Loan Papers.
7.8 Application of Proceeds. Any and all proceeds ever received by the
Agents or the Banks from the exercise of any Rights pertaining to the Obligation
shall be applied to the Obligations in the order and manner set forth in Section
2.18.
7.9 Certain Proceedings. The Borrower will promptly execute and deliver
or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers the
Agents or the Banks may reasonably request in connection with the obtaining of
any consent, approval, registration, qualification, permit, license, or
authorization of any other Tribunal or other Person necessary or appropriate for
the effective exercise of any Rights under the Loan Papers. Because the Borrower
agrees that the Agents' and the Banks' remedies at law for failure of the
Borrower to comply with the provisions of this paragraph would be inadequate and
that such failure would not be adequately compensable in damages, the Borrower
agrees that the covenants of this paragraph may be specifically enforced.
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SECTION 8. AGREEMENT AMONG BANKS.
8.1 Agents.
(a) Each Bank hereby irrevocably appoints and authorizes the
Agents to act on its behalf and to exercise such powers under this Agreement as
are specifically delegated to or required of such Agent by the terms hereto,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement or the Notes (including,
without limitation, enforcement or collection of the Notes), the Agents shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Banks,
and such instructions shall be binding upon all Banks and all holders of Notes;
provided, however, that neither Agent shall be required to take any action which
exposes such Agent to personal liability or which is contrary to this Agreement
or applicable law.
(b) The Agent may resign at any time by giving written notice
thereof to the Banks, the Auction Administration Agent, and the Borrower and may
be removed as the Agent under this Agreement and the Notes at any time with
cause by all Banks other than the Agent (the "Removing Banks"). Upon any such
resignation or removal, the Majority Banks shall have the right, with the
consent of the Borrower, not to be unreasonably withheld, to appoint a successor
Agent from among the Banks (other than the resigning Agent). If no successor
Agent shall have been so appointed by the Majority Banks, and shall have
accepted such appointment, within 30 calendar days after the retiring Agent's
giving notice of resignation or the Removing Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks, with the consent of
the Borrower, not to be unreasonably withheld, appoint a successor Agent, which
shall be a commercial bank organized under the laws of the United States of
America or of any state thereof and having a combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as the Agent
hereunder and under the Notes by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement and the Notes. After any
retiring Agent's resignation or removal as the Agent hereunder and under the
Notes, the provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent under this
Agreement and the Notes.
(c) The Auction Administration Agent may resign at any time by
giving written notice thereof to the Banks, the Agent, and the Borrower and may
be removed as the Auction Administration Agent under this Agreement and the
Notes at any time with cause by all Banks other than the Auction Administrative
Agent (the "AAA Removing Banks"). Upon any such resignation or removal, the
Majority Banks shall have the right, with the consent of the Borrower, not to be
unreasonably withheld, to appoint a successor Auction Administration Agent. If
no successor Auction Administration Agent shall have been so appointed by the
Majority Banks, and shall have accepted such appointment, within 30 calendar
days after the retiring Auction Administration Agent's giving notice of
resignation
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or the AAA Removing Banks' removal of the retiring Auction Administration Agent,
then the retiring Auction Administration Agent may, on behalf of the Banks,
appoint a successor Auction Administration Agent, with the consent of the
Borrower, not to be unreasonably withheld, which shall be a commercial bank
organized under the Laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as the Auction Administration Agent hereunder and
under the Notes by a successor Auction Administration Agent, such successor
Auction Administration Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges, and duties of the retiring Auction
Administration Agent, and the retiring Auction Administration Agent shall be
discharged from its duties and obligations under this Agreement and the Notes.
After any retiring Auction Administration Agent's resignation or removal as the
Auction Administration Agent hereunder and under the Notes, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Auction Administration Agent under this
Agreement and the Notes.
(d) If either Agent fails to take any action under any Loan
Paper after an Event of Default and within a reasonable time after being
reasonably requested to do so by any Bank (when such Bank is entitled to make
such request under the Loan Papers and after such requesting Bank has obtained
the concurrence of such other Banks as may be required hereunder), such Agent
shall not suffer or incur any liability as a result of such failure or refusal,
but such requesting Bank may request such Agent to resign as such Agent,
whereupon such Agent shall so resign upon receiving such request.
(e) The Agent, in its capacity as a Bank, shall have the same
Rights under the Loan Papers as any other Bank and may exercise the same as
though it were not acting as the Agent or the Auction Administration Agent; the
term "Bank" shall, unless the context otherwise indicates, include the Agent;
and any resignation by the Agent hereunder shall not impair or otherwise affect
any Rights which it has or may have in its capacity as an individual Bank.
(f) Subject in all respects to the terms and conditions of the
Loan Papers, the Agents may be engaged in, or may hereafter engage in, one or
more loan, letter of credit, leasing, or other financing transactions
(collectively, the "other financings") not the subject of the Loan Papers, with
one or more of the Companies, or may act as trustee on behalf of, or depositary
for, or otherwise engage in other business transactions with one or more of the
Companies, in each case with no responsibility to account therefor to the Banks.
Without limiting Rights to which the Banks are specifically entitled under the
Loan Papers, no other Banks shall have, by virtue of their being parties hereto,
any interest in (i) any such other financings, (ii) any present or future
guaranties by or for the account of any Company which are not contemplated or
included in the Loan Papers, (iii) any present or future offset exercised by
such Agent in respect of such other financings, or (iv) any present or future
property taken as security for any such other financings even if such property
may become security for the obligations of any Company arising under the Loan
Papers by reason of a general description of indebtedness related to any such
other financings; provided that, if any payments in respect of such guaranties
or such property or the proceeds thereof shall be
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applied to reduce the Obligations, then each Bank shall be entitled to share in
such application according to its pro rata part thereof.
8.2 Expenses. Each Bank shall pay its pro rata part of any reasonable
expenses (including, without limitation, court costs, reasonable attorneys'
fees, and other costs of collection) incurred by either Agent in connection with
any of the Loan Papers if such Agent does not receive reimbursement therefor
from other sources within 60 days after incurred; provided that each Bank shall
be entitled to receive its pro rata part of any reimbursement for such expenses,
or part thereof, which such Agent subsequently receives from such other sources.
8.3 Proportionate Absorption of Losses. Except as herein provided,
nothing in the Loan Papers shall be deemed to give any Bank any advantage over
any other Bank insofar as the portion of the Obligation arising under the Loan
Papers is concerned, or to relieve any Bank from absorbing its pro rata part of
any losses sustained with respect to the Obligation (except to the extent
unilateral actions or inactions by any Bank result in any credit, allowance,
setoff, defense, or counterclaim solely with respect to all or any part of such
Bank's pro rata part of the Obligation).
8.4 Delegation of Duties; Reliance. Each Agent may exercise any of its
duties under the Loan Papers by or through its officers, directors, employees,
attorneys, or agents (collectively, "Representatives"), and each Agent and its
Representatives shall (a) be entitled to rely upon (and shall be protected in
relying upon) any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telecopy, telegram, telex or teletype message, statement,
order, or other documents or conversation believed by it or them to be genuine
and correct and to have been signed or made by the proper Person and, with
respect to legal matters, upon opinion of counsel selected by such Agent, (b) be
entitled to deem and treat each Bank as the owner and holder of its pro rata
part of the Obligation for all purposes until, subject to Section 9.20, written
notice of the assignment or transfer thereof shall have been given to and
received by such Agent (and, any request, authorization, consent, or approval of
any Bank shall be conclusive and binding on each subsequent holder, assignee, or
transferee of such Lender's pro rata part of the Obligation or Participant
therein), and (c) not be deemed to have notice of the occurrence of an Event of
Default unless an officer of such Agent has actual knowledge thereof or such
Agent has been notified thereof by a Bank or the Borrower.
