EXHIBIT 4.6
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U.S. $70,000,000
CREDIT AGREEMENT
Dated as of August 8, 1995
among
LINCOLN TELECOMMUNICATIONS COMPANY
as Borrower,
THE LENDERS NAMED HEREIN
as Lenders
and
THE MITSUBISHI BANK, LIMITED
as Agent and Lender
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TABLE OF CONTENTS
Article Page
1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Terms Generally . . . . . . . . . . . . . . . . . . . . . . . 18
2 THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.1 Term Loan Facility . . . . . . . . . . . . . . . . . . . . . 18
2.2 Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3 Repayment of the Term Loans . . . . . . . . . . . . . . . . . 19
2.4 The Revolving Credit Facility . . . . . . . . . . . . . . . . 20
2.5 Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . 20
2.6 Notice of Borrowings of Revolving Loans . . . . . . . . . . . 21
2.7 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.8 Repayment of Revolving Loans . . . . . . . . . . . . . . . . 22
2.9 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.10 Interest on Loans . . . . . . . . . . . . . . . . . . . . . . 23
2.11 Default Interest . . . . . . . . . . . . . . . . . . . . . . 24
2.12 Alternate Rate of Interest . . . . . . . . . . . . . . . . . 24
2.13 Reduction or Cancellation of Commitments . . . . . . . . . . .24
2.14 Conversion and Continuation of Borrowings of Revolving Loans 25
2.15 Conversion and Continuation of Term Loans . . . . . . . . . . 26
2.16 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . 27
2.17 Mandatory Prepayments of Revolving Loans . . . . . . . . . . 27
2.18 Mandatory Prepayments Upon NCTC Sale . . . . . . . . . . . . 27
2.19 Additional Interest on Eurodollar Loans; Reserve Requirements;
Change in Circumstances . . . . . . . . . . . . . . . . . . . 28
2.20 Change in Legality . . . . . . . . . . . . . . . . . . . . . 29
2.21 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.22 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 31
2.23 Sharing of Setoffs . . . . . . . . . . . . . . . . . . . . . 31
2.24 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.25 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.26 Duty to Mitigate Additional Costs, Reductions in Rate of
Return and Taxes . . . . . . . . . . . . . . . . . . . . . . 34
2.27 Termination or Assignment of Commitments Under Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . 34
3 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . 35
3.1 Organization; Powers . . . . . . . . . . . . . . . . . . . . . 35
3.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . 35
3.3 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . 35
3.4 Governmental Approvals . . . . . . . . . . . . . . . . . . . . .36
3.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . 36
3.6 Title to Properties; Possession Under Leases . . . . . . . . . 36
3.7 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.8 Litigation; Compliance with Laws . . . . . . . . . . . . . . . .36
3.9 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.10 Federal Reserve Regulations . . . . . . . . . . . . . . . . . 37
3.11 Investment Company Act; Public Utility Holding Company Act . . 37
3.12 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.13 No Material Misstatements . . . . . . . . . . . . . . . . . . 37
3.14 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 38
3.15 Environmental and Safety Matters . . . . . . . . . . . . . . . 38
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4 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . 39
4.1 All Credit Events . . . . . . . . . . . . . . . . . . . . . . 39
4.2 First Credit Event . . . . . . . . . . . . . . . . . . . . . . 39
4.3 Execution of the Agreement . . . . . . . . . . . . . . . . . . 40
4.4 Termination of the Agreement . . . . . . . . . . . . . . . . . 41
5 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 41
5.1 Existence: Businesses and Properties . . . . . . . . . . . . . 41
5.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.3 Obligations and Taxes . . . . . . . . . . . . . . . . . . . . 41
5.4 Financial Statements, Reports, etc. . . . . . . . . . . . . . 42
5.5 Litigation and Other Notices . . . . . . . . . . . . . . . . . 43
5.6 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.7 Maintaining Records; Access to Properties and Inspections . . 44
5.8 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 44
6 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 44
6.1 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.2 Sale and Lease-Back Transactions . . . . . . . . . . . . . . . 46
6.3 Investments, Loans and Advances . . . . . . . . . . . . . . . 46
6.4 Mergers, Consolidations, Sales of Assets and Acquisitions . . 46
6.5 Dividends and Distributions . . . . . . . . . . . . . . . . . 47
6.6 Transactions with Affiliates . . . . . . . . . . . . . . . . . 48
6.7 Consolidated Total Indebtedness to Capital . . . . . . . . . . 48
6.8 Consolidated Tangible Net Worth . . . . . . . . . . . . . . . 48
6.9 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . 48
7 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 49
8 THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.2 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . 52
8.3 Rights, Exculpation, Etc. . . . . . . . . . . . . . . . . . . 53
8.4 Successor Agent; Resignation of the Agent . . . . . . . . . . 53
8.5 The Agent Individually . . . . . . . . . . . . . . . . . . . . 54
8.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 54
8.7 Independent Credit Analysis . . . . . . . . . . . . . . . . . 54
9 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.2 Survival of Agreement . . . . . . . . . . . . . . . . . . . . 55
9.3 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 55
9.4 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 55
9.5 Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . 58
9.6 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 59
9.7 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 59
9.8 Waivers; Amendment . . . . . . . . . . . . . . . . . . . . . . 59
9.9 Interest Rate Limitation. . . . . . . . . . . . . . . . . . . 60
9.10 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 60
9.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 61
9.12 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 61
9.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.15 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.16 Jurisdiction; Consent to Service of Process . . . . . . . . . 62
9.17 Defaulting Lender . . . . . . . . . . . . . . . . . . . . . . 62
iii
INDEX OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Notice of Borrowing of Revolving Loans
Exhibit D-1 -- Form of Term Loan Note
Exhibit D-2 -- Form of Revolving Loan Note
Exhibit E-1 -- Form of Notice of Conversion/Continuation of Revolving
Loans
Exhibit E-2 -- Form of Notice of Conversion/Continuation of Term Loans
EXhibit F -- List of Closing Documents
Exhibit G -- Form of opinion of Counsel for the Borrower
SCHEDULES
Schedule 1.1A -- Reserved
Schedule 1.1B -- Investment Guidelines
Schedule 2.1 -- Term Loan Commitments
Schedule 2.4 -- Revolving Credit Commitments
Schedule 3.4 -- Governmental Approvals
Schedule 3.7 -- Subsidiaries of Borrower
Schedule 3.8 -- Litigation
Schedule 3.15 -- Environmental and Safety Matters
Schedule 6.1 -- Liens
Schedule 6.3 -- Loans and Investments
Schedule 6.11 -- Preferred Stock of Subsidiaries
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This CREDIT AGREEMENT dated as of August 8, 1995, (this "Agreement")
is entered into among LINCOLN TELECOMMUNICATIONS COMPANY, a Nebraska
corporation (the "Borrower"), the "Lenders" (as defined herein), and THE
MITSUBISHI BANK, LIMITED, a Japanese corporation acting through its Chicago
branch ("Mitsubishi"), as agent for the Lenders (in such capacity, the
"Agent").
In accordance with the terms and subject to the conditions set forth
in this Agreement, the Borrower (i) has requested the Term Lenders to
extend credit to the Borrower on a term basis on the Closing Date in the
aggregate principal amount of the Aggregate Term Loan Commitments
hereunder, and (ii) has requested the Revolving Credit Lenders to extend
credit to the Borrower to enable the Borrower to borrow on a revolving
basis, at any time and from time to time from and including the Closing
Date, an aggregate principal amount at any time outstanding not in excess
of the Aggregate Revolving Credit Commitments hereunder.
Accordingly, the Borrower, the Lenders and the Agent agree as follows:
ARTICLE 1
DEFINITIONS
1.1 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 Revolving Loan or any portion of a Term
Loan bearing interest at a rate determined by reference to he Alternate
Base Rate in accordance with the provisions of Article 2.
"Acquisition" shall mean the acquisition of all of the capital
stock of Nebwest Cellular, Inc. by the Borrower in accordance with the
terms of the Purchase Agreement and the merger of NCTC with and into
Capital Acquisition Corp., a subsidiary of Borrower, in accordance with the
terms of the Merger Agreement.
"Acquisition Documents" shall mean the Purchase Agreement, the
Merger Agreement and each of the other documents executed by the Borrower
or any Subsidiary in connection with the Acquisition and/or the
transactions contemplated in connection therewith.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"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.
"Agent" shall have the meaning given such term in the preamble to
this Agreement.
"Agent Fee Letter" shall mean the Administrative Agent Fee Letter
dated August 8, 1995, from the Borrower to the Agent.
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"Aggregate Revolving Credit Commitments" shall mean the aggregate
amount of the Revolving Credit Commitments of all Revolving Credit Lenders,
which as of the date hereof is $40,000,000 and which may be reduced from
time to time pursuant to Section 2.12.
"Aggregate Term Loan Commitments" shall mean the aggregate amount
of the Term Loan Commitments of all Term Lenders, which as of the date
hereof is $30,000,000.
"Agreement" shall have the meaning ascribed to such term in the
preamble hereto.
"Alternate Base Rate" shall mean, for any date, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof, "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Agent as its prime rate in effect at its
principal office in Chicago. "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 Agent from three Federal funds brokers
of recognized standing selected by it. If for any reason the Agent shall
have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for
any reason, including the inability or failure of the Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) of the first
sentence of this definition, as appropriate, 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.
"Alternative Margin" shall mean for any date, with respect to the
Term Loans, the applicable margin set forth under the column entitled
"Applicable Term Loan Margin" in the definition of "Financial Covenant
Based Margin" and, with respect to the Revolving Loans, the applicable
margin set forth under the column entitled "Applicable Revolving Loan
Margin" in the definition of "Financial Covenant Based Margin".
"Applicable Facility Fee" shall mean for any date, the applicable
number of basis points (expressed as a percentage) set forth in the
definition of "Rating Based Facility Fee" unless the Alternative Margin is
in effect with respect to the Term Loan or the Revolving Loan, in which
case, the applicable number of basis points (expressed as a percentage) set
forth in the definition of "Financial Covenant Based Fee".
"Applicable Revolving Loan Margin" the Borrower shall for any Fiscal Year
derive less than 70% of its Total Operating Revenues from Lincoln
Telephone, in either of which cases for any date after the date of
cessation of publication of such rating or the last day of the Fiscal Year
for which such minimum percentage of Total Operating Revenues was not
derived from Lincoln Telephone, the Applicable Revolving Loan Margin with
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respect to the Revolving Loans shall mean the Alternative Margin and the
Alternative Margin shall thereafter continue in effect unless and until
either (a) if the Alternative Margin was in effect on account of the
cessation of publication by Standard & Poor's of the rating referred to in
clause (i) above, Standard & Poor's once again commences publication of
such rating, or (b) if the Alternative Margin was in effect on account of
the Borrower deriving less than 70% of Total Operating Revenues from
Lincoln Telephone referred to in clause (ii) above, the Borrower in any
subsequent Fiscal year derives at least 70% of its Total Operating Revenues
from Lincoln Telephone, in which case, on the date of commencement of such
rating or on the first day of the immediately succeeding Fiscal Year
following the Fiscal Year in which the Borrower derived such minimum
percentage of Total Operating Revenues from Lincoln Telephone, as the case
may be, the Alternative Margin shall cease to apply and the applicable
margin set forth under the column entitled "Applicable Revolving Loan
Margin" in the definition of "Rating Based Margin" will once again be
applicable. The Alternative Margin may be made effective and rescinded
from time to time in accordance with the provisions of this definition.
"Applicable Term Loan Margin" shall mean for any date, with
respect to Term Loans, the applicable margin set forth under the column
entitled "Applicable Term Loan Margin" in the definition of "Rating Based
Margin", unless either (i) a rating for the Long Term Debt of Lincoln
Telephone shall cease to be published by Standard & Poor's, or (ii) the
Borrower shall for any Fiscal Year derive less than 70% of Total Operating
Revenues from Lincoln Telephone, in either of which cases for any date
after the date of cessation of publication of such rating or the last day
of the Fiscal Year for which such minimum percentage of Total Operating
Revenues was not derived from Lincoln Telephone, the Applicable Term Loan
Margin with respect to the Term Loans shall mean the Alternative Margin and
the Alternative Margin shall thereafter continue in effect unless and until
either (a) if the Alternative Margin was in effect on account of the
cessation of publication by Standard & Poor's of the rating referred to in
clause (i) above, Standard & Poor's once again commences publication of
such rating, or (b) if the Alternative Margin was in effect on account of
the Borrower deriving less than 70% of Total Operating Revenues from
Lincoln Telephone referred to in clause (ii) above, the Borrower in any
subsequent Fiscal year derives at least 70% of Total Operating Revenues
from Lincoln Telephone, in which case, on the date of commencement of such
rating or on the first day of the immediately succeeding Fiscal Year
following the Fiscal Year in which the Borrower derived such minimum
percentage of Total Operating Revenues from Lincoln Telephone, as the case
may be, the Alternative Margin shall cease to apply and the applicable
margin set forth under the column entitled "Applicable Term Loan Margin" in
the definition of "Rating Based Margin" will once again be applicable. The
Alternative Margin may be made effective and rescinded from time to time in
accordance with the provisions of this definition.
"Assignment and Acceptance" shall mean an assignment and accept-
ance entered into by a Lender and an Eligible Assignee, approved in accord-
ance with Section 9.4 and accepted by the Agent, in the form of Exhibit B
or such other substantially similar form as shall be approved by the Agent.
"Attributable Debt" shall mean, in connection with a Sale and
Lease-Back Transaction, the present value (discounted in accordance with
GAAP at the debt rate implied in the lease) of the obligations of the
lessee for rental payments during the term of the lease.
4-3
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a Revolving Loan Borrowing.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of Illinois) on which banks
are open for business in Chicago; 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" shall mean 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.
"Capital Lease Obligations" of any Person shall mean the
obligations of such Person to pay rent or other amounts under any Capital
Lease.
"A Change in Control" shall be deemed to have occurred with
respect to the Borrower 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 more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or
(b) a change shall occur during any period in the Board of Directors of the
Borrower in which the individuals who constituted the Board of Directors of
the Borrower at the beginning of such period (together with any other
director whose election by the Board of Directors of the Borrower or whose
nomination for election by the stockholders of the Borrower was approved by
a vote of at least two-thirds of the directors then in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors of the Borrower then in office.
"Closing Date" shall mean the date designated by the Borrower
pursuant to Section 4.2(d) as the date upon which, subject to the
satisfaction of all conditions precedent contained in Article 4 hereof, the
Term Loans shall be funded. The Closing Date shall occur not later than
August 31, 1995, unless otherwise agreed to by all of the parties hereto.
"Code" shall mean the Internal Revenue Code of 1986, as the same
may be amended from time to time.
"Commitment" shall mean each Lender's Revolving Credit Commitment
or Term Loan Commitment, and "Commitments", when used in respect of any
Lender, shall mean such Lender's Revolving Credit Commitment and/or Term
Loan Commitment.
"Consolidated Cash Flow From Operations" shall mean, for any
period, Consolidated Net Income for such period plus the aggregate amount
deducted in determining such Consolidated Net Income in respect of the
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following, each determined in accordance with GAAP: (i) Consolidated
Interest Expense, (ii) income taxes, (iii) depreciation, depletion and
amortization, (iv) other non-cash charges and (v) non-cash charges for non-
recurring or extraordinary items.
"Consolidated Cash Interest Expense" shall mean, for any period,
that portion of the Consolidated Interest Expense of the Borrower and the
Subsidiaries for such period which shall be paid or payable in cash,
computed on a consolidated basis in accordance with GAAP.
"Consolidated Debt to Cash Flow Ratio" shall mean at any date of
determination thereof, the ratio of (a) Consolidated Total Indebtedness of
Borrower and its Subsidiaries, to (b) Consolidated Cash Flow From
Operations.
"Consolidated Interest Expense" shall mean gross interest expense
of the Borrower and its Subsidiaries computed on a consolidated basis in
accordance with GAAP, including, without limitation, amortization of debt
discounts and the portion of any Capital Lease Obligation allocable to
interest expense.
