$680,000,000
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
Dated as of October 24, 2001
among
CITIZENS COMMUNICATIONS COMPANY
as Borrower
and
THE LENDERS NAMED HEREIN
as Lenders
CITIBANK, N.A.
as Syndication Agent
and
TD SECURITIES (USA) INC.
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING
as Co-Documentation Agents
and
THE CHASE MANHATTAN BANK
as Administrative Agent
___________________________
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
Joint Lead Arrangers and Joint Bookrunners
Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...............................................................................1
SECTION 1.02. Terms Generally............................................................................13
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments................................................................................13
SECTION 2.02. Loans......................................................................................14
SECTION 2.03. Competitive Bid Procedure..................................................................15
SECTION 2.04. Standby Borrowing Procedure................................................................17
SECTION 2.05. Conversions................................................................................18
SECTION 2.06. Fees.......................................................................................18
SECTION 2.07. Repayment of Loans.........................................................................19
SECTION 2.08. Interest on Loans..........................................................................19
SECTION 2.09. Default Interest...........................................................................20
SECTION 2.10. Alternate Rate of Interest.................................................................20
SECTION 2.11. Changes in Commitments.....................................................................21
SECTION 2.12. Prepayment.................................................................................22
SECTION 2.13. Reserve Requirements; Change in Circumstances..............................................23
SECTION 2.14. Change in Legality.........................................................................25
SECTION 2.15. Indemnity..................................................................................25
SECTION 2.16. Pro Rata Treatment.........................................................................26
SECTION 2.17. Sharing of Setoffs.........................................................................26
SECTION 2.18. Payments...................................................................................27
SECTION 2.19. Taxes......................................................................................27
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers; Governmental Approvals...............................................30
SECTION 3.02. Financial Statements.......................................................................30
SECTION 3.03. No Material Adverse Change.................................................................31
SECTION 3.04. Title to Properties; Possession Under Leases...............................................31
SECTION 3.05. Ownership of Subsidiaries..................................................................31
SECTION 3.06. Litigation; Compliance with Laws...........................................................31
SECTION 3.07. Agreements.................................................................................32
SECTION 3.08. Federal Reserve Regulations................................................................32
SECTION 3.09. Investment Company Act; Public Utility Holding Company Act.................................33
SECTION 3.10. Use of Proceeds............................................................................33
SECTION 3.11. Tax Returns................................................................................33
SECTION 3.12. No Material Misstatements..................................................................33
SECTION 3.13. Employee Benefit Plans.....................................................................33
SECTION 3.14. Insurance..................................................................................34
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. Each Borrowing.............................................................................34
SECTION 4.02. Effective Date.............................................................................34
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties.......................................................36
SECTION 5.02. Financial Statements, Reports, etc.........................................................37
SECTION 5.03. Litigation and Other Notices...............................................................38
SECTION 5.04. Maintaining Records........................................................................38
SECTION 5.05. Use of Proceeds............................................................................38
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens; Restrictions on Sales of Receivables................................................39
SECTION 6.02. Ownership of the Principal Subsidiaries....................................................39
SECTION 6.03. Asset Sales................................................................................40
SECTION 6.04. Mergers....................................................................................40
SECTION 6.05. Restrictions on Dividends..................................................................40
SECTION 6.06. Transactions with Affiliates...............................................................41
SECTION 6.07. Minimum Consolidated Net Worth.............................................................41
SECTION 6.08. Minimum Access Lines.......................................................................41
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices....................................................................................46
SECTION 9.02. Survival of Agreement......................................................................46
SECTION 9.03. Binding Effect.............................................................................46
SECTION 9.04. Successors and Assigns.....................................................................47
SECTION 9.05. Expenses; Indemnity........................................................................49
SECTION 9.06. Right of Setoff............................................................................50
SECTION 9.07. Applicable Law.............................................................................51
SECTION 9.08. Waivers; Amendment.........................................................................51
SECTION 9.09. Interest Rate Limitation...................................................................51
SECTION 9.10. Entire Agreement...........................................................................52
SECTION 9.11. Waiver of Jury Trial.......................................................................52
SECTION 9.12. Severability...............................................................................52
SECTION 9.13. Counterparts...............................................................................52
SECTION 9.14. Headings...................................................................................52
SECTION 9.15. Jurisdiction; Consent to Service of Process................................................53
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit A-6 Form of Conversion Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel to Borrower
Exhibit D-1 Form of Standby Note
Exhibit D-2 Form of Competitive Note
Schedule 2.01 Lenders' Commitments
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT,
dated as of October 24, 2001, among CITIZENS COMMUNICATIONS
COMPANY, a Delaware corporation (the "Borrower"), the
Lenders listed in Schedule 2.01 (together with any assignees
pursuant to Section 9.04(b), the "Lenders") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
The Borrower has requested the Lenders to extend credit to the Borrower in
order to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(as hereinafter defined) a principal amount not in excess of $680,000,000 (as
such amount may be modified pursuant to Section 2.11 hereof) at any time
outstanding. The Borrower has also requested the Lenders to provide a procedure
pursuant to which the Borrower may invite the Lenders to bid on an uncommitted
basis on short-term borrowings by the Borrower. The proceeds of such borrowings
are to be used for general corporate purposes, including working capital and
support of commercial paper issuances and Securitization Transactions (as
hereinafter defined) permitted hereunder. The Lenders are willing to extend such
credit to the Borrower on the terms and subject to the conditions herein set
forth.
Accordingly, the Borrower, the Lenders and the Administrative Agent agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Access Lines" shall mean, on any date, the total number of telephony
access lines provided by the Borrower and its Subsidiaries (other than
Non-Recourse Joint Ventures) through their owned telecommunications system
network facilities (excluding lines provided through resale agreements) to
customers of the Borrower and its Subsidiaries (other than Non-Recourse Joint
Ventures) whose service payments are not overdue to a point where service is
generally disconnected.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (i) the
Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If the Administrative 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 the inability of the Administrative Agent to obtain sufficient
quotations, the Alternate Base Rate shall be determined without regard to clause
(ii) of the first sentence of this definition until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Rate" shall mean, with respect to any ABR Loan, Eurodollar
Standby Loan or Facility Fee, as the case may be, at all times during which any
"Applicable Rating Level" set forth below is in effect, the rate per annum set
forth below under the appropriate caption next to such Applicable Rating Level:
Applicable S&P Applicable Rate Applicable Rate
Rating Rating/▇▇▇▇▇'▇ Applicable Rate for Eurodollar for Utilization
Level Rating for ABR Loans Standby Loans Facility Fee Margin
--------------------------------------------------------------------------------------------------------------------
I A-or higher/A3 0.000% 0.425% 0.200% 0.125%
or higher
--------------------------------------------------------------------------------------------------------------------
II BBB+/Baa1 0.000% 0.525% 0.225% 0.125%
--------------------------------------------------------------------------------------------------------------------
III BBB/Baa2 0.000% 0.625% 0.250% 0.125%
--------------------------------------------------------------------------------------------------------------------
IV BBB-/Baa3 0.000% 0.825% 0.300% 0.125%
--------------------------------------------------------------------------------------------------------------------
V BB+/Bal 0.000% 0.975% 0.400% 0.125%
--------------------------------------------------------------------------------------------------------------------
VI lower than BB+/lower 0.125% 1.125% 0.500% 0.125%
than Ba1
provided, that the Applicable Rate for Eurodollar Standby Loans and ABR Loans
shall be increased by the rate per annum set forth above under the caption
"Utilization Margin" that corresponds to the Applicable Rating Level used to
determine such Applicable Rates at any time during a Utilization Period.
For purposes of the foregoing, the Applicable Rating Level shall be
determined in accordance with the then applicable S&P Rating and the then
applicable ▇▇▇▇▇'▇ Rating. In the event that the S&P Rating and the ▇▇▇▇▇'▇
Rating do not correspond to the same Applicable Rating Level, then the higher of
the two ratings shall determine the Applicable Rating Level; provided, however,
that if there is a difference of two or more levels between the Applicable
Rating Level corresponding to the S&P Rating and the Applicable Rating Level
corresponding to the ▇▇▇▇▇'▇ Rating, then the Applicable Rating Level that is
one level above the Applicable Rating Level corresponding to the lower of the
S&P Rating and the ▇▇▇▇▇'▇ Rating shall apply. In the event that no S&P Rating
or no ▇▇▇▇▇'▇ Rating shall be in effect (other than by reason of the
circumstances referred to in the last sentence of this definition), then the
Applicable Rating Level shall be Applicable Rating Level VI. The Applicable
Rating Level shall be redetermined on the date of announcement of a change in
the S&P Rating or the ▇▇▇▇▇'▇ Rating. A change in the Applicable Rate resulting
from a change in the Applicable Rating Level shall become effective on such
date. If the rating system of S&P or ▇▇▇▇▇'▇ shall change, or if either such
Person shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such Person and, pending the effectiveness of any such amendment,
the Applicable Rate shall be determined by reference to the rating most recently
in effect prior to such change or cessation.
"Asset Exchange" shall mean the exchange or other transfer of
telecommunications assets between or among the Borrower and another Person or
other Persons in connection with which the Borrower would transfer
telecommunications assets and/or other property in consideration of the receipt
of telecommunications assets and/or other property having a fair market value
substantially equivalent to those transferred by the Borrower (as determined in
good faith by the Borrower's Board of Directors); provided that the principal
value of the assets being transferred to the Borrower shall be represented by
telecommunications assets.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit B or any other form approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) or Converted
on a single date and as to which a single Interest Period is in effect. All
Loans of the same Type, having the same Interest Period and made or Converted on
the same day shall be deemed a single Borrowing hereunder until repaid or next
Converted.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any Person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing 50% or more of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Borrower shall at any time have been occupied by
Persons who were neither (i) nominated by the management of the Borrower, nor
(ii) appointed by directors so nominated; or (c) any Person or group shall
otherwise directly or indirectly Control the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be modified from time to time pursuant to Section 2.11 or Section
2.13(f). Unless earlier terminated pursuant to the terms of this Agreement, the
Commitments shall automatically and permanently terminate on the Maturity Date.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated Net Worth" shall mean, as at any date of determination, the
consolidated stockholders' equity of the Borrower and its consolidated
Subsidiaries, including redeemable preferred securities where the redemption
date occurs after the Maturity Date, mandatorily redeemable convertible
preferred securities, mandatorily convertible Indebtedness (or Indebtedness
subject to mandatory forward purchase contracts for equity or similar
securities) and minority equity interests in other persons, as determined on a
consolidated basis in conformity with GAAP consistently applied. For the purpose
of calculating "Consolidated Net Worth", the consolidated stockholders' equity
of any Non-Recourse Joint Venture and its subsidiaries shall be excluded from
the consolidated stockholders' equity of the Borrower and its consolidated
Subsidiaries.
"Consolidated Tangible Assets" of any Person shall mean total assets of
such Person and its consolidated Subsidiaries, determined on a consolidated
basis, less goodwill, patents, trademarks and other assets classified as
intangible assets in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Conversion", "Convert" or "Converted" shall mean the conversion of any
Standby Loan of one Type into a Standby Loan of another Type, or the selection
of a new, or the renewal of the same, Interest Period for any such Standby Loan,
as the case may be, pursuant to Section 2.05.
"Conversion Request" shall mean a request made pursuant to Section 2.05 in
the form of Exhibit A-6.
"Default" shall mean any event or condition which upon notice, lapse of
time, or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States of America.
"Effective Date" shall mean the date on which the conditions specified in
Section 4.02 are satisfied (or waived in accordance with Section 9.08).
"Environmental Laws" shall mean all national, federal, state, provincial,
municipal or local laws, statutes, ordinances, orders, judgments, decrees,
injunctions, writs, policies and guidelines (having the force of law),
directives, approvals, notices, rules and regulations and other applicable laws
relating to environmental or occupational health and safety matters, including
those relating to the Release or threatened Release of Specified Substances and
to the generation, use, storage or transportation of Specified Substances, each
as in effect as of the date of determination.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Borrower or a Subsidiary of the Borrower
would be deemed to be a "single employer" within the meaning of Section
4001(b)(1) of ERISA.