8.5 Limitation of Agents' Liability.
(a) Neither of the Agents nor any of their respective
Representatives (as defined in Section 8.4) shall be liable for any action taken
or omitted to be taken by it or them under the Loan Papers in good faith and
believed by it or them to be within the discretion or power conferred upon it or
them by the Loan Papers or be responsible for the consequences of any error of
judgment, except for fraud, gross negligence, or willful misconduct (IT BEING
THE EXPRESS INTENTION OF THE PARTIES THAT THE AGENTS AND THEIR RESPECTIVE
REPRESENTATIVES SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS RESULTING FROM
THEIR
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ORDINARY CONTRIBUTORY NEGLIGENCE OR UNDER CLAIMS OF STRICT
LIABILITY), and neither of the Agents nor any of their respective
Representatives has a fiduciary relationship with any Bank by virtue of the Loan
Papers (provided that nothing herein shall negate the obligation of each Agent
to account for funds received by it for the account of any Bank).
(b) Unless indemnified to its satisfaction against loss, cost,
liability, and expense, neither Agent shall be compelled to do any act under the
Loan Papers or to take any action toward the execution or enforcement of the
powers thereby created or to prosecute or defend any suit in respect of the Loan
Papers. If either Agent requests instructions from the Banks or from the
Majority Banks, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with any Loan
Paper, such Agent shall be entitled (but shall not be required) to refrain
(without incurring any liability to any Person by so refraining) from such act
or action unless and until it has received such instructions. In no event,
however, shall either Agent or any of its Representatives be required to take
any action which it or they reasonably determine could incur for it or them
criminal or onerous civil liability.
(c) Neither Agent shall be responsible in any manner to any
Bank or any Participant for, and each Bank represents and warrants that it has
not relied upon either Agent in respect of, (i) the creditworthiness of the
Borrower and the risks involved to such Bank, (ii) the effectiveness,
enforceability, genuineness, validity, or the due execution of any Loan Paper,
(iii) any representation, warranty, document, certificate, report, or statement
made therein or furnished thereunder or in connection therewith, or (iv)
observation of or compliance with any of the terms, covenants, or conditions of
any Loan Paper on the part of any Company. Each Bank also acknowledges and
agrees that it will, independently and without reliance upon either Agent or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement. Each Bank agrees to indemnity each Agent
and its respective Representatives and hold them harmless from and against (but
limited to such Bank's pro rata part of) any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, reasonable
expenses, and reasonable disbursements of any kind or nature whatsoever which
may be imposed on, asserted against, or incurred by them in any way relating to
or arising out of the Loan Papers or any action taken or omitted by them under
the Loan Papers, except to the extent the same result solely from fraud, gross
negligence, or willful misconduct by such Agent or its Representatives (IT BEING
THE EXPRESS INTENTION OF THE PARTIES THAT THE AGENTS AND THEIR RESPECTIVE
REPRESENTATIVES SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS RESULTING FROM
THEIR ORDINARY CONTRIBUTORY NEGLIGENCE OR UNDER CLAIMS OF STRICT LIABILITY).
8.6 Default. Upon the occurrence and continuance of an Event of
Default, the Banks agree to promptly confer in order that the Majority Banks
(or, if required by Section 9.15, all Banks) may agree upon a course of action
for the enforcement of the Rights of the Banks; provided that the Agent shall be
entitled (but not obligated) to proceed to take any actions necessary in its
reasonable judgment to preserve the Rights of the Agents and the
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Banks hereunder, pending agreement by the Majority Banks (or, if required by
Section 9.15, all Banks) on the course of action to be taken.
8.7 Limitation of Liability of Banks. No Bank or any Participant shall
incur any liability to any other Bank or Participant except for acts or
omissions in bad faith, and no Bank or any Participant shall incur any liability
to any Company or any other Person for any act or omission of any other Bank or
any Participant.
8.8 Relationship of Banks. Nothing herein shall be construed as
creating a partnership or joint venture among the Agents, the Agents and the
Banks, or the Banks.
8.9 Foreign Banks. Each Bank that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof (a)
represents to the Agents and the Borrower that (i) under applicable Laws and
treaties no Taxes will be required to be withheld by the Agents or the Borrower
with respect to any payments to be made to such Bank in respect of the
Obligation and (ii) it has furnished to the Agent and the Borrower two duly
completed copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Bank claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder), and (b) covenants to (i) provide the Agent and the Borrower a new
Form 4224 or Form 1001 upon the obsolescence of any previously delivered form in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Bank and (ii) comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
8.10 Benefits of Agreement. Except for requiring the Borrower's consent
under Section 8.1(b) and the representations and covenants in Section 8.9 in
favor of the Borrower, none of the provisions of this Section 8 shall inure to
the benefit of any Company or any Person other than the Agents, the Banks, and
the Participants; consequently, neither any Company nor any other Person shall
be entitled to rely upon, or to raise as a defense, in any manner whatsoever,
the failure of either Agent or any Bank to comply with such provisions.
SECTION 9. MISCELLANEOUS.
9.1 Changes in GAAP. All accounting and financial terms used in any of
the Loan Papers and the compliance with each covenant contained in the Loan
Papers which relates to financial matters shall be determined in accordance with
GAAP, except to the extent that a deviation therefrom is expressly stated in
such Loan Papers. Should a change in GAAP require a change in any method of
accounting or should any voluntary change in the accounting methods be permitted
pursuant to Section 5.19, then such change shall not result in an Event of
Default if, at the time of such change, such Event of Default had not occurred
and was not then continuing, based upon the former methods of accounting used by
or on behalf of the Borrower; provided that, after any such change in accounting
methods, the Financial Statements required to be delivered shall either be (a)
supplemented with financial information prepared in comparative form, in
compliance with the former method of
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accounting used prior to such change, as well as with the new method or methods
of accounting and, for the purpose of determining whether an Event of Default
has occurred, Lenders shall look solely to that portion of such supplemental
information that complies with the former methods of accounting, or (b)
supplemented with financial information prepared in compliance with such new
method or methods of accounting but accompanied by such information, in form and
detail satisfactory to Lenders, that will allow Lenders to readily determine the
effect of such changes in accounting methods on such Financial Statements, and,
for the purpose of determining whether an Event of Default has occurred, Lenders
shall look solely to such supplemental information as adjusted to reflect
compliance with such former method or methods of accounting.
9.2 Money and Interest. Unless stipulated otherwise (a) all references
in any of the Loan Papers to "dollars," "money," "payments," or other similar
financial or monetary terms are references to currency of the United States of
America and (b) all references to interest are to simple and not compound
interest.
9.3 Number and Gender of Words. Whenever in any Loan Paper the singular
number is used, the same shall include the plural where appropriate, and vice
versa; and words of any gender in any Loan Paper shall include each other gender
where appropriate. The words "herein," "hereof," and "hereunder," and other
words of similar import refer to the relevant Loan Paper as a whole and not to
any particular part or subdivision thereof.
9.4 Headings. The headings, captions, and arrangements used in any of
the Loan Papers are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify, or modify the terms of the Loan Papers, nor
affect the meaning thereof.
9.5 Exhibits. If any Exhibit, which is to be executed and delivered,
contains blanks, the same shall be completed correctly and in accordance with
the terms and provisions contained and as contemplated herein prior to, at the
time of, or after the execution and delivery thereof.
9.6 Communications. Unless specifically otherwise provided, whenever
any Loan Paper requires or permits any consent, approval, notice, request, or
demand from one party to another, such communication must be in writing (which
may be by telex or telecopy) to be effective and shall be deemed to have been
given on the day actually delivered or, if mailed, on the Business Day it is
received by the party to be notified at the address indicated on Schedule 1
(unless changed by notice pursuant hereto), properly stamped, sealed, and
deposited in the appropriate official postal service.