"Consolidated Long-Term Capitalization" shall mean the
consolidated Funded Debt of the Borrower plus Consolidated Net Worth,
determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the
aggregate net income (or net deficit) of the Borrower and the Subsidiaries
for such period computed on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any date, on a
consolidated basis for the Borrower and the Subsidiaries, the sum at such
date of common and preferred stock (taken at par or stated value, as
applicable), paid-in capital and retained earnings, all determined in
accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean Consolidated Net
Worth less the consolidated book value of Intangible Assets of Borrower and
its Subsidiaries determined in accordance with GAAP.
"Consolidated Total Indebtedness" shall mean, at any date of
determination thereof, the total of (a) all Indebtedness which would be
classified as indebtedness in accordance with GAAP, including, without
limitation, the aggregate outstanding principal amount of all Term Loans
hereunder, that has a final maturity, or that is extendible or renewable at
the option of the obligor to a date, one year or more after the date on
which such Indebtedness is incurred including all principal payments in
respect thereof required to be made within one year from the date as of
which Consolidated Total Indebtedness is being determined, (b) the
aggregate outstanding principal amount of all Revolving Loan Borrowings to
the extent not included under clause (a) above, and (c) all Indebtedness in
the form of commercial paper of Borrower and its Subsidiaries outstanding
on such date determined in accordance with GAAP.
"Consolidated Total Indebtedness to Capital Ratio" shall mean, at
any date of determination thereof, the ratio of (a) Consolidated Total
Indebtedness of Borrower and its Subsidiaries outstanding on such date, to
(b) the sum of (i) consolidated stockholders' equity of Borrower, (ii)
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preferred stock of Borrower and the Subsidiaries and (iii) all Funded Debt
of Borrower and its Subsidiaries.
"Control" shall mean the direct or indirect possession 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.
"Credit Event" shall have the meaning given such term in
Article 4.
"Documentation Completion Date" shall mean the date as of which
this Agreement is executed by all of the parties hereto.
"dollars" or "$" shall mean lawful money of the United States of
America.
"EBITDA/Interest Coverage" shall mean the ratio of Consolidated
Cash Flow from Operations to Consolidated Cash Interest Expense for any
period of four consecutive fiscal quarters.
"Eligible Assignee" shall mean (a) a commercial bank having total
assets in excess of $2,000,000,000, (b) a savings and loan association or a
savings bank organized under the laws of the United States or any state
thereof and having a net worth of at least $300,000,000 computed in
accordance with GAAP or (c) a finance company, insurance company or other
financial institution or fund that is regularly engaged in making,
purchasing or investing in loans and has total assets in excess of
$300,000,000.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that is a member of a group of which the Borrower is a
member and which is treated as a single employer under Section 414 of the
Code, which from and after the Closing Date.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Revolving Loan or any portion of
the Term Loans bearing interest at a rate determined by reference to the
LIBO Rate in accordance with the provisions of Article 2.
"Event of Default" shall have the meaning given such term in
Article 7.
"Existing Credit Arrangement" shall mean the Promissory Note
dated July 13, 1995 issued by the Borrower to Mitsubishi.
"Facilities" shall mean the Term Loan Facility and the Revolving
Credit Facility.
"Facility Fee" shall have the meaning given to such term in
Section 2.9.
4-6
"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 Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Covenant Based Fee" shall mean for any date that the
Alternative Margin is in effect, the applicable number of basis points
(expressed as a percentage) based upon the Consolidated Debt to Cash Flow
Ratio of Borrower for the four immediately preceding consecutive Fiscal
Quarters, as set forth below:
Consolidated Debt to Facility Fee
Cash Flow Ratio (in basis points)
less than or equal to 1.4 to 1.0 8.0
greater than 1.4 to 1.0, but 10.0
less than or equal to 1.8 to 1.0
greater than 1.8 to 1.0, but 12.5
less than or equal to 2.2 to 1.0
greater than 2.2 to 1.0, but 15.0
less than or equal to 2.7 to 1.0
greater than 2.7 to 1.0, but 17.5
less than or equal to 3.4 to 1.0
greater than 3.4 to 1.0, but 20.0
less than or equal to 4.0 to 1.0
greater than 4.0 to 1.0 35.0
For purposes of the foregoing, the Facility Fee at any time shall be
determined by reference to the Borrower's Consolidated Debt to Cash Flow
Ratio as of the last day of the Borrower's most recently ended Fiscal
Quarter and any change in the Facility Fee shall become effective for all
purposes on and after the first day of the next succeeding Fiscal Quarter.
Notwithstanding the foregoing, at any time during which the Borrower has
failed to deliver the certificate and applicable financial statements
described in Sections 5.4(a)-(c) with respect to a Fiscal Quarter in
accordance with the provisions thereof, for more than five Business Days
after such certificate and the applicable financial statements are due, the
Consolidated Debt to Cash Flow Ratio of Borrower shall be deemed, solely
for purposes of this definition, to be greater than 4.0 to 1.0 until such
certificate and the applicable financial statements are delivered.
"Financial Covenant Based Margin" shall mean for any date, based
upon the Consolidated Debt to Cash Flow Ratio of the Borrower for the four
immediately preceding consecutive Fiscal Quarters
(a) with respect to Revolving Loans, the applicable margin
set forth below under the column entitled "Applicable Revolving
Loan Margin"; and
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(b) with respect to Term Loans, the applicable margin set
forth below under the column entitled "Applicable Term Loan
Margin":
Applicable Revolving Applicable Term
Consolidated Debt to Loan Margin Loan Margin
Cash Flow Ration (in basis points) (in basis points)
less than or equal
to 1.4 to 1.0 19.5 30.0
greater than 1.4 to 1.0, but
less than or equal to 1.8 to 1.0 20.0 32.5
greater than 1.8 to 1.0, but
less than or equal to 2.2 to 1.0 20.0 35.0
greater than 2.2 to 1.0, but
less than or equal to 2.7 to 1.0 22.5 40.0
greater than 2.7 to 1.0, but
less than or equal to 3.4 to 1.0 30.0 50.0
greater than 3.4 to 1.0, but
less than or equal to 4.0 to 1.0 40.0 62.5
greater than 4.0 to 1.0 65.0 100.0
For purposes of the foregoing, the Alternative Margin at any time
shall be determined by reference to the Borrower's Consolidated Debt to
Cash Flow Ratio as of the last day of the Borrower's most recently ended
Fiscal Quarter and any change in the Alternative Margin shall become
effective for all purposes on and after the first day of the next
succeeding Fiscal Quarter. Notwithstanding the foregoing, at any time
during which the Borrower has failed to deliver the certificate and
applicable financial statements described in Sections 5.4(a)-(c) with
respect to a Fiscal Quarter in accordance with the provisions thereof, for
more than five Business Days after such certificate and the applicable
financial statements are due, the Consolidated Debt to Cash Flow Ratio of
Borrower shall be deemed, solely for purposes of this definition, to be
greater than 4.0 to 1.0 until such certificate and the applicable financial
statements are delivered.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer or controller of
such corporation.
"Fiscal Year" shall mean the twelve month period that ends on
December 31.
"Funded Debt" shall mean at any date of determination thereof,
the total of (a) all Indebtedness, that has a final maturity, or that is
extendible or renewable at the option of the obligor to a date, one year or
more after the date on which such Indebtedness is incurred, excluding all
principal payments in respect thereof (other than principal payments in
respect of the Lincoln Telephone Bonds) required to be made within one year
from the date as of which Funded Debt is being determined, (b) all
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Guarantees of such Indebtedness of others, and (c) in the case of the
Borrower, the aggregate outstanding principal amount of all Revolving Loan
Borrowings and the aggregate principal amount of Term Loans to the extent
not included in clause (a) above.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" when used with respect to any Person shall mean the
incurrence of 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, direct or
indirect, (a) 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, (b) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) 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 "Guarantee" shall not include endorsements of items by any
Person for collection or deposit in the ordinary course of business.
"Indebtedness" as applied to any Person shall mean (without
duplication) (a) any indebtedness for borrowed money which such Person has
directly or indirectly created, incurred or assumed, including, without
limitation, Capital Lease Obligations of such Person, (b) any indebtedness
incurred other than in the ordinary course of business, whether or not for
borrowed money, secured by any Lien in respect of property owned by such
Person, whether or not such Person has assumed or become liable for the
payment of such indebtedness, (c) any indebtedness, whether or not for
borrowed money, with respect to which such Person has become directly or
indirectly liable and which represents or has been incurred to finance the
purchase price (or a portion thereof) of any property or services or
business acquired by such Person, whether by purchase, consolidation,
merger or otherwise, (d) any indebtedness of the character referred to in
clauses (a), (b) or (c) of this definition deemed to be extinguished under
generally accepted accounting principles but for which such Person remains
legally liable and (e) any indebtedness of any other Person of the
character referred to in subdivision (a), (b), (c) or (d) of this
definition with respect to which the Person whose Indebtedness is being
determined has become liable by way of a Guarantee, including, without
limitation, any such indebtedness of any partnership in which such Person
is a general partner.
"Indemnitee" shall have the meaning given such term in
Section 9.5(b).
"Information" shall have the meaning given such term in
Section 9.10(a).
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"Intangible Assets" shall mean goodwill (including any amounts,
however designated, representing the excess of the purchase price paid for
assets or stock acquired subsequent to the Documentation Completion Date
over the value assigned thereto on the books of Borrower and its
Subsidiaries), patents, trademarks, trade names, copyrights and other
intangible assets of Borrower and its Subsidiaries.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to such Loan and, in the case of
a Eurodollar Loan with an Interest Period of more than three month's
duration, each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration been applicable to
such Eurodollar Loan.
"Interest Period" shall mean (a) as to any Eurodollar Loan, the
period commencing on the date of such Eurodollar Loan or on the last day of
the immediately preceding Interest Period applicable to such Eurodollar
Loan, 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, as the Borrower may
elect (or as the Borrower may be deemed to elect) and (b) as to any ABR
Loan, the period commencing on the date of such ABR Loan or on the last day
of the immediately preceding Interest Period applicable to such ABR Loan,
as the case may be, and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the date of conversion
to a Eurodollar Loan, and (iii) the Term Loan Maturity Date or the
Revolving Loan Maturity Date, as the case may be; 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 a Eurodollar Loan 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.
"Investments" shall have the meaning given such term in
Section 6.3.
"Lender" shall mean, at any time, a financial institution that is
either set forth on the signature pages hereof or that has become a lender
pursuant to Section 9.4 and that, as of such time, remains a party hereto.
"LIBO Rate" shall mean, with respect to any Eurodollar Loan for
any Interest Period, an interest rate per annum determined by Agent and
equal to the arithmetic average (rounded upwards, if necessary, to the next
1/16 of 1%) of (a) the rates that appear on the Reuters Screen LIBO Page
or, (b) if the Reuters Screen LIBO Page ceases to be available, the rate at
which United States dollar deposits in immediately available funds are
offered to Agent's LIBOR Office in the London, England interbank market, in
either case as of 11:00 a.m. (London time), two Business Days prior to the
commencement of such Interest Period for dollar deposits approximately
equal in principal amount (i) in the case of a Revolving Loan, to
Mitsubishi's Revolver Pro Rata Share of the Eurodollar Borrowing or (ii) in
the case of the Term Loans, Mitsubishi's Term Pro Rata Share of the
Eurodollar Loan, in either case for such Interest Period and for a maturity
comparable to such Interest Period. "Reuters Screen LIBO Page" shall mean
the display designated as page "LIBO" on the Reuters Monitor Money Rates
4-10
Service (or such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates of major
banks).
"Lien" shall mean (a) with respect to any asset, any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or
on such asset, (b) with respect to any asset, the interest of a vendor or a
lessor under any conditional sale agreement or title retention agreement
relating to such asset and (c) with respect to securities, any purchase
option, call or similar right of a third party with respect to such
securities.
"Lincoln Telephone" shall mean The Lincoln Telephone and
Telegraph Company, a Delaware corporation and wholly-owned subsidiary of
the Borrower.
"Lincoln Telephone Bonds" shall mean the $44,000,000 First
Mortgage 9.91% Bonds Series K, due June 1, 2000 issued by Lincoln Telephone
(as replaced, refinanced, renewed, extended or refunded) pursuant to and
secured by the Indenture of Mortgage, dated as of January 1, 1946, from
Lincoln Telephone to ▇▇▇▇▇▇ Trust and Savings Bank, as supplemented and
amended.
"Lincoln Telephone Preferred Stock" shall mean the 44,991 shares
of 5% cumulative, non-voting, non-convertible, redeemable preferred stock,
$100 par value per share, of Lincoln Telephone issued and outstanding on
the Documentation Completion Date.
"Loan Documents" shall mean this Agreement, the Notes and the
Agent Fee Letter.
"Loans" shall mean Term Loans and Revolving Loans.
"Long-Term Debt Rating" shall mean, with respect to any Person,
the rating published by a national rating agency with respect to the
unsecured Indebtedness without third party credit support of such Person
having a maturity date of not less than five years from the date of
issuance.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the business, assets, operations or financial condition of the
Borrower and the Subsidiaries taken as a whole, or of Lincoln Telephone
individually, or (b) material impairment of the ability of the Borrower to
pay any amount due, or to perform any other material obligation, under any
Loan Document.
"Merger Agreement" shall mean the Agreement and Plan of
Reorganization by and among Borrower, Capital Acquisition Corp. and
Nebraska Cellular Telephone Corporation.
"Mitsubishi's Revolver Pro Rata Share" shall mean the aggregate
Revolver Pro Rata Share of Mitsubishi and its assignees.
"Mitsubishi's Term Pro Rata Share" shall mean the aggregate Term
Pro Rata Share of Mitsubishi and its assignees.
4-11
"Multiemployer Plan" shall mean a multiemployer plan as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection
(m) or (o) of Section 414 of the Code) is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"NCTC" shall mean Nebraska Cellular Telephone Corporation, a
Nebraska corporation, formerly known as Capital Acquisition Corp.
"Net Proceeds" shall mean, with respect to any asset disposition,
(a) the gross amount of cash proceeds (including the amount of insurance
settlements received but not applied to the repair or replacement of the
asset in respect thereof within six months of the receipt of such
settlement) and condemnation awards paid to or received by the Borrower or
any Subsidiary in respect of such asset disposition (including cash
proceeds subsequently received in respect of such asset disposition in
respect of non-cash consideration initially received or otherwise), less
(b) the amount, if any, of all taxes and customary fees, commissions,
brokerage fees, costs and other expenses (excluding fees, commissions,
costs or other expenses payable to the Borrower or any Subsidiary) that are
incurred in connection with such asset disposition and are payable by the
seller or transferor of the assets disposed of, less (c) the amount, if
any, used to repay Indebtedness secured by a Lien on any asset disposed of
in such asset disposition or which is required to be repaid in connection
with such asset disposition (including payments made to obtain or avoid the
need for obtaining consent of any holder of such Indebtedness), less (d)
amounts reserved by Borrower or any Subsidiary (in accordance with GAAP)
against liabilities associated with the assets disposed of in such asset
disposition and retained by Borrower or any Subsidiary after such asset
disposition (including, without limitation, pension and other post-
employment benefit liabilities, liabilities for environmental matters and
liabilities for indemnification obligations associated with the assets
disposed of); provided, however, that the following shall not be deemed to
be asset dispositions (i) the sale of inventory in the ordinary course of
business, (ii) any disposition of assets from the Borrower or a Subsidiary
to the Borrower or any Subsidiary, and (iii) the dispositions of obsolete
or worn-out assets or of assets that are replaced within a reasonable time
with assets of a similar type and of substantially equal or greater value.
"Note" shall mean a Revolving Loan Note or a Term Loan Note.
"Obligations" shall mean the principal of and all interest on all
Loans, all fees, expense reimbursements, taxes, compensation and
indemnities payable by the Borrower to the Agent or any Lender pursuant to
this Agreement and all other present and future Indebtedness and other
liabilities of the Borrower owing to the Agent, any Lender or any Person
en-titled to indemnification pursuant to Section 9.5(b), or any of their
respective successors, transferees or assigns, of every type and
description, whether or not evidenced by any note, letter of credit,
guaranty or other instrument, arising under or in connection with this
Agreement, any Note or any other Loan Document, whether or not for the
payment of money, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however arising.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
4-12
"Permitted Investments" shall mean Investments complying with the
terms of the Borrower's Policy for Short-Term Investments set forth on
Schedule 1.1B.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or
any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Code which is maintained for employees of the Borrower, or any ERISA
Affiliate.