"ERISA Termination Event" shall mean (i) a "Reportable Event" described in
Section 4043 of ERISA (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations), or (ii) the
withdrawal of the Borrower or any of its ERISA Affiliates from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, or (iv) the institution of proceeding to terminate a Plan by the PBGC or
(v) any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or Eurodollar
Standby Loan.
"Eurodollar Standby Borrowing" shall mean a Borrowing comprised of
Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the provisions
of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Existing Facilities" shall mean (i) the Competitive Advance and Revolving
Credit Facility Agreement dated as of December 16, 1993, as amended, among the
Borrower, the lenders party thereto, PNC Bank, National Association, as co-agent
for the lenders, and The Chase Manhattan Bank, as agent for the lenders and (ii)
the Competitive Advance and Revolving Credit Facility Agreement, dated as of
October 27, 2000, among the Borrower, the lenders parties thereto and The Chase
Manhattan Bank, as agent for the lenders.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Federal Funds Effective Rate" shall mean, for any day, 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
next 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
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean the Facility Fee and the Administrative Fees.
"Financial Officer" of any corporation shall mean the President, Chief
Financial Officer, Chief Executive Officer, Vice President - Finance, Executive
Vice President, Chief Accounting Officer or Treasurer of such corporation.
"First Mortgage Bond Indentures" shall mean (i) the First Mortgage and
Collateral Trust Indenture, dated as of March 1, 1947, from the Borrower to The
Marine Midland Trust Company of New York, as Trustee, and (ii) the Mortgage and
Deed of Trust Indenture, dated as of June 1, 1962, from the Borrower to
Manufacturers Hanover Trust Company, as Trustee, as the same have been and may
from time to time be amended or supplemented and in effect.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Approval" shall mean any authorization, consent, order,
approval, license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any Governmental Authority.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Hostile Acquisition" shall mean any Target Acquisition (as defined below)
involving a tender offer or proxy contest that has not been recommended or
approved by the board of directors (or similar governing body) of the Person
that is the subject of such Target Acquisition prior to the first public
announcement or disclosure relating to such Target Acquisition. As used in this
definition, the term "Target Acquisition" shall mean any transaction, or any
series of related transactions, by which the Borrower and/or any of its
Subsidiaries directly or indirectly (i) acquires any ongoing business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise, (ii) acquires (in one
transaction or as the most recent transaction in a series of transactions)
control of at least a majority in ordinary voting power of the securities of a
Person which have ordinary voting power for the election of directors or (iii)
otherwise acquires control of a more than 50% ownership interest in any such
Person.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind (other than customer deposits made in the ordinary course
of business), (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property or
assets purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Capital Lease Obligations of such
Person, (h) all obligations of such Person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements (except to the extent such obligations are
used as a bona fide hedge of other Indebtedness of such Person), (i) all
obligations of such Person as an account party in respect of letters of credit
and bankers' acceptances (except to the extent any such obligations are incurred
in support of other obligations constituting Indebtedness of such Person and
other than, to the extent reimbursed if drawn, letters of credit in support of
ordinary course performance obligations) and (j) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, directly or indirectly (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term Indebtedness shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable thereto and, in the case of a Eurodollar Loan
with an Interest Period of more than three months' duration or a Fixed Rate
Loan, each day that would have been an Interest Payment Date for such Loan had
successive Interest Periods of three months' duration or 90 days duration, as
the case may be, been applicable to such Loan and, in addition, the date of any
Conversion of such Loan to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or, with respect to any Conversion, on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter (or such longer period as
may be agreed to by all of the Lenders), as the Borrower may elect, (b) as to
any ABR Borrowing, the period commencing on the date of such Borrowing and
ending on the date 90 days thereafter or, if earlier, on the Maturity Date or
the date of prepayment of such Borrowing and (c) as to any Fixed Rate Borrowing,
the period commencing on the date of such Borrowing and ending on the date
specified in the Competitive Bids in which the offer to make the Fixed Rate
Loans comprising such Borrowing were extended, which shall not be earlier than
the day after the date of such Borrowing or later than 364 days (or, subject to
the Borrower obtaining all necessary Governmental Approvals, such longer period
as may be agreed to by all of the Lenders) after the date of such Borrowing;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of 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. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of such Interest Period.
"Joint Venture" shall mean a general or limited partnership, limited
liability company or other entity formed or organized under the laws of the
United States of America or any state thereof that would own or operate
telecommunications assets and which, in turn, the Borrower would manage.
"Joint Venture Transaction" shall mean the formation of a Joint Venture, by
the formation of a new entity and the contribution of telecommunications assets
(or cash or similar assets) thereto by the Borrower, the investment by the
Borrower in a previously existing entity that owns telecommunications assets or
other similar transaction.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum equal to the rate at which dollar
deposits approximately equal in principal amount to (i) in the case of a Standby
Borrowing, The Chase Manhattan Bank's (if then acting as Administrative Agent
or, in case another Person is then acting as Administrative Agent, such other
Person's) portion of such Eurodollar Borrowing and (ii) in the case of a
Competitive Borrowing, a principal amount that would have been The Chase
Manhattan Bank's (if then acting as Administrative Agent or, in case another
Person is then acting as Administrative Agent, such other Person's) portion of
such Competitive Borrowing had such Competitive Borrowing been a Standby
Borrowing, and, in the case of each of clause (i) and clause (ii) above, for a
maturity comparable to such Interest Period, are offered to the principal London
office of The Chase Manhattan Bank (or such other Person then acting as
Administrative Agent) in immediately available funds in the London interbank
market at approximately 11:00 A.M., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge, or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease, or title retention agreement relating to such asset
and (c) in the case of securities, any purchase option, call, or similar right
of a third party with respect to such securities.
"Loan" shall mean a Competitive Loan or a Standby Loan, whether made as a
Eurodollar Loan, an ABR Loan, or a Fixed Rate Loan, as permitted hereby.
"Margin" shall mean, as to any Eurodollar Competitive 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 applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations T, U and X of the Board.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations, financial condition or results of operations of
the Borrower and the Subsidiaries taken as a whole.
"Maturity Date" shall mean October 24, 2006.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"▇▇▇▇▇'▇ Rating" shall mean, on any date of determination, (i) the debt
rating most recently announced by Moody's with respect to the long-term, senior,
unsecured, non-credit enhanced Indebtedness of the Borrower or (ii) if (A) the
Indebtedness of the Borrower under this Agreement shall be credit enhanced by
any Person other than the Borrower and (B) both Moody's and S&P shall have
assigned a debt rating to such Indebtedness, then such debt rating assigned by
Moody's.
"Non-Recourse Joint Venture" shall mean a Joint Venture the Indebtedness of
which is Non-Recourse Joint Venture Indebtedness.
"Non-Recourse Joint Venture Indebtedness" shall mean secured or unsecured
Indebtedness of a Joint Venture that is non-recourse to the Borrower or any
Principal Subsidiary or any of their respective assets or property. In
furtherance of the foregoing, an obligation of the Borrower that is non-recourse
to the Borrower except to the extent of a pledge of the equity of a Joint
Venture (the Indebtedness of which is otherwise non-recourse to the Borrower)
will be deemed Non-Recourse Joint Venture Indebtedness.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership, or
government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (including a multiemployer plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code which is
maintained for or to which contributions are made for employees of the Borrower
or any ERISA Affiliate.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective.
"Principal Subsidiaries" shall mean any Subsidiary of the Borrower, other
than Electric Lightwave, Inc., whose Consolidated Tangible Assets comprise in
excess of 20% of the Consolidated Tangible Assets of the Borrower and its
consolidated Subsidiaries as of the date hereof or at any time hereafter. The
term "Principal Subsidiaries" shall not include any Non-Recourse Joint Venture.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Release" shall mean any spilling, emitting, discharging, depositing,
escaping, leaching, dumping or other releasing, including the movement of any
Specified Substance through the air, soil, surface water, groundwater or
property, and when used as a verb has a like meaning.
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing more than 50% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VII or if the Total Commitment
has terminated, Lenders holding Loans representing more than 50% of the
aggregate principal amount of the Loans outstanding.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"S&P Rating" shall mean, on any date of determination, (i) the debt rating
most recently announced by S&P with respect to the long-term, senior, unsecured,
non-credit enhanced Indebtedness of the Borrower or (ii) if (A) the Indebtedness
of the Borrower under this Agreement shall be credit enhanced by any Person
other than the Borrower and (B) both S&P and Moody's shall have assigned a debt
rating to such Indebtedness, then such debt rating assigned by S&P.
"Securitization Transaction" means (a) any transfer of accounts receivable
or interests therein (i) to a trust, partnership, corporation or other entity
(other than a Subsidiary), which transfer or pledge is funded by such entity in
whole or in part by the issuance to one or more lenders or investors of
indebtedness or other securities that are to receive payments principally from
the cash flow derived from such accounts receivable or interests in accounts
receivable, or (ii) directly to one or more investors or other purchasers (other
than any Subsidiary), or (b) any transaction in which the Borrower or a
Subsidiary incurs Indebtedness secured by Liens on accounts receivable. The
"amount" of any Securitization Transaction shall be deemed at any time to be (A)
in the case of a transaction described in clause (a) of the preceding sentence,
the aggregate uncollected amount of the accounts receivable transferred pursuant
to such Securitization Transaction, net of any such accounts receivable that
have been written off as uncollectible, and (B) in the case of a transaction
described in clause (b) of the preceding sentence, the aggregate outstanding
principal amount of the Indebtedness secured by Liens on accounts receivable
Incurred pursuant to such Securitization Transaction.
"Specified Substance" shall mean (i) any chemical, material or substance
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous waste", "restricted
hazardous waste" or "toxic substances" or words of similar import under any
applicable Environmental Laws; (ii) any (A) oil, natural gas, petroleum or
petroleum derived substance, any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude oil,
natural gas or geothermal fluid, any flammable substances or explosives, any
radioactive materials, any hazardous wastes or substances, any toxic wastes or
substances or (B) other materials or pollutants that, in the case of both (A)
and (B), (1) pose a hazard to the property of the Borrower or any of its
Subsidiaries or any part thereof or to persons on or about such property or to
any other property that may be affected by the Release of such materials or
pollutants from such property or any part thereof or to persons on or about such
other property or (2) cause such property or such other property to be in
violation of any Environmental Law; (iii) asbestos, urea formaldehyde foam
insulation, toluene, polychlorinated biphenyls and any electrical equipment
which contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; and (iv) any sound, vibration,
heat, radiation or other form of energy and any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority.
"Standby Borrowing" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to Section
2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to Section 2.04. Each Standby Loan shall be a Eurodollar
Standby Loan or an ABR Loan. All Standby Loans by a Lender of the same Type,
having the same Interest Period and made or Converted on the same day shall be
deemed to be a single Standby Loan by such Lender until repaid or next
Converted.
"Subsidiary" shall mean, with respect to any Person (herein referred to as
the "parent"), any corporation, partnership, association, or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled, or held by the parent, or (b) which is, at the
time any determination is made, otherwise Controlled by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references in this Agreement to
"Subsidiaries" shall be construed as references to Subsidiaries of the Borrower.
"Total Commitment" shall mean at any time the aggregate amount of the
Lenders' Commitments, as in effect at such time.
"Transferee" shall mean any transferee or assignee of all or any portion of
a Lender's interests, rights and obligations hereunder, including any
participation holder.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall include the LIBO
Rate, the Alternate Base Rate and the rate of interest applicable to any Fixed
Rate Loan.
"Utilities Assets" shall mean any assets of the Borrower or any Subsidiary
thereof (including, without limitation, stock in any such Subsidiary) that are
employed in the generation or production, transmission or distribution (as
applicable) of electricity, natural gas, synthetic gas or water, or that are
used to provide wastewater services.
"Utilization Period" shall mean any day or days during which the aggregate
amount of Loans outstanding hereunder is equal to or greater than 331/3% of the
Total Commitment for such day or days.
SECTION 1.02. Terms Generally.
The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, unless the context shall
otherwise require. Except as otherwise expressly provided herein, all terms of
an accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided, however, that, for purposes of
determining compliance with any covenant set forth in Article VI, such terms
shall be construed in accordance with GAAP as in effect on the date of this
Agreement applied on a basis consistent with the application used in preparing
the Borrower's audited financial statements referred to in Section 3.02.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments.