9.7 Form and Number of Documents. Each agreement, document, instrument,
or other writing to be furnished under any provision of this Agreement must be
in form and substance and in such number of counterparts as may be reasonably
required by the Agent and its counsel.
9.8 Exceptions to Covenants. The Borrower shall not take any
action or fail to take any action which is permitted as an exception to any of
the covenants contained in any
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of the Loan Papers if such action or omission would result in the breach of any
other covenant contained in any of the Loan Papers.
9.9 Survival. All covenants, agreements, undertakings, representations,
and warranties made in any of the Loan Papers (a) shall survive all closings
under the Loan Papers, (b) except as otherwise indicated, shall not be affected
by any investigation made by any party, and (c) unless otherwise provided herein
shall terminate upon the later of the termination of this Agreement and the
payment in full of the Obligation.
9.10 Governing Law. The Loan Papers are being executed and delivered,
and are intended to be performed, in the State of Texas, and the laws (other
than conflict-of-laws provisions thereof) of such State and of the United States
of America shall govern the Rights and duties of the parties hereto and the
validity, construction, enforcement, and interpretation of the Loan Papers.
9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY HERETO, IN EACH
CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (a) IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF
TEXAS AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY
LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE LOAN PAPERS AND THE
OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY TEXAS LAW, (b) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF ANY LITIGATION ARISING OUT OF OR IN
CONNECTION WITH THE LOAN PAPERS AND THE OBLIGATION BROUGHT IN DISTRICT COURTS OF
DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, DALLAS DIVISION, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM,
(d) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN DALLAS,
TEXAS, IN CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO THE AGENT
EVIDENCE THEREOF, IF REQUESTED, (e) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (f) IRREVOCABLY AGREES THAT ANY LEGAL
PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS ON THE OBLIGATION MAY BE BROUGHT IN ONE OF THE AFOREMENTIONED
COURTS, AND (g) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RIGHT TO A JURY TRIAL IN ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS AND THE OBLIGATION.
9.12 Maximum Interest Rate. Regardless of any provision contained
in any of the Loan Papers, no Bank shall ever be entitled to contract for,
charge, take, reserve, receive, or
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apply, as interest on the Obligation, or any part thereof, any amount in excess
of the Highest Lawful Rate, and, in the event the Banks ever contract for,
charge, take, reserve, receive, or apply as interest any such excess, it shall
be deemed a partial prepayment without penalty of principal and treated
hereunder as such and any remaining excess shall be refunded to the Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Borrower and the Banks shall,
to the maximum extent permitted under applicable Law, (a) treat all Borrowings
as but a single extension of credit (and the Banks and the Borrower agree that
such is the case and that provision herein for multiple Borrowings and multiple
Notes is for convenience only), (b) characterize any nonprincipal payment as an
expense, fee, or premium rather than as interest, (c) exclude voluntary
prepayments and the effects thereof, and (d) "spread" the total amount of
interest throughout the entire contemplated term of the Obligation; provided
that, if the Obligation is paid and performed in full prior to the end of the
full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Highest Lawful Rate, the Banks shall
refund such excess, and, in such event, the Banks shall not be subject to any
penalties provided by any Law for contracting for, charging, taking, reserving,
or receiving interest in excess of the Highest Lawful Rate. To the extent the
Laws of the State of Texas are applicable for purposes of determining the
"Highest Lawful Rate," such term shall mean the "indicated rate ceiling" from
time to time in effect under Article 1.04, Title 79, Revised Civil Statutes of
Texas, as amended, or, if permitted by applicable Law and effective upon the
giving of the notices required by such Article 1.04 (or effective upon any other
date otherwise specified by applicable Law), the "monthly ceiling," the
"quarterly ceiling," or "annualized ceiling" from time to time in effect under
such Article 1.04, whichever the Banks shall elect to substitute for the
"indicated rate ceiling," and vice versa, each such substitution to have the
effect provided in such Article 1.04; and the Banks shall be entitled to make
such election from time to time and one or more times and, without notice to the
Borrower, to leave any such substitute rate in effect for subsequent periods in
accordance with subsection (h)(1) of such Article 1.04. Pursuant to Article
15.10(b) of Chapter 15, Subtitle 79, Revised Civil Statutes of Texas, 1925, as
amended, the Borrower agrees that such Chapter 15 (which regulates certain
revolving credit loan accounts and revolving triparty accounts) shall not govern
or in any manner apply to the Obligation.
9.13 Invalid Provisions. If any provision in any Loan Paper is held to
be illegal, invalid, or unenforceable, such provision shall be fully severable;
the appropriate Loan Paper shall be construed and enforced as if such provision
had never comprised a part thereof; and the remaining provisions thereof shall
remain in full force and effect and shall not be affected by such provision or
by its severance therefrom. Furthermore, in lieu of such provision there shall
be added automatically as a part of such Loan Paper a provision as similar
thereto as may be possible and be legal, valid, and enforceable.
9.14 Entirety. A LOAN AGREEMENT IN WHICH THE AMOUNT
INVOLVED EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE
AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR
BY THAT PARTY'S AUTHORIZED REPRESENTATIVE. THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE DETERMINED SOLELY
FROM WRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY
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PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH
WRITINGS. THIS AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE OTHER
WRITTEN LOAN PAPERS EXECUTED BY THE BORROWER, THE AGENTS, AND THE BANKS (OR BY
THE BORROWER FOR THE BENEFIT OF THE AGENTS OR ANY BANK) REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS PARAGRAPH IS INCLUDED
HEREIN PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, AS
AMENDED FROM TIME TO TIME.
9.15 Amendments, Etc. No amendment or waiver of any provision of any
Loan Paper nor consent to any departure therefrom by the Borrower shall be
effective unless the same shall be in writing and signed by the Majority Banks
and the Borrower, and then, such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver, or consent shall, unless in
writing and signed by all Banks, do any of the following: (a) increase or
decrease the Commitments, or extend the due date for payment of any of the
Obligation, (b) reduce the principal amount of Loans due hereunder or any
interest rate or the amount of fees applicable to the Obligation (except such
reductions as are contemplated by this Agreement), (c) amend or waive compliance
with this Section 9.15 or (d) amend the definition of Majority Banks; provided
that no amendment, waiver, or consent shall, unless in writing and signed by the
Agent in addition to the Banks required above to take such action, affect the
rights or duties of the Agent under this or any other Loan Paper.
9.16 Waivers. No course of dealing nor any failure or delay by the
Agents, any Bank, or any of their respective officers, directors, employees,
agents, representatives, or attorneys with respect to exercising any Right of
the Banks hereunder shall operate as a waiver thereof. A waiver must be in
writing and signed by the Banks (or the Majority Banks, if permitted hereunder)
to be effective, and such waiver will be effective only in the specific instance
and for the specific purpose for which it is given.
9.17 Taxes. Any Taxes (excluding income taxes) payable or ruled
payable by any Tribunal in respect of this Agreement or any other Loan Paper
shall be paid by the Borrower, together with interest and penalties, if any.
9.18 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, the Banks shall not be obligated to extend
credit to the Borrower in violation of any Law.
9.19 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one Agreement; but, in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not
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necessary that each Bank execute the same counterpart so long as identical
counterparts are executed by the Borrower and each Bank. This Agreement shall
become effective when counterparts hereof shall have been executed and delivered
to the Agent by each Bank, the Agents, and the Borrower, or, in the case only of
the Banks, when the Agent shall have received telecopied, telexed, or other
evidence satisfactory to it that each Bank has executed and is delivering to the
Agent a counterpart hereof.