"Potential Event of Default" shall mean any event or condition
which upon notice, lapse of time or both would constitute an Event of
Default.
"Prime Rate" shall have the meaning given to such term in the
definition of Alternate Base Rate.
"Pro Rata Share" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the sum of (i) the then outstanding principal
balance of such Lender's Term Loan and (ii) such Lender's Revolving Credit
Commitment and the denominator of which shall be the sum of (x) the
aggregate outstanding principal balance of all Term Loans and (y) the
Aggregate Revolving Credit Commitments, as adjusted from time to time
pursuant to the terms of this Agreement; provided, that if all of the
Revolving Credit Commitments are terminated or reduced to zero hereunder,
"Pro Rata Share" shall mean, at any particular time and with respect to any
Lender, a fraction (expressed as a percentage), the numerator of which
shall be the then amount of such Lender's outstanding Term Loans and
Revolving Loans and the denominator of which shall be the then aggregate
amount of all Term Loans and Revolving Loans outstanding hereunder;
provided, further, that prior to the Closing Date, "Pro Rata Share" shall
mean, at any particular time and with respect to any Lender, a fraction
(expressed as a percentage), the numerator of which shall be the sum of (i)
such Lender's Term Loan Commitment and (ii) such Lender's Revolving Credit
Commitment and the denominator of which shall be the sum of (x) the
Aggregate Term Loan Commitments and (y) the Aggregate Revolving Credit
Commitments, as adjusted from time to time pursuant to the terms of this
Agreement.
"Purchase Agreement" shall mean the Stock Purchase Agreement
dated as of April 28, 1995 by and among the Borrower, Capital Acquisition
Corp. and the Seller, a copy of which has been delivered to the Agent and
the Lenders.
"Qualified Affiliate" shall mean an Affiliate of a Lender which
Affiliate is a bank or other financial institution with combined capital
and surplus and undivided profits of not less than $50,000,000.
"Rating Based Fee" shall mean for any date that the Alternative
Margin is not in effect the applicable number of basis points (expressed as
a percentage) based upon Lincoln Telephone's Long-Term Debt Rating by
Standard & Poor's set forth below:
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Long Term Debt Rating Facility Fee
(in basis points)
AAA/AA+/AA 8.0
AA- 10.0
A+/A 12.5
A-/BBB+ 15.0
BBB 17.5
BBB- 20.0
BB+ or less 35.0
For purposes of the foregoing, the Facility Fee at any time shall
be determined by reference to Lincoln Telephone's Long-Term Debt Rating as
published by Standard & Poor's and the applicable Facility Fee shall change
the date of any change in such Long-Term Debt Rating.
"Rating Based Margin" shall mean for any date, based upon Lincoln
Telephone's Long-Term Debt Rating by Standard & Poor's
(a) with respect to Revolving Loans, the applicable margin
set forth below under the column entitled "Applicable Revolving
Loan Margin"; and
(b) with respect to Term Loans, the applicable margin set
forth below under the column entitled "Applicable Term Loan
Margin":
Applicable Revolving Applicable Term
Long Term Loan Margin Loan Margin
Debt Rating (in basis points) (in basis points)
AAA/AA+/AA 19.5 30.0
AA- 20.0 32.5
A+/A 20.0 35.0
A-/BBB+ 22.5 40.0
BBB 30.0 50.0
BBB- 40.0 62.5
BB+ or less 65.0 100.0
For purposes of the foregoing, the Revolving Loan Margin and the
term Loan Margin at any time shall be determined by reference to Lincoln
Telephone's Long-Term Debt Rating as published by Standard & Poor's and the
applicable Revolving Loan Margin and Term Loan Margin shall change on the
date of any change in such Long-Term Debt rating.
"Register" shall have the meaning given such term in
Section 9.4(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 G" shall mean Regulation G 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.
4-14
"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.
"Reportable Event" shall mean any reportable event as that term
is defined in Section 4043(b) of ERISA or the regulations issued thereunder
with respect to a Plan (other than a Plan maintained by an ERISA Affiliate
which is considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Code).
"Required Lenders" shall mean, except as otherwise provided in
Section 9.17(v), Lenders whose Pro Rata Shares, in the aggregate, are
greater than fifty-one percent (51%).
"Required Revolving Credit Lenders" shall mean, at any time,
except as otherwise provided in Section 9.17(v), Revolving Credit Lenders
whose Revolver Pro Rata Shares, in the aggregate, are greater than fifty-
one percent (51%) at such time; provided, however, that for purposes of
this definition only, the term "Revolving Loans" that appears twice in the
proviso to the definition of the term "Revolver Pro Rata Share" shall be
replaced with the term "Revolving Credit Facility Loans".
"Required Term Lenders" shall mean, at any time, except as
otherwise provided in Section 9.17(v), Term Lenders whose Term Pro Rata
Shares, in the aggregate, are greater than fifty-one percent (51%) at such
time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation, and any other officer or
similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Restricted Payments" shall have the meaning given such term in
Section 6.5.
"Revolver Pro Rata Share" shall mean, at any particular time and
with respect to any Revolving Credit Lender, a fraction (expressed as a
percentage), the numerator of which shall be the then aggregate amount of
such Lender's Revolving Credit Commitment and the denominator of which
shall be the Aggregate Revolving Credit Commitments, as adjusted from time
to time pursuant to the terms of this Agreement; provided, that if all of
the Revolving Credit Commitments are terminated or reduced to zero
hereunder, "Revolver Pro Rata Share" shall mean, at any particular time and
with respect to any Revolving Credit Lender, a fraction (expressed as a
percentage), the numerator of which shall be the then amount of such
Lender's outstanding Revolving Loans and the denominator of which shall be
the then aggregate amount of all Revolving Loans outstanding hereunder.
"Revolving Credit Availability" shall mean, as of any particular
date of determination, the amount by which Aggregate Revolving Credit
Commitments exceed Outstandings. For purposes of calculating Revolving
Credit Availability as at any date, all Revolving Loans requested but not
yet advanced will be treated as advanced in calculating Outstandings unless
the Borrower has directed that the requested advance be disbursed to repay
the Revolving Loans. "Outstandings" shall mean, at any given time the
aggregate outstanding principal balance of Revolving Loans.
4-15
"Revolving Credit Commitment" shall mean, with respect to each
Revolving Credit Lender, the commitment of such Lender to make Revolving
Loans, which Revolving Credit Commitments as of the Documentation
Completion Date are set forth in Schedule 2.4, as the same may be reduced
from time to time pursuant to Section 2.13.
"Revolving Credit Facility" shall mean the revolving credit
facility established for Revolving Loans pursuant to Section 2.4.
"Revolving Credit Lender" shall mean a Lender that has a
Revolving Credit Commitment or to which Revolving Loans are owing.
"Revolving Loan Borrowing" shall mean a group of Revolving Loans
of the same Type made by the Revolving Credit Lenders on a single date and
as to which a single Interest Period is in effect.
"Revolving Loan Commitment Termination Date" shall mean the
earlier of (a) the Revolving Loan Maturity Date, and (b) the date of
termination of the Revolving Credit Commitments pursuant to Article 7 or
Section 2.13.
"Revolving Loan Maturity Date" shall mean July 6, 1998 or such
later date (which is an anniversary date thereof), if any, as may be agreed
to by Agent and each of the Revolving Credit Lenders in their sole
discretion following the written request of Borrower for a one-year
extension thereof received not less than 60 days prior to any anniversary
date of the Closing Date and otherwise designated as the Revolving Loan
Maturity Date.
"Revolving Loan Note" shall have the meaning given such term in
Section 2.7 of this Agreement.
"Revolving Loans" shall mean the revolving loans made by the
Revolving Credit Lenders to the Borrower pursuant to Section 2.5.
"Sale and Lease-Back Transaction" shall have the meaning given
such term in Section 6.2.
"Seller" shall mean collectively, Nebwest Cellular, Inc. a
Nebraska corporation and its shareholders listed as parties to the Purchase
Agreement.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successors.
"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, 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.
"Subsidiary" shall mean any subsidiary of the Borrower which is
consolidated with the Borrower pursuant to GAAP or for federal income tax
purposes.
4-16
"Term Lender" shall mean a Lender that has a Term Loan Commitment
or to which a Term Loan is owing.
"Term Loan" and "Term Loans" shall have the respective meanings
given to such terms in Section 2.1.
"Term Loan Facility" shall mean the term loan facility
established for Term Loans pursuant to Section 2.1.
"Term Loan Maturity Date" shall mean July 6, 2000.
"Term Loan Note" shall have the meaning given such term in
Section 2.7 of this Agreement.
"Term Loan Commitment" shall mean, with respect to each Term
Lender, the commitment of such Lender to make a Term Loan on the Closing
Date as set forth in Schedule 2.1. The Term Loan Commitment of each Term
Lender shall terminate upon the Borrower's receipt of the proceeds of such
Lender's Term Loan or as otherwise set forth in this Agreement.
"Term Pro Rata Share" shall mean, with respect to any Term
Lender, at any particular time, a fraction (expressed as a percentage), the
numerator of which shall be the then outstanding principal balance of such
Lender's Term Loan and the denominator of which shall be the aggregate
outstanding balance of all Term Loans; provided, that at any particular
time prior to the Closing Date, "Term Pro Rata Share" shall mean a fraction
(expressed as a percentage), the numerator of which shall be the then
aggregate amount of such Lender's Term Loan Commitment and the denominator
of which shall be the Aggregate Term Loan Commitments.
"Termination Date" shall mean the earlier of (a)the Revolving
Loan Maturity Date and (b) the date of termination of the Commitments
pursuant to Article 7 or Section 2.14.
"Third Party Claim" shall have the meaning given such term in
Section 9.5(b).
"Total Operating Revenues" shall mean for any Fiscal Year the
total consolidated operating revenues of Borrower and the Subsidiaries as
reported on Borrower's consolidated statement of earnings for such Fiscal
Year.
"Transferee" shall have the meaning given such term in
Section 2.25(a).
"Type" when used in respect of any Revolving Loan or Borrowing,
shall refer to the interest rate (i.e. the LIBO Rate or the Alternative
Base Rate) by reference to which interest on such Revolving Loan or portion
thereof or on the Revolving Credit Facility Loans comprising such Borrowing
is determined.
"Voting Stock" shall mean, with respect to any Person, capital
stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing
body of such Person.
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"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
1.2 Terms Generally. The definitions in Section 1.1 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
6, 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 3.5; provided, further, that in making any
calculation required by this Agreement, for the purpose of determining the
net income or deficit or item of expense of or for any Subsidiary,
notwithstanding any reference herein to any period, the income, deficit or
expense included in such calculation with respect to such Subsidiary shall
be included only from the date such Subsidiary became a Subsidiary.
ARTICLE 2
THE CREDITS
2.1 The Term Loan Facility. Subject to the terms and conditions set
forth in this Agreement, each Term Lender hereby severally and not jointly
agrees to make a term loan, in dollars, to the Borrower on the Closing
Date, in an amount equal to such Lender's Term Loan Commitment (each such
term loan a "Term Loan", and collectively, the "Term Loans"). The Term
Loan Commitments of each Term Lender as of the Documentation Completion
Date are set forth on Schedule 2.1 attached hereto.
2.2 Term Loans.
(a) Subject to fulfillment of the conditions precedent set
forth in Section 4.2, on the Closing Date, each Term Lender shall deposit
an amount equal to its Term Loan Commitment at the Agent's office in
Chicago, Illinois, no later than 12:00 noon Chicago time, in immediately
available funds. The Agent shall make the proceeds of such amounts
received by it available to the Borrower at the Agent's office in Chicago,
Illinois not later than 2:00 p.m. Chicago time on the Closing Date, and
shall disburse such proceeds in accordance with the Borrower's disbursement
instructions. The Term Loans shall be made by the Term Lenders
simultaneously, it being understood that no Lender shall be responsible for
any failure by any other Term Lender to perform its obligation to make its
Term Loan hereunder nor shall any Term Lender's Term Loan Commitment be
increased or decreased as a result of such failure. The failure of any
Term Lender to make available to the Agent an amount equal to its Term Loan
Commitment on the Closing Date shall not relieve any other Term Lender of
its obligation hereunder to make available such other Term Lender's Term
Loan on the Closing Date pursuant to the terms of this Agreement.
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(b) Subject to conversion pursuant to Section 2.15 below, the
Term Loans initially shall be either an ABR Loan or a Eurodollar Loan, as
the Borrower may designate in its notice of the Closing Date described in
Section 4.2(d). The Borrower shall give the Agent written or telecopy
notice (or telephone notice promptly confirmed in writing or by telecopy)
no later than 5:00 p.m Chicago time at least four Business Days prior to
the Closing Date. Such notice shall be irrevocable, shall refer to this
Agreement and shall specify (i) whether the Term Loans initially will be
made as a Eurodollar Loan or an ABR Loan; (ii) the date of the Closing Date
(which shall be a Business Day); (iii) if the Term Loans initially will be
made as a Eurodollar Loan, the Interest Period with respect thereto. If
such notice does not specify whether the Term Loans are to be made as a
Eurodollar Loan or an ABR Loan, then the Term Loans initially shall be made
as an ABR Loan. If the Borrower specifies that the Term Loans initially
will be made as a Eurodollar Loan, but the notice in respect thereof does
not specify the Interest Period for such Eurodollar Loan, then the Borrower
shall be deemed to have selected an Interest Period of one month's
duration. The Agent shall promptly advise the Term Lenders of the notice
given pursuant to this Section 2.2.
2.3 Repayment of the Term Loans.
(a) The Term Loans shall be repaid in thirteen (13) consecutive
quarterly installments commencing on September 15, 1997 and continuing
thereafter until the Term Loan Maturity Date. The installments shall be
paid on the dates and shall be in the aggregate amounts set forth below:
Installment
Installment Date Amount
September 15, 1997 $2,000,000
December 15, 1997 $2,000,000
March 15, 1998 $2,000,000
June 15, 1998 $2,000,000
September 15, 1998 $2,000,000
December 15, 1998 $2,000,000
March 15, 1999 $2,000,000
June 15, 1999 $2,000,000
September 15, 1999 $3,000,000
December 15, 1999 $3,000,000
March 15, 2000 $3,000,000
June 15, 2000 $3,000,000
July 6, 2000 $2,000,000
(b) In addition to the scheduled installments of the Term
Loans, the Borrower may make voluntary prepayments described in Section
2.16 and shall make the mandatory prepayments prescribed in Section 2.18,
for credit against such scheduled installments on the Term Loans in
accordance with such sections.
(c) Notwithstanding the foregoing clause (a), the final
installment shall be in the amount of the outstanding principal balance of
the Term Loans. Any amount repaid or prepaid in connection with the Term
Loans may not be reborrowed.
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2.4 The Revolving Credit Facility. Subject to the terms and
conditions set forth in this Agreement, each Revolving Credit Lender hereby
severally and not jointly agrees to make Revolving Loans, in dollars to the
Borrower from time to time during the period from the Closing Date to the
Business Day immediately preceding the Revolving Loan Commitment
Termination Date, in an amount which shall not exceed the product of such
Lender's Revolver Pro Rata Share and the Revolving Credit Availability at
such time. The Revolving Credit Commitments of each Revolving Credit
Lender as of the Documentation Completion Date are set forth on Schedule
2.4 attached hereto.
2.5 Revolving Loans.
(a) All Revolving Loans comprising the same Borrowing under
this Agreement shall be made by the Revolving Credit Lenders simultaneously
and proportionately to their respective Revolver Pro Rata Shares, it being
understood that no Lender shall be responsible for any failure by any other
Revolving Credit Lender to perform its obligation to make a Revolving Loan
hereunder and that the Revolving Credit Commitment of any Lender shall not
be increased or decreased without the prior written consent of such Lender
as a result of the failure by any other Revolving Credit Lender to perform
its obligation to make a Revolving Loan. The failure of any Revolving
Credit Lender to make available to the Agent its Revolver Pro Rata Share of
any Borrowing shall not relieve any other Lender of its obligation
hereunder to make available to the Agent such other Lender's Revolver Pro
Rata Share of any Borrowing of the Aggregate Revolving Credit Commitments
on the date such funds are to be made available pursuant to the terms of
this Agreement.