Subject to the terms and conditions and relying upon the representations
and warranties herein set forth, each Lender agrees, severally and not jointly,
to make Standby Loans to the Borrower, at any time and from time to time on and
after the Effective Date and until the earlier to occur of the Maturity Date and
the termination of the Commitment of such Lender, in an aggregate principal
amount at any time outstanding not to exceed such Lender's Commitment minus the
amount by which the Competitive Loans outstanding at such time shall be deemed
to have used such Commitment pursuant to Section 2.16, subject however, to the
conditions that (a) at no time shall (i) the sum of (x) the outstanding
aggregate principal amount of all Standby Loans made by all Lenders plus (y) the
outstanding aggregate principal amount of all Competitive Loans made by all
Lenders exceed (ii) the Total Commitment, and (b) at all times the outstanding
aggregate principal amount of all Standby Loans made by each Lender shall equal
the product of (i) the percentage which its Commitment represents of the Total
Commitment times (ii) the outstanding aggregate principal amount of all Standby
Loans made pursuant to Section 2.04. Each Lender's Commitment is set forth
opposite its respective name in Schedule 2.01. Such Commitments may be modified
or reduced from time to time pursuant to Section 2.11 and Section 2.13(f).
Within the foregoing limits, the Borrower may borrow, pay, or prepay and
reborrow hereunder, on and after the Effective Date and prior to the Maturity
Date, subject to the terms, conditions and limitations set forth herein.
SECTION 2.02. Loans.
(a) Each Standby Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their Commitments;
provided, however, that the failure of any Lender to make any Standby Loan shall
not in itself relieve any other Lender of its obligation to lend hereunder (it
being understood, however, that no Lender shall be responsible for the failure
of any other Lender to make any Loan required to be made by such other Lender).
Each Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.03. The Standby Loans or Competitive Loans comprising any Borrowing
shall be in an aggregate principal amount which is an integral multiple of
$1,000,000 and not less than $10,000,000 (or, in the case of Standby Loans, an
aggregate principal amount equal to the remaining balance of the available
Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of Eurodollar
Competitive Loans or Fixed Rate Loans, and each Standby Borrowing shall be
comprised entirely of Eurodollar Standby Loans or ABR Loans, as the Borrower may
request pursuant to Section 2.03 or 2.04, as applicable. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing which, if made, would result in an
aggregate of more than ten separate Standby Loans of any Lender 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) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 1:00 P.M., New York
City time, and the Administrative Agent shall by 3:00 P.M., New York City time,
credit the amounts so received to the general deposit account of the Borrower
with the Administrative Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Lenders. Competitive Loans shall be
made by the Lender or Lenders whose Competitive Bids therefor are accepted
pursuant to Section 2.03 in the amounts so accepted and Standby Loans shall be
made by the Lenders pro rata in accordance with Section 2.16. Unless the
Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing (or, in the case of an ABR Borrowing, prior to the time of such
ABR Borrowing) that such Lender will not make available to the Administrative
Agent such Lender's portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the date of such Borrowing in accordance with this paragraph (c) and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have made such portion available to the Administrative
Agent and the Administrative Agent has made available to the Borrower such
portion, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Effective Rate. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Interest
Period requested by the Borrower with respect to any Borrowing shall not end
after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time to time
during the period from and including the Effective Date to but excluding the
earlier to occur of the Maturity Date and the termination of the Commitments of
all Lenders, the Borrower may request Competitive Bids and may, but shall not
have any obligation to, accept Competitive Bids and borrow Competitive Loans;
provided, that at no time shall the sum of (x) the outstanding aggregate
principal amount of all Standby Loans made by all Lenders plus (y) the
outstanding aggregate principal amount of all Competitive Loans made by all
Lenders exceed the Total Commitment. In order to request Competitive Bids, the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Administrative Agent (i) in the case of a Eurodollar Competitive
Borrowing, not later than 10:00 A.M., New York City time, four Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 A.M., New York City time, one Business Day
before a proposed Competitive Borrowing. No ABR Loan shall be requested in, or
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 in the
Administrative Agent's sole discretion, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telecopier. Such request shall
in each case refer to this Agreement and specify (x) whether the Borrowing then
being requested is to be a Eurodollar Borrowing or a Fixed Rate Borrowing, (y)
the date of such Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof which shall be in a minimum principal amount of
$10,000,000 and in an integral multiple of $1,000,000, and (z) the Interest
Period(s) with respect thereto (which may not end after the Maturity Date).
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit A-2 hereto) the Lenders to bid, on the terms and conditions of
this Agreement, to make Competitive Loans pursuant to the Competitive Bid
Request.
(b) Each Lender may, in its sole discretion, make one or more Competitive
Bids to the Borrower responsive to a Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent via telecopier, in
the form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 A.M., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 A.M., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit A-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (x) the range of principal amounts (each of which shall be
in a minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000 and, in the case of the larger such amount, may equal the entire
principal amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Lender is willing to make to the Borrower,
(y) the Competitive Bid Rate or Rates at which the Lender is prepared to make
the Competitive Loan or Loans and (z) the Interest Period and the last day
thereof. If any Lender shall elect not to make a Competitive Bid, such Lender
shall so notify the Administrative Agent via telecopier (A) in the case of
Eurodollar Competitive Loans, not later than 9:30 A.M., New York City time,
three Business Days before a proposed Competitive Borrowing, and (B) in the case
of Fixed Rate Loans, not later than 9:30 A.M., New York City time, on the day of
a proposed Competitive Borrowing; provided, however, that the failure by any
Lender to give such notice shall not cause such Lender to be obligated to make
any Competitive Loan as part of such Competitive Borrowing. A Competitive Bid
submitted by a Lender pursuant to this paragraph (b) shall be irrevocable. If
the Administrative Agent shall not have received from any Lender notification of
its election to make a Competitive Bid on or before the times set forth in the
second sentence of this paragraph, such Lender shall be deemed to have elected
not to make a Competitive Bid.
(c) The Administrative Agent shall promptly notify (but in any event no
later than 10:00 A.M., New York City time, on the day any Competitive Bid is
received by the Administrative Agent) the Borrower by telecopier of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount (or
range thereof) of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid. The Administrative
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 2.03.
(d) The Borrower may in its sole and absolute discretion, subject only to
the provisions of this paragraph (d), accept or reject all or any portion
(within the range of principal amounts specified therein) of any Competitive Bid
referred to in paragraph (c) above. The Borrower shall notify the Administrative
Agent by telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject any of or all the bids referred to in paragraph (c) above, (x) in the
case of a Eurodollar Competitive Borrowing, not later than 11:00 A.M., New York
City time, three Business Days before a proposed Competitive Borrowing and (y)
in the case of a Fixed Rate Borrowing, not later than 11:00 A.M., New York City
time, on the day of a proposed Competitive Borrowing; provided, however, that
(i) 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, (ii) 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, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request, (iv) if
the Borrower shall accept a bid or bids made at the same Competitive Bid Rate
but the amount of such bid or bids shall cause the total amount of bids to be
accepted by the Borrower to exceed the amount specified in the Competitive Bid
Request, then the Borrower shall accept a portion of such bid or bids in an
amount no greater than the amount specified in the Competitive Bid Request less
the amount of all other Competitive Bids at a lower Competitive Bid Rate
accepted with respect to such Competitive Bid Request, which acceptance, in the
case of multiple bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the lowest amount of each such bid at such Competitive Bid Rate,
and (v) except pursuant to clause (iv) above, no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further, however,
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. A notice given by the Borrower pursuant to this paragraph (d)
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopier sent by the Administrative
Agent, 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.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such bid directly to the Borrower not
later than 9:15 A.M., New York City time, on the day on which the other Lenders
are required to submit their bids to the Administrative Agent pursuant to
paragraph (b) above.
(g) All notices required by this Section 2.03 shall be given in accordance
with Section 9.01.
SECTION 2.04. Standby Borrowing Procedure.
In order to request a Standby Borrowing (other than a Conversion), the
Borrower shall hand deliver or telecopy to the Administrative Agent a notice in
the form of Exhibit A-5 (a) in the case of a Eurodollar Standby Borrowing, not
later than 11:00 A.M., New York City time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 11:00 A.M.,
New York City time, on the day of a proposed Borrowing. No Fixed Rate Loan shall
be requested or made pursuant to a Standby Borrowing Request. Such notice shall
be irrevocable (unless otherwise expressly provided herein) and shall in each
case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such Standby
Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Standby Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Standby Borrowing is specified
in any such notice, then the requested Standby Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Standby
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise (but in any event no later than 12:00 noon on such
date) the Lenders of any notice given pursuant to this Section 2.04 and of each
Lender's portion of the requested Borrowing.
SECTION 2.05. Conversions.
The Borrower may from time to time Convert any Standby Loan (or portion
thereof) of any Type and with any Interest Period (if applicable) to one or more
Standby Loans of the same or any other Type and with any Interest Period (if
applicable) by delivering (by hand delivery or telecopier) a request for such
Conversion in the form of Exhibit A-6 to the Administrative Agent no later than
(i) 11:00 A.M., New York City time, on the third Business Day prior to the date
of any proposed Conversion into a Eurodollar Standby Loan and (ii) 11:00 A.M.,
New York City time, on the day of any proposed Conversion into an ABR Loan. The
Administrative Agent shall give each Lender prompt notice of each Conversion
Request. Each Conversion Request shall be irrevocable (unless otherwise
expressly provided herein) and binding on the Borrower and shall specify the
requested (A) date of such Conversion, (B) Type of, and Interest Period, if any,
applicable to, the Standby Loans (or portions thereof) proposed to be Converted,
(C) Type of Standby Loans to which such Standby Loans (or portions thereof) are
proposed to be Converted, (D) initial Interest Period, if any, to be applicable
to the Standby Loans resulting from such Conversion and (E) aggregate amount of
Standby Loans (or portions thereof) proposed to be Converted. No Eurodollar
Standby Loans may be Converted on a date other than the last day of the Interest
Period applicable thereto, unless the Borrower reimburses each Lender pursuant
to Section 2.15 for all losses or expenses incurred by such Lender in connection
with such Conversion. If the Borrower shall fail to give a timely Conversion
Request pursuant to this subsection in respect of any Standby Loans, such
Standby Loans shall, on the last day of the then existing Interest Period
therefor, automatically Convert into, or remain as, as the case may be, ABR
Loans, unless such Standby Loans are repaid at the end of such Interest Period.
If the Borrower shall fail, in any Conversion Request that has been timely
given, to select the duration of any Interest Period for Standby Loans to be
Converted into Eurodollar Standby Loans, such Standby Loans shall, on the last
day of the then existing Interest Period therefor, automatically Convert into
Eurodollar Standby Loans with an Interest Period of one month's duration. If, on
the date of any proposed Conversion, the Borrower shall have failed to fulfill
any condition set forth in Section 4.01, all Standby Loans then outstanding
shall, on such date, automatically Convert into, or remain as, as the case may
be, ABR Loans.
SECTION 2.06. Fees.
(a) The Borrower agrees to pay to each Lender, through the Administrative
Agent, on each March 31, June 30, September 30 and December 31, on the date on
which the Commitment of such Lender shall be terminated as provided herein and
on the Maturity Date, a facility fee (a "Facility Fee") at a rate per annum
equal to the Applicable Rate from time to time in effect on (i) the amount of
the Commitment of such Lender, whether used or unused, during the preceding
quarter (or shorter period commencing on the date hereof and ending on the
Maturity Date or any other date on which the Commitment of such Lender shall be
terminated) and (ii) in the event that the Commitments have terminated, the
aggregate amount of the Standby Loans owed by the Borrower to such Lender during
the preceding quarter (or shorter period ending on the date on which such
Standby Loans are paid in full). All Facility Fees shall be computed on the
basis of the actual number of days elapsed in a year of 365 or 366 days, as the
case may be. The Facility Fee due to each Lender shall commence to accrue on the
date hereof and shall cease to accrue on the later of the Maturity Date and the
date of payment in full of the Loans, accrued interest thereon and all other
amounts payable hereunder.
(b) The Borrower agrees to pay the Administrative Agent, for its own
account, the fees (the "Administrative Fees") at the times and in the amounts
agreed upon between them.
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.07. Repayment of Loans.