9.20 Successors and Assigns; Participations; Assignments.
(a) This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and
assigns, except that (i) the Borrower may not, directly or indirectly,
assign or transfer, or attempt to assign or transfer, any of its
Rights, duties, or obligations under any Loan Papers to which it is a
party without the express written consent of all Banks, and (ii) except
as permitted under Section 2.20 and this Section 9.20, no Bank may
transfer, pledge, assign, sell participations in, or otherwise encumber
its portion of the Obligation.
(b) Subject to the provisions of this Section 9.20, any Bank
(other than a Designated Lender) may sell to one or more Persons (each
a "Participant") participating interests (in each case not less than
$2,500,000 and in an integral multiple of $500,000) in its portion of
the Obligation; provided that each Bank's Commitment must be at least
50 percent of its Commitment on the date of this Agreement at all times
and the Agent and the Borrower shall have the right to approve any
Participant which is not a financial institution. In the event of any
such sale to a Participant, (i) such Bank shall remain a "Bank" under
this Agreement and the Participant shall not constitute a "Bank"
hereunder, (ii) such Bank's obligations under this Agreement shall
remain unchanged, (iii) such Bank shall remain solely responsible for
the performance thereof, (iv) such Bank shall remain the holder of its
share of the Obligation for all purposes under this Agreement, and (v)
the Borrower and the Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's Rights and obligations
under the Loan Papers. Participants shall have no Rights under the Loan
Papers, other than certain voting rights as provided below. Each Bank
shall be entitled to obtain (on behalf of its Participants) the
benefits of Section 2 with respect to all participations in its Loans
outstanding from time to time. No Bank shall sell any participating
interest under which the Participant shall have any Rights to approve
any amendment, modification, or waiver of any Loan Paper, except to the
extent such amendment, modification, or waiver extends the due date for
payment of any amount in respect of principal, interest, or fees due
under the Loan Papers, or reduces the interest rate or the amount of
principal or fees applicable to the Obligation (except such reductions
as are contemplated by this Agreement); provided that in those cases
where a Participant is entitled to the benefits of Section 2 or a Bank
grants Rights to its Participants to approve amendments to or waivers
of the Loan Papers respecting the matters previously described in this
sentence, such Bank must include a voting mechanism in the relevant
participation agreement whereby a majority of such Bank's portion of
the Obligation (whether held
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by such Bank or participated) shall control the vote for all of such
Bank's portion of the Obligation. Except in the case of the sale of a
participating interest to a Bank, the relevant participation agreement
shall not permit the Participant to transfer, pledge, assign, sell
participations in, or otherwise encumber its portion of the Obligation.
(c) Subject to the provisions of this Section 9.20, any Bank
may, with the prior written consent of the Agent and the Borrower
(which will not be unreasonably withheld), sell to one or more
financial institutions (each a "Purchaser") a proportionate part (in
each case not less than $2,500,000 and in an integral multiple of
$500,000) of its Rights and obligations under the Loan Papers pursuant
to an assignment agreement between such Purchaser and such Bank;
provided that each Bank's Commitment must be at least 50 percent of its
Commitment on the date of this Agreement at all times and provided,
further, that NBD Bank may assign all of its Rights and obligations
under the Loan Papers to one or more of its Affiliates in connection
with a corporation reorganization of NBD Bank and its affiliates
without the consent of Agent or Borrower. Upon (i) delivery of an
executed copy of the assignment to the Borrower and the Agent and (ii)
payment of a fee of $2500 from such Bank to the Agent, from and after
the assignment's effective date (which shall be after the date of such
delivery), such Purchaser shall for all purposes be a Bank hereunder
and shall have all the Rights and obligations of a Bank hereunder to
the same extent as if it were an original party hereto with commitments
as set forth in the assignment agreement, and the transferor Bank shall
be released from its obligations hereunder to a corresponding extent.
Upon any transfer pursuant to this Section 9.20(c), Schedule 1 shall
automatically be deemed to reflect the name, address, and Committed Sum
of such Purchaser and the Agent shall deliver to the Borrower and the
Banks an amended Schedule 1 reflecting such changes. A Purchaser shall
be subject to all the provisions in this Section 9.20 the same as if it
were a Bank as of the date hereof. Notwithstanding anything herein to
the contrary, no Designated Lender may make an assignment pursuant to
the provisions of this Section 9.20(c), other than to the Bank which
originally designated the Designated Lender.
(d) Each Bank (other than a Designated Lender) may designate a
Designated Lender to make Competitive Loans as a Bank pursuant to this
Agreement; provided, however, that (i) no such Bank shall be entitled
to make more than one such designation, (ii) each such Bank making such
designation shall retain the right to make Competitive Bid Loans as a
Bank pursuant to this Agreement and (iii) each such designation shall
be to a Designated Lender approved by the Borrower, the Agent and the
Auction Administration Agent, and the parties to each such designation
shall execute and deliver a Designation Agreement, for acceptance by
the Borrower, the Agent and the Auction Administration Agent. Upon such
execution, delivery, and acceptance, and the execution and delivery by
the Borrower to the Designated Lender of a Competitive Note in the same
principal amount as that previously delivered to the Bank making such
designation, from and after the effective date specified in each
Designated Agreement, the designee thereunder shall be a party hereto
with the right to make Competitive Bid Loans as a Bank pursuant to this
Agreement, and shall have
-50-
the obligations related thereto. By executing and delivering a
Designation Agreement, the Bank making the designation thereunder and
its designee thereunder confirm and agree with each other and the other
parties hereto as follows:
(i) such Bank makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement or any other Loan Paper or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other Loan Paper or any
other instrument or document furnished pursuant hereto or
thereto;
(ii) such Bank makes no representation or warranty
and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under this Agreement or
any other Loan paper or any other instrument or document
furnished pursuant hereto or thereto;
(iii) such designee confirms that it has received a
copy of this Agreement and each other Loan Paper, together
with copies of the Current Financials and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Designation
Agreement;
(iv) such designee will, independently and without
reliance upon the Agent, the Auction Administration Agent,
such designating Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or
not taking action under this Agreement or any other Loan
Paper;
(v) such designee confirms that it is a Designated
Lender;
(vi) such designee appoints and authorizes (A) the
Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and
each other Loan Paper as are delegated to the Agent by the
terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto and (B) the
Auction Administration Agent to take such actions as agent on
its behalf and to exercise such powers and discretion under
this Agreement and each other Loan Paper as are delegated to
the Auction Administration Agent by the terms hereof and
thereof, together with such powers and discretion as are
reasonably incidental thereto; and
(vii) such designee agrees that it will perform in
accordance with their terms all of the obligations which by
the terms of this Agreement and each other Loan Paper are
required to be performed by it as a Bank.
-51-
(e) If pursuant to Section 9.20(c) any interest in the
Obligation is transferred to any Purchaser which is organized under the
laws of any jurisdiction other than the United States of America or any
State thereof, the transferor Bank shall cause such Purchaser,
concurrently with the effectiveness of such transfer, (i) to represent
to the transferor Bank (for the benefit of the transferor Bank, the
Agent, and the Borrower) that under applicable Laws and treaties no
Taxes will be required to be withheld by the Agent, the Borrower, or
the transferor Bank with respect to any payments to be made to such
Purchaser in respect of the Obligation, (ii) to furnish to each of the
transferor Bank, the Agent, and the Borrower two duly completed copies
of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Purchaser claims entitlement to
complete exemption from U.S. federal withholding tax on all interest
payments hereunder), and (iii) to agree (for the benefit of the
transferor Bank, the Agent, and the Borrower) to provide the transferor
Bank, the Agent, and the Borrower a new Form 4224 or Form 1001 upon the
obsolescence of any previously delivered form in accordance with
applicable U.S. laws and regulations and amendments duly executed and
completed by such Purchaser, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding
tax exemption.