(b) Each Borrowing shall be in a minimum principal amount of
$1,000,000 and in multiples of $500,000 in excess thereof or an aggregate
principal amount equal to the Revolving Credit Availability. Each
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans, as
the Borrower may request pursuant to Section 2.6. Each Revolving Credit
Lender may at its option fulfill its commitment with respect to any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Eurodollar Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such
Eurodollar 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 five separate
Borrowings which are Eurodollar Loans being outstanding hereunder at any
one time. For purposes of the foregoing, Borrowings having different
Interest Periods, regardless of whether they commence on the same date,
shall be considered separate Borrowings.
(c) Subject to paragraph (e) below, each Revolving Credit
Lender shall make a Revolving Loan in the amount of its Revolver Pro Rata
Share of the amount of each Borrowing hereunder on the proposed date
thereof by wire transfer of immediately available funds to the Agent in
Chicago, Illinois, not later than 12:00 noon, Chicago time, and the Agent
shall, promptly upon receipt of such amounts but in any event not later
than 2:00 p.m. on the same Business Day, Chicago time, credit the amounts
so received to the general deposit account of the Borrower with the 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
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received to the respective Lenders. Unless the Agent shall have received
notice from a Revolving Credit Lender prior to the date of any Borrowing
that such Lender will not make available to the Agent such Lender's portion
of such Borrowing, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Borrowing in accordance
with this paragraph(c) and the 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 Agent, such Lender and the Borrower severally agree to repay to the
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 Agent at (i) in the
case of the Borrower, the interest rate applicable at the time to the
Revolving Loans comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Effective Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount shall constitute such
Lender's Revolving Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Eurodollar Borrowing if the
Interest Period requested with respect thereto would end after the
Revolving Loan Maturity Date.
(e) The Borrower may refinance all or any part of any Borrowing
with a Borrowing of the same or a different Type, subject to the conditions
and limitations set forth in this Agreement. Any Borrowing or part thereof
so refinanced shall be deemed to be repaid or prepaid in accordance with
Section 2.8 or 2.16, as applicable, with the proceeds of a new Borrowing,
and the proceeds of the new Borrowing, to the extent they do not exceed the
principal amount of the Borrowing being refinanced, shall not be paid by
the Revolving Credit Lenders to the Agent or by the Agent to the Borrower
pursuant to paragraph (c) above.
2.6 Notice of Borrowings of Revolving Loans. The Borrower shall
give the Agent written or telecopy notice (or telephone notice promptly
confirmed in writing or by telecopy) (a) in the case of a Eurodollar
Borrowing, not later than 12:00 (noon) Chicago time, three Business Days
before a proposed Borrowing and (b) in the case of an ABR Borrowing, not
later than 12:00 (noon) Chicago time, one Business Day before a proposed
Borrowing. Each such notice shall be in substantially the form of Exhibit
C. Such notice shall be irrevocable and shall in each case refer to this
Agreement and specify (i) whether the Borrowing then being requested is to
be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such
Borrowing (which shall be a Business Day) and the amount thereof; and (iii)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. If the
Borrower shall not have given notice in accordance with this Section 2.6 of
its election to refinance a Eurodollar Borrowing prior to the end of the
Interest Period in effect for such Eurodollar Borrowing, then the Borrower
shall (unless such Eurodollar Borrowing is repaid at the end of such
Interest Period) be deemed to have given notice of an election to refinance
such Eurodollar Borrowing with an ABR Borrowing. The Agent shall promptly
advise the Revolving Credit Lenders of any notice given pursuant to this
Section 2.6 and of each such Lender's portion of the requested Borrowing.
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2.7 Notes.
(a) The Borrower shall execute and deliver to each Term Lender
(or to the Agent on behalf of each Term Lender) on or before the Closing
Date a promissory note substantially in the form of Exhibit D-1 hereto
(each a "Term Loan Note" and collectively, the "Term Loan Notes") to
evidence the amount of that Lender's Term Loan. Each Term Loan Note shall
be dated the Closing Date and shall be stated to mature on the Term Loan
Maturity Date. The Term Loan Note executed in favor of any Term Lender
shall be in a principal amount equal to such Lender's Term Loan Commitment.
(b) The Borrower shall execute and deliver to each Revolving
Credit Lender (or to the Agent on behalf of each Revolving Credit Lender)
on or before the Closing Date a promissory note substantially in the form
of Exhibit D-2 hereto (each a "Revolving Loan Note" and collectively, the
"Revolving Loan Notes") to evidence the aggregate amount of that Lender's
Revolving Loans and with other appropriate insertions. Each Revolving Loan
Note shall be dated the Closing Date and shall be stated to mature on the
Revolving Loan Maturity Date. The Revolving Loan Note executed in favor of
any Revolving Credit Lender shall be in a principal amount equal to the
Lender's Revolving Credit Commitment.
(c) Each Lender is hereby authorized to, and prior to any
transfer of any Note issued to it, each Lender shall, endorse the date and
amount of each Loan made by such Lender and each payment or prepayment of
principal of the Loans evidenced thereby on the schedule annexed to and
constituting a part of such Note, which endorsement shall constitute prima
facie evidence, absent manifest error, of the accuracy of the information
so endorsed, provided that failure by any such Lender to make such
endorsement shall not affect the obligations of the Borrower hereunder or
under such Note. In lieu of endorsing such schedule as hereinabove
provided, prior to any transfer of such Note, each Lender is hereby
authorized, at its option, to record such Loans and such payments or
prepayments in its books and records, such books and records constituting
prima facie evidence, absent manifest error, of the accuracy of the
information contained therein.
2.8 Repayment of Revolving Loans.
(a) The Borrower agrees to pay the outstanding principal
balance of each Revolving Loan on the Revolving Loan Maturity Date. Each
Revolving Loan shall bear interest from the date of the Borrowing of which
such Revolving Loan is a part on the outstanding principal balance thereof
as set forth in Section 2.10.
(b) Each Revolving Credit Lender shall, and is hereby
authorized by the Borrower to, maintain in accordance with its usual
practice records evidencing the indebtedness of the Borrower to such Lender
hereunder from time to time, including the amounts and Types of and
Interest Periods applicable to the Revolving Loans made by such Lender from
time to time and the amounts of principal and interest paid to such Lender
from time to time in respect of such Revolving Loans.
(c) The entries made in the records maintained pursuant to
paragraph (b) of this Section 2.8 and in the Register maintained by the
Agent pursuant to Section 9.4 shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower to which such
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entries relate; provided, however, that the failure of any Lender or the
Agent to maintain or to make any entry in such records or the Register, as
applicable, or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms
of this Agreement.
2.9 Fees.
(a) The Borrower agrees to pay to the Revolving Credit Lenders,
through the Agent, on the last day of March, June, September and December
in each year and on the Termination Date, a facility fee (a "Facility Fee")
in an amount equal to the Applicable Facility Fee multiplied by the
Aggregate Revolving Credit Commitments, regardless of utilization, payable
to the Revolving Credit Lenders pro rata quarterly in arrears (or other
period commencing on the Closing Date or ending with the Termination Date).
All Facility Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days. The Facility Fee due to each Revolving
Credit Lender shall commence to accrue on the Closing Date and shall cease
to accrue on the date on which the last of the Revolving Credit Commitments
of such Lender shall expire or be terminated as provided herein.
(b) The Borrower agrees to pay all fees set forth in the Agent
Fee Letter on the Closing Date.
(c) All fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the fees shall be refundable under
any circumstances.
2.10 Interest on Loans.
(a) Subject to the provisions of Section 2.11, the Revolving
Loans comprising each ABR 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 the Alternate Base Rate.
(b) Subject to the provisions of Section 2.11, the Revolving
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 the LIBO Rate in effect for such Borrowing plus
the Applicable Revolving Loan Margin.
(c) Subject to the provisions of Section 2.11, the portion of
the Term Loans constituting Eurodollar Loans shall bear interest (computed
on the basis of the actual number of days elapsed over a year of 360 days)
at the LIBO Rate in effect for such Borrowing plus the Applicable Term Loan
Margin.
(d) Subject to the provisions of Section 2.11, the portion of
the Term Loans comprising an ABR Loan shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate.
(e) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate from time to time or LIBO
Rate for each Interest Period, as the case may be, shall be determined by
the Agent, and such determination shall be conclusive absent manifest
error.
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2.11 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, by acceleration or otherwise, the Borrower shall on written
demand by the Agent from time to time pay interest, to the extent permitted
by law, on such defaulted amount up to (but not including) the date of
actual payment (after as well as before judgment) at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of
360 days) equal to the Prime Rate plus 2% per annum.
2.12 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 any Eurodollar Borrowing, or any portion of the
Term Loan constituting Eurodollar Loans, that the Agent shall have
determined that dollar deposits in the principal amounts of Loans
constituting Eurodollar Loans 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 the Lenders of
making or maintaining their Eurodollar Loans during such Interest Period,
or that reasonable means do not exist for ascertaining the LIBO Rate, the
Agent shall, as soon as practicable thereafter, give written or telecopy
notice of such determination to the Borrower and the Term Lenders or
Revolving Lenders, as the case may be. In the event of any such
determination, any request by the Borrower for Eurodollar Loans pursuant to
Section 2.6, 2.14 or 2.15 shall, until the Agent shall have advised the
Borrower and the Term Lenders or Revolving Credit Lenders, as applicable,
that the circumstances giving rise to such notice to longer exist, be
deemed to be a request for ABR Loans. Each determination by the Agent
hereunder shall be conclusive absent manifest error.
2.13 Reduction or Cancellation of Commitments.
(a) The Revolving Credit Commitments shall be automatically
terminated on the Revolving Loan Commitment Termination Date.
(b) On or after July 6, 1996, upon at least five Business Days'
prior irrevocable written or telecopy notice to the Agent, which shall
promptly notify the Revolving Credit Lenders, the Borrower may at any time
and from time to time either (i) permanently reduce a portion of the
Aggregate Revolving Credit Commitments, in minimum amounts of $5,000,000
and in multiples of $5,000,000, or (ii) permanently reduce the Aggregate
Revolving Credit Commitments to zero.
(c) On or before October 5, 1995, upon at least five Business
Days' prior irrevocable written or telecopy notice to the Agent, which
shall promptly notify the Revolving Credit Lenders, the Borrower may
permanently reduce the Aggregate Revolving Credit Commitments by an amount
of up to $7,000,000 in multiples of $1,000,000.
(d) Upon any mandatory prepayment of the Revolving Loans
pursuant to Section 2.18, the Revolving Credit Commitments shall
automatically be reduced by the amount of such prepayment. Any amounts
payable under Section 2.21 as a result of such reduction shall be due on
the effective date of such reduction.
(e) Each reduction in the Revolving Credit Commitments
hereunder shall be made ratably among the Revolving Credit Lenders in
accordance with their respective Revolver Pro Rata Shares.
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(f) The Term Loan Commitment of each Term Lender shall
terminate upon the Borrower's receipt of the proceeds of such Lender's Term
Loan or as otherwise set forth in this Agreement.
2.14 Conversion and Continuation of Borrowings of Revolving Loans.
The Borrower shall have the right, with respect to any Borrowing of
Revolving Loans, at any time upon prior irrevocable notice to the Agent (i)
not later than 12:00 (noon) Chicago time, one Business Day prior to
conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (ii)
not later than 10:00 a.m., Chicago time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing
for an additional Interest Period, and (iii) not later than 10:00 a.m.,
Chicago time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(a) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts of
the Loans comprising the converted or continued Borrowing;
(b) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, the aggregate principal amount
of such Borrowing converted or continued shall be an integral multiple of
$500,000 (and not less than $2,000,000 in the case of a Eurodollar
Borrowing);
(c) each conversion shall be effected by each Lender by
applying the proceeds of the new Revolving Loan of such Lender resulting
from such conversion to the Revolving Loan (or portion thereof) of such
Lender being converted; accrued interest on a Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;
(d) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Revolving Credit Lenders pursuant
to Section 2.21;
(e) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a
Eurodollar Borrowing;
(f) any portion of a Eurodollar Borrowing which cannot be
continued by reason of clause (e) above shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an ABR
Borrowing.
Each notice pursuant to this Section 2.14 shall be in substantially
the form of Exhibit E 1. Such notice shall be irrevocable and shall refer
to this Agreement and specify (i) the identity and amount of the Borrowing
of Revolving Loans that the Borrower requests be converted or continued,
(ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day),
and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If no
Interest Period is specified in any such notice with respect to any
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conversion to or continuation as a Eurodollar Borrowing, the Borrower shall
be deemed to have selected an Interest Period of one month's duration. The
Agent shall advise the other Revolving Credit Lenders of any notice given
pursuant to this Section 2.14 and of each such Lender's portion of any
converted or continued Borrowing. If the Borrower shall not have given
notice in accordance with this Section 2.14 to continue any Eurodollar
Borrowing into a subsequent Interest Period (and shall not otherwise have
given notice in accordance with this Section 2.14 to convert such
Borrowing), such Eurodollar Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
2.15 Conversion and Continuation of Term Loans. The Borrower
shall have the right, with respect to any portion of the Term Loans, at any
time upon prior irrevocable notice to the Agent (i) not later than 12:00
(noon) Chicago time, one Business Day prior to conversion, to convert any
portion of the Term Loans that constitute a Eurodollar Loan into an ABR
Loan, (ii) not later than 10:00 a.m., Chicago time, three Business Days
prior to conversion or continuation, convert any portion of the Term Loans
that constitute an ABR Loan into a Eurodollar Loan or to continue any
portion of the Term Loans constituting a Eurodollar Loan as a Eurodollar
Loan for an additional Interest Period, and (iii) not later than 10:00
a.m., Chicago time, three Business Days prior to conversion, to convert the
Interest Period with respect to any portion of the Term Loans constituting
a Eurodollar Loan to another permissible Interest Period, subject in each
case to the following:
(a) each conversion or continuation shall be made pro rata
among the Term Lenders in accordance with the respective Term Pro Rata
Shares;
(b) the aggregate principal amount of portion of the Term Loans
converted or continued shall be an integral multiple of $500,000 (and not
less than $2,000,000 in the case of the conversion into or continuation of
Eurodollar Loans);
(c) accrued interest on a Loan (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(d) if any Eurodollar Loans are converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.21;
(e) any portion of the Term Loans maturing or required to be
repaid in less than one month may not be converted into or continued as
Eurodollar Loans;
(f) any portion of the Term Loans which cannot be continued by
reason of clause (e) above shall be automatically converted at the end of
the Interest Period in effect for such portion of the Term Loans into ABR
Loans.
Each notice pursuant to this Section 2.15 shall be in substantially
the form of Exhibit E-2. Such notice shall be irrevocable and shall refer
to this Agreement and specify (i) the identity and portion of the Term
Loans that the Borrower requests be converted or continued, (ii) whether
such portion of the Term Loans is to be converted or continued as
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Eurodollar Loans or ABR Loans, (iii) if such notice requests a conversion,
the date of such conversion (which shall be a Business Day) and (iv) if
such portion of the Term Loans is to be converted to or continued as
Eurodollar Loans, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or
continuation as Eurodollar Loans, the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Agent shall
advise the other Term Lenders of any notice given pursuant to this Section
2.15 and of each such Lender's portion of any converted or continued
portion of Term Loans. If the Borrower shall not have given notice in
accordance with this Section 2.15 to continue any portion of Term Loans
into a subsequent Interest Period (and shall not otherwise have given
notice in accordance with this Section 2.15 to convert such portion of the
Term Loans), such portion of the Term Loans shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued into an Interest Period as ABR Loans.
2.16 Voluntary Prepayments.
(a) The Borrower shall have the right at any time and from time
to time to prepay Revolving Loans and/or Term Loans, in whole or in part,
upon prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Agent before 10:00 a.m.,
Chicago time, (i) three Business Days prior to prepayment in the case of
Eurodollar Loans; and (ii) one Business Day prior to prepayment, in the
case of ABR Loans; provided, however, that each partial prepayment of the
Term Loans shall be in an amount which is an integral multiple of
$1,000,000 (and not less than $2,000,000). Prepayments of the Term Loans
shall be applied pro rata to the unpaid scheduled installments thereof.