(a) The outstanding principal balance of each Loan shall be payable, in the
case of each Competitive Loan, on the earlier to occur of the last day of the
Interest Period applicable to such Loan and the Maturity Date, and, in the case
of each Standby Loan, on the Maturity Date. Each Competitive Loan and each
Standby Loan shall bear interest from the date thereof on the outstanding
principal balance thereof as set forth in Section 2.08. Each Lender shall, and
is hereby authorized by the Borrower to record in such Lender's internal records
an appropriate notation evidencing the date and amount of each Competitive Loan
or Standby Loan, as applicable, of such Lender, each payment or prepayment of
principal of any Competitive Loan or Standby Loan, as applicable, and such other
relevant information as such Lender records in its internal records with respect
to loans of a type similar to such Loans; provided, however, that the failure of
any Lender 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 Standby
Loans, as applicable, made by such Lender in accordance with the terms hereof.
(b) Any Lender may request that any Loans made by it be evidenced by one or
more promissory notes. Promptly upon receipt of such request, the Borrower shall
prepare, execute and deliver to such Lender one or more promissory notes payable
to the order of such Lender (or, if requested by such Lender, to such Lender and
its assignees) substantially in the form of Exhibit D-1 or D-2, as appropriate.
Thereafter, the Loans evidenced by such promissory notes and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein.
SECTION 2.08. Interest on Loans.
(a) Subject to the provisions of Section 2.09, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i)
in the case of each Eurodollar Standby Loan, the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate, and (ii) in the
case of each Eurodollar Competitive Loan, the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Margin offered by the Lender making such
Loan and accepted by the Borrower pursuant to Section 2.03. Interest on each
Eurodollar Borrowing shall be payable on each applicable Interest Payment Date.
The LIBO Rate for each Interest Period shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error. The
Administrative Agent shall promptly (but in any event no later than 10:30 A.M.,
New York City time, two Business Days prior to the commencement of such Interest
Period) (A) advise the Borrower and each Lender, as appropriate, of such
determination and (B) upon the request of the Borrower, provide the Borrower
with the calculations and relevant factors supporting such determination.
(b) Subject to the provisions of Section 2.09, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be, when determined
with reference to the Prime Rate and over a year of 360 days in all other cases)
at a rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
Interest on each ABR Borrowing shall be payable on each applicable Interest
Payment Date. The Alternate Base Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error. The
Administrative Agent shall promptly (but in any event no later than 11:30 A.M.,
New York City time, on the day of each ABR Borrowing) (A) advise the Borrower
and each Lender of such determination and (B) upon the request of the Borrower,
provide the Borrower with the calculations and relevant factors supporting such
determination.
(c) Subject to the provisions of Section 2.09, 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 Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03. Interest on each Fixed Rate Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement.
SECTION 2.09. Default Interest.
If the Borrower shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder, whether by
scheduled maturity, notice of prepayment, acceleration, or otherwise, the
Borrower shall on demand from time to time from the Administrative Agent 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 (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the Alternate Base Rate plus 2%.
SECTION 2.10. 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 Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal
amounts of the Eurodollar Loans comprising such Borrowing are not generally
available in the London interbank market, or that the rates at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
any Lender of making or maintaining its Eurodollar Loan during such Interest
Period, or that reasonable means do not exist for ascertaining the LIBO Rate,
the Administrative Agent shall, as soon as practicable thereafter, give written
notice of such determination to the Borrower and the Lenders. In the event of
any such determination, until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any such request by the Borrower for a Eurodollar Competitive
Borrowing pursuant to Section 2.03 shall be of no force and effect and shall be
denied by the Administrative Agent, (ii) any such request by the Borrower for a
Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to be a
request for an ABR Borrowing (unless the Borrower shall have withdrawn its
request for such Eurodollar Standby Borrowing not later than 10:00 A.M., New
York City time, on the day of the proposed Borrowing) and (iii) any request by
the Borrower for a Conversion to Eurodollar Standby Loans pursuant to Section
2.05 shall be deemed to be a request for a Conversion to ABR Loans (unless the
Borrower shall have withdrawn its request for such Conversion not later than
10:00 A.M., New York City time, on the day of the proposed Conversion). Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.11. Changes in Commitments.
(a) Upon at least three Business Days' prior irrevocable written notice to
the Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $10,000,000 and (ii) no such termination or reduction shall
be made which would, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.12, reduce the Total Commitment to an amount
less than the sum of the aggregate principal amount of all Standby Loans
outstanding plus the aggregate principal amount of all Competitive Loans
outstanding.
(b) Each reduction in the Total Commitment hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Administrative Agent for the account of the Lenders, on the
date of each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued through the date of such
termination or reduction. Subject to Section 2.06(a)(ii), no additional Facility
Fees on the amount of the Commitments so terminated or reduced will accrue.
(c) Unless earlier terminated pursuant to the terms of this Agreement, the
Commitment of each Lender shall automatically and permanently terminate on the
Maturity Date.
(d) Provided that no Default or Event of Default shall have occurred and be
continuing, the Borrower shall have the right, without the consent of the
Lenders but subject to the terms of an amendment hereto entered into by the
Borrower and the Administrative Agent, to effectuate from time to time an
increase in the Total Commitment by (x) the accession to this Agreement of one
or more financial institutions as a Lender or as Lenders or (y) allowing one or
more Lenders to increase its Commitment hereunder (any such event described in
clause (x) or (y) being a "Commitment Increase"; provided that (i) the aggregate
amount of Commitment Increases effectuated pursuant to this paragraph shall not
exceed $75,000,000, (ii) no Lender's Commitment shall be increased without the
consent of such Lender, (iii) on the effective date of any such Commitment
Increase, there are no outstanding Eurodollar Standby Loans, and (iv) no
Commitment Increase may occur pursuant to this paragraph on any date after
January 31, 2002. Each party hereto hereby consents to the amendment of this
Agreement to reflect any such Commitment Increase. The Borrower shall give the
Administrative Agent three Business Days' (or such shorter period of time as
shall be acceptable to the Administrative Agent) notice of the Borrower's
intention to increase the Total Commitment pursuant to this paragraph. Such
notice shall specify each new financial institution to accede to this Agreement
as a Lender or the name of the Lender that has agreed to increase its Commitment
hereunder, as the case may be, and the amount of the proposed additional
Commitment or the amount of the proposed increase in an existing Commitment, as
the case may be. The Borrower shall also provide to the Administrative Agent
satisfactory evidence that all necessary Governmental Approvals and corporate
authorizations have been obtained by the Borrower in connection with proposed
Commitment Increase, together with such other information as is reasonably
requested by the Administrative Agent. Each financial institution agreeing to
accede to this Agreement as a Lender, and each Lender agreeing to increase its
Commitment (each such financial institution or Lender being an "Acceding
Lender"), shall execute and deliver to the Administrative Agent and the Borrower
documentation in form and substance satisfactory to the Administrative Agent and
the Borrower pursuant to which it becomes a party hereto or increases its
Commitment, as the case may be, shall deliver to the Administrative Agent an
Administrative Questionnaire, and shall purchase from the existing Lenders its
proportionate share (based on the amount of its Commitment and the amount of the
Total Commitment after giving effect to the Commitment Increase) of any Standby
Loans outstanding on the date such Commitment Increase becomes effective. Upon
(x) the execution and delivery of such documentation and an amendment to this
Agreement that reflects any such increase in the Total Commitment and such
additional or changed Commitments and (y) the provision to the Administrative
Agent by the Acceding Lender of funds in an amount necessary to purchase from
the existing Lenders its proportionate share (based on the amount of its
Commitment and the amount of the Total Commitment after giving effect to the
Commitment Increase) of any Standby Loans outstanding on the date such
Commitment Increase becomes effective, (i) the Commitment Increase shall become
effective, (ii) the financial institution agreeing to accede to this Agreement
as a Lender shall constitute a Lender under this Agreement with a Commitment as
specified therein, or, in the case of an existing Lender agreeing to increase
its Commitment, such Lender's Commitment shall increase as specified therein,
and (iii) the Acceding Lender shall acquire its proportionate share (determined
as aforesaid) of any outstanding Standby Loans and the rights relating thereto
as provided by the Agreement.
(e) Any changes in the Commitments pursuant to this Section 2.11 shall be
appropriately recorded by the Administrative Agent in the Register in accordance
with Section 9.04(d). In addition, all notices with respect to any such change
shall be maintained by the Administrative Agent with the Register.
SECTION 2.12. Prepayment.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Standby Borrowing or Eurodollar Competitive Borrowing, in whole or in
part, upon giving written notice (or telephone notice promptly confirmed by
written notice) to the Administrative Agent: (i) before 11:00 A.M., New York
City time, three Business Days prior to prepayment, in the case of Eurodollar
Loans, and (ii) before 11:00 A.M., New York City time, on the day of prepayment,
in the case of ABR Loans; provided, however, that each partial prepayment shall
be in an amount which is an integral multiple of $1,000,000 and not less than
$5,000,000. The Borrower shall not have the right to prepay any Fixed Rate
Competitive Borrowing without the consent of the applicable Lender.
(b) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be subject to Section 2.15 but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) It is understood that the cost to each Lender of making or maintaining
any of the Eurodollar Loans may fluctuate as a result of the applicability of
reserve requirements imposed by the Board at the ratios provided for in
Regulation D on the date hereof. The Borrower agrees to pay to each of the
Lenders from time to time such amounts as shall be necessary to compensate such
Lender for the portion of the cost of making or maintaining Eurodollar Loans
(other than Eurodollar Competitive Loans) resulting from any such reserve
requirements provided for in Regulation D as in effect on the date hereof, it
being understood that the rates of interest applicable to Eurodollar Loans have
been determined on the assumption that no such reserve requirements exist or
will exist and that such rates do not reflect costs imposed on the Lenders in
connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation (including, without
limitation, Regulation D) or in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall change the basis of
taxation of payments to any Lender of the principal of or interest on any
Eurodollar Loan or Fixed Rate Loan made by such Lender or any Fees or other
amounts payable hereunder (other than changes in respect of taxes imposed on the
overall net income of such Lender and franchise taxes imposed on it by the
jurisdiction in which such Lender has its principal office or by any political
subdivision or taxing authority therein), or 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 Lender, or
shall impose on such Lender or the London interbank market any other condition
affecting this Agreement or any Eurodollar Loan or Fixed Rate Loan made by such
Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan or
to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest, or otherwise) by an amount deemed by such
Lender to be material, then, to the extent not otherwise being reimbursed under
Section 2.19 hereof, the Borrower will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender
shall be entitled to request compensation under this paragraph with respect to
any Competitive Loan if it shall have had actual knowledge of the change giving
rise to such request at the time of submission of the Competitive Bid pursuant
to which such Competitive Loan shall have been made.
(c) If any Lender shall have determined that the adoption after the date
hereof of any law, rule, regulation, or guideline regarding capital adequacy, or
any change in any existing law, rule, regulation, or guideline regarding capital
adequacy or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender's holding company 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 Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement or
the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender's holding company could have achieved but for such
adoption, change, or compliance (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(d) A certificate of a Lender setting forth such amount or amounts as shall
be necessary to compensate such Lender as specified in paragraph (a), (b), or
(c) above, as the case may be, and all of the relevant factors and the
calculations supporting such amount or amounts, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
each Lender the amount shown as due on any such certificate delivered by it
within 10 days after the receipt of the same.
(e) Notwithstanding the provisions of subsections (a), (b) or (c) above, to
the contrary, no Lender shall be entitled to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital to the extent that such compensation relates to any period of
time prior to the date upon which such Lender first notified the Borrower of the
occurrence of the event entitling such Lender to such compensation (unless, and
to the extent, that any such compensation so demanded shall relate to the
retroactive application of any event so notified to the Borrower required by any
governmental authority, central bank or comparable agency).
(f) If any Lender shall have delivered a notice or certificate pursuant to
paragraph (d) above, the Borrower shall have the right, at its own expense, upon
notice to such Lender and the Administrative Agent, to require such Lender to
(i) terminate its Commitment or (ii) transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
or a portion of its interest, rights and obligations under this Agreement to
another financial institution which shall assume such obligations; provided that
(A) no such termination or assignment shall conflict with any law, rule, or
regulation or order of any Governmental Authority and (B) the Borrower or the
assignee, as the case may be, shall pay to the affected Lender in immediately
available funds on the date of such termination or assignment the principal of
and interest accrued to the date of payment on the Loans made by it hereunder
and all other amounts accrued for its account or owed to it hereunder (other
than any amounts owed to such Lender pursuant to Section 2.15(c) in connection
with such principal payment).