9.21 Confidentiality. All nonpublic information furnished by the
Companies to the Agents or the Banks in connection with the Loan Papers and the
transactions contemplated thereby will be treated as confidential, but nothing
herein contained shall limit or impair the Agent's or any Bank's right, and the
Agent and the Banks shall be entitled, (a) to disclose the same to any Tribunal
or as otherwise required by Law or to any prospective or actual Participant or
Purchaser or to the respective affiliates, directors, officers, employees,
attorneys, and agents of any prospective or actual Participant or Purchaser
(provided that such prospective or actual Participant or Purchaser has agreed in
writing to comply with this Section 9.21), (b) to use such information to the
extent pertinent to an evaluation of the Obligation, (c) to enforce compliance
with the terms and conditions of the Loan Papers, and (d) to take any action
which the Agent or any Bank deems necessary to protect its interests if an Event
of Default has occurred and is continuing.
9.22 Conflicts and Ambiguities. Any conflict or ambiguity between the
terms and provisions herein and terms and provisions in any other Loan Paper
shall be controlled by the terms and provisions herein.
9.23 General Indemnification. The Borrower shall indemnity, protect,
and hold the Agents and the Banks and their respective parents, subsidiaries,
directors, officers, employees, representatives, agents, successors, assigns,
and attorneys (collectively, the "Indemnified Parties") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses (including, without
limitation, attorneys' fees and legal expenses whether or not suit is brought
and settlement costs), and disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Indemnified Parties, in
any way relating to or arising out of the Loan Papers or any of the transactions
contemplated therein (collectively, the
-52-
"Indemnified Liabilities"), to the extent that any of the Indemnified
Liabilities results, directly or indirectly, from any claim made or action,
suit, or proceeding commenced by or on behalf of any Person other than the
Indemnified Parties; PROVIDED, HOWEVER, THAT ALTHOUGH EACH INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO BE INDEMNIFIED FROM ITS OWN ORDINARY NEGLIGENCE, NO
INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN
FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. The provisions of and
undertakings and indemnification set forth in this paragraph shall survive the
satisfaction and payment of the Obligation and termination of this Agreement for
the period of time set forth in any applicable statute of limitations.
9.24 Investment Representation. The Notes are being acquired by the
Banks for their own respective account for investment and not with the view to,
or for sale in connection with, any distribution thereof. The Banks understand
that the Notes will not be registered under the Securities Act of 1933 or any
securities act of any state pursuant to an exemption from the registration
provisions thereof. Each Bank shall indemnify the Borrower against and hold it
harmless from any claim, and any cost or expense therefrom, that the Borrower
shall have committed a violation of applicable Law by virtue of the exercise by
such Bank of its right to sell participations or make assignments hereunder.
-53-
EXECUTED as of the day and year first mentioned.
CENTURY TELEPHONE ENTERPRISES,
INC.
By /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
--------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
BANK ONE, TEXAS, N.A
as the Agent, the Auction Administration
Agent, and a Bank
By /s/ ▇▇▇▇ Points
--------------------------
Name: ▇▇▇▇ Points
Title: Vice President
NBD BANK
By /s/ D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
FIRST NATIONAL BANK OF COMMERCE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Group Executive
PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-55-
SCHEDULE 1
Parties, Addresses, Committed Sums, and Wiring Information
Borrower All notices confirming amounts borrowed and
the interest rate thereon, responses to
Competitive Bid Requests, notices regarding
amounts of any principal or interest payments
due and any ▇▇▇▇▇▇▇▇ for Facility Fees should
be directed to:
Century Telephone Enterprises, Inc.
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director of Treasury Services
FAX No.: ▇▇▇-▇▇▇-▇▇▇▇
Other written communications:
Century Telephone Enterprises, Inc.
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
FAX No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Secretary and General Counsel
Century Telephone Enterprises, Inc.
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FAX No.: ▇▇▇-▇▇▇-▇▇▇▇
Agent Bank One, Texas, N.A.
-----
Bank One Center
Third Floor
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Points
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (Fax)
Copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
FAX No.: 214/▇▇▇-▇▇▇▇
1-1
SCHEDULE 1
Banks Commitment
All notices regarding borrowings,interest rates, Competitive Bid Requests, and
amounts due should be directed to:
Bank One, Texas, N.A. $ 27,000,000
Domestic and Eurodollar Lending Office
Bank One Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Points
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
NBD Bank $ 13,000,000
Domestic and Eurodollar Lending Office
NBD Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ $ 10,000,000
Domestic and Eurodollar Lending Office
First National Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Wachovia Bank of Georgia, N.A. $ 10,000,000
Domestic an Eurodollar Lending Office
Wachovia Corporate Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
PNC Bank, National Association $ 10,000,000
Domestic and Eurodollar Lending Offices
PNC Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.
Location of account: Bank One, Texas, N.A.
ABA#: ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
A/C# Account #0109904045
(reference Century Telephone)
THE BORROWER
Location of account: First American Bank & Trust of Louisiana
(Monroe, Louisiana)
ABA#: ▇▇▇▇▇▇▇▇▇
A/C#: 13-044-3
Reference: Century Telephone Enterprises, Inc.
(Immediate advice to Treasury Department, 318-388-9613)
NBD BANK
Location of account: NBD Bank, N.A.
ABA #: ▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan Department
A/C#: 0436527
Reference: Century Telephone
1-4
FIRST NATIONAL BANK OF COMMERCE
Location of account: First National Bank of Commerce
(Main Office)
ABA #: ▇▇▇▇▇▇▇▇▇
Attention: Loan Operations
A/C#: 1343623-4999
Reference: Century Telephone
WACHOVIA BANK OF GEORGIA, N.A.
Location of account: Wachovia Bank of Georgia, N.A.
ABA #: ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
A/C#: ▇▇-▇▇▇-▇▇▇
Reference: Century Telephone
PNC BANK, NATIONAL ASSOCIATION
Location of account: PNC Bank, National Association
ABA #: ▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan Operations
A/C#: Loan Suspense Account #▇▇▇-▇▇-▇▇▇
Reference: Century Telephone
1-5
SCHEDULE 2
Permitted Liens
1. Any Lien securing Debt incurred for the purchase or capital lease of
one or more assets, if such Lien encumbers only the assets so purchased
or leased.
2. Pledges or deposits made to secure payment of workers' compensation, or
to participate in any fund in connection with workers' compensation,
unemployment insurance, pensions, or other social security programs.
3. Good-faith pledges or deposits made to secure performance of bids,
tenders, contracts (other than for the repayment of borrowed money), or
leases, or to secure statutory obligations, surety or appeal bonds, or
indemnity, performance, or other similar bond in the ordinary course of
business.
4. Encumbrances and restrictions on the use of real property which do not
materially impair such property.
5. The following, if either (a) no amounts are due and payable and no Lien
has been filed or agreed to or (b) the validity or amount thereof is
being contested in good faith by lawful proceedings diligently
conducted, reserve or other provision required by GAAP has been made,
levy and execution thereon have been (and continue to be) stayed, and
neither the value nor use of the property in question are materially
affected:
a. Liens for Taxes;
b. Liens upon, and defects of title to, property, including any attachment
of property or other legal process prior to adjudication of a dispute on
the merits;
c. Liens of mechanics, materialmen, warehousemen, carriers, and landlords,
and similar Liens; and
d. Adverse judgments on appeal.
6. Liens in favor of the United States Department of Agriculture, Rural
Electrification Administration or Rural Telephone Bank or similar lenders
such as the Rural Telephone Finance Cooperative.