(b) Each notice of an optional prepayment shall specify the
prepayment date and the principal amount of Term Loans or Revolving Loans
to be prepaid, shall be irrevocable and shall commit the Borrower to prepay
such Term Loans or Revolving Loans by the amount stated therein on the date
stated therein. All optional prepayments under this Section 2.16 shall be
without premium or penalty, except that prepayments of Eurodollar Loans
shall be subject to Section 2.21. All prepayments under this Section 2.16
shall be accompanied by accrued interest on the principal amount being
prepaid to the date of payment.
2.17 Mandatory Prepayments of Revolving Loans. On the date of any
termination or reduction of the Revolving Credit Commitments pursuant to
Section 2.13, the Borrower shall pay or prepay so much of the Revolving
Loans as shall be necessary in order that the aggregate principal amount of
the Revolving Loans outstanding will not exceed the aggregate Revolving
Credit Commitments after giving effect to such termination or reduction.
All mandatory prepayments under this Section 2.17 shall be without premium
or penalty, except that prepayments of Eurodollar Borrowings shall be
subject to Section 2.21.
2.18 Mandatory Prepayments Upon NCTC Sale. In the event that
Borrower shall sell substantially all of the assets of NCTC or more than
50% of the Voting Stock of NCTC on a fully diluted basis in any single
transaction or series of transactions, the Borrower shall make a mandatory
prepayment of the Term Loan (to the extent any Term Loans are outstanding
at such time) and to the extent that the amount of the mandatory prepayment
exceeds the outstanding Term Loans, of the Revolving Loans in an amount
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equal to (i) the Net Proceeds from such sale to the extent the purchase
price was paid in cash or property other than securities, and (ii) the Net
Proceeds from the disposition of any securities received from such sale in
payment of the purchase price. Any such mandatory prepayment shall be
applied pro rata to reduce the unpaid scheduled principal installments of
the Term Loans and shall otherwise be applied as provided in Section 2.13.
All mandatory prepayments under this Section 2.18 shall be without premium
or penalty, except that prepayments of Eurodollar Loans shall be subject to
Section 2.21.
2.19 Additional Interest on Eurodollar Loans; Reserve Requirements;
Change in Circumstances.
(a) The Borrower shall pay to the Agent for the account of each
Lender, so long as such Lender shall be required under regulations of the
Board to maintain reserves with respect to liabilities or assets consisting
of or including "Eurocurrency Liabilities", as such term is defined in
Regulation D, additional interest on the unpaid principal amount of each
Eurodollar Loan of such Lender, from the date of such Loan until such Loan
ceases to be a Eurodollar Loan, at an interest rate per annum equal to all
times to the remainder obtained by subtracting (i) the LIBO Rate for the
Interest Period for such Loan from (ii) the rate obtained by dividing such
LIBO Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such Interest Period, payable on each date on
which interest is payable on such Loan. Such additional interest shall be
determined by such Lender and notified to the Borrower through the Agent.
For purposes of this Section, "Eurodollar Rate Reserve Percentage" of any
Lender for the Interest Period for any Eurodollar Loan means the reserve
percentage applicable during such Interest Period and actually required to
be maintained by such Lender as a result of the funding of Eurodollar Loans
made by such Lender to the Borrower hereunder (or if more than one such
percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations issued
from time to time by the Board (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
(b) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any 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 made by
such Lender, Facility Fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income of such
Lender by the jurisdiction in which such Lender has its principal office or
lending office or by any political subdivision or taxing authority
therein), and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan or 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 the Borrower will pay to such Lender
upon demand such additional amount or amounts as will compensate such
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Lender on an after-tax basis for such additional costs incurred or
reduction suffered.
(c) If any Lender shall have determined that the applicability
of any law, rule, regulation, agreement or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence
of Capital Measurement and Capital Standards", or the adoption after the
date hereof of any other law, rule, regulation, agreement or guideline
regarding capital adequacy, or any change in any of the foregoing 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
had 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 (or the participations
of the Lenders therein) to a level below that which such Lender or such
Lender's holding company could have achieved but for such applicability,
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 upon demand such
additional amount or amounts as will compensate such Lender or such
Lender's holding company on an after-tax basis for any such reduction
suffered.
(d) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender or its holding
company as specified in paragraph (a), (b) or (c) above, as the case may
be, 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 30 days after its receipt of
the same.
(e) Except as otherwise expressly provided in this paragraph,
failure on the part of any Lender to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return
on capital with respect to any period shall not constitute a waiver of such
Lender's right to demand compensation with respect to such period or any
other period. The protection of this Section 2.19 shall be available to
each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed. No Lender (or any
assignee or participant of any Lender) shall be entitled to compensation
under this Section 2.19 for any costs incurred or reductions suffered with
respect to any date unless it shall have notified the Borrower that it will
demand compensation for such costs or reductions under paragraph (c) above
not more than six months after the later of (i) such date and (ii) the date
on which it shall have become aware of such costs or reductions.
2.20 Change in Legality.
(a) Notwithstanding any other provision herein, if any change
in any law or regulation or in the interpretation thereof by any
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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 Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder, whereupon any subsequent
request by the Borrower for a Eurodollar Borrowing shall,as to
such Lender only, be deemed a request for an ABR Loan 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 2.20, 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.
2.21 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
the making of the Term Loans or any Borrowing hereunder the applicable
conditions set forth in Article 4, (b)any failure by the Borrower to borrow
or to refinance, convert or continue any Loan hereunder after irrevocable
notice of such borrowing, refinancing, conversion or continuation has been
given pursuant to Section 2.6, 2.14 or 2.15, (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 (other than payments,
prepayments or conversions made or deemed made pursuant to Section 2.20),
(d) any default in payment or default in 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 expense shall be an amount equal to the excess, if any, as reasonably
determined by such Lender, of (i) its cost of obtaining the funds for the
Loan being paid, prepaid, converted or not borrowed, converted or continued
(assumed to be the LIBO Rate applicable thereto) for the period from the
date of such payment, prepayment, conversion or failure to borrow, convert
or continue to the last day of the Interest Period for such Loan (or, in
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the case of a failure to borrow, convert or continue, the Interest Period
for such Loan which would have commenced on the date of such failure) over
(ii) the amount of interest (as reasonably determined by such Lender) that
would be realized by such Lender in reemploying the funds so paid, prepaid,
converted or not borrowed, converted or continued for such period or
Interest Period, as the case may be. A certificate of any Lender setting
forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error.
2.22 Pro Rata Treatment.
(a) Except as required under Section 2.20, each payment or
prepayment of principal of the Term Loans, each payment of interest on the
Term Loans, and each conversion of any portion of the Term Loans to or
continuation of any portion of the Term Loans as ABR Loans or Eurodollar
Loans shall be allocated among the Term Lenders in accordance with their
respective Term Pro Rata Shares. Each Term Lender agrees that in computing
such Lender's Term Pro Rata Share of the portion of the Term Loans
comprising Eurodollar Loans or ABR Loans, the Agent may, in its discretion,
round each Term Lender's percentage of each portion to the next-higher or
lower whole dollar amount.
(b) Except as required under Section 2.20, each Borrowing of
Revolving Loans, each payment or prepayment of principal of any Revolving
Loans, each payment of interest on the Revolving Loans, each payment of the
Facility Fees, each reduction of the Revolving Credit Commitments, and each
refinancing of any Borrowing of Revolving Loans with, conversion of any
Borrowing of Revolving Loans to or continuation of any Borrowing of
Revolving Loans as a Borrowing of any Type shall be allocated among the
Revolving Credit Lenders in accordance with their respective Revolver Pro
Rata Shares. Each Revolving Credit Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Agent may, in
its discretion, round each Revolving Credit Lender's percentage of such
Borrowing, computed in accordance with Section 2.4, to the next higher or
lower whole dollar amount.
2.23 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 Loan or Loans as a result of which the unpaid principal portion of its
Loans shall be proportionately less than the unpaid principal portion of
the 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 Loans of
such other Lender, so that the aggregate unpaid principal amount of the
Loans and participations in Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Loans then
outstanding as the principal amount of its Loans prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal
amount of all 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
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and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored
without interest. The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in a 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 Loan directly to the Borrower in the amount of such
participation.
2.24 Payments.
(a) The Borrower shall make each payment (including principal
of or interest on the Loans or any Facility Fees or other amounts)
hereunder and under any other Loan Document not later than 12:00 (noon),
Chicago time, on the date when due in dollars to the Agent at its offices
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, in immediately available
funds. Any payment received after 12:00 (noon), Chicago time, on any date
shall be deemed to have been received on the next succeeding Business Day.
(b) Whenever any payment (including principal of or interest on
the Term Loans or any Revolving Loan Borrowing or any Facility Fees or
other amounts) hereunder or under any other Loan Document 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 Facility
Fees, if applicable, unless, in the case of a Eurodollar Loan only, such
next succeeding Business Day would fall in the next calendar month, in
which case such payment shall be made on the next preceding Business Day.
2.25 Taxes.
(a) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.24, 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 net income of the Agent or any
Lender (or any transferee or assignee thereof, including a participation
holder (any such entity being called a "Transferee")) and franchise or
similar taxes imposed on the Agent or any Lender (or Transferee) by the
United States or any jurisdiction under the laws of which the Agent or any
such Lender (or Transferee) is organized or subject to such tax other than
solely as a result of the transactions provided for herein 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 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 2.25) such Lender (or Transferee) or the Agent (as the
case may be) shall receive an amount equal to the sum it would have
received had no such deductions been required, (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; provided, however, that no Transferee of
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any Lender shall be entitled to receive any greater payment under this
paragraph(a) than such Lender would have been entitled to receive with
respect to the rights assigned, participated or otherwise transferred if
such rights had not been assigned, participated or otherwise transferred.
(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 or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee) and
the Agent for the full amount of Taxes and Other Taxes paid by such Lender
(or Transferee) or the 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. Such indemnification shall be made within 30 days after the
date any Lender (or Transferee) or the Agent, as the case may be, makes
written demand therefor. If a Lender (or Transferee) or the Agent shall
become aware that it is entitled to receive a refund in respect of Taxes or
Other Taxes as to which it has been indemnified by the Borrower pursuant to
this Section 2.25, 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 Agent receives a refund in respect of
any Taxes or Other Taxes as to which it has been indemnified by the
Borrower pursuant to this Section 2.25, it shall promptly notify the
Borrower of such refund and shall, within 30 days after receipt of a
request by the Borrower (or promptly upon receipt, if the Borrower has
requested application for such refund pursuant hereto), repay such refund
to the Borrower (to the extent of amounts that have been paid by the
Borrower under this Section 2.25 with respect to such refund), net of all
out-of-pocket expenses of such Lender or the Agent and without interest;
provided that the Borrower, upon the request of such Lender (or Transferee)
or the Agent agrees to return such repaid refund (plus penalties, interest
or other charges) to such Lender (or Transferee) or the Agent in the event
such Lender (or Transferee) or the Agent is required to repay such refund.
Nothing contained in this paragraph (c) shall require any Lender (or
Transferee) or the Agent to make available any of its tax returns (or any
other information relating to its taxes which it deems to be confidential).
(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 Agent, the Borrower will furnish to the
Agent, at its address referred to in Section 9.1, 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
2.25 shall survive the payment in full of the Obligations hereunder.
(f) Upon the written request of the Borrower, each Lender (or
Transferee) or the Agent that is organized under the laws of a jurisdiction
outside the United States shall, if legally able to do so, prior to the
immediately following due date of any payment by the Borrower hereunder,
4-33
deliver to the Borrower such certificates, documents or other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto,
including Internal Revenue Service Form 1001 or Form 4224 and any other
certificate or statement of exemption required by Treasury Regulation
Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version thereof
or successors thereto, properly completed and duly executed by such Lender
(or Transferee) or the Agent establishing that such payment is (i) not
subject to United States Federal withholding tax under the Code because
such payment is effectively connected with the conduct by such Lender (or
Transferee) or the Agent of a trade or business in the United States or
(ii) totally exempt from United States Federal withholding tax, or subject
to a reduced rate of such tax under a provision of an applicable tax
treaty. Unless the Borrower and the Agent have received forms or other
documents satisfactory to them indicating that such payments hereunder are
not subject to United States Federal withholding tax or are subject to such
tax at a rate reduced by an applicable tax treaty, the Borrower or the
Agent shall withhold taxes from such payments at the applicable statutory
rate.
(g) The Borrower shall not be required to pay any additional
amounts to any Lender (or Transferee) or the Agent in respect of United
States Federal withholding tax pursuant to paragraph (a) above if the
obligation to pay such additional amounts would not have arisen but for a
failure by the Lender (or Transferee) or the Agent to comply with the
provisions of paragraph (f) above; provided, however, that the Borrower
shall be required to pay those amounts to any Lender (or Transferee) or the
Agent that it was required to pay hereunder prior to the failure of such
Lender (or Transferee) or the Agent to comply with the provisions of
paragraph (f).
(h) No Lender or assignee (or participant of any Lender) shall
be entitled to compensation under this Section 2.25 for any Taxes or Other
Taxes with respect to any date unless it shall have notified Borrower that
it will demand compensation for such Taxes and Other Taxes not more than
six months after the later of (i) such date and (ii) the date on which it
shall become aware of the liability for such Taxes or Other Taxes.
2.26 Duty to Mitigate Additional Costs, Reductions in Rate of Return
and Taxes. Each Lender (or Transferee) or Agent claiming any amounts
pursuant to Section 2.19 or 2.25 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to avoid any costs, reductions in
rates of return or Taxes in respect of which such amounts are claimed,
including the filing of any certificate or document reasonably requested by
the Borrower or the changing of the jurisdiction of its applicable lending
office if such efforts would avoid the need for or reduce the amount of any
such amounts which would thereafter accrue and would not, in the sole
determination of such Lender (or Transferee) or the Agent, be otherwise
disadvantageous to the Lender (or Transferee) or the Agent.
2.27 Termination or Assignment of Commitments Under Certain
Circumstances. In the event that any Lender shall have delivered a notice
or certificate pursuant to Section 2.19, or the Borrower shall be required
to make additional payments to any Lender under Section 2.25 or any Lender
has delivered a notice or otherwise exercised its rights under Section
2.20, the Borrower shall have the right, at its own expense, upon notice to
such Lender and the Agent, to require such Lender to transfer and assign
without recourse (in accordance with and subject to the restrictions
4-34
contained in Section 9.4) all its interests, rights and obligations under
this Agreement to another financial institution which shall assume such
obligations; provided that (i) no such assignment shall conflict with any
law, rule or regulation or order of any Governmental Authority and (ii) the
assignee 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 3
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each of the
Lenders that:
2.1 Organization; Powers. The Borrower and each of the Subsidiaries
(a) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has all
requisite corporate power and authority to own its property and assets and
to carry on its business as now conducted and as proposed to be conducted
by the Borrower and the Subsidiaries following the Acquisition, (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a
Material Adverse Effect, and (d) in the case of the Borrower, has the
corporate power and authority to execute, deliver and perform its
obligations under each of the Loan Documents, the Acquisition Documents and
each other agreement or instrument provided for herein to which it is or
will be a party and to borrow hereunder.
2.2 Authorization. The execution, delivery and performance by the
Borrower of each of the Loan Documents and the borrowings hereunder, (a)
have been duly authorized by all requisite corporate and, if required,
stockholder action and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation to which the Borrower or any of its Affiliates
shall be subject, or of the certificate or articles of incorporation or
other constitutive documents or by-laws of the Borrower or any Subsidiary,
(B) any order of any Governmental Authority or (C)any provision of any
indenture or other material agreement or instrument to which the Borrower
or any Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or (iii) result in
the creation or imposition of any Lien (other than Liens permitted under
this Agreement) upon or with respect to any property or assets now owned or
hereafter acquired by the Borrower or any Subsidiary.
2.3 Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document
when executed and delivered by the Borrower will constitute, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally, or by general equity principles, including but
not limited to principles governing the availability of the remedies of
specific performance and injunctive relief.