SECTION 2.14. Change in Legality.
(a) Notwithstanding any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon such Lender shall not submit a Competitive Bid
in response to a request for Eurodollar Competitive Loans and any request
by the Borrower for a Eurodollar Standby Borrowing shall, as to such Lender
only, be deemed a request for an ABR Loan (or for a Conversion thereto
pursuant to Section 2.05) unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
Converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically Converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal which would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the Converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
Conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.15. Indemnity.
The Borrower shall indemnify each Lender against any loss or expense which
such Lender may sustain or incur as a consequence of (a) any failure by the
Borrower to fulfill on the date of any Borrowing hereunder the applicable
conditions set forth in Article IV, (b) any failure by the Borrower to borrow or
to Convert any Loan hereunder after irrevocable notice of such Borrowing or
Conversion has been given pursuant to Section 2.03, 2.04 or 2.05, (c) any
payment, prepayment or Conversion of a Eurodollar Loan required by any other
provision of this Agreement or otherwise made or deemed made on a date other
than the last day of the Interest Period applicable thereto, (d) any default in
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,
whether by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise), or (e) the occurrence of any Event of Default, including, in each
such case, 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. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably demonstrated by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, Converted, or not borrowed
(assumed to be 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 such
payment, prepayment, 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
such Loan which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably demonstrated by such Lender) that would be
realized by such Lender in redeploying the funds so paid, prepaid, or not
borrowed for such period or Interest Period, as the case may be. A certificate
of any Lender setting forth the factors and calculations supporting any amount
or amounts which such Lender is entitled to receive pursuant to this Section
shall be delivered to the Borrower no later than 30 days following the
incurrence of any loss or expense for which such Lender is seeking
indemnification under this Section 2.15 and shall be conclusive absent manifest
error.
SECTION 2.16. Pro Rata Treatment.
Except as required or otherwise permitted under Sections 2.13(f) and 2.14,
each Standby Borrowing, each payment or prepayment of principal of any Standby
Borrowing, each payment of interest on the Standby Loans, each payment of the
Facility Fees, each reduction of the Commitments and each Conversion of any
Borrowing with a Standby Borrowing of any Type, shall be allocated pro rata
among the Lenders in accordance with their respective Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Standby Loans). Each payment
of principal of any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Loans comprising such
Borrowing. Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Loans comprising such Borrowing. For purposes of
determining the available Commitments of the Lenders at any time, each
outstanding Competitive Borrowing shall be deemed to have utilized the
Commitments of the Lenders (including those Lenders which shall not have made
Loans as part of such Competitive Borrowing) pro rata in accordance with such
respective Commitments. Each Lender agrees that, in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs.
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff, or counterclaim against the Borrower, or pursuant 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 Lender under any applicable bankruptcy, insolvency, or other similar law
or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in respect of any Standby Loan or Standby Loans as a result of which the unpaid
principal portion of the Standby Loans of such Lender shall be proportionately
less than the unpaid principal portion of the Standby Loans of any other Lender,
it shall be deemed simultaneously to have purchased from such other Lender at
face value, and shall promptly pay to such other Lender the purchase price for,
a participation in the Standby Loans of such other Lender, so that the aggregate
unpaid principal amount of the Standby Loans and participations in the Standby
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Standby Loans then outstanding as the principal
amount of its Standby Loans prior to such exercise of banker's lien, setoff, or
counterclaim or other event was to the principal amount of all Standby Loans
outstanding prior to such exercise of banker's lien, setoff, or counterclaim or
other event; 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, to the maximum extent
permitted by law, any Lender holding a participation in a Standby Loan deemed to
have been so purchased may 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
Lender by reason thereof as fully as if such Lender had made a Standby Loan
directly to the Borrower in the amount of such participation.
SECTION 2.18. Payments.
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder not later than
12:00 noon, New York City time, on the date when due in Dollars to the
Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, in immediately available funds. All payments by the Borrower shall be
made without deduction for any counterclaim, defense, recoupment or setoff.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.18, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges, or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on the Administrative Agent's or any Lender's (or any Transferee's) net income
and franchise taxes imposed on the Administrative Agent or any Lender (or
Transferee) by the United States or any jurisdiction under the laws of which it
is organized or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to the Lenders
(or any Transferee) or the Administrative Agent, (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.19) such Lender (or Transferee) or the Administrative Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law. Each Lender
party hereto on the date hereof represents and warrants that no Taxes will be
incurred on the date hereof in connection with the execution and delivery of
this Agreement.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes"). Each Lender party hereto on the date
hereof represents and warrants that no Other Taxes will be incurred on the date
hereof in connection with the execution and delivery of this Agreement.
(c) The Borrower will indemnify each Lender (or Transferee) and the
Administrative Agent for the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.19) paid by such Lender (or Transferee) or the Administrative Agent,
as the case may be, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant taxing
authority or other Governmental Authority. Payment of such indemnification shall
be made within 30 days after the date any Lender (or Transferee) or the
Administrative Agent, as the case may be, makes written demand therefor. If a
Lender (or Transferee) or the Administrative Agent shall become aware that it is
entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, apply for such refund
at the Borrower's expense. If any Lender (or Transferee) or the Administrative
Agent receives a refund in respect of any Taxes or Other Taxes for which such
Lender (or Transferee) or the Administrative Agent has received payment from the
Borrower hereunder, it shall promptly notify the Borrower of such refund and
shall, within 15 days after receipt of such refund, repay such refund to the
Borrower, net of all out-of-pocket expenses of such Lender (or Transferee) or
the Administrative Agent and only with interest received, if any, from the
relevant taxing authority or Governmental Authority; provided that the Borrower,
upon the request of such Lender (or Transferee) or the Administrative Agent,
agrees to return such refund (plus penalties, interest, or other charges) to
such Lender (or Transferee) or the Administrative Agent in the event such Lender
(or Transferee) or the Administrative Agent is required to repay such refund.
(d) Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by the Borrower in respect of any payment to any Lender (or Transferee)
or the Administrative Agent, the Borrower will furnish to the Administrative
Agent, at its address referred to in Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Lender represents and warrants that either (i) it is organized
under the laws of a jurisdiction within the United States or (ii) it has
delivered to the Borrower and the Administrative Agent duly completed copies of
such form or forms prescribed by the Internal Revenue Service indicating that
such Lender is entitled to receive payments without deduction or withholding of
any United States federal income taxes, as permitted by the Code. Each
Transferee agrees that, on or prior to the date upon which it shall become a
party hereto or obtain a participation herein, and upon the reasonable request
from time to time of the Borrower or the Administrative Agent, it will deliver
to the Borrower and the Administrative Agent either (A) a statement that it is
organized under the laws of a jurisdiction within the United States or (B) duly
completed copies of such form or forms as may from time to time be prescribed by
the United States Internal Revenue Service, indicating that such Transferee is
entitled to receive payments without deduction or withholding of any United
States federal income taxes, as permitted by the Code. Each Lender that has
delivered, and each Transferee that hereafter delivers, to the Borrower and the
Administrative Agent the form or forms referred to in the two preceding
sentences further undertakes to deliver to the Borrower and the Administrative
Agent, so far as it may legally do so, further copies of such form or forms, or
successor applicable form or forms, as the case may be, as and when any previous
form filed by it hereunder shall expire or shall become incomplete or inaccurate
in any respect. Each Lender and Transferee represents and warrants that each
such form supplied by it to the Administrative Agent and the Borrower pursuant
to this subsection (f), and not superseded by another form supplied by it, is or
will be, as the case may be, complete and accurate.
(g) The Borrower shall not be required to pay any additional amounts to any
Lender (or Transferee) in respect of United States withholding tax pursuant to
paragraph (a) above if the obligation to pay such additional amounts would not
have arisen but for a failure by such Lender (or Transferee) to comply with the
provisions of paragraph (f) above, unless such failure results from (i) a change
in applicable law, regulation, or official interpretation thereof, or (ii) an
amendment, modification, or revocation of any applicable tax treaty or a change
in official position regarding the application or interpretation thereof, in
each case after the date hereof (and, in the case of a Transferee, after the
date of assignment or transfer); provided, however, that the Borrower shall be
required to pay those amounts to any Lender (or Transferee) which it was
required to pay hereunder prior to the failure of such Lender (or Transferee) to
comply with the provisions of paragraph (f).
(h) Any Lender (or Transferee) claiming any additional amounts payable
pursuant to this Section 2.19 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
by the Borrower or to change the jurisdiction of its applicable lending office
if the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would not,
in the sole determination of such Lender, be otherwise disadvantageous to such
Lender (or Transferee).
(i) If any Lender shall request compensation under this Section 2.19, the
Borrower shall have the right, at its own expense, upon notice to such Lender
and the Administrative Agent, to require such Lender to (i) terminate its
Commitment or (ii) transfer and assign without recourse (in accordance with and
subject to the restrictions contained in Section 9.04) all or a portion of its
interest, rights and obligations under this Agreement to another financial
institution which shall assume such obligations; provided that (A) no such
termination or assignment shall conflict with any law, rule, or regulation or
order of any Governmental Authority and (B) the Borrower or the assignee, as the
case may be, shall pay to the affected Lender in immediately available funds on
the date of such termination or assignment the principal of and interest accrued
to the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. Organization; Powers; Governmental Approvals.
(a) The Borrower and each Principal Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and
(iii) is qualified to do business in every jurisdiction where such qualification
is required, except where the failure so to qualify would not have a Material
Adverse Effect. The Borrower's execution, delivery and performance of this
Agreement are within its corporate powers, have been duly authorized by all
necessary action and do not violate or create a default under (A) law, (B) its
constituent documents, or (C) any contractual provision binding upon it, except
to the extent (in the case of violations or defaults described under clauses (A)
or (C)) where such violation or default would not reasonably be expected to
result in a Material Adverse Effect. This Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against it in accordance with
its terms (except as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting the
rights of creditors generally and general principles of equity, including an
implied covenant of good faith and fair dealing).
(b) Except for (i) any Governmental Approvals required in connection with
any Borrowings (such approvals being "Borrowing Approvals") and (ii) any
Governmental Approvals the failure to obtain which could not reasonably be
expected to result in a Material Adverse Effect or affect the validity or
enforceability of this Agreement, all Governmental Approvals required in
connection with the execution and delivery by the Borrower of this Agreement and
the performance by the Borrower of its obligations hereunder have been, and,
prior to the time of any Borrowing, all Borrowing Approvals will be, duly
obtained, are (or, in the case of Borrowing Approvals, will be) in full force
and effect without having been amended or modified in any manner that may impair
the ability of the Borrower to perform its obligations under this Agreement, and
are not (or, in the case of Borrowing Approvals, will not be) the subject of any
pending appeal, stay or other challenge.
SECTION 3.02. Financial Statements.
The Borrower has furnished to the Lenders, for itself and its Subsidiaries,
its most recent filings with the Securities and Exchange Commission on Forms
10-K and 10-Q. Such Forms 10-K and 10-Q do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make any statement
therein, in light of the circumstances under which it was made, not misleading.
Each of the financial statements in such Forms 10-K and 10-Q has been, and each
of the financial statements to be furnished pursuant to Section 5.02 will be,
prepared in accordance with GAAP applied consistently with prior periods, except
as therein noted, and fairly presents or will fairly present in all material
respects the consolidated financial position of the Borrower and its
Subsidiaries as of the date thereof and the results of the operations of the
Borrower and its Subsidiaries for the period then ended.
SECTION 3.03. No Material Adverse Change.
Since the date of the Borrower's most recent financial statements contained
in its Annual Report on Form 10-K for the fiscal year ended December 31, 2000,
furnished to the Lenders pursuant to Section 3.02, there has been no material
adverse change in, and there has occurred no event or condition which is likely
to result in a material adverse change in, the financial condition, results of
operations, business, assets or operations of the Borrower and the Subsidiaries
taken as a whole (it being understood that none of the divestiture of Utilities
Assets, the consummation or dissolution of a Joint Venture Transaction, the
incurrence of Non-Recourse Joint Venture Indebtedness or the consummation of an
Asset Exchange shall constitute such a material adverse change).