7. Liens existing on any property of a Subsidiary existing at the time when
it became such, which were not created with a view of its becoming a
Subsidiary, provided that (a) the principal amount of the Debt secured by
each such Lien shall not exceed the cost (which shall be deemed to include
the amount of all Debt secured by Liens, including existing Liens, on such
property) of such property to such Subsidiary, or the fair value of such
property (without deduction of the Debt secured by Liens on such property)
at the time of its becoming a Subsidiary, whichever is the lesser, and (b)
the Debt secured by such Liens may not be increased, extended, renewed or
2-1
continued beyond its original stated maturity if such increase,
extensions or renewal would result in a Default under Section 5.23 or
Section 5.24.
8. Liens either on shares of stock of a corporation which, when such Liens
arise, concurrently becomes a Subsidiary or on all or substantially all
of the assets of a corporation arising in connection with the purchase
or acquisition thereof by the Company, provided that the Debt secured
by such Liens may not be increased or extended, renewed or continued
beyond its original stated maturity if such increase, extensions or
renewal would result in a Default under Section 5.23 or Section 5.24.
9. Liens on property of a Subsidiary (other than on the stock of
Subsidiary except to the extent permitted in paragraph 8 above)
securing obligations owing to the Borrower or a wholly-owned Subsidiary
or securing indebtedness of such Subsidiary created, assumed or
incurred after the date hereof, the creation, assumption or incurrence
of which would not create a Default under Section 5.23 or Section 5.24
hereof.
10. Liens existing on the date hereof.
11. Except as otherwise prohibited in paragraphs 7 and 8 above, Liens
securing extensions and renewals of the Debt originally secured thereby.
2-2
SCHEDULE 3.6
MATERIAL LITIGATION
1. CASE: MBF Corporation vs. Century Business Communications
NATURE OF CASE: Tortious interference with a business relationship (suit
filed 7/30/90)
CLAIM AMOUNT: Original claim amount $500,000 + $2,500,000 in
punitive damages
COMMENTS: Trial was held and a summary judgment granted in
Century's favor. Appealed to MS Supreme Court.
Adverse decision is not expected.
2. CASE: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Individually and d/b/a Southwest
Cellular vs. McAllen Cellular Telephone Company
NATURE OF CASE: Case was originally against Cellutel and is a dispute over
owed commissions. Nature of case has changed to
deceptive trade practices.
COMMENTS: 6th Amended Petition to Complaint mentions claims in
excess of $1,000,000. However, we are still trying to
evaluate our estimate of actual damages which will
probably be between $18,000 and $30,000 for lost
commissions.
3. CASE: ▇▇▇▇▇▇▇ ▇▇▇▇ vs. Century Cellunet, Inc., et al
NATURE OF CASE: Sexual harassment, assault and battery. Case filed
3/23/95
COMMENTS: Originally filed as an EEOC complaint in McAllen,
Texas. Suit was filed in ▇▇▇▇▇▇▇ County, Texas.
Unspecified damages as of yet. Listed for disclosure.
SCHEDULE 3.12
Transactions with Affiliates
NONE
SCHEDULE 3.17
Business of Companies
A. Borrower
The Borrower directly or indirectly owns the voting stock of the
Subsidiaries named in Exhibit 21 of the Borrower's most recent annual report
filed with the Securities and Exchange Commission on Form 10K and is active in
acquiring additional Subsidiaries, businesses, or assets for the provision of
communications products and services. The Borrower directly owns no assets for
the provision of communications services, but it provides or arranges financing
and provides general management, and other operating services to its operating
Subsidiaries.
B. Subsidiaries
The Subsidiaries named in Exhibit 21 of the Borrower's most recent
annual report filed with the Securities and Exchange Commission on Form 10K are
engaged in providing telephone and/or other communication service to consumers
or they provide services to other Subsidiaries and other telecommunications
companies.
Local telephone service is provided in the Subsidiaries' respective
service area. Long distance toll service is provided over facilities partially
owned by the telephone Subsidizes and interconnected with other telephone
companies and with nationwide toll networks of American Telephone and Telegraph
Company and other long distance carriers. Other communication services include
facilities for private line service teletypewriter, microwave, long distance,
data transmission, cellular mobile telephone, mobile radio telephone, paging,
wide area toll service (WATS), and voice messaging.
Other services provided include management, finance, billing,
accounting, engineering, purchasing, data processing, printing and other
business communications products, light manufacturing, and installation and
repair of central office equipment.
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
_____________ ▇▇____
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.
as Auction Administration Agent under,
and as Agent for the Banks as defined in,
the Credit Agreement referred to below
Reference is made to the Competitive Advance and Revolving Credit
Facility Agreement dated as of October __, 1995 (as amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among the undersigned, the
Banks named therein, and Bank One, Texas, N.A. as Agent and Auction
Administration Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.2 of the Credit
Agreement that it requests a Competitive Borrowing under the Credit Agreement,
and in that connection sets forth below the terms on which such Competitive
Borrowing is requested to be made:
(A) Borrowing Date of Competitive Borrowing (a Business Day) __________
(B) Principal Amount of Competitive Borrowing* __________
(C) Type of Loan** __________
(D) Interest Period and the last day thereof*** __________
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By __________________________________
Name:
Title:
--------
* Not less than $____________________ or greater than the unused Total
Commitment and in integral multiples of $____________________.
** Eurodollar Loan or Fixed Rate Loan or both.
*** Eurodollar Loan -- 1,2, or 3 months.
Fixed Rate Loan -- 90 or fewer days.
In no event may the interest period end after the Termination Date.
EXHIBIT A-2
FORM OF NOTICE OF COMMITTED BORROWINGS
_____________ ▇▇____
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.
as Agent for the Banks as defined in,
the Credit Agreement referred to below
Reference is made to the Competitive Advance and Revolving Credit
Facility Agreement dated as of October __, 1995 (as amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among the undersigned, the
Banks named therein, and Bank One, Texas, N.A. as Agent and Auction
Administration Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.3 of the Credit
Agreement that it requests a Committed Borrowing under the Credit Agreement, and
in that connection sets forth below the terms on which such Committed Borrowing
is requested to be made:
(A) Borrowing Date of Committed Borrowing (a Business Day)
(B) Principal Amount of Committed Borrowing*
(C) Type of Loan**
(D) Interest Period and the last day thereof***
On the date the rate is set, please confirm the interest rate below and
return by facsimile transmission to our Director of Treasury Services,
▇▇▇-▇▇▇-▇▇▇▇.
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By
Name:
Title:
Rate: _______________
Confirmed by: ______________________________
--------
* Not less than $____________________ or greater than the unused Total
Commitment and in integral multiples of $____________________.
** Eurodollar Loan or Base Loan.
*** Eurodollar Loan -- 1, 2, 3, or 6 months.
Base Loan -- 90 or fewer days.
In no event may the interest period end after the Termination Date.
EXHIBIT B
FORM OF NOTICE TO BANKS OF COMPETITIVE BID REQUEST
____________________, 19____
[Name of Bank]
[Address of Bank]
Attention: ________________
Reference is made to the Competitive Advance and Revolving Credit
Facility Agreement dated as of October __, 1995 (as amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among Century Telephone
Enterprises, Inc. (the "Company"), the Banks named therein, and Bank One, Texas,
N.A. as Agent and as Auction Administration Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement. The Company delivered a Competitive Bid Request dated
______________ 19___, pursuant to Section 2.2(a) of the Credit Agreement, and in
that connection you are invited to submit a Competitive Bid by [Date] / [Time]
.* Your Competitive Bid must comply with Section 2.2(b) of the Credit Agreement
and the terms set forth below on which the Notice of Competitive Borrowing was
made:
(A) Borrowing Date of Committed Borrowing (a Business Day)
(B) Principal Amount of Competitive Borrowing
(C) Type of Loan
(D) Interest Period and the last day thereof
Very truly yours,
BANK ONE, TEXAS, N.A.,
Auction Administration Agent
By _________________________________
Name:
Title:
--------
* The Competitive Bid must be received by the Auction Administration
Agent (i) in the case of Eurodollar Loans, not later than 10:00 a.m.,
Dallas, Texas time, three Business Days before the Borrowing Date of
the proposed Competitive Borrowing, and (ii) in the case of Fixed Rate
Loans, not later than 10:00 a.m., Dallas, Texas time, one Business Day
before the Borrowing Date of the proposed Competitive Borrowing.