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2.4 Governmental Approvals. Except as set forth in Schedule 3.4,
the Borrower and the Borrower's Affiliates are not required to obtain any
consent or approval of, registration or filing with or any other action by
any Governmental Authority in connection with the execution, delivery and
performance of the Loan Documents, except such as have been made or
obtained and are in full force and effect.
2.5 Financial Statements. The Borrower has heretofore furnished to
the Lenders the Borrower's and Lincoln Telephone's consolidated balance
sheets and statements of operations, stockholders, equity and cash flows
(i)as of and for the fiscal year ended December 31, 1994, audited by and
accompanied by the opinion of KPMG Peat Marwick LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended March 31, 1995, certified by a Financial Officer of
the Borrower. Such financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower
and its consolidated subsidiaries as of such dates and for such periods.
Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Borrower and its consolidated
subsidiaries as of the dates thereof that are required to be disclosed
under GAAP. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis, except as set forth in the notes to
such financial statements. There has been no material adverse change in
the business, assets, operations or financial condition of the Borrower and
the Subsidiaries, taken as a whole, since March 31, 1995.
2.6 Title to Properties; Possession Under Leases.
(a) Each of the Borrower and the Subsidiaries has good and
valid title to, or valid leasehold interests in, 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 referred to in paragraphs (A) through (J) of Section 6.1.
(b) Each of the Borrower and the Subsidiaries has complied with
all material obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of the Borrower and
the Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
2.7 Subsidiaries. Schedule 3.7 sets forth as of the Documentation
Completion Date a list of all Subsidiaries of the Borrower as well as a
summary description of the operations of each such Subsidiary, the issued
and outstanding capital stock of such Subsidiary and the shares of such
capital stock owned by the Borrower or any other Subsidiary. The assets
and operations of the Borrower and the Subsidiaries account for
substantially all the consolidated operating assets and operations of the
Borrower and its direct and indirect subsidiaries as of the date hereof.
2.8 Litigation; Compliance with Laws.
(a) Except as set forth in Schedule 3.8, there are not any
actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the actual knowledge of the
Borrower, threatened against or affecting the Borrower, any Subsidiary or
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any business, property or rights of any such Person (i) which involve any
Loan Document or (ii) as to which there is a likelihood of an adverse
determination and which, if adversely determined, would be likely,
individually or in the aggregate, to result in 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 would be likely to result in a Material Adverse
Effect.
2.9 Agreements. 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 would be
likely to result in a Material Adverse Effect.
2.10 Federal Reserve Regulations.
(a) Neither the Borrower nor any of the Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to extend credit to others for the purpose of purchasing
Margin Stock, or to extend credit to others for the purpose of carrying
stock which will be Margin Stock after giving effect to the Loans, provided
that the Borrower shall provide such notice to the Agent of all purchases
and carryings of Margin Stock as the Agent may require or (ii) for any
purpose which entails a violation of the provisions of the Regulations of
the Board, including Regulation G, U and X. At the time of and after
giving effect to the making of the Term Loans and each Borrowing and the
application of the proceeds thereof, not more than 25% of the value (as
determined in accordance with Regulation U of the Board) of the assets
which are subject to the negative pledge provisions of Section 6.1 will
consist of Margin Stock (unless such limitation shall not be required for
compliance with Regulation U as from time to time in effect).
2.11 Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any Subsidiary 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.
2.12 Tax Returns. The Borrower and each of 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 taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
the case may be, shall have set aside on its books adequate reserves.
2.13 No Material Misstatements. No information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower to
the Agent or any Lender in written form in connection with the negotiation
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of any Loan Document or included in any Loan Document or delivered pursuant
thereto contained, contains or will contain any material misstatement of
fact or 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 at the time any such
information, report, financial statement, exhibit or schedule was, is or
will be so furnished.
2.14 Employee Benefit Plans. Each of the Borrower and each ERISA
Affiliate is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Borrower or
any ERISA Affiliate was required to file a report with the PBGC, and the
present value of all benefit liabilities under each Plan (based on those
assumptions used to fund such Plan) did not, as of the last annual
valuation date applicable thereto, exceed by more than $1,000,000 the value
of the assets of such Plan. Neither the Borrower nor any ERISA Affiliate
has incurred any Withdrawal Liability that could result in a Material
Adverse Effect. Neither the Borrower nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization or has
been terminated within the meaning of Title IV of ERISA, and no
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated where such reorganization or termination has resulted or could
reasonably be expected to result, through increases in the contributions
required to be made to such Multiemployer Plan or otherwise, in a Material
Adverse Effect.
2.15 Environmental and Safety Matters. Except as set forth in
Schedule 3.15, each of the Borrower and the Subsidiaries has complied with
all Federal, state, local and other statutes, ordinances, orders,
judgments, rulings and regulations relating to environmental pollution or
to environmental regulation or control or to employee health or safety,
except for instances of non-compliance that, individually or in the
aggregate, are not reasonably likely to result in a Material Adverse
Effect. Except as set forth in Schedule 3.15, neither the Borrower nor any
Subsidiary has received notices of any material failure so to comply,
which, if adversely determined, individually or in the aggregate, would be
reasonably likely to result in a Material Adverse Effect. Except as set
forth in Schedule 3.15, the Borrower and the Subsidiaries do not generate,
treat, store, transport, dispose of or release at any facility owned or
operated by any of them any hazardous wastes, hazardous substances,
hazardous materials, toxic substances, toxic pollutants or substances
similarly denominated, as those terms or similar terms are used in the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental
pollution in violation of any law or any regulations promulgated pursuant
thereto, except for violations that, individually or in the aggregate,
would not be reasonably likely to result in a Material Adverse Effect.
Except as set forth in Schedule 3.15, the Borrower is aware of no events,
conditions or circumstances involving environmental pollution or
contamination or employee health or safety that could reasonably be
expected to result in liability on the part of the Borrower or any
Subsidiary, except for such events, conditions or circumstances that,
individually or in the aggregate, would not be reasonably likely to result
in a Material Adverse Effect.
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ARTICLE 4
CONDITIONS PRECEDENT
The obligations of the Lenders to make Loans (each of such events
being called a "Credit Event") from and after the Closing Date, are subject
to the satisfaction of all of the applicable conditions set forth below:
4.1 All Credit Events. On the date of each Credit Event (other than
(i) a continuation of a Loan as either an ABR Loan or a Eurodollar Loan,
(ii) a conversion of ABR Loans into Eurodollar Loans or Eurodollar Loans
into ABR Loans or (ii) a refinancing of any Borrowing that does not
increase the aggregate principal amount of Revolving Loans of any Lender
outstanding):
(a) The Agent shall have received a notice of such Credit Event
as required by Section 2.2(b) or Section 2.6.
(b) The representations and warranties set forth in Article 3
hereof shall be true and correct in all material respects on and as of the
date of such Credit Event 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 the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after such
Credit Event no Potential Event of Default or Event of Default shall have
occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.1.
4.2 First Credit Event. On the Closing Date:
(a) The Agent shall have received a certificate, dated the
Closing 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 4.1.
(b) The Agent and the Lenders shall have received all fees and
other amounts due and payable hereunder or under the other Loan Documents
on or prior to the Closing Date.
(c) The Existing Credit Arrangement shall have been or shall
simultaneously with the Credit Events occurring on the Closing Date be
terminated, all loans outstanding and other amounts owed to the lenders
thereunder shall have been or shall simultaneously with such Credit Events
be paid in full.
(d) The Agent shall have received from the Borrower at least
four (4) Business Days' prior written notice of the date designated by the
Borrower to be the Closing Date; the Agent shall have promptly notified
each of the Lenders of the date designated as the Closing Date; and the
Agent shall not have received prior to the Closing Date written notice from
any Lender that one or more of the conditions precedent to the initial
funding of the Loans on the Closing Date have not been satisfied.
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(e) The Lenders, or the Agent on behalf of the Lenders, shall
have received from the Borrower the Notes and such other documents as the
Agent, the Lenders or their counsel may request, including, without
limitation, those documents listed on the List of Closing Documents
substantially in the form attached hereto as Exhibit F, each of which
documents shall be in form and substance satisfactory to the Lenders and
the Agent.
(f) There shall be no litigation or administrative proceeding
or other legal or regulatory developments, actual or threatened (including
any proposed statute, rule or regulation), that, in the judgment of the
Lenders, involve a reasonable possibility of a Material Adverse Effect or a
material adverse effect on the Acquisition.
(g) The Agent shall have received the favorable written
opinions of counsel of Borrower and Seller that are required to be
delivered pursuant to the Purchase Agreement and of Borrower and Nebraska
Cellular Telephone Corporation that are required to be delivered pursuant
to the Merger Agreement, which opinions shall state that the Agent and the
Lenders may rely thereon.
(h) There shall not have occurred, since the Documentation
Completion Date, any change that could reasonably be expected to result in
a Material Adverse Effect or a material adverse effect on the Acquisition.
4.3 Execution of the Agreement. On the Documentation Completion
Date:
(a) The Agent shall have received the favorable written opinion
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Borrower, dated the Documentation
Completion Date and addressed to the Agent and the Lenders, to the effect
set forth in Exhibit G hereto, and the Borrower hereby instructs such
counsel to deliver such opinion to the Agent.
(b) The 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 Nebraska, 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 an Assistant Secretary of the Borrower
dated the Documentation Completion 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 Documentation Completion 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 the Loan Documents 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
any Loan Document 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 (ii) above; and (iv) such other
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documents as the Lenders or their counsel or the Agent or its counsel may
reasonably request.
4.4 Termination of the Agreement. Unless otherwise agreed by each
of the parties to this Agreement, if the first Credit Event hereunder shall
not have occurred by August 31, 1995, all Commitments under this Agreement
shall automatically terminate at such time without notice to the Borrower.
ARTICLE 5
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Agent and each Lender that
so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Facility Fees or any other expenses or amounts
payable by Borrower under any Loan Document shall be unpaid, unless the
Required Lenders shall otherwise consent in writing, the Borrower will, and
will cause each of the Subsidiaries to:
5.1 Existence: Businesses and Properties.
(a) Keep in full force and effect its legal existence, except
as otherwise expressly permitted under Section 6.4.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business;
maintain and operate substantially similar lines of business as those it is
presently conducting and operating; comply in all material respects with
all applicable laws, rules, regulations and orders of any Governmental
Authority, whether now in effect or hereafter enacted; and at all times
maintain and preserve all property material to the conduct of such business
and keep such property in good repair, working order and condition and from
time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements And replacements thereto necessary in
order that the business carried on in connection therewith may be properly
conducted at all times, except in each case where the failure to do so
would not result in a Material Adverse Effect.
5.2 Insurance. Keep its material insurable real properties
adequately insured at all times by financially sound and reputable
insurers; maintain such other insurance, to such extent and against such
risks, including fire and other risks insured against by extended coverage
and public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use
of any properties owned, occupied or controlled by it as is customary with
companies in the same or similar businesses; and maintain such other
insurance as may be required by law.
5.3 Obligations and Taxes. Pay its material Indebtedness and other
obligations in accordance with their terms and pay and discharge promptly
when due all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits or in respect of its property, before
the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid,
might give rise to a Lien (other than a Lien permitted under this
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Agreement) upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any
such Indebtedness, tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower or the Subsidiary, as the case may be, shall
have set aside on its books adequate reserves with respect thereto.
5.4 Financial Statements, Reports, etc. Furnish to the Agent and
each Lender:
(a) within 90 days after the end of each Fiscal Year, the
consolidated and consolidating balance sheets and statements of operations,
stockholders' equity and cash flows, showing the, financial condition of
the Borrower and its consolidated subsidiaries as of the close of such
Fiscal Year and the results of its operations and the operations of such
subsidiaries during such year, all (except for the consolidating balance
sheets for Subsidiaries other than Lincoln Telephone) audited by KPMG Peat
Marwick LLP or other independent public accountants of recognized national
standing and accompanied by an opinion of such accountants (which shall not
be qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results of
operations of the Borrower on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each Fiscal Year, the consolidated and consolidating
balance sheets and statements of operations, stockholders, equity and cash
flows, showing the financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such subsidiaries during such fiscal
quarter and the then elapsed portion of the Fiscal Year, all certified by
one of its Financial Officers as fairly presenting the financial condition
and results of operations of the Borrower on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments;
(c) concurrently with any delivery of financial statements
under paragraph (a) above an opinion or certificate of the accounting firm
(which opinion or certificate may be limited to accounting matters and
disclaim responsibility for legal interpretations) certifying that to the
actual knowledge of such accounting firm no Event of Default or Potential
Event of Default has occurred; and concurrently with the delivery of
financial statements under paragraphs (a) and (b) above, a certificate of a
Financial Officer of the Borrower (a) certifying that to the actual
knowledge of such Financial Officer no Event of Default or Potential Event
of Default has occurred or, if such an Event of Default or Potential Event
of Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (b)
setting forth computations and/or statements in reasonable detail
satisfactory to the Agent calculating the Consolidated Debt to Cash Flow
Ratio and demonstrating compliance with the covenants contained in Sections
6.1 through 6.5, 6.7, 6.8 and 6.9;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower with the Securities and Exchange Commission, or any
governmental authority succeeding to any of or all the functions of said
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Commission, or with any national securities exchange, or distributed to its
shareholders, as the case may be;
(e) promptly following the creation or acquisition thereof,
notice of any new Subsidiary of the Borrower;
(f) promptly following the publication thereof, notice of any
change in the Long-Term Debt Rating of Lincoln Telephone by Standard &
Poors and notice of any cessation of the publication of such rating; and
(g) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Agent or any Lender may reasonably request.
5.5 Litigation and Other Notices. Furnish to the Agent and each
Lender prompt written notice of the following:
(a) any Event of Default or Potential Event of 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 any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Affiliate of the Borrower which
could reasonably be anticipated to result in a Material Adverse Effect; and
(c) any other development that has resulted in, or could
reasonably be anticipated to result in, a Material Adverse Effect.
5.6 ERISA.
(a) Comply in all material respects with the applicable
provisions of ERISA and (b) furnish to the Agent and each Lender (i) as
soon as possible, and in any event within 30 days after any Responsible
Officer of the Borrower or any ERISA Affiliate either knows or has reason
to know that any Reportable Event has occurred that alone or together with
any other Reportable Event could reasonably be expected to result in
liability of the Borrower to the PBGC in an aggregate amount exceeding
$2,500,000, a statement of a Financial Officer setting forth details as to
such Reportable Event and the action proposed to be taken with respect
thereto, together with a copy of the notice, if any, of such Reportable
Event given to the PBGC, (ii) promptly after receipt thereof, a copy of any
notice the Borrower or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or Plans (other
than a Plan maintained by an ERISA Affiliate which is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code) or to appoint a trustee to administer any Plan or Plans, (iii) within
10 days after the due date for filing with the PBGC pursuant to Section
412(n) of the Code of a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action proposed to be
taken with respect thereto, together with a copy of such notice given to
the PBGC and (iv) promptly and in any event within 30 days after receipt
thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any
ERISA Affiliate concerning (a) the imposition of Withdrawal Liability or
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(b) a determination that a Multiemployer Plan is, or is expected to be,
terminated or in reorganization, in each case within the meaning of Title
IV of ERISA.
5.7 Maintaining Records; Access to Properties and Inspections.
Maintain all financial records in accordance with GAAP and permit any
representatives designated by any Lender to visit and inspect the financial
records and the properties of the Borrower or any Subsidiary 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 or
any Subsidiary with the senior officers thereof and the independent
accountants therefor with prior notice to and, if requested by Borrower,
participation of a Financial Officer of the Borrower.
5.8 Use of Proceeds. The proceeds of the Loans hereunder shall be
used by the Borrower (i) to finance the Acquisition, (ii) to refinance
certain existing indebtedness of the Borrower and (iii) for general
corporate purposes.