SECTION 3.04. Title to Properties; Possession Under Leases.
(a) To the best of the Borrower's knowledge, each of the Borrower and the
Principal Subsidiaries has good and marketable title to, or valid leasehold
interests in, or other rights to use or occupy, all its material properties and
assets, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.01.
(b) Each of the Borrower and the Principal Subsidiaries has complied with
all obligations under all material leases to which it is a party and all such
leases are in full force and effect, except where such failure to comply or
maintain such leases in full force and effect would not have a Material Adverse
Effect. Each of the Borrower and the Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases except where such failure
would not have a Material Adverse Effect.
SECTION 3.05. Ownership of Subsidiaries.
The Borrower owns, free and clear of any Lien (other than Liens expressly
permitted by Section 6.01), all of the issued and outstanding shares of common
stock of each of the Principal Subsidiaries.
SECTION 3.06. Litigation; Compliance with Laws.
(a) There is no action, suit, or proceeding, or any governmental
investigation or any arbitration, in each case pending or, to the knowledge of
the Borrower, threatened against the Borrower or any of the Subsidiaries or any
material property of any thereof before any court or arbitrator or any
governmental or administrative body, agency, or official which (i) challenges
the validity of this Agreement, (ii) may reasonably be expected to have a
material adverse effect on the ability of the Borrower to perform any of its
obligations under this Agreement or on the rights of or benefits available to
the Lenders under this Agreement or (iii) except as disclosed in the Borrower's
Annual Report on Form 10-K for the fiscal year ended December 31, 2000 or the
Borrower's Quarterly Reports on Form 10-Q for the periods ending March 31, 2001
and June 30, 2001, may reasonably be expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in violation of any
law, rule, or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default could reasonably be anticipated to result in a Material Adverse Effect.
(c) Except as set forth in or contemplated by the financial statements or
other reports referred to in Section 3.02 hereof and which have been delivered
to the Lenders on or prior to the date hereof, (i) the Borrower and each of its
Subsidiaries have complied with all Environmental Laws, except to the extent
that failure to so comply is not reasonably likely to have a Material Adverse
Effect, (ii) neither the Borrower nor any of its Subsidiaries has failed to
obtain, maintain or comply with any permit, license or other approval under any
Environmental Law, except where such failure is not reasonably likely to have a
Material Adverse Effect, (iii) neither the Borrower nor any of its Subsidiaries
has received notice of any failure to comply with any Environmental Law or
become subject to any liability under any Environmental Law, except where such
failure or liability is not reasonably likely to have a Material Adverse Effect,
(iv) no facilities of the Borrower or any of its Subsidiaries are used to manage
any Specified Substance in violation of any law, except to the extent that such
violations, individually or in the aggregate, are not reasonably likely to have
a Material Adverse Effect, and (v) the Borrower is aware of no events,
conditions or circumstances involving any Release of a Specified Substance that
is reasonably likely to have a Material Adverse Effect.
SECTION 3.07. Agreements.
(a) Neither the Borrower nor any of the Subsidiaries is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted, or could reasonably be anticipated to result, in a Material Adverse
Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be anticipated to result in a
Material Adverse Effect.
SECTION 3.08. Federal Reserve Regulations.
No part of the proceeds of the Loans will be used, whether directly or
indirectly, and whether immediately, incidentally, or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Margin Regulations.
SECTION 3.09. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.10. Use of Proceeds.
The Borrower will use the proceeds of the Loan only for general corporate
purposes, including working capital and support of commercial paper issuances
and Securitization Transactions permitted hereunder as well as one or more Joint
Venture Transactions, acquisitions or Asset Exchanges; provided, however, that
no such proceeds shall be used directly or indirectly in connection with any
Hostile Acquisition.
SECTION 3.11. Tax Returns.
Each of the Borrower and the Subsidiaries has filed or caused to be filed
all Federal, state and local tax returns required to have been filed by it and
has paid or caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by it, except (i) taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower
shall have set aside on its books adequate reserves and (ii) where such failure
to file or pay would not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.12. No Material Misstatements.
No statement, information, report, financial statement, exhibit or schedule
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the syndication or negotiation of this Agreement or
included herein or delivered pursuant hereto contained, contains, or will
contain any material misstatement of fact or intentionally omitted, omits, or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are, or will be made,
not misleading.
SECTION 3.13. Employee Benefit Plans.
(a) Each Plan is in compliance with ERISA, except for such noncompliance
that has not resulted, and could not reasonably be anticipated to result, in a
Material Adverse Effect.
(b) No Plan has an accumulated or waived funding deficiency within the
meaning of Section 412 or Section 418B of the Code, except for any such
deficiency that has not resulted, and could not reasonably be anticipated to
result, in a Material Adverse Effect.
(c) No proceedings have been instituted to terminate any Plan, except for
such proceedings where the termination of a Plan has not resulted, and could not
reasonably be anticipated to result, in a Material Adverse Effect.
(d) Neither the Borrower nor any Subsidiary or ERISA Affiliate has incurred
any liability to or on account of a Plan under ERISA (other than obligations to
make contributions in accordance with such Plan), and no condition exists which
presents a material risk to the Borrower or any Subsidiary of incurring such a
liability, except for such liabilities that have not resulted, and could not
reasonably be anticipated to result, in a Material Adverse Effect.
SECTION 3.14. Insurance.
Each of the Borrower and the Principal Subsidiaries maintains insurance
with financially sound and reputable insurers, or self-insurance, with respect
to its properties and business against loss or damage of the kind customarily
insured against by reputable companies in the same or similar business and of
such types and in such amounts (with such deductible amounts) as is customary
for such companies under similar circumstances.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. Each Borrowing.
The obligation of each Lender to make a Loan on the occasion of any
Borrowing, including any Conversion pursuant to Section 2.05, is subject to the
satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03, 2.04 or 2.05, as applicable;
(b) The representations and warranties set forth in Article III hereof
(except, in the case of a Conversion, the representations set forth in Sections
3.03 and 3.06(a)) shall be true and correct in all material respects on and as
of the date of such Borrowing with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date;
(c) The Borrower shall be in compliance with all of the terms and
provisions set forth herein on its part to be observed or performed, and at the
time of, and immediately after such Borrowing, no Event of Default or Default
shall have occurred and be continuing; and
each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effective Date.
The obligations of the Lenders to make Loans hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.08):
(a) The Administrative Agent shall have received a favorable written
opinion of the general counsel of the Borrower, dated the Effective Date and
addressed to the Lenders, to the effect set forth in Exhibit C hereto, and the
Borrower hereby instructs such counsel to deliver such opinion to the
Administrative Agent;
(b) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Administrative Agent and the Lenders;
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
the Borrower, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of the
Borrower as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of the Borrower dated the Effective Date
and certifying (A) that attached thereto is a true and complete copy of the
by-laws of the Borrower as in effect on the Effective Date and at all times
since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of the Borrower authorizing the execution,
delivery and performance of this Agreement and the borrowings hereunder, and
that such resolutions have not been modified, rescinded, or amended and are in
full force and effect, (C) that the certificate or articles of incorporation of
the Borrower have not been amended since the date of the last amendment thereto
shown on the certificate of good standing furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of each officer
executing this Agreement or any other document delivered in connection herewith
on behalf of the Borrower; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above; (iv) irrevocable
notices from the Borrower requesting termination of the "Total Commitment" under
each of the Existing Facilities effective automatically on the Effective Date
and (v) such other documents as the Administrative Agent or the Lenders may
reasonably request;
(d) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01;
(e) The Administrative Agent shall have received all Fees and other amounts
due and payable on or prior to the Effective Date; and
(f) All "Commitments" (as defined in each of the Existing Facilities) under
the Existing Facilities shall have been terminated in accordance with the terms
thereof and all "Loans" (as defined in each of the Existing Facilities)
outstanding thereunder shall have been repaid or prepaid together with accrued
interest thereon and all other amounts payable to the "Lenders" (as defined in
each of the Existing Facilities) under the Existing Facilities.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Administrative Agent and each
Lender that, so long as this Agreement shall remain in effect or the principal
of or interest on any Loan (or any portion thereof), or any other expenses or
amounts payable hereunder, shall be unpaid, the Borrower will:
SECTION 5.01. Existence; Businesses and Properties.
(a) Preserve and maintain, cause each of the Principal Subsidiaries to
preserve and maintain, and cause each other Subsidiary to preserve and maintain
(where the failure by any such other Subsidiary to so preserve and maintain
would likely result in a Material Adverse Effect), its corporate existence,
rights and franchises, except in connection with a Joint Venture Transaction or
an Asset Exchange, provided, however, that the corporate existence of any
Principal Subsidiary may be terminated if such termination is not
disadvantageous to the Administrative Agent or any Lender;
(b) continue to own all of the outstanding shares of common stock of each
Principal Subsidiary, except in connection with a Joint Venture Transaction or
an Asset Exchange;
(c) comply, and cause each of the Subsidiaries to comply, in all material
respects, with all applicable laws, rules, regulations and orders, including,
without limitation, all Environmental Laws;
(d) pay, and cause each of the Subsidiaries to pay, before any such amounts
become delinquent, (i) all taxes, assessments and governmental charges imposed
upon it or upon its property, and (ii) all claims (including without limitation,
claims for labor, materials, supplies, or services) which might, if unpaid,
become a Lien upon its property, unless, in each case, the validity or amount
thereof is being disputed in good faith, and the Borrower has maintained
adequate reserves with respect thereto, in each case where the failure to so pay
would be reasonably expected to cause a Material Adverse Effect;
(e) keep, and cause each of the Subsidiaries to keep, proper books of
record and account, containing complete and accurate entries of all financial
and business transactions of the Borrower and such Subsidiary in all material
respects;
(f) continue to carry on, and cause each Principal Subsidiary to continue
to carry on, substantially the same type of business as the Borrower or such
Principal Subsidiary conducted as of the date hereof and business reasonably
related thereto, except for changes in such business that result from the sale
of Utilities Assets, a Joint Venture Transaction or an Asset Exchange; and
(g) maintain or cause to be maintained insurance with financially sound and
reputable insurers, or self-insurance, with respect to its properties and
business and the properties and business of the Subsidiaries against loss or
damage of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance to be of such types and in such
amounts (with such deductible amounts) as is customary for such companies under
similar circumstances;
provided, however, that the foregoing shall not limit the right of the Borrower
or any of its Subsidiaries to engage in any transaction not otherwise prohibited
by Section 6.02, 6.03 or 6.04.
SECTION 5.02. Financial Statements, Reports, etc.
In the case of the Borrower, furnish to the Administrative Agent and each
Lender:
(a) as soon as available and in any event within 110 days after the end of
each fiscal year, consolidated balance sheets and the related statements of
income and cash flows of the Borrower and its Subsidiaries (the Borrower and its
Subsidiaries being collectively referred to as the "Companies") as of the close
of such fiscal year (which requirement shall be deemed satisfied by the delivery
of the Borrower's Annual Report on Form 10-K (or any successor form) for such
year), all audited by KPMG Peat Marwick or other independent public accountants
of recognized national standing and accompanied by an opinion of such
accountants to the effect that such consolidated financial statements fairly
present in all material respects the financial condition and results of
operations of the Companies on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 65 days after the end of each of the first three fiscal quarters
of each fiscal year, consolidated balance sheets and related statements of
income and cash flows of the Companies as of the close of such fiscal quarter
and the then elapsed portion of the fiscal year (which requirement shall be
deemed satisfied by the delivery of the Borrower's Quarterly Report on Form 10-Q
(or any successor form) for such quarter), each certified by a Financial Officer
as fairly presenting the financial condition and results of operations of the
Companies on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments;
(c) promptly upon the mailing or filing thereof, copies of all financial
statements, reports and proxy statements mailed to the Borrower's public
shareholders, and copies of all registration statements (other than those on
Form S-8) and Form 8-K's (to the extent that such Form 8-K's disclose actual or
potential adverse developments with respect to the Borrower or any of its
Subsidiaries that constitute, or could reasonably be anticipated to constitute,
a Material Adverse Effect) filed with the Securities and Exchange Commission (or
any successor thereto) or any national securities exchange;
(d) prompt notice of any reduction in the credit rating given to the
Borrower by S&P or ▇▇▇▇▇'▇;
(e) promptly after (i) the occurrence thereof, notice of any ERISA
Termination Event or "prohibited transaction", as such term is defined in
Section 4975 of the Code, with respect to any Plan that results, or could
reasonably be anticipated to result, in a Material Adverse Effect, which notice
shall specify the nature thereof and the Borrower's proposed response thereto,
and (ii) actual knowledge thereof, copies of any notice of PBGC's intention to
terminate or to have a trustee appointed to administer any Plan; and
(f) promptly, from time to time, such other information, regarding its
operations, business affairs and financial condition, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.03. Litigation and Other Notices.
Furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any written notice of intention of
any Person to file or commence, any action, suit or proceeding, whether at law
or in equity or by or before any Governmental Authority, against the Borrower or
any of the Subsidiaries which is reasonably likely to be adversely determined
and which, if adversely determined, could reasonably be anticipated to result in
a Material Adverse Effect; and
(c) any development with respect to the Borrower or any Subsidiary that has
resulted in, or could reasonably be anticipated to result in, a Material Adverse
Effect.
SECTION 5.04. Maintaining Records.
Maintain all financial records in accordance with GAAP and, upon reasonable
notice, permit any Lender to visit and inspect the financial records of the
Borrower at reasonable times and as often as requested and to make extracts from
and copies of such financial records, and permit any representatives designated
by any Lender to discuss the affairs, finances and condition of the Borrower
with the appropriate officers thereof and, with the Borrower's consent (which
shall not be unreasonably withheld), the independent accountants therefor;
provided, however, that if the Borrower shall so require, a single
representative shall be appointed by Lenders holding at least 50% of the
aggregate outstanding principal balance of the Loans to exercise the rights
granted under this Section 5.04.
SECTION 5.05. Use of Proceeds.
Use the proceeds of the Loans only for general corporate purposes,
including working capital and support of commercial paper issuances and
Securitization Transactions permitted hereunder as well as one or more Joint
Venture Transactions, acquisitions or Asset Exchanges; provided, however, that
no such proceeds shall be used directly or indirectly in connection with any
Hostile Acquisition.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the Administrative
Agent that, so long as this Agreement shall remain in effect or the principal of
or interest on any Loan (or any portion thereof), or any other expenses or
amounts payable hereunder, shall be unpaid, it will not:
SECTION 6.01. Liens; Restrictions on Sales of Receivables.
Create, incur, assume, or suffer to exist, or permit any of the Principal
Subsidiaries to create, incur, assume, or suffer to exist, any Lien on any of
its property now owned or hereafter acquired to secure any Indebtedness of the
Borrower or any such Principal Subsidiary, or sell or assign any accounts
receivable (other than in the ordinary course of business substantially in
accordance with the Borrower's past practice), other than: (a) Liens incurred or
deposits made in the ordinary course of business to secure surety and appeal
bonds, leases, return-of-money bonds and other similar obligations (exclusive of
obligations of the payment of borrowed money); (b) Liens created under or in
connection with the First Mortgage Bond Indentures or any other indentures
governing the issuance of mortgage bonds by the Borrower; (c) pledges or
deposits to secure the utility obligations of the Borrower incurred in the
ordinary course of business; (d) Liens upon or in property now owned or
hereafter acquired to secure Indebtedness incurred solely for the purpose of
financing the acquisition, construction or improvement of any property, provided
that such Indebtedness shall not exceed the fair market value of the property
being acquired, constructed or improved; (e) Liens on the assets of any
Principal Subsidiary to secure the repayment of project financing for such
Principal Subsidiary; (f) Liens on the assets of any Person merged or
consolidated with or into (in accordance with Section 6.04) the Borrower or any
Principal Subsidiary that were in effect at the time of such merger or
consolidation; (g) Liens securing Indebtedness of the Borrower or of any
Principal Subsidiary to the Rural Electrification Administration, the Rural
Utilities Service, the Rural Telephone Bank or the Rural Telephone Finance
Cooperative (or any successor to any such agency); (h) Liens for taxes,
assessments and governmental charges or levies, which are not yet due or are
which are being contested in good faith by appropriate proceedings; (i)
carriers', warehousemen's, mechanics', materialmen's, repairmen's, suppliers or
other like Liens arising in the ordinary course of business relating to
obligations not overdue for a period of more than 60 days or which are bonded or
being contested in good faith by appropriate proceedings; (j) pledges or
deposits in connection with workers' compensation laws or similar legislation or
to secure public or statutory obligations; (k) Liens incurred on deposits to
secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (l) easements, rights of
way, restrictions and other encumbrances incurred which, in the aggregate, do
not materially interfere with the ordinary conduct of business; (m) restrictions
by Governmental Authorities on the operations, business or assets of the
Borrower or its Subsidiaries that are customary in the Borrower's and its
Subsidiaries' businesses; and (n) sales of accounts receivable pursuant to, and
Liens existing or deemed to exist in connection with, any Securitization
Transactions, provided the aggregate amount of all such Securitization
Transactions shall not at any time exceed $150,000,000; provided, however, that
the Borrower or any Principal Subsidiary may create, incur, assume or suffer to
exist other Liens (in addition to Liens excepted by the foregoing clauses (a)
through (m)) on its assets so long as the sum of the assets subject to such
Liens plus the amount of any outstanding Securitization Transactions permitted
by the foregoing clause (n) does not represent in the aggregate more than 20% of
the Borrower's Consolidated Tangible Assets.
SECTION 6.02. Ownership of the Principal Subsidiaries.
Sell, assign, pledge, or otherwise transfer or dispose of any shares of
common stock, voting stock, or stock convertible into voting or common stock of
any Principal Subsidiary, except (a) to another Subsidiary, (b) to the extent
the assets of such Principal Subsidiary consist entirely of Utilities Assets at
the time such transaction is consummated, (c) in connection with a Joint Venture
Transaction or (d) in connection with an Asset Exchange.
SECTION 6.03. Asset Sales.
Except in connection with a Joint Venture Transaction or an Asset Exchange,
permit any Principal Subsidiary to sell, assign, or otherwise dispose of
telecommunications assets (whether in one transaction or a series of
transactions, if the net, after-tax proceeds thereof are used by the Borrower or
any Subsidiary to prepay (other than a mandatory prepayment in accordance with
the terms of the applicable governing documents, including pursuant to any put
provision) Indebtedness incurred after the date hereof which Indebtedness has a
maturity later than the Maturity Date (other than bridge or other financings
incurred in connection with an asset purchase or sale, including acquisition
indebtedness or indebtedness of an acquired entity).
SECTION 6.04. Mergers.
Merge or consolidate with, or sell, assign, lease, or otherwise dispose of
(whether in one transaction or a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired), except for
Utilities Assets or in connection with an Asset Exchange, to any Person, or
permit any Principal Subsidiary to do so, except that any Subsidiary may merge
into or, subject to Section 6.03, transfer assets to the Borrower or any other
Subsidiary and the Borrower may merge with any Person; provided that,
immediately thereafter and after giving effect thereto, no event shall occur or
be continuing which constitutes an Event of Default or a Default and, in the
case of any such merger to which the Borrower is a party, either the Borrower is
the surviving corporation or the surviving entity (if not the Borrower) has a
consolidated net worth (as determined in accordance with GAAP) immediately
subsequent to such merger at least equal to the Consolidated Net Worth of the
Borrower immediately prior to such merger and expressly assumes the obligations
of the Borrower hereunder; provided, however, that, notwithstanding the
foregoing, the Borrower and any of the Principal Subsidiaries may sell assets in
the ordinary course of its business and may sell or otherwise dispose of worn
out or obsolete equipment on a basis consistent with good business practices.
SECTION 6.05. Restrictions on Dividends.
Enter into or permit any Principal Subsidiary to enter into, any contract
or agreement (other than with a governmental regulatory authority having
jurisdiction over the Borrower or such Principal Subsidiary) restricting the
ability of such Principal Subsidiary to pay dividends or make distributions to
the Borrower in any manner that would impair the ability of the Borrower to meet
its present and future obligations hereunder. The Secretary of the Borrower or
another officer of the Borrower satisfactory to the Administrative Agent shall,
prior to entry into any contract or agreement that could restrict the ability of
any Principal Subsidiary to pay dividends or make distributions to the Borrower,
deliver to the Lenders a certificate certifying (a) to the absence of any Event
of Default or Default after giving effect to the entry by such Principal
Subsidiary into such contract or agreement, and (b) that such contract or
agreement will not impair the ability of the Borrower to meet its present and
future obligations hereunder.
SECTION 6.06. Transactions with Affiliates.
Except in connection with a Joint Venture Transaction or an Asset Exchange,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except that as long as no Default or Event of Default shall have
occurred and be continuing, the Borrower or any Subsidiary may engage in any of
the foregoing transactions (i) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(ii) as otherwise may be required by any Federal or state Governmental
Authority, or (iii) so long as such transactions are not materially
disadvantageous to the Borrower.
SECTION 6.07. Minimum Consolidated Net Worth.
Permit its Consolidated Net Worth at any time to be less than
$1,500,000,000.
SECTION 6.08. Minimum Access Lines.
Permit, as a direct result of any sale, exchange, transfer or other
disposition of Access Lines, the total Access Lines owned by the Borrower and
its Subsidiaries (other than any Joint Venture) as of the end of the applicable
fiscal quarter of the Borrower to be less than 2,500,000.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with this Agreement or the Borrowings hereunder, or any representation,
warranty, statement, or information contained in any written report,
certificate, financial statement, or other instrument furnished in connection
with or pursuant to this Agreement, shall prove to have been false or misleading
in any material respect when so made, deemed made, or furnished;
(b) default shall be made in the payment of any principal of any Loan (or
any portion thereof) when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan (or
any portion thereof) or any Fee or any other amount (other than an amount
referred to in (b) above) due hereunder, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of five
Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition, or agreement contained in Section 5.01(f) or Section 5.05
or in Article VI;
(e) default shall be made in the due observance or performance of any
covenant, condition, or agreement contained herein (other than those specified
in (b), (c), or (d) above) and such default shall continue unremedied for a
period of 30 days after the earlier to occur of (i) the Borrower obtaining
knowledge thereof and (ii) the date that written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender;
(f) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of the Borrower or any Principal Subsidiary, or of a substantial part of
the property or assets of the Borrower or a Principal Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership, or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator, or
similar official for the Borrower or any Principal Subsidiary or for a
substantial part of the property or assets of the Borrower or a Principal
Subsidiary, or (iii) the winding-up or liquidation of the Borrower or any
Principal Subsidiary; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(g) the Borrower or any Principal Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership, or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (f) above, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator, or similar official for the Borrower or any Principal Subsidiary or
for a substantial part of the property or assets of the Borrower or any
Principal Subsidiary, (iv) file an answer admitting the material allegations of
a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in writing
its inability, or fail generally to pay its debts as they become due, or (vii)
take any action for the purpose of effecting any of the foregoing;
(h) the Borrower or any Principal Subsidiary, as the case may be, fails to
pay when due, or within any grace period applicable thereto by the terms
thereof, any other Indebtedness of the Borrower or any Principal Subsidiary
aggregating $50,000,000 or more;
(i) the Borrower or any Principal Subsidiary shall fail to observe or
perform any covenant or agreement contained in any single agreement or
instrument relating to any Indebtedness in excess of (i) $75,000,000 in the
aggregate, with respect to any Indebtedness issued on a tax-exempt basis, and
(ii) $50,000,000 in the aggregate, with respect to all other Indebtedness, in
each case within any applicable grace period, or any other event shall occur if
the effect of such failure or other event is to accelerate, or to permit the
holder of such Indebtedness or any other Person to accelerate, the maturity of
such Indebtedness; or any such Indebtedness shall be required to be prepaid
(other than by a regularly scheduled required prepayment, pursuant to any put
right (or similar right) of the holder thereof, or by the exercise by the
Borrower or such Principal Subsidiary of its right to make a voluntary
prepayment) in whole or in part prior to its stated maturity;
(j) a judgment or order for the payment of money in excess of $50,000,000
and having a Material Adverse Effect shall be rendered against the Borrower or
any of the Subsidiaries and such judgment or order shall continue unsatisfied
(in the case of a money judgment) and in effect for a period of 30 days during
which execution shall not be effectively stayed or deferred (whether by action
of a court, by agreement, or otherwise);
(k) a Plan shall fail to maintain the minimum funding standard required by
Section 412(a) of the Code for any plan year or a waiver of such standard is
sought or granted under Section 412(d), or a Plan is or shall have been
terminated or the subject of termination proceedings under ERISA, or the
Borrower or an ERISA Affiliate has incurred a liability to or on account of a
Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall
result from any such event or events a Material Adverse Effect; and
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest, or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding; and in any
event with respect to the Borrower described in paragraph (f) or (g) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest, or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein to the contrary notwithstanding.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement, The
Chase Manhattan Bank is hereby appointed to act as Administrative Agent on
behalf of the Lenders. Each of the Lenders, and each Transferee by its agreement
to be bound hereby, irrevocably authorizes the Administrative Agent to take such
actions on behalf of such Lender or Transferee and to exercise such powers as
are specifically delegated to the Administrative Agent by the terms and
provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender its proper share of each payment so received; (b) to promptly give
notice on behalf of each of the Lenders to the Borrower of any Event of Default
specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by
the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees, or agents shall be liable as such for any action taken or omitted by
any of them, except for its or his own gross negligence or willful misconduct,
or be responsible for any statement, warranty, or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants, or agreements contained
herein. The Administrative Agent shall not be responsible to the Lenders or any
Transferee for the due execution, genuineness, validity, enforceability, or
effectiveness of this Agreement or any other instruments or agreements. The
Administrative Agent may deem and treat each Lender party hereto as a "Lender"
hereunder and for all purposes hereof until it shall have received notice, given
as provided herein, of the assignment of all of such Lender's rights and
obligations hereunder. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders (or such other number of Lenders as
is expressly required hereby with respect to such action or inaction) and,
except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders and each
Transferee. The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees, or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the Borrower
of any of their respective obligations hereunder or in connection herewith. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor administrative
agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Borrower
shall have the right to appoint a successor, provided that any successor
selected by the Borrower must be approved by the Required Lenders. If no
successor shall have been so appointed by the Borrower and shall have accepted
such appointment within 20 Business Days after the retiring Administrative Agent
gives notice of its resignation, then the Required Lenders shall have the right
to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 Business
Days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor administrative agent which shall be a bank with an office in New York,
New York and having a combined capital and surplus of at least $1,000,000,000 or
an Affiliate of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative Agent in
its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder or, if the
Commitments shall have terminated, based on its outstanding Loans hereunder) of
any expenses incurred for the benefit of the Lenders by the Administrative
Agent, including reasonable counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, which shall not
have been reimbursed by the Borrower, and (ii) to indemnify and hold harmless
the Administrative Agent and any of its directors, officers, employees, or
agents, on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, cost, expenses, or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against it in its
capacity as the Administrative Agent or any of them in any way relating to or
arising out of this Agreement or any action taken or omitted by it or any of
them under this Agreement, to the extent the same shall not have been
indemnified by the Borrower; provided that no Lender shall be liable to the
Administrative Agent or any of them for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its directors, officers,
employees, or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
None of the Lenders identified on the facing page or signature pages of
this Agreement as a "syndication agent" or "co-documentation agent" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified as a "syndication agent" or
"co-documentation agent" shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.
Notices and other communications provided for herein shall be in writing
and shall be delivered by the method, if any, specified in the relevant
provisions of this Agreement and otherwise by hand or overnight courier service,
mailed or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention of Treasurer (Telecopy No. 203-614-5711);
(b) if to the Administrative Agent, to it at One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
212-552-5658), with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, The Chase Manhattan Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. 212-270-4164); and
(c) if to a Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy, or on the date five Business Days after dispatch by certified or
registered mail, if mailed, in each case delivered, sent, or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01; provided, that notices from the Borrower to the Administrative
Agent relating to Borrowings or Conversions shall be effective only on actual
receipt.
SECTION 9.02. Survival of Agreement.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and shall survive the making by the
Lenders of the Loans, regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement is outstanding and unpaid or so long as the
Commitments have not been terminated.
SECTION 9.03. Binding Effect.
This Agreement shall become effective when it shall have been executed by
the Borrower and the Administrative Agent and when the Administrative Agent
shall have received copies hereof which, when taken together, bear the
signatures of each Lender, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
consent of all the Lenders.
SECTION 9.04. Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of the
Borrower, the Administrative Agent or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement, including all or a
portion of its Commitment and the Loans at the time owing to it; provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender, or an assignment pursuant to Section 9.04(h) (in such
circumstances described in Section 9.04(h) where consent is not required), the
Borrower and the Administrative Agent must give their prior written consent to
such assignment, which consent shall not be unreasonably withheld, provided,
further, however, that the consent of the Borrower to any such assignment shall
not be required at any time an Event of Default shall have occurred and be
continuing, (ii) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights or obligations under this
Agreement, (iii) the amount of the Commitment or Loans of the assigning Lender
subject to any such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 and the amount of the Commitment or
Loans of such Lender remaining after such assignment shall not be less than
$5,000,000 or shall be zero, (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Subject to payment in full by the assignee to the
assignor and upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (A) the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance, have (in
addition to any such rights and obligations theretofore held by it) the rights
and obligations of a Lender under this Agreement, and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to the
benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Fees accrued
for its account hereunder and not yet paid)). Notwithstanding the foregoing, any
Lender assigning its rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in such case shall
retain its rights hereunder in respect of any Loans so retained until such Loans
have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Standby Loans and Competitive
Loans (to the extent assigned), in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties, or representations made in or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of this Agreement or any
other instrument or document furnished pursuant hereto or the financial
condition of the Borrower or any Subsidiary or the performance or observance by
the Borrower or any Subsidiary of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.02 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Lender, or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The Administrative Agent
shall also record in the Register the then scheduled Maturity Date and shall
update the Register from time to time upon any change in a Lender's Commitment
and Loans pursuant to the terms of this Agreement. The entries in the Register
shall be conclusive in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower and
the Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register, (iii) give prompt notice thereof to the Lenders and
(iv) send a copy of such Assignment and Acceptance to the Borrower.
(f) Each Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13, 2.15 and 2.19 to the same extent as if
they were Lenders and (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications,
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
Fees, or changing or extending the Commitments).
(g) Any Lender may, in connection with any assignment or proposed
assignment pursuant to this Section 9.04, disclose to the assignee or proposed
assignee any information relating to the Borrower furnished to such Lender by or
on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
proposed assignee shall execute an agreement whereby such assignee shall agree
(subject to customary exceptions) to preserve the confidentiality of such
confidential information. It is understood that confidential information
relating to the Borrower would not ordinarily be provided in connection with
assignments of Competitive Loans. No Lender may, in connection with any
participation or proposed participation pursuant to this Section 9.04, disclose
to any participant or proposed participant any confidential information relating
to the Borrower without the prior written consent of the Borrower.
(h) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement and its promissory notes (if
any) to secure obligations of such Lender to a Federal Reserve Bank or, with the
prior written consent of the Borrower (which consent shall not be unreasonably
withheld, provided, that the consent of the Borrower to any such pledge or
assignment shall not be required at any time an Event of Default shall have
occurred and be continuing), to secure other obligations of such Lender;
provided that no such pledge or assignment shall release such Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder.
SECTION 9.05. Expenses; Indemnity.
(a) The Borrower agrees to pay (i) all reasonable legal fees and
disbursements incurred by the Administrative Agent in connection with the
preparation of this Agreement and (ii) all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) incurred by the Administrative
Agent and any Lender in connection with any amendments, modifications or waivers
of the provisions hereof or thereof or incurred by the Administrative Agent or
any Lender in connection with the enforcement or protection of their rights in
connection with this Agreement.
(b) The Borrower agrees to indemnify the Administrative Agent, each Lender
and each of their respective directors, officers, employees, Affiliates and
agents (each such Person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of, (i) the use of the proceeds of
the Loans or (ii) any claim, litigation, investigation, or proceeding relating
to this Agreement, the use of such proceeds or the transactions contemplated
hereby, whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities, or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
Each Lender shall notify the Borrower promptly after it determines that it will
make a claim for indemnification under this Section 9.05(b). The Borrower shall
be entitled to participate in the defense of the litigation, investigation, or
proceeding giving rise to such claim with counsel satisfactory to the Lender, in
the exercise of its reasonable judgment; provided, however, that any such
participation in such defense shall be conducted by the Borrower and at the
Borrower's expense and in a manner considered by such Lender to be satisfactory
and effective to protect against such claim without causing damage to the
conduct of, or affecting such Lender's control of, such Lender's defense. The
Borrower shall inform such Lender of its intention to participate in the defense
of such claim within 15 days after receipt of notice thereof from such Lender.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement, or any investigation made by or on behalf of the Administrative Agent
or any Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
SECTION 9.06. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.07. Applicable Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent or any Lender in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
which they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Except as provided in Section 2.11(d), neither this Agreement nor any
provision hereof may be waived, amended, or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required
Lenders; provided, however, that no such agreement shall (i) decrease the
principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on, any Loan, or waive or
excuse any such payment or any part thereof, or decrease the rate of interest on
any Loan, without the prior written consent of each Lender, (ii) except as
provided in Section 2.11(d), change or extend the Commitment of any Lender or
decrease or extend any scheduled payment date for the Facility Fees of any
Lender without the prior written consent of such Lender, or (iii) amend or
modify the provisions of Section 2.16, the provisions of this Section or the
definition of "Required Lenders", without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify, or
otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent. Each Lender shall
be bound by any waiver, amendment, or modification authorized by this Section or
by Section 2.11(d), and any consent by any Lender pursuant to this Section or by
Section 2.11(d) shall bind any Transferee of its rights and obligations
hereunder.
SECTION 9.09. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges which are treated
as interest under applicable law (collectively, the "Charges"), as provided for
herein or in any other document executed in connection herewith, or otherwise
contracted for, charged, received, taken, or reserved by any Lender, shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received, or reserved by such Lender in accordance with
applicable law, the rate of interest payable to such Lender, together with all
Charges payable to such Lender, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement.
This Agreement constitutes the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement. Nothing in
this Agreement, expressed or implied, is intended to confer upon any party other
than the parties hereto and thereto any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
SECTION 9.11. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER AGREEMENT OR INSTRUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE,
AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND, IF APPLICABLE, ANY OTHER
AGREEMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability.
In the event any one or more of the provisions contained in this Agreement
should be held invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal, or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal, or unenforceable provisions.
SECTION 9.13. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section
9.03.
SECTION 9.14. Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process.
(a) The Borrower hereby irrevocably and unconditionally submits to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other agreement or instrument executed and delivered in
connection herewith, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Lender may otherwise
have to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action, or proceeding
arising out of or relating to this Agreement or any other agreement or
instrument executed and delivered in connection herewith in any New York State
court or Federal court of the United States of America sitting in New York City.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
[Signature pages follow]
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and the Lenders
have caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
CITIZENS COMMUNICATIONS COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-President Finance and Treasurer
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Lenders:
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THE CHASE MANHATTAN BANK
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO
CITIZENS COMMUNICATIONS COMPANY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Name of Institution: Citibank N.A.
-------------
By: /s/ ▇▇▇▇▇▇ Labergere
------------------------------
Name: ▇▇▇▇▇▇ Labergere
Title: Vice-President
SIGNATURE PAGE TO
CITIZENS COMMUNICATIONS COMPANY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Name of Institution: Toronto Dominion (Texas), Inc.
--------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:Vice-President
SIGNATURE PAGE TO
CITIZENS COMMUNICATIONS COMPANY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Name of Institution: Bear ▇▇▇▇▇▇▇ Corporate Lending
------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing Director
Bear ▇▇▇▇▇▇▇ Corporate Lending
SIGNATURE PAGE TO
CITIZENS COMMUNICATIONS COMPANY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Name of Institution: Bank of America , N. A.
-----------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice-President
SIGNATURE PAGE TO
CITIZENS COMMUNICATIONS COMPANY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Name of Institution: Bank One, NA
------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice-President
SIGNATURE PAGE TO
CITIZENS COMMUNICATIONS COMPANY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Name of Institution: Mellon Bank, N.A.
-----------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Lending Officer