EXHIBIT C
FORM OF COMPETITIVE BID
____________________, 19____
Bank One, Texas, NA,
as Auction Administration Agent under
the Credit Agreement referred to below
The undersigned, [Name of Bank] , refers to the Competitive Advance and
Revolving Credit Facility Agreement dated as of October __, 1995 (as amended,
supplemented, or replaced from time to time, the "Credit Agreement"), among
Century Telephone Enterprises, Inc. (the "Company"), the Banks named therein,
and Bank One, Texas, N.A. as Agent and Auctions Administration Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned hereby
makes a Competitive Bid pursuant to Section 2.2(b) of the Credit Agreement, in
response to the Competitive Bid Request made by the Company on
____________________, 19____, and in that connection sets forth below the terms
on which such Competitive Bid is made:
(A) Principal Amount*
(B) Competitive Bid Rate**
(D) Interest Period and the last day thereof***
The undersigned hereby confirms that it is prepared to extend credit to
the Company upon acceptance by the Company of this bid in accordance with
Section 2.2(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By _______________________________
Name:
Title:
--------
* Not less than $____________________ or greater than the available Total
Commitment and in integral multiples of $____________________. Multiple
bids will be accepted by the Auction Administration Agent.
** LIBO Rate + __________% or - __________%, in the case of Eurodollar
Loans, or __________%, in the case of Fixed Rate Loans (in each case,
expressed in the form of a decimal to no more than four decimal
places).
*** The Interest Period must be the Interest Period specified
in the Competitive Bid Request.
EXHIBIT D-1
FORM OF COMPETITIVE NOTE
$70,000,000 ______________, 1995
FOR VALUE RECEIVED, the undersigned, CENTURY TELEPHONE
ENTERPRISES, INC., a Louisiana corporation (the "Company"), hereby promises to
pay to the order of _______________________________ (the "Bank") on or before
the Termination Date the lesser of (i) Seventy Million Dollars ($70,000,000) and
(ii) the aggregate amount of Competitive Loans made by the Bank to the Company
and outstanding on the Termination Date.
This note has been executed and delivered under, and is subject to the
terms of the Competitive Advance and Revolving Credit Facility Agreement dated
as of October ___, 1995 (as renewed, extended, amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among the Company, the
Banks, the Agent, and the Auction Administration Agent, and is one of the
"Competitive Notes" referred to therein. Unless defined herein or the context
otherwise requires, capitalized terms used herein have the meaning given to such
terms in the Credit Agreement. Reference is made to the Credit Agreement for
provisions affecting this note regarding applicable interest rates, principal
and interest payment dates, final maturity, voluntary and mandatory prepayments,
acceleration of maturity, exercise of Rights, payment of attorneys' fees, court
costs and other costs of collection, certain waivers by the Company and others
now or hereafter obligated for payment of any sums due hereunder and security
for the payment hereof. Without limiting the immediately preceding sentence,
reference is made to Section 9.12 of the Credit Agreement for usury savings
provisions.
This note is being executed and delivered, and is intended to be
performed, in the State of Texas, and the Laws of such State and of the United
States of America shall govern the Rights and duties of the Company and the Bank
and the validity, construction, enforcement, and interpretation hereof.
CENTURY TELEPHONE ENTERPRISES, INC.
By: __________________________________
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
PRINCIPAL
DATE LOAN REPAYMENT BALANCE
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
--------- $--------------- $----------------- $----------------
Exhibit D-1 - Page 2
EXHIBIT D-2
FORM OF COMMITTED NOTE
$____________ ______________, 1995
FOR VALUE RECEIVED, the undersigned, CENTURY TELEPHONE
ENTERPRISES, INC., a Louisiana corporation (the "Company"), hereby promises to
pay to the order of _______________________________ (the "Bank") on or before
the Termination Date the lesser of (i) the amount of the Bank's Commitment and
(ii) the aggregate amount of Committed Loans made by the Bank to the Company and
outstanding on the Termination Date.
This note has been executed and delivered under, and is subject to the
terms of the Competitive Advance and Revolving Credit Facility Agreement dated
as of October ___, 1995 (as renewed, extended, amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among the Company, the
Banks, the Agent, and the Auction Administration Agent, and is one of the
"Committed Notes" referred to therein. Unless defined herein or the context
otherwise requires, capitalized terms used herein have the meaning given to such
terms in the Credit Agreement. Reference is made to the Credit Agreement for
provisions affecting this note regarding applicable interest rates, principal
and interest payment dates, final maturity, voluntary and mandatory prepayments,
acceleration of maturity, exercise of Rights, payment of attorneys' fees, court
costs and other costs of collection, certain waivers by the Company and others
now or hereafter obligated for payment of any sums due hereunder and security
for the payment hereof. Without limiting the immediately preceding sentence,
reference is made to Section 9.12 of the Credit Agreement for usury savings
provisions.
This note is being executed and delivered, and is intended to be
performed, in the State of Texas, and the Laws of such State and of the United
States of America shall govern the Rights and duties of the Company and the Bank
and the validity, construction, enforcement, and interpretation hereof.
CENTURY TELEPHONE ENTERPRISES, INC.
By: _________________________________
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
PRINCIPAL
DATE LOAN REPAYMENT BALANCE
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
--------- $--------------- $----------------- $--------------
Exhibit D-2 - Page 2
EXHIBIT E
FORM OF OPINION OF BORROWER'S COUNSEL
____________________, ▇▇___
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.,
as Agent for the Banks as defined in
the Credit Agreement referred to below
Bank One Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for Century Telephone Enterprises, Inc., a
Louisiana corporation (the "Borrower"), in connection with the execution and
delivery of the Competitive Advance and Revolving Credit Facility Agreement of
even date herewith (the "Credit Agreement") among the Borrower, the Agent, the
Auction Administration Agent, and the Banks party thereto.
This opinion is delivered to you pursuant to Section 4.1 of the Credit
Agreement and upon the express instruction of the Borrower. Unless defined
herein, capitalized terms have the meanings given to such terms in the Credit
Agreement.
In connection with this opinion, we have examined executed copies of
the Credit Agreement and Competitive Notes and Committed Notes executed by
Borrower and payable to each Bank (collectively, the "Loan Papers"). We have
also examined and relied upon the representations and warranties as to factual
matters contained in or made pursuant to the Loan Papers and such corporate
documents and records of the Borrower, certificates of public officials,
officers of the Borrower, and such other documents as we have deemed necessary
or appropriate for the purposes of this opinion. In stating our opinion, we have
assumed the genuineness of all signatures of, and the authority of, persons
signing the Loan Papers on behalf of the parties thereto other than the
Borrower, the authenticity of all documents submitted to us as originals, the
conformity to authentic original documents of all documents submitted to us as
certified, conformed, or photostatic copies, and that all documents, books, and
records made available to us by the Borrower are accurate and complete.
We are qualified to practice law in the State of Louisiana and our
opinion is restricted to the laws of the State and the federal law of the United
States of America. We have assumed that insofar as the substantive laws of
states other than Louisiana that may be applicable to any matters opined on
herein, such laws are the same as the substantive laws of the State of Louisiana
applied by us herein.