ARTICLE 6
NEGATIVE COVENANTS
The Borrower covenants and agrees with the Agent and each Lender that,
so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Facility Fees or any other expenses or amounts
payable under any Loan Document shall be unpaid, unless the Required
Lenders shall otherwise consent in writing, the Borrower will not, and will
not cause or permit any of the Subsidiaries to:
6.1 Liens. Create, incur, assume or permit to exist any Lien on or
with respect to any property or assets (including stock or other securities
of any Person) now owned or hereafter acquired by it or on any income or
revenues or rights in respect of any thereof, except (i) Liens set forth in
paragraphs (A) through (J) below:
(A) Liens on property or assets of the Borrower and its
Subsidiaries existing on the Documentation Completion Date and set forth in
Schedule 6.1; provided that such Liens shall secure only those obligations
which they secure on the Documentation Completion Date, or any extension,
refinancing, renewal, replacement or refunding of such obligations in an
aggregate principal amount not greater than the aggregate principal amount
of such obligations immediately prior thereto;
(B) any Lien existing on any property or asset (i) prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that (1)
such Lien is not created in contemplation of or in connection with such
acquisition and (2) such Lien does not apply to any other property or
assets of the Borrower or any Subsidiary, or (ii) belonging to any Person
prior to such Person becoming a Subsidiary pursuant to an acquisition
permitted by the terms of this Agreement; provided that (1) such Lien is
not created in contemplation of or in connection with such acquisition and
(2) such Lien does not apply to any other property or assets of the
Borrower or any other Subsidiary;
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(C) Liens for taxes not yet due or that are being contested in
compliance with Section 5.3;
(D) carriers', warehousemen's, mechanic's, materialmen's,
supplier's, repairmen's or other like Liens arising in the ordinary course
of business and securing obligations that are not due or that are being
contested in compliance with Section 5.3;
(E) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment insurance
and other social security laws or regulations;
(F) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(G) zoning restrictions, easements, rights-of-way, restrictions
on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(H) purchase money security interests (including Liens
comprising the interest of any lessor in respect of any Capital Lease) in
real property, improvements thereto or equipment hereafter acquired (or, in
the case of improvements, constructed) by the Borrower or any Subsidiary;
provided that (1) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (2) the Indebtedness secured thereby does
not exceed the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (3) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary other than the
immediate proceeds of such real property, improvements or equipment;
(I) any attachment or judgment Lien, unless the judgment it
secures shall, individually or together with other judgments, at the time
cause an Event of Default under paragraph (j) of Article 7; and
(J) renewals, replacements or extensions of Liens set forth in
paragraphs (A), (B) or (H) above; provided that the principal amount of
Indebtedness secured by such Lien immediately prior thereto is not
increased (except by the amount of interest accrued and unpaid on such
Indebtedness and secured by such Lien at such time) and such Lien is not
extended to other property;and (ii) notwithstanding the foregoing, but
subject to Sections 6.7 and 6.8, the Borrower may directly create, incur,
assume or permit to exist any Lien securing Indebtedness of the Borrower or
any Subsidiary otherwise prohibited by clause (i) of this Section 6.1(a) so
long as no Event of Default or Potential Event of Default shall have
occurred or be continuing at the time such Indebtedness permitted under
this clause (ii) is incurred and such Lien is created, incurred or assumed.
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6.2 Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any Person whereby Borrower or any Subsidiary
shall sell or transfer any property, real or personal, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Lease-Back
Transaction"); provided that, subject to Sections 6.7 and 6.8, the Borrower
or a Subsidiary may enter into any Sale and Lease-Back Transaction if (a)
at the time of such Sale and Lease-Back Transaction no Event of Default or
Potential Event of Default shall have occurred and be continuing and (b)
the proceeds from the sale of the subject property shall be at least equal
to 80% of its fair market value.
6.3 Investments, Loans and Advances. Purchase, hold or acquire any
capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in (all the foregoing being collectively
called "Investments"), any other Person, except:
(a) Investments existing on the date hereof and set forth on
Schedule 6.3;
(b) Permitted Investments;
(c) intercompany Investments in any Subsidiary; provided that
no Investment pursuant to this clause (c) shall consist of the transfer of
any asset other than cash;
(d) travel advances, relocation advances and other loans or
advances by the Borrower or any Subsidiary to employees in the ordinary
course of business;
(e) loans to employees not to exceed $500,000 in the aggregate
outstanding at any time to finance purchases from the Borrower of equity
securities;
(f) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to
the extent necessary in the judgment of the Borrower in order to prevent or
limit loss;
(g) other loans and investments not to exceed $500,000 in the
aggregate outstanding at any time;
(h) acquisitions permitted by Section 6.4(c);
(i) Investments resulting from sales or transfers of assets
permitted under this Agreement; and
(j) contributions to and payments of benefits under any
employee benefit plan.
6.4 Mergers, Consolidations, Sales of Assets and Acquisitions.
(a) In the case of the Borrower, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate
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with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) unless: (i) the Borrower
shall be the surviving corporation, and (ii) after giving effect to such
merger, consolidation, sale, lease or conveyance, no Potential Event of
Default or Event of Default shall have occurred; provided, however, that
notwithstanding the foregoing, at any time a Subsidiary may merge with and
into the Borrower, or merge with and into or consolidate with another
Subsidiary.
(b) Sell, transfer, lease or otherwise dispose of any asset
other than (i) dispositions in the ordinary course of business, (ii) sales
(other than sales of any interest in Lincoln Telephone or any material
portion of the assets of Lincoln Telephone) for cash in an amount, or other
property having a value, not less than the fair market value of such asset,
provided, that such property received by the Borrower does not consist of
equity or debt instruments of the buyer (other than debt instruments which,
in the aggregate for all such sales, do not have an outstanding principal
balance in excess of $1,000,000) or (iii) dispositions pursuant to
requirements of law or orders or directives of Governmental Authorities.
(c) Purchase, lease or otherwise acquire (in one transaction or
a series of transactions) any capital stock or all or any substantial part
of the assets (other than inventory or real property purchased in the
ordinary course of business) of any Person unless (i) no Potential Event of
Default or Event of Default shall have occurred and be continuing, and (ii)
(A) such Person shall be engaged, or such assets shall be used or intended
by the Borrower for use, in one or more lines of business substantially
similar to those in which the Borrower is engaged on the date hereof, or
(B) the consolidated book value of the assets of such Person whose capital
stock is acquired or the book value of the assets that are acquired does
not exceed ten percent of the consolidated book value of the Borrower and
the Subsidiaries immediately prior to such acquisition.
6.5 Dividends and Distributions. Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any shares of its capital stock or the
purchase of shares of its capital stock (the foregoing transactions being
collectively called "Restricted Payments"); provided that (a) the Borrower
may declare and pay dividends payable solely in shares of its common stock,
(b) any Subsidiary may make Restricted Payments to the Borrower or another
Subsidiary (c) Lincoln Telephone may declare and pay dividends on the
Lincoln Telephone Preferred Stock in accordance with the terms thereof as
in effect on the Documentation Completion Date and (d) so long as
immediately after giving effect to any such proposed action no Event of
Default shall have occurred and be continuing, the Borrower may make
additional Restricted Payments of cash and securities of the Borrower if
the aggregate amount or fair market value of all such Restricted Payments
made pursuant to this subsection (c) (including such additional Restricted
Payments) made during the period (taken as a single accounting period)
beginning at the end of the fiscal quarter during which the Closing Date
occurs and ending on the last day of the most recent fiscal quarter for
which financial statements shall have been delivered pursuant to Section
5.4 shall not exceed the sum of (i) $15,000,000 and (ii) 65% of
Consolidated Net Income for such period.
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6.6 Transactions with Affiliates. 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 Event of Default or Potential Event of Default shall have
occurred and be continuing, the Borrower or any Affiliate may engage in any
of the foregoing transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such
Affiliate than could be obtained on an arm's-length basis from unrelated
third parties.
6.7 Consolidated Total Indebtedness to Capital. Permit the
Consolidated Total Indebtedness to Capital Ratio to exceed 0.55 to 1.0.
6.8 Consolidated Tangible Net Worth. Permit Consolidated Tangible
Net Worth as of the end of any fiscal quarter to be less than $105,000,000.
6.9 Interest Coverage Ratio. Permit EBITDA/Interest Coverage for
any period of four consecutive fiscal quarters to be less than 4.0 to 1.0.
6.10 Fiscal Year. Change its Fiscal Year without the consent of the
Required Lenders.
6.11 Subsidiary Stock and Indebtedness. The Borrower will not:
(a) directly or indirectly sell, assign, pledge or otherwise
dispose of any Indebtedness of or any shares of stock of (or warrants,
rights or options to acquire stock of) any Subsidiary except to a wholly-
owned Subsidiary and except directors, qualifying shares if required by
applicable law and except that, subject to Section 6.4, shares of stock of
a Subsidiary may be sold for a cash consideration at least equal to the
fair value thereof (as determined in good faith by the Board of Directors
of the Borrower) at the time of such sale if such Subsidiary would not
thereby cease to be a Subsidiary;
(b) permit any Subsidiary directly or indirectly to sell,
assign, pledge or otherwise dispose of any Indebtedness of the Borrower or
any other Subsidiary, or any shares of stock of (or warrants, rights or
options to acquire stock of) any other Subsidiary, except to the Borrower
or a wholly-owned Subsidiary or as directors' qualifying shares if required
by applicable law and except that, subject to Section 6.4, shares of stock
of a Subsidiary (other than Lincoln Telephone) may be sold for a cash
consideration at least equal to the fair value thereof (as determined in
good faith by the Board of Directors of the Borrower) at the time of such
sale if such Subsidiary would not thereby cease to be a Subsidiary;
(c) permit any Subsidiary to have outstanding any shares of
preferred stock other than shares of preferred stock which are owned by the
Borrower or a wholly-owned Subsidiary or which are outstanding on the date
of this Agreement and are reflected in Schedule 6.11; or
(d) permit any Subsidiary directly or indirectly to issue or
sell (including, without limitation, in connection with a merger or
consolidation of a Subsidiary otherwise permitted by Section 6.4) any
shares of its stock (or warrants, rights or options to acquire its stock)
(except directors, qualifying shares if required by applicable law) if as a
result of the transaction such Subsidiary would thereby cease to be a
Subsidiary; provided that, subject to compliance with Section 6.4, all
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Indebtedness and shares of stock of any Subsidiary (other than Lincoln
Telephone) owned by the Borrower and the other Subsidiaries may be
simultaneously sold as an entirety for a cash consideration at least equal
to the fair value thereof (as determined in good faith by the Board of
Directors of the Borrower) at the time of such sale if such Subsidiary does
not at the time own any stock of any other Subsidiary which is not also
being simultaneously sold as an entirety in compliance with this provision
and Section 6.4 if such Subsidiary does not own any Indebtedness of the
Borrower or any other Subsidiary; provided further that shares of stock of
Subsidiaries owned by the Borrower and the other Subsidiaries may be
disposed of in connection with a sale or other disposition by the Borrower
of all or substantially all of its assets in compliance with Section 6.4.
ARTICLE 7
EVENTS OF DEFAULT
7.1 Events of Default. The happening of any of the following events
shall be an "Event of Default" hereunder:
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document by the Borrower, 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 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 Facility Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document when and as the same shall
become due and payable, and such default shall continue unremedied for a
period of five days;
(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.1(a), 5.5(a), 5.8, 6.2, 6.4, 6.5, 6.7, 6.8, 6.9,
6.10 or 6.11;
(e) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.5(b) or (c) or in Sections 6.1 (but only if the
default involves an amount of impermissible Indebtedness in excess of
$500,000), 6.3 (but only if the default involves impermissible Investments
in an amount in excess of $500,000) or 6.6 and such default shall continue
unremedied for a period of 30 days;
(f) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than defaults specified in (b), (c),
(d) or (e) above) and such default shall continue unremedied for a period
of 30 days after notice thereof from the Agent or any Lender to the
Borrower;
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(g) the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $5,000,000, when and as the
same shall become due and payable (after expiration of any applicable grace
period), or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing
or governing any such Indebtedness if the effect of any failure referred to
in this clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf to cause, such
Indebtedness to become due prior to its stated maturity;
(h) 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 Subsidiary, or of a
substantial part of the property or assets of the Borrower or a 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
Subsidiary or for a substantial part of the property or assets of the
Borrower or a Subsidiary or (iii) the winding-up or liquidation of the
Borrower or any 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;
(i) the Borrower or any 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 (h) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary or for a substantial part of the property or
assets of the Borrower or any 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;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged and unvacated for a period of 45 consecutive days
during which execution shall not be effectively bonded over or stayed, or
any judgment creditor shall levy upon assets or properties of the Borrower
or any Subsidiary to enforce any such judgment;
(k) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$2,500,000 and, within 30 days after the reporting of any such Reportable
Event to the Agent or after the receipt by the Agent of the statement
required pursuant to Section 5.6, the Agent shall have notified the
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Borrower in writing that (i) the Required Lenders have made a determination
that, on the basis of such Reportable Event or Reportable Events or the
failure to make a required payment, there are reasonable grounds (a) for
the termination of such Plan or Plans by the PBGC, (b) for the appointment
by the appropriate United States District Court of a trustee to administer
such Plan or Plans or (c) for the imposition of a lien in favor of a Plan
and (ii) as a result thereof an Event of Default exists hereunder; or a
trustee shall be appointed by a United States District Court to administer
any such Plan or Plans; or the PBGC shall institute proceedings to
terminate any Plan or Plans;
(l) (i) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower or such
ERISA Affiliate does not have reasonable grounds for contesting such
Withdrawal Liability or is not in fact contesting such Withdrawal Liability
in a timely and appropriate manner and (iii) the amount of the Withdrawal
Liability specified in such notice, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date or dates of such notification),
exceeds $2,500,000;
(m) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the
Borrower's ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will be
increased over the amounts required to be contributed to such Multiemployer
Plans for their most recently completed plan years by an amount exceeding
$500,000; or
(n) there shall have occurred a Change in Control with respect
to the Borrower.
7.2 Remedies.
(a) Upon the occurrence of an Event of Default described in
paragraph (h) or (i) of Section 7.1, (x) the Commitments shall
automatically terminate, and (y) the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
Facility Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, 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 or in any other Loan Document to the contrary
notwithstanding.
(b) Upon the occurrence of an Event of Default other than an Event
of Default with respect to the Borrower described in paragraph (h) or (i)
of Section 7.1, and at any time thereafter during the continuance of such
Event of Default, by notice to the Borrower, the Agent, upon the
appropriate request described below, shall take any or all of the following
actions, at the same or different times:
(i) at the request of the Required Revolving Credit Lenders,
shall terminate forthwith the Revolving Credit Commitments;
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(ii) at the request of the Required Term Lenders, shall
terminate forthwith the Term Loan Commitments (if at the time of such Event
of Default the Closing Date has not yet occurred); and
(iii) at the request of the Required Lenders, 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 Facility Fees
and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document 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 or
in any other Loan Document to the contrary notwithstanding.
ARTICLE 8
THE AGENT
8.1 Appointment. In order to expedite the transactions contemplated
by this Agreement, Mitsubishi Bank is hereby appointed to act as Agent, on
behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes
the Agent to take such actions on its behalf and to exercise such powers as
are specifically delegated to the Agent by the terms and provisions hereof
and of the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The 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 give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the
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 Agent.
8.2 Nature of Duties. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in
the other Loan Documents. The Agent's duties shall be mechanical and
administrative in nature. The Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender. Nothing in
this Agreement or any of the other Loan Documents, expressed or implied, is
intended to or shall be construed to impose upon the Agent any obligations
in respect of this Agreement or any of the other Loan Documents except as
expressly set forth herein or therein. With respect to the taking or
refraining from taking any action hereunder, if the Agent seeks the consent
or approval of (i) the Required Lenders, the Agent shall send notice
thereof to each Lender; (ii) the Required Term Lenders, the Agent shall
send notice thereof to each Term Lender; and (iii) the Required Revolving
Credit Lenders, the Agent shall send notice thereof to each Revolving
Credit Lender. The Agent shall promptly notify each Lender at any time
that the Required Lenders, the Required Term Lenders, the Required
Revolving Credit Lenders or, where expressly required, all of the Lenders,
have instructed the Agent to act or refrain from acting pursuant hereto.
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8.3 Rights, Exculpation, Etc. Neither the 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 wilful 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 in any Loan Document.
The Agent shall not be responsible to the Lenders for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or
any other Loan Documents or other instruments or agreements. The Agent
shall in all cases be fully protected in acting, or refraining from acting,
in accordance with written instructions signed by the Required Lenders, the
Required Term Lenders, the Required Revolving Credit Lenders or all of the
Lenders, as appropriate, and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall
be binding on all the Lenders. The 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 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 other 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 under any other Loan Document or in
connection herewith or therewith. The 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 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.
8.4 Successor Agent; Resignation of the Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by notifying the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to
appoint a successor acceptable to the Borrower. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint
a successor Agent which shall be a bank with an office in Chicago, Illinois
or New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank, and which shall be
acceptable to the Borrower. Upon the acceptance of any appointment as
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 Agent and the retiring Agent shall be discharged from its duties
and obligations as Agent hereunder. After the Agent's resignation
hereunder, the provisions of this Article 8 and Section 9.5 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 Agent.
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8.5 The Agent Individually. With respect to the Loans made by it
hereunder, Mitsubishi Bank, in its individual capacity and not as an Agent,
shall have the same rights and powers as any other Lender and may exercise
the same as though it was not the Agent, and Mitsubishi Bank and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower, any Subsidiary or other Affiliate
thereof as if it was not the Agent.
8.6 Indemnification. Each Lender agrees (i) to reimburse the Agent,
on demand, in the amount of its Pro Rata Share of any expenses incurred for
the benefit of the Lenders by the Agent, including 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 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, costs, 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 Agent or any of
them in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted by it or any of them under
this Agreement or any other Loan Document, to the extent the same shall not
have been reimbursed by the Borrower; provided that no Lender shall be
liable to the Agent under clause (i) or (ii) above for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence
or wilful misconduct of the Agent or any of its directors, officers,
employees or agents.
8.7 Independent Credit Analysis. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender
and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, make its own
credit analysis and decision to make Loans hereunder from and after the
Closing Date and continue to make its own decisions in taking or not taking
action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
ARTICLE 9
MISCELLANEOUS
9.1 Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President -
Treasurer and Corporate Secretary, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to ▇▇▇▇▇ & Lardner, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇;
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(b) if to Mitsubishi Bank, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇;
(c) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.1 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto. All notices and other
communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt
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 9.1 or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section 9.1.
9.2 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 Facility Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated.
9.3 Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and the Agent and when the 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 Agent, 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.
9.4 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, except as otherwise provided in Section 9.4(b); and
all covenants, promises and agreements by or on behalf of the Borrower, the
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 Eligible Assignees
all or a percentage of that Lender's interests, rights and obligations
under this Agreement (including all or a portion of the Loans owing to it,
the Notes held by it and its Commitments); provided, however, that (i)
except in the case of an assignment to a Lender or a Qualified Affiliate of
a Lender, the Agent and the Borrower must give their prior written consent
to such assignment (which consent of the Agent and the Borrower shall not
be unreasonably withheld), (ii) the aggregate amount of the Commitments and
Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Agent) shall not be less than $5,000,000
(or, if less, the entire remaining amount of such Lender's Loans and
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Commitments), (iii) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance, and, except for
assignments made pursuant to Section 2.27, such Eligible Assignee shall
deliver to the Agent a processing and recordation fee of $2,500 and (iv)
such Eligible Assignee, if it shall not be a Lender, shall deliver to the
Agent an Administrative Questionnaire. Upon acceptance and recording
pursuant to paragraph (e) of this Section 9.4, from and after the effective
date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days (except as otherwise agreed by the
assignor, the assignee and the Agent) 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 the rights and
obligations of a Revolving Credit Lender and/or a Term Lender, as the case
may be, 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 2.19, 2.21, 2.25 and 9.5 with respect to time periods
during which it was a party hereto, as well as to any interest and Facility
Fees accrued for its account and not yet paid).
(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 Commitments and/or the outstanding balances
of its Loans, 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, any
other Loan Document 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, any other Loan Document 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 5.4 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 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 Agent to take such action as
Agent on its behalf, and to exercise such powers under this Agreement, as
are delegated to the 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.
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(d) The Agent shall maintain at one of its offices in the City
of Chicago 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 Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest
error and the Borrower, the 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, 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 Agent to such assignment, the Agent
shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower and the Lenders.
(f) Upon the Acceptance by the Agent of any Assignment and
Acceptance, the parties to such Assignment and Acceptance may at any time
request that a new Term Loan Note and/or a new Revolving Loan Note be
issued to the Lender assignee by (i) providing written notice of such
request to the Agent and the Borrower and (ii) delivering to the Borrower
such assigning Lender's Term Loan Note and/or Revolving Loan Note for
cancellation and substitution. With respect to each such Note so
delivered, promptly following receipt by the Borrower of any such notice
and such Note, and verification from the Agent that the applicable
Assignment and Acceptance shall have been accepted by the Agent, the
Borrower forthwith shall cause to be executed, and shall deliver to the
Lender assignee, a new Note to the order of the assignee and, if
applicable, a replacement Note to the order of the Lender assignor, and
such Note or Notes shall equal to the aggregate principal amount of the
assigning Lender's Note issued by the Borrower immediately prior to the
acceptance by the Agent of the applicable Assignment and Acceptance. The
Borrower shall immediately upon delivery of such new Note(s), cancel the
original Note delivered by the Lender assignor to the Borrower.
(g) Each Lender may without the consent of the Borrower or the
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 Commitments 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 and indemnity provisions contained in Sections 2.19,
2.21, 2.25 and 9.5 to the same extent as if they were Lenders (except that
no participant or participants shall be entitled to claim any aggregate
amount greater than that which could have been claimed by the Lender from
which it or they acquired its or their participations) and (iv) the
Borrower, the 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
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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 the final maturity of the Loans
or any date fixed for the payment of interest on the Loans or any Facility
Fees or extending the Commitments).
(h) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation
pursuant to this Section 9.4, disclose to the assignee or participant or
proposed assignee or participant any information relating to the Borrower
and the Subsidiaries 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
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential
information.
(i) Any Lender may at any time pledge or assign all or any
portion of its rights under this Agreement and the Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a
Lender from any of its obligations hereunder.
(j) The Borrower shall not assign or delegate any of its rights
or duties hereunder without the consent of each Lender.
9.5 Expenses; Indemnity.
(a) The Borrower agrees to pay all reasonable out-of-pocket
expenses incurred by the Agent in connection with the preparation of this
Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated)
or incurred by the Agent or any Lender in connection with the enforcement
or protection of their rights in connection with this Agreement and the
other Loan Documents or in connection with the Loans made hereunder,
including in each case all of the reasonable fees, charges and
disbursements of counsel for the Agent, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements
of any other counsel for the Agent or any Lender. The Agent shall provide
the Borrower with a statement in reasonable detail setting forth all
reimbursements requested under this Section 9.5(a).
(b) The Borrower agrees to indemnify the Agent, each Lender and
each of their respective directors, officers, employees, attorneys and
agents (each such Person being called an "Indemnitee") against, and to hold
each Indemnitee harmless from, any and all liabilities, damages,
obligations, losses, penalties, actions, judgments, suits, costs and
expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of any third
party claim, litigation, investigation or proceeding (whether or not any
Indemnitee shall be party thereto) relating to, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any
other Loan Document or any agreement or instrument contemplated thereby, or
(ii) the use of the proceeds of the Loans (a "Third Party Claim"); provided
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that such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, damages, obligations, losses, penalties,
actions, judgments, suits, costs and expenses which (if such liabilities,
damages, obligations, losses, penalties, actions, judgments, suits, costs
and expenses arise in a judicial forum) are found in a final judgment by a
court of competent jurisdiction have resulted from the gross negligence or
wilful misconduct of such Indemnitee; provided further that (a) each
Indemnitee shall promptly notify the Borrower in writing upon becoming
aware of the initiation of any Third Party Claim against it, (b) the
Borrower shall be entitled to participate in the defense of any such Third
Party Claim and, if the Borrower so chooses, to assume the defense, at the
Borrower's expense, of any such Third Party Claim with counsel selected by
the Borrower (it being understood that any Indemnitee shall have the right
to participate in such defense and employ counsel separate from the counsel
employed by the Borrower, and that such counsel shall be at the expense of
such Indemnitee unless such Indemnitee shall have been advised by counsel
that there may be legal defenses available to it that are inconsistent with
or in addition to those available to the Borrower, in which case such
counsel shall be at the expense of the Borrower) and (c) no Indemnitee
shall settle any Third Party Claim without the prior written consent of the
Borrower (which consent shall not be unreasonably withheld).
(c) None of the Agent, any Lender, the Borrower or any of their
respective directors, officers, employees, attorneys and agents shall be
responsible or liable to any other party hereto or any other Person or
entity for consequential damages which may be alleged as a result of the
transactions contemplated hereby, except to the extent consequential
damages are specifically provided for in this Agreement.
(d) The provisions of this Section 9.5 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 other Loan Document, or any
investigation made by or on behalf of the Agent or any Lender. All amounts
due under this Section 9.5 shall be payable on written demand therefor.
9.6 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
and other Loan Documents held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement or such
other Loan Document and although such obligations may be unmatured. the
rights of each Lender under this Section 9.6 are in addition to other
rights and remedies (including other rights of setoff) which such Lender
may have.
9.7 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO CHOICE OF LAW PRINCIPLES.
9.8 Waivers; Amendment.
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(a) No failure or delay of the 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 Agent and the Lenders
hereunder and under the other Loan Documents 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 any other Loan Document 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) 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 affected thereby, (ii)
change or extend any Commitment or decrease the Facility Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify
the provisions of Section 2.22, the provisions of this Section 9.8 or the
definitions of "Required Lenders", "Required Term Lenders" or "Required
Revolving Credit 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 Agent hereunder without the
prior written consent of the Agent.
(c) No waiver by the Required Lenders of any Event of Default
hereunder shall impair (i) the right of the Required Revolving Credit
Lenders to terminate the Revolving Credit Commitments at any time on or
after the occurrence of such Event of Default pursuant to Section
7.2(b)(i), or (ii) the right of the Required Term Lenders to terminate the
Term Loan Commitments at any time prior to the Closing Date on or after the
occurrence of such Event of Default pursuant to Section 7.2(b)(ii).
9.9 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 on the Loans of such Lender,
together with all Charges payable to such Lender, shall be limited to the
Maximum Rate.
9.10 Confidentiality.
(a) Each Lender agrees to keep confidential, and to not
publish, disclose or otherwise divulge to any Person, the Information (as
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defined below), and to cause its respective officers, directors, employees,
agents and representatives to keep confidential, and to not publish,
disclose or otherwise divulge to any Person, the Information, except that
any Lender shall be permitted to disclose Information (i) to such of its
officers, directors, employees, agents and representatives as need to know
such Information in connection with the servicing and protection of its
interests in respect of its Loans and Commitments, the Loan Documents and
the transactions contemplated thereby; (ii) to the extent required by
applicable laws and regulations or by any subpoena or similar legal
process, or requested by any bank regulatory authority; (iii) to the extent
such Information (a) becomes publicly available other than as a result of a
breach of this Agreement, (b) becomes available to such Lender on a non-
confidential basis from a source other than the Borrower or its Affiliates
or (c) was available to such Lender on a non-confidential basis prior to
its disclosure to such Lender by the Borrower or its Affiliates; (iv) to
any actual or prospective assignee of or purchaser of a participation in
the rights of such Lender hereunder, subject to paragraph (c) below; or (v)
to the extent the Borrower shall have consented to such disclosure in
writing. As used in this Section, as to any Lender, the "Information"
shall mean any materials, documents and information which the Borrower or
any of its Affiliates may have furnished or may hereafter furnish to the
Agent or any Lender in connection with this Agreement.
(b) Each Lender agrees that it will use the Information only
for purposes related to the transactions contemplated hereby; provided that
(i) if the conditions referred to in any of subclauses (a) through (c) of
clause (iii) of paragraph (a) above are met, such Lender may otherwise use
the Information and (ii) if such Lender is otherwise a creditor of the
Borrower, such Lender may use the Information in connection with its other
credits to the Borrower.
(c) Each Lender agrees that it will not disclose any of the
Information to any actual or prospective assignee of or participant in any
rights of such Lender under this Agreement unless such actual or
prospective assignee or participant first executes and delivers to such
Lender a confidentiality letter containing substantially the undertakings
set forth in this Section 9.10.
9.11 Entire Agreement. This Agreement, including the exhibits and
schedules thereto, and the other Loan Documents constitute 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 and the other Loan Documents.
Nothing in this Agreement or in the other Loan Documents, 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 or the other Loan Documents.
9.12 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 of the other Loan
Documents. 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 the other
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Loan Documents, as applicable, by, among other things, the mutual waivers
and certifications in this Section 9.12.
9.13 Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
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.
9.14 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 9.3.
9.15 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.
9.16 Jurisdiction; Consent to Service of Process.
(a) THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF
ANY ILLINOIS STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN THE CITY OF CHICAGO, AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS, 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 ILLINOIS 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 PARTY MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS
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 THE
OTHER LOAN DOCUMENTS IN ANY ILLINOIS STATE OR FEDERAL COURT. 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.
9.17 Defaulting Lender. In the event that any Lender fails to fund
its Term Loan or its Commitments of any Revolving Loan Borrowing requested
or deemed requested by the Borrower which such Lender is obligated to fund
under the terms of this Agreement (the funded portion of such Borrowing
being hereinafter referred to as a "Non Pro Rata Loan"), until the earlier
of such Lender's cure of such failure or the termination of the
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Commitments, upon the Borrower's request, the proceeds of all amounts
thereafter repaid to the Agent by the Borrower and otherwise required to be
applied to such Lender's share of all other Obligations pursuant to the
terms of this Agreement shall be advanced to the Borrower by the Agent on
behalf of such Lender to cure, in full or in part, such failure by such
Lender, but shall nevertheless be deemed to have been paid to such Lender
in satisfaction of such other Obligations. Notwithstanding anything in
this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.17 shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section 2.15;
(ii) any such Lender shall be deemed to have cured its failure
to fund its Term Loan or its Revolver Pro Rata Share of any Revolving Loan
Borrowing at such time as an amount equal to such Lender's Term Commitment
or original Revolver Pro Rata Share of the requested principal portion of
such Borrowing is fully funded to the Borrower, whether made by such Lender
itself or by operation of the terms of this Section 9.17 and whether or not
the Non Pro Rata Loan with respect thereto has been, converted or
continued;
(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Term Loan or its Revolver Pro
Rata Share of any Borrowing ("Cure Loans") shall bear interest at the rate
applicable to ABR Borrowings under Section 2.10 in effect from time to
time, and for all other purposes of this Agreement shall be treated as if
they were ABR Loans;
(iv) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of the
Borrower as to its desired application, all repayments of principal which
would be applied to the outstanding ABR Loans shall be applied first,
ratably to all ABR Loans constituting Non Pro Rata Loans, second, ratably
to ABR Loans other than those constituting Non Pro Rata Loans or Cure Loans
and, third, ratably to ABR Loans constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Term Loan or its Revolver Pro Rata Share of
any Revolving Loan Borrowing and the termination of the Commitments, the
terms "Required Lenders", "Required Term Lenders" and "Required Revolving
Credit Lenders" for all purposes of this Agreement shall exclude all
Lenders whose failure to fund their respective Term Loans or Revolver Pro
Rata Shares of such Revolving Loan Borrowing have not been so cured; and
(vi) for so long as and until any such Lender's failure to fund
its Term Loan or its Pro Rata Share of any Revolving Loan Borrowing is
cured in accordance with this Section 9.17, such Lender shall not be
entitled to any Facility Fees with respect to its Revolving Credit
Commitment.
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IN WITNESS WHEREOF, the Borrower, the 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.
LINCOLN TELECOMMUNICATIONS
COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and CEO
THE MITSUBISHI BANK, LIMITED,
individually and as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Joint General Manager
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Agent
FIRST NATIONAL BANK OF OMAHA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
NORWEST BANK NEBRASKA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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THE TOYO TRUST AND BANKING
COMPANY, LTD.
By: /s/ Watan Nishino
Name: W. Nishino
Title: General Manager
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