Bank One, Texas, N.A., Agent
____________________, 19____
Page 2
Based upon the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly organized, validly existing, and
in good standing under the laws of its state of incorporation. Except where
failure would not reasonably be expected to have a Material Adverse Effect, the
Borrower (a) is duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction where the nature and extent of its
business and properties require the same and (b) possesses all requisite
authority, power, licenses, permits, and franchises to conduct its business as
is now being conducted. The Borrower possesses all requisite authority, power,
licenses, permits, and franchises to execute, deliver, and comply with the terms
of the Loan Papers, all which have been duly authorized and approved by all
necessary corporate action and, except where failure would not reasonably be
expected to have a Material Adverse Effect, for which no approval or consent of
any Person or Tribunal is required which has not been obtained and no filing or
other notification to any Person or Tribunal is required which has not been
properly completed.
2. The Borrower is not, nor will the execution, delivery, performance,
or observance of the Loan Papers cause the Borrower to be, (a) to the best of
our knowledge, in violation of any laws or any Material Agreements to which it
is a party, other than such violations which would not reasonably be expected to
have a Material Adverse Effect, or (b) in violation of its bylaws or charter.
3. We have no knowledge of any Material Litigation or outstanding or
unpaid Material judgments against the Borrower, except as described on Schedule
3.6 attached to the Credit Agreement.
4. The Borrower is not (a) a "holding company," a "subsidiary company"
of a "holding company," an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," or a "public utility" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, (b) a
"public utility" within the meaning of the Federal Power Act, as amended, (c) an
"investment company" or "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (d) an "investment
advisor" within the meaning of the Investment Advisors Act of 1940, as amended,
or (e) subject to the jurisdiction of the Federal Communications Commission or
any public service commission as a common carrier.
5. Each of the Loan Papers constitutes a valid, and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by (a) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium, or other similar
laws affecting creditors' rights generally, (b) general principles of equity
(whether enforcement is sought by proceedings in equity or at law), and (c) the
qualification that certain provisions of the Loan Papers may be
Bank One, Texas, N.A., Agent
____________________, 19____
Page 3
unenforceable in whole or in part under the laws of the State, but the inclusion
of such provisions does not affect the validity of any Loan Paper and each Loan
Paper contains adequate provisions for enforcing payment of the Obligations
secured thereby or provided for therein, as the case may be, and for the
practical realization of the rights and benefits afforded thereby, though they
may result in delays thereof (and we express no opinion as to the economic
consequences, if any, of such delays).
6. Under the circumstances of the actions as contemplated by the Credit
Agreement, courts of the State of Louisiana would honor the choice of law agreed
to by the parties in the Credit Agreement.
This opinion is furnished solely in connection with the transactions
referred to in the Credit Agreement and may not, without our permission, be
circulated to any Person, except you, your legal counsel, the Banks, bank
supervisory authorities, prospective Participants or Purchasers, or as required
by law or order of a court or other legal process and may not be relied upon
except by you, your legal counsel, the Banks or actual Participants or
Purchasers.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
EXHIBIT F
FINANCIAL REPORT CERTIFICATE
FOR ____________________ ENDED ____________________, 19_____
AGENT: Bank One, Texas, N.A.
DATED AS OF: ____________________, 19_____
BORROWER: Century Telephone Enterprises, Inc.
FOR: $70,000,000 Competitive Advance and Revolving Credit Facility
Agreement
This certificate is delivered pursuant to Section 5.3 of the
Competitive Advance and Revolving Credit Facility Agreement dated as of October
__, 1995 (as amended, supplemented, or replaced from time to time, the "Credit
Agreement"), among the Borrower, the Banks, the Agent, and the Auction
Administration Agent. Unless defined herein, capitalized terms have the meanings
given to such terms in the Credit Agreement.
I certify to the Agent that I am the ____________________ (president,
chief financial officer, or treasurer) of the Borrower on the date hereof and
that:
1. The Financial Statements attached hereto were prepared in accordance
with GAAP and present fairly the consolidated financial condition and results of
operations of the Companies as of, and for the _________________ ended,
____________________, 19___ (the "Subject Period").
2. A review of the Borrower's activities during the Subject Period has
been made under my supervision with a view to determining whether, during the
Subject Period, the Borrower has kept, observed, performed and fulfilled all of
its obligations under the Loan Papers, and during the Subject Period, to my
knowledge, the Borrower kept, observed, performed and fulfilled each and every
covenant and condition of the Loan Papers in all material respects (except for
any deviations set forth on the attached schedule).
3. During the Subject Period, no Event of Default has occurred which
has not been cured or waived (except for any Events of Default set forth on the
attached schedule).
4. Evidence of compliance by Borrower with Sections 5.23 and 5.24 of the
Credit Agreement as of the last day of the Subject Period is set forth on the
attached schedule.
5. This certificate is being delivered on behalf of the Borrower. No
person or entity other than the Agents and the Banks (collectively, the "Subject
Recipients") shall be entitled to receive or rely upon this certificate for any
purpose. The Subject Recipients agree by their acceptance hereof that (a) they
shall look solely to the Borrower for any loss, cost, damage, expense, claim,
demand, suit or cause of action arising out of or relating in any way to this
certificate or its preparation and delivery, and (b) the undersigned shall not
under any circumstances have any personal liability whatsoever for the
preparation or execution of this certificate.
CENTURY TELEPHONE ENTERPRISES, INC.
By: ________________________________
Name:
Title:
EXHIBIT G
FORM OF DESIGNATION AGREEMENT
Reference is made to the Credit Agreement dated as of ______________,
1995 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement" among CENTURY TELEPHONE ENTERPRISES, INC., a Louisiana
corporation (the "Borrower"), the Banks, as defined therein (the "Banks"), BANK
ONE, TEXAS, N.A., a national banking association, as agent for the Banks (in
such capacity, the "Agent"), and as auction administration agent (in such
capacity, the "Auction Administration Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
____________[NAME OF DESIGNOR}____________ (the "Designor") and
__________[NAME OF DESIGNEE]___________ ( the "Designee") agree as follows:
1. the Designor hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to have competitive loans
pursuant to the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (a) any statements, warranties or representations
made in or in connection with any Loan Paper or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Paper or
any other instrument or document furnished pursuant thereto and (b) the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Paper or any other instrument
or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Paper, together with copies of the Current Financials and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will,
independently and without reliance upon any Agent, the Auction Administration
Agent, the Designor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Loan Paper; (c)
confirms that it is a Designated Lender; (d) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Paper as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto, and appoints and authorizes the Auction Administration Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under any Loan Paper as are delegated to the Auction Administration Agent by the
terms thereof, together with such power and discretion as are reasonably
incidental thereto; and (e) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of any Loan Paper are required
to be performed by it as a Bank.
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Agent and Auction
Administration Agent for acceptance. The effective date for this Designation
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Agent and Auction Administration Agent, unless otherwise specified on the
signature page hereto.
5. Upon such acceptance by the Agent and Auction Administration Agent,
as of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make Competitive Loans as a Bank pursuant to the Credit
Agreement and the rights and obligations of a Bank related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the state of Texas.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, and the Borrower, intending to indicate his approval of the
Designee, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date:**** _____________________, 199__
[NAME OF DESIGNOR] , as Designor
______________________________________
By: __________________________________
Name:
Title:
--------
**** This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Agent.
[NAME OF DESIGNEE] , as Designor
_________________________________________
By:
Name:
Title:
Applicable Lending Office (and
address for notices):
[ADDRESS]
CENTURY TELEPHONE ENTERPRISES, INC., as
Borrower
By:
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
ACCEPTED:
BANK ONE, TEXAS, N.A.,
as Agent and Auction Administration Agent
By:
Name:
Title: