Exhibit 4.4
EXECUTION COPY
$750,000,000
FIVE-YEAR REVOLVING CREDIT AGREEMENT
Dated as of
March 7, 2005
among
CENTURYTEL, INC.,
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
WACHOVIA BANK, N.A.,
as Syndication Agent,
BANK OF AMERICA, N.A.,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
COBANK, ACB
and
SUNTRUST BANK,
as Co-Documentation Agents
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC. WACHOVIA SECURITIES, INC.
As Joint Bookrunners and Co-Lead Arrangers
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Table of Contents
Page
SECTION 1 DEFINITIONS....................................................1
1.1. Certain Defined Terms.....................................1
1.2. Accounting Principles....................................16
1.3. Other Definitional Provisions............................16
SECTION 2 FACILITIES....................................................17
2.1. Commitments..............................................17
2.2. Procedure for Loan Borrowing.............................17
2.3. Conversion and Continuation Options......................18
2.4. Fees.....................................................18
2.5. Optional Termination and Reduction of Commitments........19
2.6. Limitations on Eurodollar Tranches.......................20
2.7. Interest Rates and Payment Dates.........................20
2.8. Alternate Rate of Interest for Eurodollar Loans..........20
2.9. Mandatory and Optional Prepayment of Loans...............21
2.10. Reserve Requirements; Change in Circumstances............21
2.11. Change in Legality.......................................23
2.12. Indemnity................................................23
2.13. Pro Rata Treatment.......................................24
2.14. Sharing of Setoffs.......................................24
2.15. Payments.................................................24
2.16. Calculation of Eurodollar Rate...........................25
2.17. Computation of Interest and Fees.........................26
2.18. Booking Loans............................................26
2.19. Quotation of Rates.......................................26
2.20. Taxes....................................................26
SECTION 3 LETTERS OF CREDIT.............................................28
3.1. L/C Commitment...........................................28
3.2. Procedure for Issuance of Letter of Credit...............28
3.3. Fees and Other Charges...................................29
3.4. L/C Participations.......................................29
3.5. Reimbursement Obligation of the Borrower.................30
3.6. Obligations Absolute.....................................30
3.7. Letter of Credit Payments................................30
3.8. Applications.............................................31
SECTION 4 REPRESENTATIONS AND WARRANTIES................................31
4.1. Purpose of Credit Facility...............................31
4.2. Corporate Existence, Good Standing, and Authority........31
4.3. Significant Subsidiaries.................................31
4.4. Financial Statements.....................................31
4.5. Compliance with Laws, Charter, and Agreements............32
4.6. Litigation...............................................32
4.7. Taxes....................................................32
4.8. Environmental Matters....................................32
4.9. Employee Benefit Plans...................................32
4.10. Properties; Liens........................................33
4.11. Holding Company and Investment Company Status............33
4.12. Transactions with Affiliates.............................33
4.13. Leases...................................................33
4.14. Labor Matters............................................33
4.15. Insurance................................................33
4.16. Solvency.................................................34
4.17. Business.................................................34
4.18. General..................................................34
SECTION 5 CONDITIONS PRECEDENT..........................................34
5.1. Initial Loan.............................................34
5.2. Each Revolving Extension of Credit.......................35
5.3. Materiality of Conditions................................35
5.4. Waiver of Conditions.....................................36
SECTION 6 AFFIRMATIVE COVENANTS.........................................36
6.1. Use of Proceeds..........................................36
6.2. Books and Records........................................36
6.3. Items to be Furnished....................................36
6.4. Inspection...............................................37
6.5. Taxes....................................................37
6.6. Payment of Obligations...................................37
6.7. Expenses.................................................38
6.8. Maintenance of Existence, Assets, Business,
and Insurance............................................38
6.9. Preservation and Protection of Rights....................38
6.10. Environmental Laws.......................................38
6.11. Environmental Indemnification............................38
SECTION 7 NEGATIVE COVENANTS............................................39
7.1. Employee Benefit Plans...................................39
7.2. Liens....................................................39
7.3. Restricted Payments......................................39
7.4. Mergers and Consolidations...............................39
7.5. Loans, Advances, and Investments.........................40
7.6. Transactions with Affiliates.............................41
7.7. Sale of Assets...........................................41
7.8. Compliance with Laws and Documents.......................42
7.9. New Businesses...........................................42
7.10. Assignment...............................................42
7.11. Fiscal Year..............................................42
7.12. Holding Company and Investment Company Status............42
7.13. Amendments to Equity Units Documentation.................42
7.14. Financial Covenants......................................42
SECTION 8 DEFAULT.......................................................43
8.1. Payment of Obligation....................................44
8.2. Covenants................................................44
8.3. Debtor Relief............................................44
8.4. Attachment...............................................44
8.5. Payment of Judgments.....................................44
8.6. Default Under Other Agreements...........................44
8.7. Misrepresentation........................................45
8.8. Change in Control........................................45
8.9. ERISA....................................................45
8.10. Validity and Enforceability of Loan Papers...............45
SECTION 9 RIGHTS AND REMEDIES...........................................46
9.1. Remedies Upon Event of Default...........................46
9.2. Waivers..................................................46
9.3. Performance by Administrative Agent......................47
9.4. Delegation of Duties and Rights..........................47
9.5. Lenders Not in Control...................................47
9.6. Waivers by Lenders.......................................47
9.7. Cumulative Rights........................................47
9.8. Application of Proceeds..................................47
9.9. Certain Proceedings......................................48
9.10. Setoff...................................................48
SECTION 10 THE AGENTS....................................................48
10.1. Appointment..............................................48
10.2. Delegation of Duties.....................................48
10.3. Exculpatory Provisions...................................49
10.4. Reliance of Administrative Agent.........................49
10.5. Notice of Default........................................49
10.6. Non-Reliance on Agents and Other Lenders.................50
10.7. Indemnification..........................................50
10.8. Agent in its Individual Capacity.........................50
10.9. Successor Administrative Agent...........................50
10.10. Co-Documentation Agents and Syndication Agent............51
SECTION 11 MISCELLANEOUS.................................................51
11.1. Changes in GAAP..........................................51
11.2. Money and Interest.......................................51
11.3. Number and Gender of Words...............................52
11.4. Headings.................................................52
11.5. Exhibits.................................................52
11.6. Notices..................................................52
11.7. Exceptions to Covenants..................................53
11.8. Survival.................................................53
11.9. Governing Law............................................53
11.10. Submission to Jurisdiction; Waivers......................53
11.11. WAIVERS OF JURY TRIAL....................................54
11.12. Severability.............................................54
11.13. Integration..............................................54
11.14. Amendments, Etc..........................................54
11.15. Waivers..................................................55
11.16. Governmental Regulation..................................55
11.17. Multiple Counterparts....................................55
11.18. Successors and Assigns; Participations; Assignments......56
11.19. Confidentiality..........................................58
11.20. Conflicts and Ambiguities................................59
11.21. GENERAL INDEMNIFICATION..................................59
SCHEDULES
Commitments Schedule 1
Transactions with Affiliates Schedule 4.12
Business of Companies Schedule 4.17
EXHIBITS
Revolving Note Exhibit A
Opinion of Borrower's Counsel Exhibit B
Financial Report Certificate Exhibit C
Assignment and Assumption Exhibit D
Increased Facility Activation Notice Exhibit E
New Lender Supplement Exhibit F
CREDIT AGREEMENT (this "Agreement"), dated as of March 7, 2005, among
CENTURYTEL, INC., a Louisiana corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), WACHOVIA BANK, N.A., as syndication agent (in such
capacity, the "Syndication Agent"), BANK OF AMERICA, N.A., THE BANK OF
TOKYO-MITSUBISHI, LTD., COBANK, ACB and SUNTRUST BANK, as co-documentation
agents (in such capacity, the "Co-Documentation Agents"), and JPMORGAN CHASE
BANK, N.A., as administrative agent (in such capacity, the "Administrative
Agent").
The parties hereto hereby agree as follows:
SECTION 1
-----------
DEFINITIONS.
------------
1.1. Certain Defined Terms.
---------------------
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ABR" means, for any day, 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 JPMorgan Chase Bank
as its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by JPMorgan
Chase Bank in connection with extensions of credit to debtors). Any change in
the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loan" means any Loan the rate of interest applicable to which is
based upon the ABR.
"Acquisitions" means the acquisition by the Borrower or its
Subsidiaries of at least a majority of the capital stock or all or substantially
all of the Property of another Person, division of another Person or other
business unit of another Person, whether or not involving a merger or
consolidation of such Person, provided that such Person or Property is used or
useful in the same or a similar line of business as set forth on Schedule 4.17
hereto (or any reasonable extensions or expansions thereof).
"Adjusted Consolidated Net Worth" means, as of the date of
determination, Consolidated Net Worth minus (i) deferred assets other than
prepaid insurance, prepaid taxes, prepaid interest, extraordinary retirements,
and deferred charges where such deferred charges are considered by Tribunals
when setting rates, (ii) patents, copyrights, trademarks, trade names,
franchises, experimental expense, goodwill (other than goodwill arising from the
purchase of capital stock or assets of a Person engaged in the business
described on Schedule 4.17) and similar intangible or intellectual property, and
(iii) unamortized debt discount and expense (other than debt discount and
expense of the Companies located in jurisdictions where such items are
considered by Tribunals when setting rates).
"Administrative Agent" is defined in the introduction to this
Agreement.
"Affiliate" of any Person means any other individual or entity that
directly or indirectly controls, or is controlled by, or is under common control
with, such Person, and, for purposes of this definition only, "control,"
"controlled by," and "under common control with" mean possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person (whether through ownership of Voting Stock, by contract,
or otherwise).
"Agents" means the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents.
"Agreement" means this Five-Year Revolving Credit Agreement, as the
same may be amended, supplemented, modified or restated from time to time.
"Applicable Margin" means, at the time of any determination thereof,
for purposes of all Loans, the margin of interest over the ABR or the Eurodollar
Rate, as the case may be, which is applicable at the time of any determination
of interest rates under this Agreement, which Applicable Margin shall be
adjusted based on the Senior Unsecured Long-Term Debt Rating, as determined as
of the last day of the immediately preceding fiscal quarter of the Borrower, as
follows:
================================= ======================== =================
Senior Unsecured Long-Term Debt Eurodollar Loan Margin ABR Loan Margin
Rating
--------------------------------- ------------------------ -----------------
A- or A3 or better 37.5 basis points 0 basis points
--------------------------------- ------------------------ -----------------
BBB+ or Baal 50.0 basis points 0 basis points
--------------------------------- ------------------------ -----------------
BBB or Baa2 62.5 basis points 0 basis points
--------------------------------- ------------------------ -----------------
BBB- or Baa3 87.5 basis points 0 basis points
--------------------------------- ------------------------ -----------------
Below BBB- or Baa3 100.0 basis points 0 basis points
================================= ======================== =================
Until the delivery to the Lenders of the Borrower's audited financial statements
for the 2004 fiscal year, the Senior Unsecured Long-Term Debt Rating shall be
deemed to be no higher than BBB+ and Baa1.
"Application" means an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to open a Letter of
Credit.
"Approved Fund" is defined in Section 11.18(b)(ii).
"Assignee" is defined in Section 11.18(b)(i).
"Assignment and Assumption" means an Assignment and Assumption,
substantially in the form of Exhibit D.
"Attributable Debt" means, in respect of any sale and leaseback
transaction, at the time of determination, the present value of the obligation
of the lessee for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction including any period for which
such lease has been extended or may, at the sole option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Available Commitment" means as to any Lender at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment then in effect over
(b) the aggregate principal amount of Revolving Extensions of Credit made by
such Lender.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Borrower" is defined in the introduction to this Agreement.
"Borrowing" means a borrowing consisting of simultaneous Loans from
each of the Lenders distributed ratably among the Lenders in accordance with
their respective Commitments.
"Borrowing Date" means the Business Day upon which the proceeds of any
Borrowing are to be made available to the Borrower.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close, provided, that with respect to notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, such day is
also a day for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
investments of the character described in the foregoing subdivisions (a) through
(d).
"CLO" is defined in Section 11.18(b)(ii).
"Closing Date" means March 7, 2005.
"Code" means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
"Co-Documentation Agents" is defined in the introduction to this
Agreement.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans and participate in Letters of Credit in an aggregate principal amount
not to exceed the amount set forth under the heading "Commitment" opposite such
Lender's name on Schedule 1 or in the Assignment and Assumption pursuant to
which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof. The original amount of the Total Commitments
is $750,000,000.
"Commitment Fee" is defined in Section 2.4(a).
"Commitment Fee Percentage" is defined in Section 2.4(a).
"Commitment Period" means the period from and including the Closing
Date to the Termination Date.
"Commitment Utilization Percentage" means on any day the percentage
equivalent of a fraction (a) the numerator of which is the Used Commitment and
(b) the denominator of which is the aggregate amount of the Total Commitments.
Notwithstanding the foregoing, the Commitment Utilization Percentage shall be
deemed to be 100% if any Loans or Letters of Credit remain outstanding after the
Commitments hereunder have been terminated.
"Companies" means, collectively, the Borrower and its Subsidiaries and
"Company" means any of the same.
"Conduit Lender" means any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.10, 2.12, 2.20, 6.7 or 11.21 than the designating
Lender would have been entitled to receive in respect of the extensions of
credit made by such Conduit Lender or (b) be deemed to have any Commitment.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated February 23, 2005 and furnished to certain Lenders.
"Consolidated Net Worth" means, as of the date of determination, the
amount of stated capital plus (or minus, in the case of a deficit) the capital
surplus and earned surplus of the Companies, as calculated in accordance with
GAAP (but treating Minority Interests in Subsidiaries as liabilities and
excluding the contra-equity account resulting from the Borrower's obligations
under its employee stock ownership plan commitments). For purposes of this
Agreement, Consolidated Net Worth shall exclude the effect of FASB Statements
No. 101 ("Regulated Enterprises-Accounting for the Discontinuation of
Application of FASB Statement No. 71"), 106 ("'Employers' Accounting for
Postretirement Benefits Other than Pensions"), 142 ("Goodwill and Other
Intangible Assets") and 144 ("Accounting for the Impairment or Disposal of
Long-Lived Assets") of the Financial Accounting Standards Board.
"Consolidated Total Funded Debt" means, as of the date of
determination, the aggregate principal amount of all Funded Debt of the Borrower
and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
"Current Date" means any date after February 1, 2005.
"Current Financials" means the consolidated Financial Statements of the
Companies for the fiscal year ended December 31, 2003, and the nine months ended
September 30, 2004.
"Debt" means (without duplication), for any Person, all obligations,
contingent or otherwise (including, without limitation, contingent obligations
in connection with letters of credit), which in accordance with GAAP should be
classified upon such Person's balance sheet as liabilities, but in any event
including, without limitation, whether or not such obligations in accordance
with GAAP should be classified as liabilities, (a) liabilities secured (or for
which the holder of such Debt has an existing Right, contingent or otherwise, to
be so secured) by any Lien existing on property owned or acquired by such Person
or a Subsidiary thereof (whether or not the liability secured thereby shall have
been assumed), (b) obligations which have been or under GAAP should be
capitalized for financial reporting purposes, (c) all guaranties, endorsements,
and other contingent obligations with respect to Debt of others, including, but
not limited to, any obligations to purchase, sell, or furnish property or
services intended by a Company primarily for the purpose of enabling such other
Person to make payment of any of such Person's Debt, or to otherwise assure the
holder of any of such Debt against loss with respect thereto, and (d)
liabilities under any Swap Agreement.
"Debt Rating" means the public debt rating by S&P and Moody's for that
class of non-credit enhanced, senior unsecured debt with an original term of
longer than one year issued by the Borrower which has the lowest rating of all
classes of non-credit enhanced, senior unsecured debt with an original term of
longer than one year issued by the Borrower.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
"Default" means the occurrence of any event which with the giving of
notice or the passage of time or both would become an Event of Default.
"Dollars" and "$" means dollars in lawful currency of the United
States.
"EBITDA" means for any period, consolidated net income of the Companies
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such consolidated net income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or write-off of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with indebtedness (including the Loans), (c) depreciation
and amortization, (d) any extraordinary or nonrecurring non-cash expenses or
losses, (e) any non-cash charges resulting from requirements to ▇▇▇▇-to-market
Swap Agreements and (f) non-cash expenses or losses which result from the
implementation of FASB statement of Financial Accounting Standards No. 142
("Goodwill and Other Intangible Assets") and 144 ("Accounting for the Impairment
or Disposal of Long-Lived Assets"), and minus, (a) to the extent included in the
statement of such consolidated net income for such period, any extraordinary,
unusual or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such consolidated net income
for such period, gains on the sales of assets outside of the ordinary course of
business) and (b) any cash payments made during such period in respect of items
described in clause (d), (e) or (f) above subsequent to the fiscal quarter in
which the relevant non-cash expenses or losses were reflected as a charge in the
statement of consolidated net income, all as determined on a consolidated basis.
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part thereof) used or useful in the
same or a similar line of business as set forth on Schedule 4.17 hereto (or any
reasonable extensions or expansions thereof) and (ii) any Acquisition.
"Environmental Law" means any Law that relates to the environment or
handling or control of Hazardous Substances.
"Equity Units" means (i) the $500,000,000 aggregate principal amount of
equity units issued by the Borrower on April 29, 2002 and (ii) any subsequent
offering of equity units issued by the Borrower the structure, terms and
conditions of which are substantially similar to the offering referred to in
clause (i) above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any company or trade or business (whether or
not incorporated) which, for purposes of Title IV of ERISA, is a member of a
group of which Borrower is a member and which is under common control with
Borrower within the meaning of section 414 of the Code.
"Eurocurrency Reserve Requirements" mean, for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Tribunal having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate" means, with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Loan" means any Loan the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche" means the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default" means any of the events described in Section 8,
provided there has been satisfied any requirement in connection therewith for
the giving of notice, lapse of time, or happening of any further condition,
event, or act.
"Excess Utilization Day" means each day on which the Commitment
Utilization Percentage equals or exceeds 50%.
"Existing Credit Agreement" means that certain $533,333,333 Three-Year
Revolving Credit Agreement dated as of July 22, 2002, among the Borrower, the
lenders party thereto, JPMorgan Chase Bank, as administrative agent, Wachovia
Bank, N.A., as syndication agent and Bank of America, N.A., Bank One, NA and
SunTrust Bank, as co-documentation agents, as amended, restated, supplemented or
modified from time to time.
"Federal Funds Effective Rate" means, 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 that is a Business Day, the average of the
quotations for the day of such transactions received by JPMorgan Chase Bank from
three federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, treasurer or
controller of the Borrower.
"Financial Report Certificate" means a certificate substantially in the
form of Exhibit C.
"Financial Statements" means balance sheets, income statements,
statements of stockholders' equity, and statements of cash flow prepared in
comparative form to the corresponding period of the preceding fiscal year.
"Funded Debt" with respect to any Person, shall mean and include, as of
any date as of which the amount thereof is to be determined, (a) indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than current trade
payables incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) liabilities secured (or for which the holder
thereof has an existing Right, contingent or otherwise, to be so secured) by any
Lien existing on property owned or acquired by such Person or a Subsidiary
thereof (whether or not the liability secured thereby shall have been assumed),
(f) obligations of such Person which have been or under GAAP should be
capitalized for financial reporting purposes, and (g) Attributable Debt of such
Person, but excluding (i) indebtedness secured by or borrowed against the cash
surrender value of life insurance policies up to the amount of such cash
surrender value and (ii) an amount equal to 80% of the outstanding principal
amount of indebtedness under the Equity Units.
"Funding Office" means the office of the Administrative Agent specified
in Section 11.6 or such other office as may be specified from time to time by
the Administrative Agent as its funding office by written notice to the Borrower
and the Lenders.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable as of the date of
the Financial Statements in question.
"Guaranty" means by any particular Person, all obligations of such
Person guaranteeing or in effect guaranteeing any Debt, dividend or other
obligation of any other Person (the "primary obligor") in any manner whether
directly or indirectly, including, without limitation of the generality of the
foregoing, obligations incurred through an agreement, contingent or otherwise,
by such particular Person (i) to purchase such Debt or obligation or any
property or assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Debt or obligation or (y) to
maintain working capital or equity capital or otherwise to advance or make
available funds for the purchase or payment of such Debt or obligation, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of such Debt or obligation of the ability of the primary obligor to
make payment of the Debt or obligation or (iv) otherwise to assure the owner of
the Debt or obligation of the primary obligor against loss in respect thereof.
"Hazardous Substance" means any hazardous or toxic waste, pollutant,
contaminant, or substance.
"Increased Facility Activation Notice" means a notice substantially in
the form of Exhibit E.
"Increased Facility Closing Date" means any Business Day designated as
such in an Increased Facility Activation Notice.
"Indemnified Parties" is defined in Section 11.21.
"Interest Payment Date" means (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period
(d) as to any Loan (other than any Loan that is an ABR Loan), the date of any
repayment or optional prepayment made in respect thereof and (e) as to any Loan,
the date of any mandatory prepayment in respect thereof.
"Interest Period" means, as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., New York City time, on the date
that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would
extend beyond the Termination Date unless the Borrower acknowledges that it will
be responsible for any breakage costs owing under Section 2.12 resulting from
repayment on the Termination Date;
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
(iv) subject to clause (ii) above, the Borrower shall select
Interest Periods so as not to require a payment or prepayment of any Eurodollar
Loan during an Interest Period for such Loan.
"Issuing Lenders" means JPMorgan Chase Bank, N.A. and Wachovia Bank,
N.A. or any respective affiliate thereof, in its capacity as issuer of any
Letter of Credit. Each reference herein to "the Issuing Lender" shall be deemed
to be a reference to the relevant Issuing Lender with respect to the relevant
Letter of Credit.
"Laws" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, or opinions
of any Tribunal.
"L/C Commitment" is $150,000,000.
"L/C Obligations" means, at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all Lenders other
than the Issuing Lenders.
"Lenders" means those lenders signatory hereto and other financial
institutions which from time to time become party hereto pursuant to the
provisions of this Agreement.
"Letters of Credit" is defined in Section 3.1(a).
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor to have his claim satisfied out of any
property or assets, or the proceeds therefrom, prior to the general creditors of
the owner thereof.
"Litigation" means any action conducted, pending, or threatened by or
before any Tribunal.
"Loan Papers" means (i) this Agreement, certificates delivered pursuant
to this Agreement, and exhibits and schedules hereto, (ii) any notes, security
documents, guaranties, and other agreements in favor of the Agents and the
Lenders, or any or some of them, ever delivered in connection with this
Agreement, and (iii) all renewals, extensions, or restatements of, or amendments
or supplements to, any of the foregoing.
"Loans" is defined in Section 2.1(a).
"Majority Lenders" means at any time the Lenders holding at least 51%
of the then aggregate Revolving Extensions of Credit or, if no Revolving
Extensions of Credit are outstanding, the Lenders having at least 51% of the
Available Commitments.
"Margin Stock" means "margin stock" within the meaning of Regulations
T, U, or X of the Board.
"Material Adverse Effect" means any set of one or more circumstances or
events which, individually or collectively, will result in any of the following:
(a) a material and adverse effect upon the validity or enforceability of any
Loan Paper, (b) a material and adverse effect on the consolidated financial
condition of the Companies represented in the later of the Current Financials or
the most recent audited consolidated Financial Statements, (c) a Default or (d)
the issuance of an accountant's report on the Companies' consolidated Financial
Statements containing an explanatory paragraph about the entity's ability to
continue as a going concern (as defined in accordance with Generally Accepted
Auditing Standards).
"Material Agreement" of any Person means any material written or oral
agreement, contract, commitment, or understanding to which such Person is a
party, by which such Person is directly or indirectly bound, or to which any
assets of such Person may be subject, and which is not cancelable by such Person
upon 30 days or less notice without liability for further payment other than
nominal penalty, and which requires such Person to pay more than 1 percent of
Consolidated Net Worth during any 12-month period.
"Minority Interest" means, with respect to any Subsidiary, an amount
determined by valuing preferred stock held by Persons other than the Borrower
and its wholly-owned Subsidiaries at the voluntary or involuntary liquidating
value of such preferred stock, whichever is greater, and by valuing common stock
or partnership interests held by Persons other than the Borrower and its
wholly-owned Subsidiaries at the book value of capital and surplus applicable
thereto on the books of such Subsidiary adjusted, if necessary, to reflect any
changes from the book value of common stock required by the foregoing method of
valuing Minority Interest attributable to preferred stock.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in sections
3(37) or 4001(a)(3) of ERISA or section 414 of the Code to which any Company or
any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an
obligation to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents
proceeds received by the Company in respect of any disposition of assets as
contemplated by Section 7.7(g), net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof and (c) the amount
necessary to retire any Debt secured by a Permitted Lien on the related Property
(unless the purchaser of the assets has assumed the obligations to repay such
Debt); it being understood that "Net Cash Proceeds" shall include, without
limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by any such Company in any
disposition of assets.
"New Lender" is defined in Section 2.1(c).
"New Lender Supplement" is defined in Section 2.1(c).
"Non-Excluded Taxes" is defined in Section 2.20(a).
"Non-U.S. Lender" is defined in Section 2.20(d).
"Note" means a promissory note of the Borrower, in substantially the
form of Exhibit A hereto, with the blanks appropriately completed, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Loans made by such Lender to the Borrower, together with all modifications,
extensions, renewals, and rearrangements thereof.
"Obligation" means all present and future indebtedness, obligations,
and liabilities, and all renewals, extensions, and modifications thereof, owed
to the Agents and the Lenders, or any or some of them, by the Borrower, arising
pursuant to any Loan Paper, together with all interest thereon and costs,
expenses, and attorneys' fees incurred in the enforcement or collection thereof.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Paper.
"Participant" is defined in Section 11.18(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"Permitted Liens" means (a) any Lien securing Debt incurred for the
purchase or capital lease of one or more assets, if such Lien encumbers only the
assets so purchased or leased; (b) pledges or deposits made to secure payment of
workers' compensation, or to participate in any fund in connection with workers'
compensation, unemployment insurance, pensions, or other social security
programs; (c) good-faith pledges or deposits made to secure performance of bids,
tenders, contracts (other than for the repayment of borrowed money), or leases,
or to secure statutory obligations, surety or appeal bonds, or indemnity,
performance, or other similar bonds in the ordinary course of business; (d)
encumbrances and restrictions on the use of real property which do not
materially impair such property; (e) (i) Liens for Taxes, (ii) Liens upon, and
defects of title to, property, including any attachment of property or other
legal process prior to adjudication of a dispute on the merits, (iii) Liens of
mechanics, materialmen, warehousemen, carriers, and landlords, and similar
Liens, and (iv) adverse judgments on appeal, in each case, with respect to this
clause (e), if either (x) no amounts are due and payable and no Lien has been
filed or agreed to or (y) the validity or amount thereof is being contested in
good faith by the lawful proceedings diligently conducted, reserve or other
provision required by GAAP has been made, levy and execution thereon have been
(and continue to be) stayed, and neither the value nor use of the property in
question are materially affected; (f) Liens in favor of the United States
Department of Agriculture, Rural Electrification Administration, the Rural
Utilities Service or Rural Telephone Bank or similar lenders such as the Rural
Telephone Finance Cooperative; (g) Liens on equity investments in CoBank or any
other equity investments in a financial institution which requires any Company
to make an equity investment in such institution in order to borrow money; (h)
Liens existing on any property of a Subsidiary existing at the time when it
became such, which were not created with a view of its becoming a Subsidiary,
provided that (i) the principal amount of the Debt secured by each such Lien
shall not exceed the cost (which shall be deemed to include the amount of all
Debt secured by Liens, including existing Liens, on such property) of such
property to such Subsidiary, or the fair value of such property (without
deduction of the Debt secured by Liens on such property) at the time of its
becoming a Subsidiary, whichever is the lesser, and (ii) the Debt secured by
such Liens may not be increased, extended, renewed or continued beyond its
original stated maturity if such increase, extensions or renewal would result in
a Default under Section 7.14; (i) Liens either on shares of stock of a
corporation which, when such Liens arise, concurrently becomes a Subsidiary or
on all or substantially all of the assets of a corporation arising in connection
with the purchase or acquisition thereof by the Company, provided that the Debt
secured by such Liens may not be increased or extended, renewed or continued
beyond its original stated maturity if such increase, extensions or renewal
would result in a Default under Section 7.14; (j) Liens on property of a
Subsidiary (other than on the stock of Subsidiary except to the extent permitted
in clause (i) above) securing obligations owing to the Borrower or a
wholly-owned Subsidiary or securing indebtedness of such Subsidiary created,
assumed or incurred after the date hereof, the creation, assumption or
incurrence of which would not create a Default under Section 7.14; (k) except as
otherwise prohibited in clause (h) or (i) above, Liens securing extensions and
renewals of the Debt originally secured thereby; (l) Liens on accounts
receivables and related assets (including without limitation, all collateral,
guaranties and contracts associated with such accounts receivables, all of the
Receivables Entity's interest in the inventory and goods the sale of which gave
rise to the accounts receivable, all lockbox or collection accounts related
thereto, all records related thereto, and all proceeds of the foregoing)
securing indebtedness incurred pursuant to a Qualified Receivables Transaction;
and (m) Liens on assets subject to any sale and leaseback transaction
consummated pursuant to Section 7.7(g).
"Person" means and includes an individual, partnership, joint venture,
corporation, trust, limited liability company, limited liability partnership, or
other entity, Tribunal, unincorporated organization, or government, or any
department, agency, or political subdivision thereof.
"Plan" means any plan defined in Section 4021(a) of ERISA in respect of
which the Borrower is an "employer" or a "substantial employer" as such terms
are defined in ERISA.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Purchaser" is defined in Section 11.18(c).
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Entity (in the case of a transfer by the
Borrower or any of its Subsidiaries) or (b) any other Person (in the case of a
transfer by a Receivables Entity), or may grant a security interest in, any
accounts receivable (whether now existing or arising in the future) of the
Borrower or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, the proceeds of such receivables and other assets which are
customarily transferred, or in respect of which security interests are
customarily granted, in connection with asset securitization involving accounts
receivable.
"Quarterly Payment Date" means (a) the third Business Day following the
last day of each March, June, September and December and (b) the last day of the
Commitment Period.
"Receivables Entity" means a Wholly Owned Subsidiary of the Borrower
(to which the Borrower or any Subsidiary transfers accounts receivable and
related assets pursuant to a Qualified Receivables Transaction) which engages in
no activities other than in connection with the financing of accounts receivable
and whose assets consist solely of receivables and related assets transferred to
such entity in connection with a Qualified Receivables Transaction:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(i) is guaranteed by the Borrower or any Subsidiary
(excluding guarantees of obligations (other than the principal
of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);
(ii) is recourse to or obligates the Borrower or
any Subsidiary in any way other than pursuant to Standard
Securitization Undertakings; or
(iii) subjects any property or asset of the Borrower
or any Subsidiary, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(b) with which neither the Borrower nor any Subsidiary
has any material contract, agreement, arrangement or understanding
(except in connection with a Qualified Receivables Transaction)
other than on terms no less favorable to the Borrower or such
Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower, other than fees
payable in the ordinary course of business in connection with
servicing accounts receivable; and
(c) to which neither the Borrower nor any Subsidiary has any
obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results
(except pursuant to Standard Securitization Undertakings).
Any designation by the Borrower of a Wholly Owned Subsidiary as a
Receivables Entity shall be evidenced to the Administrative Agent by delivering
to the Administrative Agent a certificate from a Financial Officer of the
Borrower certifying that such designation complied with the foregoing
conditions.
"Register" is defined in Section 11.18(b)(iv).
"Regulation D" means Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulatory Change" means, with respect to any Lender, (a) any adoption
or change after the date hereof of or in United States federal, state or foreign
Laws (including Regulation D) or guidelines applying to a class of banks
including such Lender, (b) the adoption or making after the date hereof of any
interpretations, directives or requests applying to a class of banks including
such Lender of or under any United States federal, state or foreign Laws or
guidelines (whether or not having the force of law) by any Tribunal, monetary
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or (c) any change in the interpretation or
administration of any United States federal, state or foreign Laws or guidelines
applying to a class of banks including such Lender by any Tribunal, monetary
authority, central bank, or comparable agency charged with the interpretation or
administration thereof.
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under the
Letters of Credit.
"Restricted Payment" means
(a) the declaration or payment of dividends by the Borrower,
or distribution (in cash, property, obligations or other securities or
any combination thereof) on account of any shares of any class of
capital stock of the Borrower, or
(b) other payments or distributions by the Borrower whether by
reduction of capital or otherwise on account of any shares of any class
of capital stock of the Borrower, or
(c) the setting apart of money for a sinking or other
analogous fund by the Borrower for the purchase, redemption, retirement
or other acquisition of any shares of any class of capital stock of the
Borrower, or any warrant, option or other right to acquire any capital
stock of the Borrower;
but in each case in (a), (b) and (c) above, excluding dividends or other
distributions payable solely in common stock of the Borrower.
"Revolving Extensions of Credit" means, as to any Lender, an amount
equal to the sum of (a) the aggregate principal amount of all Loans held by such
Lender then outstanding and (b) such Lender's Revolving Percentage of the L/C
Obligations then outstanding.
"Revolving Percentage" means, as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Total
Commitments or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding, provided, that, in the event that the Loans are paid in
full prior to the reduction to zero of the Revolving Extensions of Credit, the
Revolving Percentages shall be determined in a manner designed to ensure that
the other outstanding Revolving Extensions of Credit shall be held by the
Lenders on a comparable basis.
"Rights" means rights, remedies, powers, and privileges.
"S&P" means Standard and Poor's Ratings Services, Inc., a division of
The McGraw Hill Companies, Inc.
"Senior Unsecured Long-Term Debt Rating" means, as of any date, the
Debt Rating that has been most recently announced by S&P and Moody's. In
connection with any determination of the Senior Unsecured Long-Term Debt Rating
pursuant to the immediately preceding sentence:
(i) for purposes of determining the Applicable Margin or the
Commitment Fee Percentage, (a) if only one of S&P and Moody's shall
have in effect a public debt rating, the Applicable Margin and the
Commitment Fee Percentage (as set forth in Section 2.4(a)) shall be
determined by reference to the available rating; (b) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin and the Commitment Fee Percentage shall be based upon
the higher rating, except that if the difference is two or more levels,
the Applicable Margin and the Commitment Fee Percentage shall be based
on the rating that is one level below the higher rating; (c) if any
rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; (d) if S&P
or Moody's shall change the basis on which ratings are established,
each reference to the public debt rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be; (e) if neither S&P nor Moody's shall have
in effect a public debt rating but at least one of S&P and Moody's has
in effect a rating for any class of senior secured debt with an
original term of longer than one year issued by the Borrower, the
Applicable Margin and Commitment Fee Percentage shall be determined by
reference to a rating that is one level lower than the rating that has
been most recently announced by S&P and ▇▇▇▇▇'▇ for such class of debt;
and (f) if neither S&P nor ▇▇▇▇▇'▇ shall have in effect either a public
debt rating or a rating for any class of senior secured debt with an
original term of longer than one year issued by the Borrower, the
Applicable Margin and Commitment Fee Percentage shall be set in
accordance with the lowest level rating and highest percentage rate set
forth in the respective tables relating to "Applicable Margin" and
"Commitment Fee Percentage", as the case may be; and
(ii) for purposes of Section 7.7(f), (a) if only one of S&P
and ▇▇▇▇▇'▇ shall have in effect a public debt rating, the Senior
Unsecured Long-Term Debt Rating shall be determined by reference to the
available rating; (b) if the ratings established by S&P and ▇▇▇▇▇'▇
shall fall within different levels, the Senior Unsecured Long-Term Debt
Rating shall be based upon the lower rating; (c) if any rating
established by S&P or ▇▇▇▇▇'▇ shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; (d) if S&P or ▇▇▇▇▇'▇
shall change the basis on which ratings are established, each reference
to the public debt rating announced by S&P or ▇▇▇▇▇'▇, as the case may
be, shall refer to the then equivalent rating by S&P or ▇▇▇▇▇'▇, as the
case may be; (e) if neither S&P nor ▇▇▇▇▇'▇ shall have in effect a
public debt rating but at least one of S&P and ▇▇▇▇▇'▇ has in effect a
rating for any class of senior secured debt with an original term of
longer than one year issued by the Borrower, the Senior Unsecured
Long-Term Debt Rating shall be deemed to be the rating that is one
level lower than the rating that has been most recently announced by
S&P and ▇▇▇▇▇'▇ for such class of debt; and (f) if neither S&P nor
▇▇▇▇▇'▇ shall have in effect either a public debt rating or a rating
for any class of senior secured debt with an original term of longer
than one year issued by the Borrower, the Debt Rating by S&P shall be
deemed to be less than BBB+ and the Debt Rating by ▇▇▇▇▇'▇ shall be
deemed to be less than Baa2.
"Significant Subsidiary" means a Subsidiary of the Borrower (i) the
assets of which equal or exceed 5% of all assets of the Borrower and its
Subsidiaries as shown on a consolidated balance sheet of the Borrower and its
Subsidiaries, (ii) the operating revenue of which, for the most recently ended
period of twelve consecutive months, equals or exceeds 5% of the operating
revenues of the Borrower and its Subsidiaries for such period, or (iii) the net
income of which, for the most recently ended period of twelve consecutive
months, equals or exceeds 5% of the net income of the Borrower and its
Subsidiaries for such period.
"Solvent" means, as to any Person at the time of determination, that
(a) the aggregate fair value of such Person's assets exceeds the present value
of its liabilities (whether contingent, subordinated, unmatured, unliquidated,
or otherwise), and (b) such Person has sufficient cash flow to enable it to pay
its Debts as they mature.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary which are reasonably customary in securitization of accounts
receivables transactions (it being understood that in no event shall Standard
Securitization Undertakings include any Guaranty in respect of principal or
interest on the financing for any Qualified Receivables Transaction).
"Subsidiary" means any Person with respect to which Borrower or any one
or more Subsidiaries owns directly or indirectly 50% or more of the issued and
outstanding voting stock (or equivalent interests).
"Swap Agreement" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions.
"Syndication Agent" is defined in the introduction to this Agreement.
"Taxes" means all taxes, assessments, fees, or other charges at any
time imposed by any Laws or Tribunal.
"Termination Date" means March 7, 2010, subject, however, to
termination in whole of the Total Commitments pursuant to Section 2.5.
"Total Commitments" means, at any time, the aggregate amount of the
Commitments then in effect.
"Tribunal" means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision, agency, department,
commission, board, bureau, or instrumentality.
"Type" shall mean any type of Loan (i.e., an ABR Loan or Eurodollar
Loan).
"United States" and "U.S." each means United States of America.
"Used Commitment" means the aggregate outstanding principal amount of
the Revolving Extensions of Credit.
"Utilization Fee" is defined in Section 2.4(b).
"Voting Stock" shall mean securities (as such term is defined in
Section 2(1) of the Securities Act of 1933, as amended) of any class or classes,
the holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing similar
functions).
"Wholly Owned Subsidiary" means, as to any Person, any other Person all
of the Capital Stock of which (other than directors' qualifying shares required
by law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
1.2. Accounting Principles.
All accounting and financial terms used in the Loan Papers and the
compliance with each financial covenant therein shall be determined in
accordance with GAAP as in effect on the date of this Agreement, and all
accounting principles shall be applied on a consistent basis so that the
accounting principles in a current period are comparable in all material
respects to those applied in the consolidated Financial Statements for the
Companies for the twelve months ended December 31, 2003.
1.3. Other Definitional Provisions.
As used herein and in the other Loan Papers, (i) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (ii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iii) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, capital stock, securities, revenues, accounts, leasehold
interests and contract rights, and (iv) references to agreements or other
contractual obligations shall, unless otherwise specified, be deemed to refer to
such agreements or contractual obligations as amended, supplemented, restated or
otherwise modified from time to time.
SECTION 2
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FACILITIES.
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2.1. Commitments.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Loans") to the
Borrower from time to time during the Commitment Period in an ggregate
principal amount at any one time outstanding which, when added to such
Lender's Revolving Percentage of the L/C Obligations, does not exceed
the amount of such Lender's Commitment. During the Commitment Period,
the Borrower may use the Commitments by borrowing, repaying the Loans
in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof. The Loans may from time to time be Eurodollar
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.3.
(b) The Borrower and any one or more Lenders (including New
Lenders) may agree that each such Lender shall obtain a Commitment or
increase the amount of its existing Commitment, as applicable, in each
case by executing and delivering to the Administrative Agent an
Increased Facility Activation Notice specifying (i) the amount of such
increase and (ii) the Increased Facility Closing Date. No Lender shall
have any obligation to participate in any increase described in this
paragraph unless it agrees to do so in its sole discretion.
(c) Any additional bank, financial institution or other
entity which, with the consent of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld), elects to
become a "Lender" under this Agreement in connection with any
transaction described in Section 2.1(b) shall execute a New Lender
Supplement (each, a "New Lender Supplement"), substantially in the
form of Exhibit F, whereupon such bank, inancial institution or other
entity (a "New Lender") shall become a Lender for all purposes and to
the same extent as if originally a party hereto and shall be bound by
and entitled to the benefits of this Agreement.
(d) For the purpose of providing that the respective amounts
of Loans (and Interest Periods in respect of Eurodollar Loans) held by
the Lenders are held by them on a pro rata basis according to their
respective Revolving Percentages, unless otherwise agreed by the
Administrative Agent, on each Increased Facility Closing Date (i) all
outstanding Loans shall be converted into a single Loan that is a
Eurodollar Loan (with an interest period to be selected by the
Borrower), and upon such conversion the Borrower shall pay any amounts
owing pursuant to Section 2.12, if any, (ii) any new borrowings of
Loans on such date shall also be part of such single Loan and (iii)
all Lenders (including the New Lenders) shall hold a portion of such
single Loan equal to its Revolving Percentage thereof and any fundings
on such date shall be made in such a manner so as to achieve the
foregoing.
2.2. Procedure for Loan Borrowing.
The Borrower may borrow under the Commitments during the Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) on the requested Borrowing Date, in the case of ABR Loans), specifying (i)
the amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date
and (iii) in the case of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor.
Any Loans made on the Closing Date shall initially be ABR Loans unless the
Borrower has provided the notice for Eurodollar Loans set forth in clause (a)
above and has entered into a pre-funding indemnity agreement with respect to
such borrowing of Eurodollar Loans on the Closing Date in form and substance
reasonably satisfactory to the Administrative Agent. Each borrowing under the
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent wiring the money in
accordance with instructions from the Borrower with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.3. Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York
City time, on the proposed conversion date, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time
to time to convert ABR Loans to Eurodollar Loans by giving the
Administrative Agent prior irrevocable notice of such election no
later than 11:00 A.M., New York City time, on the third Business Day
preceding the proposed conversion date (which notice shall specify the
length of the initial Interest Period therefor), provided that no ABR
Loan may be converted into a Eurodollar Loan when any Event of Default
has occurred and is continuing and the Administrative Agent or the
Majority Lenders have determined in its or their sole discretion not
to permit such conversions. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender
thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by
the Borrower giving irrevocable notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of the length of the next Interest
Period to be applicable to such Loans, provided that no Eurodollar
Loan may be continued as such when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Majority
Lenders have determined in its or their sole discretion not to permit
such continuations, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph
or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on
the last day of such then expiring Interest Period. Upon receipt of
any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.4. Fees.
(a) Commitment Fees. The Borrower agrees to pay to each
Lender, through the Administrative Agent, on each Quarterly Payment
Date and on the Termination Date, in immediately available funds, a
commitment fee (a "Commitment Fee") calculated on the unused
Commitment by multiplying the applicable percentage (the "Commitment
Fee Percentage") set forth below by the average daily Available
Commitment of such Lender during the preceding quarter (or shorter
period commencing with the date hereof and/or ending with the
Termination Date):
======================================================================
Senior Unsecured Long-Term Debt Rating Commitment Fee Percentage
----------------------------------------------------------------------
A- or A3 or better .10 percent per annum
----------------------------------------------------------------------
BBB+ or Baa1 .125 percent per annum
----------------------------------------------------------------------
BBB or Baa2 .150 percent per annum
----------------------------------------------------------------------
BBB- or Baa3 .175 percent per annum
----------------------------------------------------------------------
Below BBB- or Baa3 .200 percent per annum
======================================================================
Until the delivery to the Lenders of the Borrower's audited financial
statements for the 2004 fiscal year, the Senior Unsecured Long-Term
Debt Rating shall be deemed to be no higher than BBB+ and Baa1.
(b) Utilization Fees. The Borrower agrees to pay to each
Lender, through the Administrative Agent, on each Quarterly Payment
Date and on the Termination Date, in immediately available funds, a
utilization fee (a "Utilization Fee") equal to 12.5 basis points
(.125%) per annum for each day on which the Commitment Utilization
Percentage equals or exceeds 50%, which fee shall accrue on the daily
amount of the Used Commitment of such Lender for each Excess
Utilization Day during the period from and including the Closing Date
to but excluding the date on which such Lender's Commitment
terminates; provided that, if such Lender continues to have any
outstanding Loans after its Commitment terminates, then such
utilization fee shall continue to accrue on the daily aggregate
principal amount of such Lender's Loans for each Excess Utilization
Day from and including the date on which its Commitment terminates to
but excluding the date on which such Lender ceases to have any
outstanding Loans.
(c) Other Fees. The Borrower agrees to pay to the
Administrative Agent the fees in the amounts and on the dates
previously agreed to in writing by the Borrower and the Administrative
Agent.
2.5. Optional Termination and Reduction of Commitments.
(a) Subject to Section 2.9(b), the Borrower may permanently
terminate, or from time to time in part permanently reduce, the Total
Commitments upon at least three Business Days prior written notice to
the Administrative Agent (who shall promptly forward a copy thereof to
each Lender and which notice may be revocable; provided, that (i) such
notice is only revocable during the three Business Day period
beginning on the date that such notice is given to the Administrative
Agent and ending on the stated date of such Commitment reduction and
(ii) the Borrower shall indemnify the Lenders pursuant to Section 2.12
as a result of the Borrower's revocation of such notice). Such notice
shall specify the date and the amount of the termination or reduction
of the Total Commitments. Each such partial reduction of the Total
Commitments shall be in a minimum aggregate principal amount of
$5,000,000 and in an integral multiple of $1,000,000.
(b) On the Termination Date, the Total Commitments shall
be zero.
(c) Each reduction in the Total Commitments pursuant to this
paragraph shall be made ratably among the Lenders in accordance with
their respective Commitments.
(d) Simultaneously with any termination or reduction of the
Commitments pursuant to this paragraph, the Borrower shall pay to the
Administrative Agent for the accounts of the Lenders the Commitment
Fees on the amount of the Total Commitments, so terminated or reduced,
accrued through the date of such termination or reduction.
2.6. Limitations on Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions and continuations of Eurodollar Loans and all selections
of Interest Periods shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.7. Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of
any Loan shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), all outstanding Loans shall bear
interest at a rate per annum equal to the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this
Section plus 2%, and ---- (ii) if all or a portion of any interest
payable on any Loan or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to ABR Loans
plus 2%, in each case, ---- with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph
(c) of this Section shall be payable from time to time on demand.
2.8. Alternate Rate of Interest for Eurodollar Loans.
In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Loan, the
Administrative Agent shall have determined that dollar deposits in the amount of
the requested principal amount of such Eurodollar Loan are not generally
available in the London interbank market, or that dollar deposits are not
generally available in the London interbank market for the requested Interest
Period, or that the rate at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining such Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Eurodollar Rate, the Administrative
Agent shall, as soon as practicable thereafter, give telecopy notice of such
determination, stating the specific reasons therefor, to the Borrower and the
Lenders. In the event of any such determination, any request by the Borrower for
a Eurodollar Loan shall, until the circumstances giving rise to such notice no
longer exist, be deemed to be a request for an ABR Loan. Each determination by
the Administrative Agent hereunder shall be conclusive absent manifest error.
2.9. Mandatory and Optional Prepayment of Loans.
(a) Prior to the Termination Date, the Borrower shall have
the right at any time to prepay any Borrowing, in whole or in part,
subject to the requirements of Section 2.12 and Section 2.13 but
otherwise without premium or penalty, but prepayment of Eurodollar
Loans shall require at least three Business Days prior written notice
to the Administrative Agent; provided, however, that each such partial
prepayment shall be in an integral multiple of $1,000,000 and in a
minimum aggregate principal amount of $2,000,000. Each notice of
prepayment shall specify the prepayment date and the aggregate
principal amount of each Borrowing to be prepaid and may be revocable;
provided, that (i) such notice is only revocable during the three
Business Day period beginning on the date that such notice is given to
the Administrative Agent and ending on the stated date of such
prepayment and (ii) the Borrower shall indemnify the Lenders pursuant
to Section 2.12 as a result of the Borrower's revocation of such
notice.
(b) On the date of any termination or reduction of the
Total Commitments pursuant to Section 2.5(a), the Borrower shall pay
or prepay the Loans or cash collateralize the Letters of Credit in a
manner satisfactory to the Administrative Agent to the extent
necessary in order that the aggregate Revolving Extensions of Credit
outstanding will not exceed the Total Commitments following such
termination or reduction. Subject to the foregoing and the
requirements of Section 2.5, any such payment or prepayment shall be
applied to such Borrowing or Borrowings as the Borrower shall select.
All prepayments under this paragraph shall be subject to Section 2.12
and Section 2.13.
(c) All Loans, together with accrued and unpaid interest
thereon, shall be due and payable in full on the Termination Date.
(d) All prepayments of Loans (other than optional prepayments
of ABR Loans) under this Section 2.9 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of
prepayment.
2.10. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after
the date of this Agreement any Regulatory Change (i) 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 or any other fees
or amounts payable hereunder (other than (x) Taxes imposed on or
measured by the capital, receipts or franchises of such Lender or the
overall gross or net income of such Lender by the jurisdiction in
which such Lender has its principal office or by any political
subdivision or taxing authority therein (or any Tax which is enacted
or adopted by such jurisdiction, political subdivision, or taxing
authority as a direct substitute for any such Taxes) or (y) any Tax,
assessment, or other governmental charge that would not have been
imposed but for the failure of any Lender to comply with any
certification, information, documentation, or other reporting
requirement), (ii) shall impose, modify, or deem applicable any
reserve, special deposit, or similar requirement with respect to any
Eurodollar Loan or any Letter of Credit (or participating interest
therein), against assets of, deposits with or for the account of, or
credit extended by, such Lender under this Agreement, or (iii) with
respect to any Eurodollar Loan, shall impose on such Lender or the
London interbank market any other condition affecting this Agreement
or any Eurodollar Loan made by such Lender, and the result of any of
the foregoing shall be to increase the cost to such Lender of
maintaining its Commitment or 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) in
respect thereof by an amount deemed in good faith by such Lender to be
material, then the Borrower shall pay to the Administrative Agent for
the account of such Lender such additional amount or amounts as will
ompensate such Lender for such increase or reduction to such Lender,
to the extent such amounts have not been included in the calculation
of the Eurodollar Rate, upon demand by such Lender (through the
Administrative Agent).
(b) If any Lender shall have determined in good faith that
any Regulatory Change regarding capital adequacy or compliance by any
Lender (or its parent or any lending office of such Lender) with any
request or directive regarding capital adequacy (whether or not having
the force of Law) of any Tribunal, monetary authority, central bank,
or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's (or its parent's) capital as a
consequence of its obligations hereunder to a level below that which
such Lender (or its parent) could have achieved but for such
Regulatory Change, or compliance (taking into consideration such
Lender's policies with respect to capital adequacy) by an amount
deemed in good faith by such Lender to be material, then from time to
time, the Borrower shall pay to the Administrative Agent for the
account of such Lender such additional amount or amounts as will
compensate such Lender for such reduction upon demand by such Lender
(through the Administrative Agent).
(c) A certificate of a Lender setting forth in reasonable
detail (i) the Regulatory Change or other event giving rise to such
costs, (ii) such amount or amounts as shall be necessary to compensate
such Lender as specified in paragraph (a) or (b) above, as the case
may be, and (ii) the calculation of such amount or amounts under
clause (a)(i), shall be delivered to the Borrower (with a copy to the
Administrative Agent) promptly after such Lender determines it is
entitled to compensation under this Section 2.10, and shall be
conclusive and binding absent manifest error. The Borrower shall pay
to the Administrative Agent for the account of such Lender the amount
shown as due on any such certificate within 15 days after its receipt
of the same. In preparing such certificate, such Lender may employ
such assumptions and allocations of costs and expenses as it shall in
good ▇▇▇▇▇ ▇▇▇▇ reasonable and may use any reasonable averaging and
attribution method.
(d) Failure on the part of any 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 Interest Period
shall not constitute a waiver of such Lender's rights to demand
compensation for any increased costs or reduction in amounts received
or receivable or reduction in return on capital with respect to such
Interest Period or any other Interest Period. The protection of this
Section 2.10 shall be available to each Lender regardless of any
possible contention of invalidity or inapplicability of the law,
regulation, or condition which shall have been imposed.
(e) In the event any Lender shall seek compensation pursuant
to this Section 2.10, the Borrower may, provided no Event of Default
has occurred and is continuing, give notice to such Lender (with
copies to the Agents) that it wishes to seek one or more Persons
(other than the Borrower or an Affiliate of the Borrower) to assume
the Commitment of such Lender and to purchase its outstanding Loans
and Notes (if any). Each Lender requesting compensation pursuant to
this Section 2.10 agrees to sell its Commitment, Loans, Notes, and
interest in this Agreement and the other Loan Papers to any such
Person for an amount equal to the sum of the outstanding unpaid
principal of and accrued interest on such Loans and Notes plus all
other fees and amounts (including, without limitation, any
compensation claimed by such Lender under this Section 2.10 and as to
which such Lender has delivered the certificate required by Section
2.10(c) on or before the date such Commitment, Loans, and Notes are
purchased) due such Lender hereunder calculated, in each case, to the
date such Commitment, Loans, Notes (if any), and interest are
purchased, whereupon such Lender shall have no further Commitment or
other obligation to the Borrower hereunder or under any other Loan
Paper.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 2.10, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its lending office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in
the judgment of such Lender, is not otherwise disadvantageous to such
Lender.
(g) Without prejudice to the survival of any othe
obligations of the Borrower hereunder, the obligations of the Borrower
under this Section 2.10 shall survive for one year after the
termination of this Agreement and/or the payment or assignment of any
of the Loans or Notes.
2.11. Change in Legality.
(a) Notwithstanding anything to the contrary herein
contained, if any Regulatory Change shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to
its obligations as contemplated hereby, then, by written notice to the
Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter
be made by such Lender hereunder, whereupon the Borrower shall
be prohibited from requesting Eurodollar Loans from such ▇▇▇▇▇
hereunder unless such declaration is subsequently withdrawn; and
(ii) if such unlawfulness shall be effective prior to
the end of any Interest Period of an outstanding Eurodollar
Loan, require that all outstanding Eurodollar Loans with such
Interest Periods made by it be converted to ABR Loans, in which
event (A) 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 and (B) all payments and
prepayments of principal which would otherwise have been
applied to repay the converted Eurodollar Loans shall instead be
applied to repay the ABR Loans resulting from the conversion
of such Eurodollar Loans.
(b) For purposes of this Section 2.11, a notice to the
Borrower (with a copy to the Administrative Agent) by any Lender
pursuant to paragraph (a) above shall be effective on the date of
receipt thereof by the Borrower.
2.12. Indemnity.
The Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur
as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion
from Eurodollar Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.13. Pro Rata Treatment.
Unless otherwise specifically provided herein, each payment or
prepayment of principal and each payment of interest with respect to a Borrowing
shall be made pro rata among the Lenders in accordance with the respective
principal amounts of the Loans extended by each Lender, if any, with respect to
such Borrowing, and conversions of Loans to Loans of another Type and
continuations of Loans that are Eurodollar Loans from one Interest Period, shall
be made pro rata among the Lenders in accordance with their respective
Commitments.
2.14. 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, including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable Debtor Relief Law or
otherwise, obtain payment (voluntary or involuntary) in respect of the Note held
by it (other than pursuant to Section 2.10 or Section 2.12) as a result of which
the unpaid principal portion of the Note held by it shall be proportionately
less than the unpaid principal portion of the Note held by any other Lender, it
shall be deemed to have simultaneously purchased from such other Lender a
participation in the Note held by such other Lender, so that the aggregate
unpaid principal amount of the Note and participations in Notes held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Notes then outstanding as the principal amount of the Note held by it
prior to such exercise of banker's lien, setoff, or counterclaim was to the
principal amount of all Notes outstanding prior to such exercise of banker's
lien, setoff, or counterclaim; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.14 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 Note deemed to have been so purchased may,
upon the existence of an Event of Default, exercise any and all rights of
banker's lien, setoff, or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender as fully as if such Lender had made a Loan
directly to the Borrower in the amount of such participation.
2.15. Payments.
(a) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be
made prior to 1:00 P.M., New York City time, on the due date thereof
to the Administrative Agent, for the account of the Lenders, at the
Funding Office, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case
of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will
not make the amount that would constitute its share of such borrowing
available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender
shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal
Funds Effective Rate and (ii) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of
the Administrative Agent submitted to any Lender with respect to any
amounts owing under this paragraph shall be conclusive in the absence
of manifest error. If such Lender's share of such borrowing is not
made available to the Administrative Agent by such Lender within three
Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to ABR Loans, on demand, from the
Borrower.
(c) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be
made by the Borrower hereunder that the Borrower will not make such
payment to the Administrative Agent, the Administrative Agent may
assume that the Borrower is making such payment, and the
Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made
to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to
recover, on demand, from each Lender to which any amount which was
made available pursuant to the preceding sentence, such amount with
interest thereon at the rate per annum equal to the daily average
Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the
Borrower.
2.16. Calculation of Eurodollar Rate.
The provisions of this Agreement relating to calculation of the
Eurodollar Rate are included only for the purpose of determining the rate of
interest or other amounts to be paid hereunder that are based upon such rate, it
being understood that each Lender shall be entitled to fund and maintain its
funding of all or any part of a Eurodollar Loan as it sees fit. All such
determinations hereunder, however, shall be made as if each Lender had actually
funded and maintained funding of each Eurodollar Loan through the purchase in
the London interbank market of one or more eurodollar deposits, in an amount
equal to the principal amount of such Loan and having a maturity corresponding
to the Interest Period for such Loan.
2.17. Computation of Interest and Fees.
(a) Interest and fees payable pursuant hereto shall be
calculated on the basis of a 360-day year for the actual days elapsed,
except that, with respect to (i) ABR Loans the rate of interest on
which is calculated on the basis of the Prime Rate and (ii) Commitment
Fees payable pursuant to Section 2.4(a), such calculations shall be
made on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on
a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on
the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing
the quotations used by the Administrative Agent in determining any
interest rate pursuant to Section 2.7(a).
2.18. Booking Loans.
Any Lender may make, carry, or transfer Loans at, to, or for the
account of any of its branch offices.
2.19. Quotation of Rates.
It is hereby acknowledged that the Borrower may call the Administrative
Agent on or before the date on which notice of a Borrowing is to be delivered by
the Borrower in order to receive an indication of the rate or rates then in
effect, but that such projection shall not be binding upon the Administrative
Agent or any Lender nor affect the rate of interest which thereafter is actually
in effect when the election is made.
2.20. Taxes
(a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Tribunal, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Tribunal imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other
Loan Paper). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or
Other Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement, provided, however, that
the Borrower shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that
are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are
United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement,
except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to
this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Tribunal in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for its own account or
for the account of the relevant Lender, as the case may be, a
certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person"
as defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case
of a Non-U.S. Lender claiming exemption from U.S. federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the
form of Exhibit H and a Form W-8BEN, or any subsequent versions
thereof or successors thereto, properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Papers. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation).
In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered
by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required
to deliver any form pursuant to this paragraph that such Non-U.S.
Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which
such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender's judgment such
completion, execution or submission would not materially prejudice the
legal position of such Lender.
(f) If the Administrative Agent or any Lender determines, in
its sole discretion, that it has received a refund of any Non-Excluded
Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.20, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.20 with
respect to the Non-Excluded Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent
or such Lender and without interest (other than any interest paid by
the relevant Tribunal with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Tribunal)
to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund
to such Tribunal. This paragraph shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
(g) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
SECTION 3
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LETTERS OF CREDIT
-----------------
3.1. L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in Section 3.4(a), agrees to issue letters of credit ("Letters of Credit") for
the account of the Borrower on any Business Day during the Commitment Period in
such form as may be approved from time to time by the Issuing Lender; provided
that the Issuing Lender shall have no obligation to issue any Letter of Credit
if, after giving effect to such issuance, (i) the L/C Obligations would exceed
the L/C Commitment or (ii) any Lender's Revolving Extensions of Credit would
exceed such Lender's Commitment. Each Letter of Credit shall (i) be denominated
in Dollars and (ii) expire no later than the earlier of (x) the first
anniversary of its date of issuance and (y) the date that is five Business Days
prior to the Termination Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
(y) above).
(b) The Issuing Lender shall not at any time be obligated
to issue any Letter of Credit if such issuance would conflict with, or cause
the Issuing Lender or the L/C Participant to exceed any limits imposed by,
any applicable Law.
3.2. Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3. Fees and Other Charges. (a) The Borrower will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans, shared ratably among the
Lenders and payable quarterly in arrears on each Quarterly Payment Date and on
the Termination Date after the issuance date. In addition, the Borrower shall
pay to the Issuing Lender for its own account a fronting fee of 0.125% per annum
on the undrawn and unexpired amount of each Letter of Credit, payable quarterly
in arrears on each Quarterly Payment Date and on the Termination Date after the
issuance date.
(b) In addition to the foregoing fees, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4. L/C Participations. (a) The Issuing Lender irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Lender, on
the terms and conditions set forth below, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Revolving
Percentage in the Issuing Lender's obligations and rights under and in respect
of each Letter of Credit and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender are not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Percentage of the amount of such draft, or any part
thereof, that is not so reimbursed. Each L/C Participant's obligation to pay
such amount shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such L/C Participant may have against the Issuing Lender, the
Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of
the other conditions specified in Section 5, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower, (iv) any breach of this
Agreement or any other Loan Document by the Borrower, any other Company or any
other L/C Participant or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5. Reimbursement Obligation of the Borrower. If any draft is paid
under any Letter of Credit, the Borrower shall reimburse the Issuing Lender for
the amount of (a) the draft so paid and (b) any taxes, fees, charges or other
costs or expenses incurred by such Issuing Lender in connection with such
payment, not later than 12:00 Noon, New York City time, on (i) the Business Day
that the Borrower receives notice of such draft, if such notice is received on
such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above
does not apply, the Business Day immediately following the day that the Borrower
receives such notice. Each such payment may be paid using a Loan to the extent
otherwise permitted under this Agreement and shall be made to such Issuing
Lender at its address for notices referred to herein in Dollars and in
immediately available funds. Interest shall be payable on any such amounts from
the date on which the relevant draft is paid until payment in full at the rate
set forth in (x) until the Business Day next succeeding the date of the relevant
notice, Section 2.7(b) and (y) thereafter, Section 2.7(c).
3.6. Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against the Issuing Lenders, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lenders that the Issuing Lenders shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lenders shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lenders. The Borrower agrees that any action taken or omitted by the
Issuing Lenders under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4
---------
REPRESENTATIONS AND WARRANTIES.
------------------------------
The Borrower represents and warrants to the Agents and the Lenders as
follows:
4.1. Purpose of Credit Facility.
The Borrower will use Loan proceeds only to refinance the Existing
Credit Agreement and for the working capital needs and general corporate
purposes (including Acquisitions and capital expenditures) of the Companies. The
proceeds loaned hereunder will not be used directly or indirectly for the
purpose of purchasing or carrying, or for the purpose of extending credit to
others for the purpose of purchasing or carrying, any Margin Stock, or to repay
any Debt which was created for such purposes.
4.2. Corporate Existence, Good Standing, and Authority.
Each Company is, to the best of the Borrower's knowledge, duly
organized, validly existing, and in good standing under the Laws of its state of
incorporation (such jurisdictions being identified on Exhibit 21 of Borrower's
most recent annual report filed with the Securities and Exchange Commission on
Form 10-K). Except where failure would not reasonably be expected to have a
Material Adverse Effect, each Company (a) is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where the
nature and extent of its business and properties require the same, and (b)
possesses all requisite authority, power, licenses, permits, and franchises to
conduct its business as is now being, or is contemplated herein to be,
conducted. The Borrower possesses all requisite authority, power, licenses,
permits, and franchises to execute, deliver, and comply with the terms of the
Loan Papers, all which have been duly authorized and approved by all necessary
corporate action and, except where failure would not reasonably be expected to
have a Material Adverse Effect, for which no approval or consent of any Person
or Tribunal is required which has not been obtained and no filing or other
notification to any Person or Tribunal is required which has not been properly
completed.
4.3. Significant Subsidiaries.
Exhibit 21 of the Borrower's most recent annual report filed with the
Securities and Exchange Commission on Form 10-K sets forth, in all material
respects, all existing Significant Subsidiaries of the Borrower and correctly
lists, as to each Significant Subsidiary, (a) its name and (b) its jurisdiction
of incorporation. The shares of capital stock of each Significant Subsidiary
owned by the Borrower (either directly or indirectly through another Subsidiary)
as set forth on Exhibit 21 of Borrower's most recent annual report filed with
the Securities and Exchange Commission on Form 10-K are the duly authorized,
validly issued, fully paid, and nonassessable shares of such Significant
Subsidiary and are owned by the Borrower free and clear of all Liens except
Permitted Liens.
4.4. Financial Statements.
(a) The Current Financials were prepared in accordance
with GAAP and present fairly the consolidated financial condition and
the results of operations of the Companies as of, and for the periods
ended, the dates thereof. There were no material (to the Companies
taken as a whole) liabilities, direct or indirect, fixed or
contingent, of any Company as of the date of the Current Financials
which are not reflected therein. No Company has incurred any material
(to the Companies taken as a whole) liability, direct or indirect,
fixed or contingent, between the dates of the Current Financials and
the date hereof, except in the ordinary course of business, such as in
connection with acquisitions and financing activities.
(b) Since December 31, 2003, there has been no development
or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.5. Compliance with Laws, Charter, and Agreements.
No Company is, nor will the execution, delivery, performance, or
observance of the Loan Papers cause any Company to be, in violation of any Laws
or any Material Agreements to which it is a party, other than such violations
which would not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary is, nor will the execution, delivery,
performance, or observance of the Loan Papers cause the Borrower or any
Subsidiary to be, in violation of its bylaws or charter.
4.6. Litigation.
Except as described in the Form 10-Q filed by the Borrower for the
quarterly period ended September 30, 2004 and the Form 8-K filed by the Borrower
on January 26, 2005 with the Securities and Exchange Commission and to the
knowledge of the Borrower, no Company is aware of any "Material" Litigation, and
there are no Material outstanding or unpaid judgments against any Company.
Material for purpose of this Section 4.6 in relation to Litigation would include
any actions or proceedings pending or threatened against any Company before any
court or Tribunal as to which there is a reasonable possibility of an adverse
determination seeking damages, net of insurance proceeds to the Company, in
excess of $10,000,000 in any case or 1% of Consolidated Net Worth in the
aggregate, or which might result in any Material Adverse Effect.
4.7. Taxes.
All Tax returns of each Company required to be filed have been filed
(or extensions have been granted) except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, and all Taxes imposed
upon each Company which are shown to be due and payable thereon have been paid
other than Taxes for which the criteria for Permitted Liens have been satisfied
and Taxes being contested in good faith by proper proceedings and with respect
to which such Company shall have, to the extent required by GAAP, set aside on
its books adequate reserves.
4.8. Environmental Matters.
No Company's ownership of its assets violates any applicable
Environmental Law, other than such violations which would not reasonably be
expected to have a Material Adverse Effect. To the Borrower's knowledge, no
investigation or review is pending or threatened by any Tribunal with respect to
any alleged violation of any Environmental Law in connection with any Company's
assets which could result in a Material Adverse Effect. None of any Company's
assets have been used by such Company or, to the Borrower's knowledge, any other
Person as a dump site for any Hazardous Substance except where such use would
not reasonably be expected to have a Material Adverse Effect.
4.9. Employee Benefit Plans.
(a) No employee benefit plan as defined in the Code and
Title IV of ERISA of any Company has incurred an accumulated funding deficiency
in an amount sufficient to have a Material Adverse Effect, (b) no Company has
incurred liability to the PBGC in connection with any such plan where such
liability could reasonably be expected to have a Material Adverse Effect, (c) no
Company has withdrawn in whole or in part from participation in a Multiemployer
Plan where the withdrawal could reasonably be expected to have a Material
Adverse Effect, and (d) to the best of the Borrower's knowledge, no "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the Code) or
"reportable event" (as defined in section 4043 of ERISA) has occurred which
could reasonably be expected to have a Material Adverse Effect.
4.10. Properties; Liens.
Each Company has good and marketable (except for Permitted Liens) title
to all its property reflected on the Current Financials as being owned (except
for dispositions of property in the ordinary course of business between the date
or dates thereof and the date hereof). Except for Permitted Liens, there is no
Lien on any property of any Company, and the execution, delivery, performance,
or observance of the Loan Papers will not require or result in the creation of
any Lien other than Permitted Liens.
4.11. Holding Company and Investment Company Status.
The Borrower is not (a) a "holding company," a "subsidiary company" of
a "holding company," an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, (b) a "public utility"
within the meaning of the Federal Power Act, as amended, (c) an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(d) an "investment adviser" within the meaning of the Investment Advisers Act of
1940, as amended, or (e) directly subject to the jurisdiction of the Federal
Communications Commission or any public service commission.
4.12. Transactions with Affiliates.
Except as disclosed on Schedule 4.12, no Company is a party to a
material transaction with any of its Affiliates other than transactions in the
ordinary course of business and upon fair and reasonable terms not materially
less favorable than such Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate and other than
transactions between or among entities each of which is either the Borrower or a
Wholly Owned Subsidiary. For purposes of this Section 4.12, such transactions
are "material" if they, individually or in the aggregate, require any Company to
pay more than 1 percent of Consolidated Net Worth over the course of such
transactions.
4.13. Leases.
All material leases under which any Company is lessee or tenant are in
full force and effect, and no default or potential default exists thereunder
which could result in a Material Adverse Effect.
4.14. Labor Matters.
There are no actual or, to the Borrower's knowledge, threatened
strikes, labor disputes, slow downs, walkouts, or other concerted interruptions
of operations by any Company's employees, the effect of which would have a
Material Adverse Effect.
4.15. Insurance.
Each Company maintains with financially sound insurance companies or
associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates) insurance concerning its properties and businesses against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary in the case of same or similar
businesses; provided, however, a program of self-insurance in such amounts and
against such risks as are prudent and which is consistent with accepted business
practice shall constitute compliance with this Section 4.15.
4.16. Solvency.
The Companies are, and after giving effect to the transactions
contemplated under the Loan Papers will be, Solvent.
4.17. Business.
The business of the Borrower, as presently conducted and as proposed to
be conducted, is set forth on Schedule 4.17.
4.18. General.
All writings exhibited or delivered to the Agents by or on behalf of
any Company are and will be genuine and in all material respects what they
purport and appear to be.
SECTION 5
---------
CONDITIONS PRECEDENT.
---------------------
5.1. Initial Loan.
No Lender will be obligated to fund the initial Loan unless the
Administrative Agent has received all of the following in form and substance
satisfactory to the Administrative Agent and its special counsel:
(a) Loan Papers. This Agreement and the Current Financials.
(b) Secretary's Certificates. A certificate dated as of
the date hereof, executed and delivered by the Borrower, certifying
that (i) attached is a true, correct, and complete copy of (A) the
Borrower's charter, certified by the appropriate state official and
dated a Current Date, (B) the Borrower's bylaws, and (C) resolutions
of the Borrower's board of directors authorizing the execution and
delivery of each Loan Paper to which the Borrower is a party and (ii)
the officers whose specimen signatures appear on such certificate hold
the corporate office indicated and are authorized to sign agreements,
documents, and instruments on behalf of the Borrower.
(c) Good Standing, Existence, and Authority. Certificates
(dated a Current Date) relating to the Borrower's existence, good
standing, and authority to transact business issued by appropriate
state officials.
(d) Opinions of Borrower's Counsel. The favorable opinions,
dated the Closing Date and substantially in the form of Exhibit B of:
(i) Jones, Walker, Waechter, Poitevent, Carrere &
▇▇▇▇▇▇▇, L.L.P., special counsel to the Borrower; and
(ii) ▇▇▇▇▇▇ ▇▇▇▇, Senior Vice President, General
Counsel and Corporate Secretary of the Borrower.
(e) Officer's Certificate. A certificate, dated the
Closing Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance, as of the
Closing Date, with the conditions set forth in paragraphs (a)
and (b) of Section 5.2.
(f) Fees and Expenses. Payment from the Borrower of all
fees then due the Agents or the Lenders pursuant to this Agreement
or any other agreement.
(g) Existing Credit Agreement. The commitments under the
Existing Credit Agreement shall have been terminated (and the parties
hereto hereby waive compliance with any provision of the Existing
Credit Agreement requiring advance notice of such termination) and
all amounts owing thereunder shall have been paid.
(h) Financial Statements. The Lenders shall have received
(i) audited consolidated financial statements of the Borrower for
the 2001, 2002 and 2003 fiscal years and (ii) unaudited interim
consolidated financial statements of the Borrower for each fiscal
quarter ended after the date of the latest applicable financial
statements delivered pursuant to clause (i) of this paragraph as
to which such financial statements are available, and such financial
statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial
condition of the Borrower, as reflected in the financial statements
or projections contained in the Confidential Information Memorandum.
(i) Projections. The Lenders shall have received from the
Borrower financial projections for the fiscal years 2005 through
2007 in form and substance reasonably satisfactory to the Lenders.
(j) Other. Such other agreements, documents, instruments,
opinions, certificates, and evidences as the Administrative Agent
may reasonably request.
5.2. Each Revolving Extension of Credit.
In addition, the Lenders will not be obligated to fund any Loan and the
Issuing Lender shall not be obligated to issue any Letter of Credit unless at
the time of such funding or issuance(a) the representations and warranties made
in the Loan Papers (other than pursuant to Section 4.4(b), which representation
shall only be made as of the date of the initial extension of credit) are true
and correct in all material respects (except to the extent that the
representations and warranties speak to a specific date), (b) no Default or
Event of Default shall have occurred and shall be continuing, (c) the funding or
issuance of such Loan or Letter of Credit is permitted by Law, and (d) if
requested by the Administrative Agent or the Majority Lenders, the Borrower
shall have delivered to the Administrative Agent evidence substantiating any of
the matters contained in this Agreement which are necessary to enable the
Borrower to qualify for such Loan or Letter of Credit.
Each Borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such extension of
credit that the conditions contained in this Section 5.2 shall have been
satisfied.
5.3. Materiality of Conditions.
Each condition precedent herein is material to the transactions
contemplated herein, and time is of the essence in respect of each thereof.
5.4. Waiver of Conditions.
Subject to the provisions of Section 11.14, the Majority Lenders may
elect to fund any Loan without all conditions being satisfied, but this shall
not be deemed to be a waiver of the requirement that each such condition
precedent be satisfied as a prerequisite for any subsequent Loan, unless the
Majority Lenders (or, if required by Section 11.14, all Lenders) specifically
waive each such item in writing.
SECTION
-------
AFFIRMATIVE COVENANTS.
---------------------
So long as the Lenders are committed to make Loans under this Agreement
and thereafter until the Obligation is paid and performed in full, the Borrower
covenants and agrees with the Agents and the Lenders as follows:
6.1. Use of Proceeds.
Proceeds of Loans advanced hereunder shall be used only as represented
herein.
6.2. Books and Records.
Each Company shall maintain, in accordance with GAAP, proper and
complete books, records, and accounts which are necessary to prepare the
financial statements required to be delivered hereunder.
6.3. Items to be Furnished.
The Borrower shall cause the following to be furnished to the
Administrative Agent and each Lender (through the Administrative Agent):
(a) Promptly after preparation, and no later than 120
days after the last day of each fiscal year of the Borrower, Financial
Statements showing the consolidated financial condition and results of
operations of the Companies as of, and for the year ended on, such
last day, accompanied by (i) the opinion of KPMG LLP (or another firm
of nationally-recognized independent certified public accountants
reasonably acceptable to Majority Lenders), based on an audit using
generally accepted auditing standards, that such Financial Statements
were prepared in accordance with GAAP and present fairly the
consolidated financial condition and results of operations of the
Companies (and such accountants shall indicate in a letter to the
Administrative Agent, that during their audit no Default or Event of
Default not already reported was discovered or, if such Default or
Event of Default was discovered, the nature and period of existence
thereof) and (ii) a Financial Report Certificate with respect to such
Financial Statements.
(b) Promptly after preparation, and no later than 60 days
after the last day of each of the first three quarters of each fiscal
year of the Borrower, (i) Financial Statements showing the
consolidated financial condition and results of operations of the
Companies as of, and for the period from the beginning of the current
fiscal year to, such last day, and (ii) a Financial Report Certificate
with respect to such Financial Statements.
(c) Promptly after preparation (and no later than the later
of 15 days (a) after such filing is due or (b) after timely filing, if
filed with the Securities and Exchange Commission), true copies of all
regular and periodic reports, proxy statements and filings on Form 8-K
furnished by or on behalf of any Company to stockholders generally or
filed with the Securities and Exchange Commission. However, only
registration statements covering more than 2 percent of the Borrower's
outstanding shares of common stock shall be required to be furnished
unless specifically requested by the Administrative Agent.
(d) Promptly upon receipt thereof, copies of any notices
received from any Tribunal (including, without limitation, state
regulatory agencies) relating to the possible violation or violation
of any Law which might have a Material Adverse Effect.
(e) Notice, promptly after the Borrower knows or has reason
to know of, (i) the existence of any material Litigation as defined in
Section 4.6, (ii) any material change in any material fact or
circumstance represented or warranted in any Loan Paper, or (iii) a
Default or Event of Default, specifying the nature thereof and what
action the Borrower or any other Company has taken, is taking, or
proposes to take with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason
to know of, a Subsidiary Encumbrance, as defined in Section 7.14(b).
(g) Within 10 days after execution thereof, copies of any
supplements, modifications or amendments to the Equity Units
documentation.
(h) Promptly upon the Administrative Agent's or any Lender's
reasonable request, such information (not otherwise required to be
furnished under the Loan Papers) respecting the business affairs,
assets, and liabilities of any Company, and any opinions,
certifications, and documents, in addition to those mentioned herein.
6.4. Inspection.
The Borrower shall allow the Administrative Agent and each Lender, when
the Administrative Agent or such Lender reasonably deems necessary, at such
Lender's own expense if no Default then exists, to inspect any of its
properties, to review reports, files, and other records and to make and take
away copies thereof, to conduct tests or investigations, and to discuss any of
its affairs, conditions, and finances with any director, officer, or employee of
such Company from time to time, upon reasonable notice during reasonable
business hours, or otherwise when reasonably considered necessary.
6.5. Taxes.
Each Company shall promptly pay when due any Taxes, except those which
if unpaid would not cause a Material Adverse Effect, Taxes for which the
criteria for Permitted Liens have been satisfied and Taxes being contested in
good faith by proper proceedings and with respect to which such Company shall
have, to the extent required by GAAP, set aside on its books adequate reserves.
No Company shall use any proceeds of Loans to pay the wages of employees unless
a timely payment to or deposit with the United States of America of all amounts
of Tax required to be deducted and withheld with respect to such wages is also
made.
6.6. Payment of Obligations.
Each Company shall promptly pay (or renew and extend) all of its
material obligations as the same become due except those being contested in good
faith by proper proceedings and with respect to which such Company shall have,
to the extent required by GAAP, set aside on its books adequate reserves, but no
Company will make any voluntary prepayment of the principal of any Debt other
than the Obligation, whether subordinate to the Obligation or not, if a Default
or Event of Default exists under any Loan Paper.
6.7. Expenses.
The Borrower shall promptly pay (a) all reasonable and necessary
out-of-pocket costs, fees, and expenses paid or incurred by the Administrative
Agent incident to any Loan Paper (including, but not limited to, the reasonable
fees and expenses of counsel to the Administrative Agent in connection with the
negotiation, preparation, delivery, and execution of the Loan Papers and any
related amendment, waiver, or consent); and (b) all reasonable and customary
out-of-pocket costs, fees and expenses paid or incurred by the Administrative
Agent and any of the Lenders in connection with the enforcement of the
obligations of any Company or the exercise of any Rights (including, but not
limited to, reasonable attorneys' fees and court costs), all of which shall be a
part of the Obligation. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
6.8. Maintenance of Existence, Assets, Business, and Insurance.
Except as permitted by Section 7.4, each Company shall at all times (a)
maintain its corporate existence and authority to transact business and good
standing in its jurisdiction of incorporation or organization and all other
jurisdictions where the failure to so maintain could reasonably be expected to
have a Material Adverse Effect, (b) maintain all licenses, permits, and
franchises necessary for its business, where the failure to so maintain could
reasonably be expected to have a Material Adverse Effect, (c) keep all of its
assets which are necessary to its business in good working order and condition
(ordinary wear and tear excepted), and make all necessary repairs and
replacements thereto, and (d) maintain either (i) insurance with such insurers,
in such amounts, and covering such risks, as shall be ordinary and customary in
the industry or (ii) a comparable self-insurance program.
6.9. Preservation and Protection of Rights.
Each Company shall perform such acts and duly authorize, execute,
acknowledge, deliver, file, and record any additional agreements, documents,
instruments, and certificates as the Administrative Agent may reasonably deem
necessary or appropriate in order to preserve and protect the Rights of the
Agents or the Lenders under any Loan Paper.
6.10. Environmental Laws.
Each Company shall conduct its business so as to comply with all
applicable Environmental Laws and shall promptly take corrective action to
remedy any non-compliance with any Environmental Law, except where failure to so
comply or take such action would not reasonably be expected to have a Material
Adverse Effect. Each Company shall maintain a system which, in its reasonable
business judgment, will assure its continued compliance with Environmental Laws
in all material respects.
6.11. Environmental Indemnification.
The Borrower shall indemnify, protect, and hold each Indemnified Party
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, proceedings, costs, expenses
(including, without limitation, all reasonable attorneys' fees and legal
expenses whether or not suit is brought), and disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against such Indemnified Parties, with respect to or as a direct or indirect
result of the violation by any Company of any Environmental Law; or with respect
to or as a direct or indirect result of any Company's generation, manufacture,
production, storage, release, threatened release, discharge, disposal or
presence in connection with its properties of a Hazardous Substance including,
without limitation, (a) all damages of any such use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal, or
presence, or (b) the costs of any required or necessary environmental
investigation, monitoring, repair, cleanup, or detoxification and the
preparation and implementation of any closure, remedial, or other plans. The
provisions of and undertakings and indemnification set forth in this paragraph
shall survive the satisfaction and payment of the Obligation and termination of
this Agreement for a period of time set forth in the statute of limitations in
any applicable Environmental Law.
SECTION 7
---------
NEGATIVE COVENANTS.
------------------
So long as the Lenders are committed to make Loans under this Agreement
and thereafter until the Obligation is paid and performed in full, the Borrower
covenants and agrees with the Agents and the Lenders as follows:
7.1. Employee Benefit Plans.
No Company will, directly or indirectly, if it would have a Material
Adverse Effect, (a) engage in any "prohibited transaction" (as defined in
section 406 of ERISA or section 4975 of the Code), (b) permit the funding
requirements under ERISA with respect to any employee benefit plan established
or maintained by any Company to ever be less than the minimum required by ERISA,
(c) permit any employee benefit plan established or maintained by any Company to
ever be subject to involuntary termination proceedings, or (d) fully or
partially withdraw from any Multiemployer Plan.
7.2. Liens.
No Company will create, incur, or suffer or permit to be created or
incurred or to exist any Lien (other than Permitted Liens) upon any of its
assets unless the Obligations then outstanding shall be secured by such Lien
equally and ratably with any and all obligations and indebtedness secured by
such Lien.
7.3. Restricted Payments.
The Borrower will not directly or indirectly make or declare any
Restricted Payment, unless no Default or Event of Default has occurred and is
continuing or would result from such Restricted Payment.
7.4. Mergers and Consolidations.
No Company will merge or consolidate with any Person other than (a) any
merger or consolidation whereby the Borrower (or another Company, if the
Borrower is not a party thereto) is the surviving corporation, (b) any merger of
any Subsidiary into another Company, (c) any merger of a Subsidiary into another
Person (other than the Borrower) if after such merger the surviving entity
becomes a Subsidiary, (d) any sale of assets permitted by Section 7.7 that is
structured as a merger or consolidation and (e) any Subsidiary that is not a
Significant Subsidiary may liquidate or dissolve if the Borrower determines in
good faith that such liquidation or dissolution is in the best interests of such
Borrower and is not materially disadvantageous to the Lenders; provided, that in
any such case, immediately after such merger or consolidation there shall not
exist any Default or Event of Default.
7.5. Loans, Advances, and Investments.
Except as permitted by Section 7.4(b), no Company will make any loan,
advance, extension of credit, or capital contribution to, make any investment
in, or purchase or commit to purchase any stock or other securities or evidences
of Debt of, or interests in, any other Person, other than (a) Acquisitions, (b)
expense accounts for and other loans and advances to directors, officers, and
employees of such Company in the ordinary course of business not to exceed
$1,000,000 in the aggregate outstanding at any time; (c) investments in (or
secured by) obligations of the United States of America and agencies thereof and
obligations guaranteed by the United States of America maturing within one year
from the date of acquisition; (d) time deposits, banker's acceptances or
certificates of deposit issued by any of the Lenders; (e) certificates of
deposit, time deposits and banker's acceptances which are fully insured by the
Federal Deposit Insurance Corporation or are issued by commercial banks
organized under the Laws of the United States of America or any state thereof
and having combined capital, surplus, and undivided profits of not less than
$100,000,000 (as shown on such Person's most recently published statement of
condition), and which certificates of deposit have one of the two highest
ratings from ▇▇▇▇▇'▇ or S&P, unless Borrower has a written commitment to borrow
funds from such commercial bank; (f) commercial paper rated A-2 or better by
▇▇▇▇▇'▇ or P-2 or better by S&P ; (g) investments having one of the two highest
ratings from ▇▇▇▇▇'▇ or S&P ; (h) extensions of credit in connection with trade
receivables and overpayments of trade payables, in each case resulting from
transactions in the ordinary course of business; (i) loans from any Company to
any other Company, investments by any Company in any other Company, capital
contributions by any Company to any other Company, and Guaranties by any Company
of the Debt of any other Company; (j) investments in the cash surrender value of
life insurance policies issued by Persons with a financial rating from A.M. Best
Company (as reported in Best's Insurance Reports) of at least "A+"; provided,
however, that if such Person's financial rating is downgraded to less than "A+",
then within 90 days following such downgrading, either (i) such cash value life
insurance policies will be transferred to another insurance company with a
financial rating of at least "A+", (ii) such cash value insurance policies will
be collapsed and the cash value thereof will be collected by the investing
Company, or (iii) such investment will become an investment subject to the
limitations of subparagraph (n) of this Section 7.5; (k) the purchase of equity
or debt securities of any Company, including the Borrower (but, in the case of
equity securities of the Borrower, only to the extent permitted by Section 7.3),
(l) investments in the capital stock or securities of or loans to or Guaranties
of the Debt of any Person engaged in the same or a similar line of business as
set forth on Schedule 4.17 hereto (or any reasonable extensions or expansions
thereof) (i) in which a Company possesses (or will possess, after such
investment) an equity ownership interest in such Person or (ii) secured by the
borrower's interest in such business; (m) in the ordinary course of business,
investments in the capital stock of the Rural Telephone Bank, National Bank for
Cooperatives, or the National Rural Utilities Cooperative Finance Corporation,
or any other lender from whom the investing Company is intending to borrow money
which requires such Company to make an equity investment in such lender in order
to so borrow; (n) Guaranties of the Debt of the Borrower's Employee Stock
Ownership Plan; (o) investments in readily marketable money market funds
registered under the Investment Company Act of 1940 with an investment policy to
hold at least 90% of its assets in cash and securities of a type described in
subsections (c), (d), (e), (f), (g) and (r) of this Section 7.5; (p) investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business; (q) investments consisting of non-cash
consideration with respect to sale of assets permitted by Section 7.7; (r)
overnight repurchase agreements relating to securities described in clauses (c),
(d), (e), (f) or (g) of this Section 7.5; (s) any acquisition of stock or assets
to the extent that the consideration is paid in capital stock of the Borrower;
and (t) other loans, advances, Guaranties, and investments which never exceed in
the aggregate at any time 25% of Adjusted Consolidated Net Worth (valued on the
basis of original cost, plus subsequent cash and stock additions, less any
write-down in value); provided that this Section 7.5 shall not restrict the
investment by any Company of assets held or managed under any Plan.
7.6. Transactions with Affiliates.
No Company will enter into any material transaction with any of its
Affiliates, other than (a) transactions between or among entities each of which
is either the Borrower or a Wholly Owned Subsidiary, (b) in the case of a
transaction between the Borrower and a Subsidiary that is owned by the Borrower
or between Subsidiaries one or both of which is not directly or indirectly
wholly-owned by the Borrower, if the Borrower has determined that such
transaction is in the best interests of the Borrower, and (c) in the case of any
other transaction between a Company and a Person that is not a Company,
transactions in the ordinary course of business and upon fair and reasonable
terms not materially less favorable than such Company could obtain or could
become entitled to in an arm's-length transaction with a Person that was not its
Affiliate. For purposes of this Section 7.6, such transactions are "material" if
they, individually or in the aggregate, require any Company to pay more than 1
percent of Consolidated Net Worth over the course of such transactions.
7.7. Sale of Assets.
No Company will sell, lease, or otherwise dispose of all or any
substantial part of its assets (including a sale by merger of a Subsidiary with
or into another Person) other than (a) sales of inventory or investments
permitted under Section 7.5(c), (d), (e), (f), (g), (o) and (r) in the ordinary
course of business; (b) sales of equipment for a fair and adequate consideration
or disposal of obsolete or worn out equipment, provided that if any such
equipment is sold or otherwise disposed of, and a replacement is necessary for
the proper operation of the business of such Company, such Company will replace
such equipment with adequate equipment; (c) the exchange of assets (other than
equipment) for similar assets of equal or greater value; (d) the sale, discount,
or transfer of delinquent notes or accounts receivable in the ordinary course of
business for purposes of collection; (e) sales of accounts receivable and
related assets or an interest therein of the type specified in the definition of
"Qualified Receivables Transaction" made in connection with a Qualified
Receivables Transaction (provided, that if at any time the aggregate principal
amount of all Qualified Receivables Transactions exceeds $150,000,000, the
Borrower shall permanently reduce the Total Commitments by the amount of such
excess); (f) sales of assets from one Company to another Company; (g)
dispositions of assets pursuant to sale and leaseback transactions so long as,
after giving effect thereto and the use of proceeds thereof, the aggregate
outstanding amount of Attributable Debt of the Companies shall not exceed
$75,000,000; (h) other dispositions of assets (other than (i) accounts
receivable and related assets or (ii) in connection with sale and leaseback
transactions), provided that (i) the Companies shall, within the period of 270
days following the consummation of each such transaction, apply (or cause to be
applied) an amount equal to the Net Cash Proceeds of such disposition of assets
to either (x) make Eligible Reinvestments or (y) permanently reduce the Total
Commitments and (ii) notwithstanding the foregoing provisions of this clause
(h), at any time that the Senior Unsecured Long-Term Debt Rating shall be lower
than the Senior Unsecured Long-Term Debt Rating in effect as of the Closing Date
(it being understood that the Debt Rating by S&P as of the Closing Date is BBB+
and the Debt Rating by ▇▇▇▇▇'▇ as of the Closing Date is Baa2), the net book
value of all assets disposed of pursuant to this clause (h) (net of acquisitions
of similar assets) in all such transactions during any period of 12 consecutive
months (commencing with the first date as of which such lower Senior Unsecured
Long-Term Debt Rating shall have become effective) shall not exceed an amount
equal to 10% of Consolidated Net Worth as set forth in the most recent Financial
Statements delivered pursuant to Section 6.3 of this Agreement; and (i) to the
extent not already permitted by another subsection of this Section 7.7, sales,
transfers and other dispositions of assets (other than (i) accounts receivable
and related assets or (ii) in connection with sale and leaseback transactions)
that are not permitted by clauses (a) through (h) above; provided that the
cumulative consideration for all assets sold, transferred or otherwise disposed
of in reliance upon this clause (i) shall not exceed $200,000,000 or 2-1/2% of
the consolidated total assets of the Companies (measured as of the last day of
the most recent fiscal quarter for which the relevant financial information is
available), whichever is greater, in the aggregate, net of Eligible
Reinvestments.
7.8. Compliance with Laws and Documents.
No Company will violate the provisions of any Laws or any Material
Agreement if such violation alone, or when aggregated with all other such
violations, could reasonably be expected to have a Material Adverse Effect. No
Company will violate the provisions of its charter or bylaws or modify, repeal,
replace, or amend any provision of its charter or bylaws if such action could
reasonably be expected to have a Material Adverse Effect. The Borrower will
provide to the Administrative Agent a copy of each document that materially
modifies, repeals, replaces, or amends the charter or bylaws of the Borrower.
7.9. New Businesses.
No Company will engage in any material business other than the
businesses in which it is presently engaged or businesses related thereto, as
described on Schedule 4.17.
7.10. Assignment.
The Borrower will not assign or transfer any of its Rights, duties, or
obligations under any of the Loan Papers.
7.11. Fiscal Year.
The Borrower will not change its fiscal year without the prior written
consent of the Administrative Agent (which shall not be unreasonably withheld).
7.12. Holding Company and Investment Company Status.
The Borrower will not conduct its business in such a way that it will
become (a) a "holding company," a "subsidiary company" of a "holding company,"
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, (b) a "public utility" within the meaning of
the Federal Power Act, as amended, (c) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or (d) an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended.
7.13. Amendments to Equity Units Documentation.
The Borrower will not amend, supplement or otherwise modify the terms
and conditions of the documentation relating to the Equity Units except any
amendment to the Equity Units' purchase contracts to provide for the voluntary
settlement by the Borrower of the purchase contracts via cash, stock or a
combination thereof or any other amendment, supplement or modification that is
not materially adverse to the interests of the Lenders.
7.14. Financial Covenants.
(a) As calculated at the end of each fiscal quarter of the
Borrower (but computed with respect to EBITDA for the four fiscal
quarters ending on the last day of such fiscal quarter), the
Borrower shall not permit the ratio of Consolidated Total Funded
Debt to EBITDA of the Companies to exceed 4.00 to 1.0.
(b) As calculated at the end of each fiscal quarter of the
Borrower (but computed for the four fiscal quarters ending on the last
day of such fiscal quarter), the Borrower shall not permit the ratio
of EBITDA of the Companies to the sum of (i) consolidated interest
expense of the Companies (less any non-cash amounts attributable to
amortization of financing costs paid in a previous period) and (ii)
dividends declared or paid by any Company (other than to another
Company) on its preferred capital stock (but if such dividends are
declared and paid during such four-quarter period, the amount shall
not be counted twice) to be less than 1.50 to 1.0.
For purposes of this Section 7.14(b), EBITDA and interest
expense of any Subsidiary which is subject to any Subsidiary
Encumbrance, shall be reduced to the extent such Subsidiary is
restricted by the Subsidiary Encumbrance. As used in this Section
7.14(b), "Subsidiary Encumbrance" shall mean, so long as a default has
occurred and is continuing under the agreement creating such
encumbrance or restriction, any encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make any other
distributions on its capital stock or any other interest or
participation in its profits owned by the Borrower or any Subsidiary of
the Borrower, or pay any Debt owed to the Borrower or a Subsidiary of
the Borrower, (ii) make loans or advances to, or grant liens in favor
of, the Borrower or any of the Borrower's Subsidiaries or (iii)
transfer any of its properties or assets to the Borrower, except for
such encumbrances or restrictions (A) existing on the date of this
Agreement, (B) arising in connection with loans made to any Company by
the Rural Electrification Administration, the Rural Utilities Service,
the Rural Telephone Bank, or similar lenders such as the Rural
Telephone Finance Cooperative, or (C) now existing or hereafter arising
under or by reason of either (x) applicable Law or (y) this Agreement
and the other Loan Papers.
(c) If at any time after the date of this Agreement the
Borrower enters into any financing arrangement with a third party
which requires the Borrower or the Companies as a whole to maintain a
specified minimum net worth, then such minimum net worth requirement
or covenant shall be incorporated herein by reference and made a part
of this Agreement for all purposes as of the date such financing
arrangement is entered into by the Borrower.
Further, for purposes of this Section 7.14 Consolidated Total Funded Debt shall
include any Company's Guaranty of Funded Debt of any Person other than another
Company or the Borrower's Employee Stock Ownership Plan. For the first four
quarters following any Acquisition, calculations under this Section 7.14 shall
be made on a pro forma basis as if the properties acquired in connection with
such Acquisition were properties of the Companies during the period of
calculation.
SECTION 8
---------
DEFAULT
-------
The term "Event of Default" means the occurrence and continuance of any
one or more of the following events (including the passage of time, if any,
specified therefor) (provided that, if any such event occurs and the Lenders or
Majority Lenders, as required by the provisions of Section 11.14, subsequently
agree in writing that they will not exercise any remedies hereunder as a result
thereof, the occurrence and continuance of such event shall no longer be deemed
an Event of Default hereunder insofar as the state of facts giving rise to such
event is concerned):
8.1. Payment of Obligation.
The failure or refusal of the Borrower to pay any portion of the
Obligation, as the same become due in accordance with the terms of the Loan
Papers and, in the case of an interest payment, such failure or refusal
continues for a period of 5 Business Days (no grace period being given for
failure or refusal to make a principal payment). Notwithstanding the foregoing,
the Borrower's failure to pay, if caused solely by a wire transfer malfunction
or similar problem outside the Borrower's control, shall not be deemed an Event
of Default so long as such failure to pay is promptly corrected.
8.2. Covenants.
(a) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition
contained in Section 6.3(e)(iii) or Section 7.
(b) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition
contained in any of the Loan Papers to which such Company is a party,
other than covenants to pay the Obligation and the covenants listed in
clause (a) preceding, and such failure or refusal continues for 10
days after notice from the Administrative Agent to the Borrower.
8.3. Debtor Relief.
The Companies shall not be Solvent, or any Company (a) fails to pay its
Debts generally as they become due, (b) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Relief Law, or (c) becomes a party to or
is made the subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or otherwise adversely
affect the Rights of the Agents or the Lenders granted in the Loan Papers
(unless, in the event such proceeding is involuntary, the petition instituting
same is dismissed within 60 days after its filing).
8.4. Attachment.
The failure of any Company to have discharged within 60 days after
commencement any attachment, sequestration, or similar proceeding which,
individually or together with all such other proceedings then pending, affects
assets of such Company having a value (individually or collectively) of 1
percent of Consolidated Net Worth or more.
8.5. Payment of Judgments.
Any Company fails to pay any judgments or orders for the payment of
money in excess of 1 percent of Consolidated Net Worth (individually or
collectively) rendered against it or any of its assets and either (a) any
enforcement proceedings shall have been commenced by any creditor upon any such
judgment or order or (b) a stay of enforcement of any such judgment or order, by
reason of pending appeal or otherwise, shall not be in effect prior to the time
its assets may be lawfully sold to satisfy such judgment.
8.6. Default Under Other Agreements.
A default exists under any Material Agreement to which any Company is a
party, the effect of which is to cause, or which permits the holder thereof (or
a trustee or representative of such holder) to cause, unpaid consideration of at
least 2% of Consolidated Net Worth (individually or in the aggregate) to become
due prior to the stated maturity or prior to the regularly scheduled dates of
payment.
8.7. Misrepresentation.
The Administrative Agent or any Lender discovers that any statement,
representation, or warranty in the Loan Papers, any Financial Statement of the
Borrower, or any writing ever delivered to the Administrative Agent or any
Lender pursuant to the Loan Papers is false, misleading, or erroneous when made,
deemed made or delivered in any material respect.
8.8. Change in Control.
A Change of Control shall occur. For the purpose of this Section, a
"Change of Control" shall be deemed to have occurred if:
(a) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), but excluding any employee benefit plan or plans of
the Borrower and its Subsidiaries and Affiliates, becomes the
beneficial owner, directly or indirectly, of thirty percent (30%) or
more of the combined voting power of the Borrower's outstanding voting
securities ordinarily having the right to vote for the election of
directors of the Borrower; or
(b) the individuals who, as of September 30, 2004 constituted
the Board of Directors of the Borrower (the "Board" generally and as
of September 30, 2004 the "Incumbent Board") cease for any reason to
constitute at least two-thirds (2/3) of the Board, or in the case of a
merger or consolidation of the Borrower, do not constitute or cease to
constitute at least two-thirds (2/3) of the board of directors of the
surviving company (or in a case where the surviving corporation is
controlled, directly or indirectly, by another corporation or entity
do not constitute or cease to constitute at least two-thirds (2/3) of
the board of such controlling corporation or do not have or cease to
have at least two-thirds (2/3) voting seats on any body comparable to
a board of directors of such controlling entity or, if there is no
body comparable to a board of directors, at least two-thirds (2/3)
voting control of such controlling entity), provided that any person
becoming a director (or, in the case of a -------- controlling
non-corporate entity, obtaining a position comparable to a director or
obtaining a voting interest in such entity) subsequent to September
30, 2004, whose election, or nomination for election, was approved by
a vote of the persons comprising at least two-thirds (2/3) of the
Incumbent Board (other than an election or nomination of an individual
whose initial assumption of office is in connection with an actual or
threatened election contest, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such person were a
member of the Incumbent Board.
8.9. ERISA.
Any one of the following shall have occurred: (a) any "Reportable
Event" as such term is defined in ERISA under any Plan, (b) the appointment by
an appropriate Tribunal of a trustee to administer any Plan, (c) the termination
of any Plan within the meaning of Title IV of ERISA, or (d) any material
accumulated funding deficiency within the meaning of ERISA exists under any
Plan, and any of (a), (b), (c) or (d) results in a Material Adverse Effect.
8.10. Validity and Enforceability of Loan Papers.
Any Loan Paper shall, at any time after its execution and delivery and
for any reason, cease to be in full force and effect in any material respect or
be declared to be null and void or the validity or enforceability thereof be
contested by any Company party thereto or any Company shall deny that it has any
liability or obligations under any Loan Paper to which it is a party.
SECTION 9
---------
RIGHTS AND REMEDIES
-------------------
9.1. Remedies Upon Event of Default.
(a) Should an Event of Default occur and be continuing under
Section 8.3, the commitment of the Lenders to make Loans shall
automatically terminate and the entire unpaid balance of the Obligation
shall automatically become due and payable without any action of any
kind whatsoever.
(b) Should any other Event of Default occur and be
continuing, subject to any agreement among the Lenders, the
Administrative Agent may (and shall upon the request of the Majority
Lenders), at its (or the Majority Lenders') election, do any one or
more of the following: (i) If the maturity of the Obligation has not
already been accelerated under Section 9.1(a), declare the entire
unpaid balance of the Obligation (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required
thereunder), or any part thereof, immediately due and payable,
whereupon it shall be due and payable (and notice of such declaration
shall promptly be given thereafter by the Administrative Agent to the
Borrower); (ii) terminate commitments to make Loans hereunder; (iii)
reduce any claim to judgment; (iv) exercise (or request each Lender to
exercise) the Rights of offset or banker's Lien against the interest
of the Borrower in and to every account and other property of the
Borrower which are in the possession of any Lender to the extent of
the full amount of the Obligation; and (v) exercise any and all other
legal or equitable Rights afforded by the Loan Papers, the Laws of the
State of New York or any other jurisdiction as the Administrative
Agent shall deem appropriate, or otherwise, including, but not limited
to, the Right to bring suit or other proceedings before any Tribunal
either for specific performance of any covenant or condition contained
in any of the Loan Papers or in aid of the exercise of any Right
granted to the Lenders in any of the Loan Papers. With respect to all
Letters of Credit with respect to which presentment for honor shall
not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrower hereunder.
After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations of the Borrower hereunder shall have been
paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto).
9.2. Waivers.
The Borrower hereby waives presentment and demand for payment, protest,
notice of intention to accelerate, notice of acceleration, and notice of protest
and nonpayment, and agrees that its liability with respect to the Obligation, or
any part thereof, shall not be affected by any renewal or extension in the time
of payment of the Obligation, by any indulgence, or by any release or change in
any security for the payment of the Obligation.
9.3. Performance by Administrative Agent.
If any covenant, duty, or agreement of any Company is not performed in
accordance with the terms of the Loan Papers, the Administrative Agent may, at
its option (but subject to the approval of the Majority Lenders), perform or
attempt to perform such covenant, duty, or agreement on behalf of such Company.
In such event, any amount expended by the Administrative Agent in such
performance or attempted performance shall be reasonable, payable by the
Borrower to the Administrative Agent on demand, shall become part of the
Obligation, and shall bear interest at the Default Rate from the date of such
expenditure by the Administrative Agent until paid. Notwithstanding the
foregoing, it is expressly understood that the Administrative Agent does not
assume and shall never have, except by its express written consent, any
liability or responsibility for the performance of any covenant, duty, or
agreement of any Company.
9.4. Delegation of Duties and Rights.
The Administrative Agent and the Lenders may perform any of their
duties or exercise any of their Rights under the Loan Papers by or through the
Administrative Agent and their and the Administrative Agent's officers,
directors, employees, attorneys, agents, or other representatives.
9.5. Lenders Not in Control.
None of the covenants or other provisions contained in this Agreement
or in any other Loan Paper shall, or shall be deemed to, give the Agents or the
Lenders the Right to exercise control over the assets (including, without
limitation, real property), affairs, or management of any Company, the power of
the Agents and the Lenders being limited to the Right to exercise the remedies
provided in this Section 9.
9.6. Waivers by Lenders.
The acceptance by the Agents or the Lenders at any time and from time
to time of partial payment on the Obligation shall not be deemed to be a waiver
of any Event of Default then existing. No waiver by the Agents, the Majority
Lenders, or all of the Lenders of any Event of Default shall be deemed to be a
waiver of any other then-existing or subsequent Event of Default. No delay or
omission by the Agents, the Majority Lenders, or all of the Lenders in
exercising any Right under the Loan Papers shall impair such Right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
9.7. Cumulative Rights.
All Rights available to the Agents and the Lenders under the Loan
Papers are cumulative of and in addition to all other Rights granted to the
Agents and the Lenders at law or in equity, whether or not the Obligation is due
and payable and whether or not the Agents or the Lenders have instituted any
suit for collection, foreclosure, or other action in connection with the Loan
Papers.
9.8. Application of Proceeds.
Any and all proceeds ever received by the Agents or the Lenders from
the exercise of any Rights pertaining to the Obligation shall be applied to the
Obligations in the order and manner set forth in Section 2.15.
9.9. Certain Proceedings.
The Borrower will promptly execute and deliver or cause the execution
and delivery of, all applications, certificates, instruments, registration
statements, and all other documents and papers the Agents or the Lenders may
reasonably request in connection with the obtaining of any consent, approval,
registration, qualification, permit, license, or authorization of any other
Tribunal or other Person necessary or appropriate for the effective exercise of
any Rights under the Loan Papers. Because the Borrower agrees that the Agents'
and the Lenders' remedies at Law for failure of the Borrower to comply with the
provisions of this paragraph would be inadequate and that such failure would not
be adequately compensable in damages, the Borrower agrees that the covenants of
this paragraph may be specifically enforced.
9.10. Setoff.
If an Event of Default shall have occurred and is continuing, each
Lender is hereby authorized at any time and from time to time, without prior
notice to the Borrower (any such notice being hereby expressly waived by the
Borrower), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and any other indebtedness at
any time owing by such Lender to or for the credit or the account of the
Borrower against any portion of the Obligation owing to such Lender,
irrespective of whether or not all of the Obligation, or any part thereof, shall
be then due. Each Lender agrees promptly to notify the Borrower (with a copy to
the Administrative Agent) after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights and remedies of each Lender hereunder are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
SECTION 10
----------
THE AGENTS.
----------
10.1. Appointment.
Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the
other Loan Papers, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Papers and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Papers, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Paper or otherwise exist against the
Administrative Agent.
10.2. Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement and the other Loan Papers by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
10.3. Exculpatory Provisions.
Neither any Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Paper (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Company or any officer thereof contained in this Agreement or any other
Loan Paper or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Paper or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Paper or for any failure of any Company a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Paper, or to inspect the properties, books or
records of any Company.
10.4. Reliance of Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Paper unless it shall first
receive such advice or concurrence of the Majority Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Papers in accordance with a request of the Majority Lenders (or, if so specified
by this Agreement, all Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
10.5. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Majority Lenders (or, if so specified by this Agreement, all Lenders);
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.6. Non-Reliance on Agents and Other Lenders.
Each Lender expressly acknowledges that neither the Agents nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Company or
any affiliate of a Company, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Companies and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent 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 analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Papers, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Companies and their
affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Company or any affiliate of a Company that may come into the possession of
the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7. Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Revolving
Percentages in effect on the date on which indemnification is sought under this
Section (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with such Revolving Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Papers or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's fraud,
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
10.8. Agent in its Individual Capacity.
Each Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Company as though such
Agent were not an Agent. With respect to its Loans made or renewed by it, each
Agent shall have the same rights and powers under this Agreement and the other
Loan Papers as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
10.9. Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 10
days' notice to the Lenders and the Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan Papers,
then the Majority Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall (unless an Event of Default under
Section 8.1 or Section 8.3 with respect to the Borrower shall have occurred and
be continuing) be subject to approval by the Borrower (which approval shall not
be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Majority Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 10 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Papers.
10.10. Co-Documentation Agents and Syndication Agent.
Neither the Co-Documentation Agents nor the Syndication Agent shall
have any duties or responsibilities hereunder in its capacity as such.
SECTION 11
----------
MISCELLANEOUS.
-------------
11.1. Changes in GAAP.
All accounting and financial terms used in any of the Loan Papers and
the compliance with each covenant contained in the Loan Papers which relates to
financial matters shall be determined in accordance with GAAP, except to the
extent that a deviation therefrom is expressly stated in such Loan Papers.
Should a change in GAAP require a change in any method of accounting or should
any voluntary change in the accounting methods be permitted pursuant to Section
7.11, then such change shall not result in an Event of Default if, at the time
of such change, such Event of Default had not occurred and was not then
continuing, based upon the former methods of accounting used by or on behalf of
the Borrower; provided that, after any such change in accounting methods, the
Financial Statements required to be delivered shall either be (a) supplemented
with financial information prepared in comparative form, in compliance with the
former methods of accounting used prior to such change, as well as with the new
method or methods of accounting and, for the purpose of determining whether an
Event of Default has occurred, Lenders shall look solely to that portion of such
supplemental information that complies with the former methods of accounting, or
(b) supplemented with financial information prepared in compliance with such new
method or methods of accounting but accompanied by such information, in form and
detail satisfactory to Lenders, that will allow Lenders to readily determine the
effect of such changes in accounting methods on such Financial Statements, and,
for the purpose of determining whether an Event of Default has occurred, Lenders
shall look solely to such supplemental information as adjusted to reflect
compliance with such former method or methods of accounting.
11.2. Money and Interest.
Unless stipulated otherwise (a) all references in any of the Loan
Papers to "dollars," "money," "payments," or other similar financial or monetary
terms are references to currency of the United States of America and (b) all
references to interest are to simple and not compound interest.
11.3. Number and Gender of Words.
Whenever in any Loan Paper the singular number is used, the same shall
include the plural where appropriate, and vice versa; and words of any gender in
any Loan Paper shall include each other gender where appropriate. The words
"herein," "hereof," and "hereunder," and other words of similar import refer to
the relevant Loan Paper as a whole and not to any particular part or subdivision
thereof.
11.4. Headings.
The headings, captions, and arrangements used in any of the Loan Papers
are, unless specified otherwise, for convenience only and shall not be deemed to
limit, amplify, or modify the terms of the Loan Papers, nor affect the meaning
thereof.
11.5. Exhibits.
If any Exhibit, which is to be executed and delivered, contains blanks,
the same shall be completed correctly and in accordance with the terms and
provisions contained and as contemplated herein prior to, at the time of, or
after the execution and delivery thereof.
11.6. Notices.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent
in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
Borrower: CenturyTel, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
CenturyTel, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇ ▇▇▇▇▇▇ and D. ▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: CenturyTel, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Administrative Agent: JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
11.7. Exceptions to Covenants.
The Borrower shall not take any action or fail to take any action which
is permitted as an exception to any of the covenants contained in any of the
Loan Papers if such action or omission would result in the breach of any other
covenant contained in any of the Loan Papers.
11.8. Survival.
All covenants, agreements, undertakings, representations, and
warranties made in any of the Loan Papers (a) shall survive all closings under
the Loan Papers, (b) except as otherwise indicated, shall not be affected by any
investigation made by any party, and (c) unless otherwise provided herein shall
terminate upon the later of the termination of this Agreement and the payment in
full of the Obligation.
11.9. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11.10. Submission to Jurisdiction; Waivers.
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Papers to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, as the case may be at its address set forth
in Section 11.6 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
11.11. WAIVERS OF JURY TRIAL.
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN PAPER AND FOR ANY
COUNTERCLAIM THEREIN.
11.12. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.13. Integration.
This Agreement and the other Loan Papers represent the entire agreement
of the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Papers.
11.14. Amendments, Etc.
Neither this Agreement, any other Loan Paper, nor any terms hereof or
thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 11.14. The Majority Lenders and the Borrower may, or,
with the written consent of the Majority Lenders, the Administrative Agent and
the Borrower may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Papers for the purpose
of adding any provisions to this Agreement or the other Loan Papers or changing
in any manner the rights of the Lenders or of the Borrower hereunder or
thereunder or (b) waive, on such terms and conditions as the Majority Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Papers or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i) forgive
or reduce the principal amount or extend the final scheduled date of maturity of
any Loan, reduce the stated rate of any interest, margin or fee payable
hereunder (except (x) in connection with the waiver of applicability of any
post-default increase in interest rates (which waiver shall be effective with
the consent of the Majority Lenders) and (y) that any amendment or modification
of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Lender's Commitment, in each case
without the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 11.14
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Majority Lenders or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Papers, in each case without the written consent of
all Lenders; or (iv) amend, modify or waive any provision of Section 3 or 10
without the written consent of the Issuing Lender or the Administrative Agent,
respectively. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Companies, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Papers, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Majority Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
to share ratably in the benefits of this Agreement and the other Loan Papers
with the aggregate principal amount of the Loans then outstanding and the
accrued interest and fees in respect thereof and (b) to include appropriately
the Lenders holding such credit facilities in any determination of the Majority
Lenders.
11.15. Waivers.
No course of dealing nor any failure or delay by the Administrative
Agent, any Lender, or any of their respective officers, directors, employees,
agents, representatives, or attorneys with respect to exercising any Right of
the Lenders hereunder shall operate as a waiver thereof. A waiver must be in
writing and signed by the Lenders (or the Majority Lenders to the extent
permitted hereunder) to be effective, and such waiver will be effective only in
the specific instance and for the specific purpose for which it is given.
11.16. Governmental Regulation.
Anything contained in this Agreement to the contrary notwithstanding,
the Lenders shall not be obligated to extend credit to the Borrower in violation
of any Law.
11.17. Multiple Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.
11.18. Successors and Assigns; Participations; Assignments.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with
this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)
(ii) below, any Lender may assign to one or more assignees (each,
an "Assignee") all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of
the Borrower shall be required for an assignment to a
Lender, an affiliate of a Lender, an Approved Fund (as
defined below) or, if an Event of Default has occurred
and is continuing, any other Person;
(B) the Administrative Agent; and
(C) the Issuing Lender.
(ii) Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a
Lender, an affiliate of a Lender or an Approved Fund or
an assignment of the entire remaining amount of the
assigning Lender's Commitments, the amount of the
Commitments of the assigning Lender subject to each
such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that
(1) no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing and
(2) such amounts shall be aggregated in respect of each
Lender and its affiliates or Approved Funds, if any;
(B) the parties to each assignment shall
execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing
and recordation fee of $3,500;
(C) the Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an
administrative questionnaire;
(D) unless otherwise agreed by the Borrower, the
Assignee shall either (1) be a "U.S. Person" as defined
in Section 7701(a)(30) of the Code or (2) have delivered
the documents described in Section 2.20(d) claiming
complete exemption from U.S. federal withholding tax on
all payments by the Borrower under this Agreement and
the other Loan Papers; and
(E) in the case of an assignment to a CLO (as
defined below), unless such assignment (or an assignment
to a CLO managed by the same manager or an Affiliate of
such manager) shall have been approved by the Borrower
(the Borrower agreeing that such approval, if requested,
will not be unreasonably withheld or delayed) the
assigning Lender shall retain the sole right to approve
any amendment, modification or waiver of any provision
of this Agreement and the other Loan Papers, provided
that the Assignment and Assumption between such Lender and
such CLO may provide that such Lender will not, without
the consent of such CLO, agree to any amendment,
modification or waiver that (1) requires the consent of
each Lender directly affected thereby pursuant to the
proviso to the second sentence of Section 11.14 and (2)
directly affects such CLO.
For the purposes of this Section 11.18, the terms "Approved Fund" and "CLO" have
the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any Lender that
is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an affiliate of such
investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an affiliate of such
Lender.
(iii) Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) below, from and after the
effective date specified in each Assignment and Assumption
the Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.12, 2.20 and 11.21). Any
assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section
11.18 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this
Section.
(iv) The Administrative Agent, acting for this purpose
as an agent of the Borrower, shall maintain at one of its
offices a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and
addresses of the Lenders, and the 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, and
the Borrower, the Administrative Agent, the Issuing Lender
and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment
and Assumption executed by an assigning Lender and an
Assignee, the Assignee's completed administrative
questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to
one or more banks or other entities (a "Participant") in all or
a portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Commitments and
the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and
(C) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to
which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that
such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the
consent of each Lender directly affected thereby pursuant to
the proviso to the second sentence of Section 11.14 and (2)
directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections
2.10, 2.12 and 2.20 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits
of Section 9.10 as though it were a Lender, provided such
Participant shall be subject to Section 2.14 as though it
were a Lender.
(ii) A Participant shall not be entitled to receive
any greater payment under Section 2.10 or 2.20 than the
applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is
made with the Borrower's prior written consent.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party
hereto.
(e) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes
to facilitate transactions of the type described in paragraph (d)
above.
(f) Notwithstanding the foregoing, any Conduit Lender may
assign any or all of the Loans it may have funded hereunder to its
designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth
in Section 11.18(b). Each of the Borrower, each Lender and the
Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the
latest maturing commercial paper note issued by such Conduit Lender;
provided, however, that each -------- Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its
inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
11.19. Confidentiality.
(a) No Lender will use confidential information obtained
from the Borrower by virtue of the transactions contemplated hereby or
its other relationships with the Borrower in connection with the
performance by such Lender of services for other companies that are
not affiliates of such Lender, and no Lender will furnish any such
information to such other companies. The Borrower acknowledges that no
Lender has any obligation to use in connection with the transactions
contemplated hereby, or to furnish to the Borrower, confidential
information obtained from other companies.
(b) Each Lender agrees to keep confidential, and not to
publish, disclose or otherwise divulge to anyone (and to cause their
respective officers, directors, employees, agents and representatives
to keep confidential, and not to publish, disclose or otherwise
divulge to anyone) all information with respect to the Companies,
including all financial information and projections or all other
information (the "Confidential Information") except that the Lenders
shall be permitted to disclose Confidential Information: (i) to the
Administrative Agent, any other Lender or any affiliate thereof; (ii)
to their respective officers, directors, employees, agents, advisors,
attorneys, accountants and representatives on a "need-to-know" basis
in connection with the respective roles of the Lenders described
herein, provided that the Lenders implement reasonable precautions to
prevent disclosure by any such personnel, (iii) to the extent required
by applicable laws and regulations or requested or required in
connection with any litigation or other legal process, provided that
the Lenders will use reasonable efforts to provide the Borrower with a
reasonable opportunity to challenge the disclosure and request
confidentiality protection for any Confidential Information that is
required to be disclosed, (iv) subject to an agreement to comply with
the provisions of this Section, to (A) actual or prospective
transferees or (B) any direct or indirect counterparty to any Swap
Agreement (or any professional advisor to such counterparty), (v) to
the extent requested by any regulatory authority with jurisdiction
over any Lender, (vi) to the extent such Confidential Information (A)
becomes publicly available other than as a result of a breach of this
agreement known to the disclosing Lender, (B) becomes available to
such Lender on a non-confidential basis from a source other than the
Borrower or (C) was available to such Lender on a non-confidential
basis prior to its disclosure by the Borrower, (vii) to the National
Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, or (viii) to the extent
the Borrower shall have consented to such disclosure. Notwithstanding
anything to the contrary contained above, the Lenders shall be
entitled to use the Confidential Information in exercising remedies
under this Agreement or any other Loan Paper.
11.20. Conflicts and Ambiguities.
Any conflict or ambiguity between the terms and provisions herein and
terms and provisions in any other Loan Paper shall be controlled by the terms
and provisions herein.
11.21. GENERAL INDEMNIFICATION.
THE BORROWER SHALL INDEMNIFY, PROTECT, AND HOLD THE AGENTS AND THE
LENDERS AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS
(COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND
LEGAL EXPENSES WHETHER OR NOT SUIT IS BROUGHT AND SETTLEMENT COSTS), AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR
ARISING OUT OF THE LOAN PAPERS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN
(COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), TO THE EXTENT THAT ANY OF THE
INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR INDIRECTLY, FROM ANY CLAIM MADE OR
ACTION, SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF ANY PERSON OTHER THAN
THE INDEMNIFIED PARTIES; PROVIDED, HOWEVER, THAT ALTHOUGH EACH INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO BE INDEMNIFIED FROM ITS OWN ORDINARY NEGLIGENCE, NO
INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN
FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. THE PROVISIONS OF AND
UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH SHALL SURVIVE THE
SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF THIS AGREEMENT FOR
THE PERIOD OF TIME SET FORTH IN ANY APPLICABLE STATUTE OF LIMITATIONS.
[Remainder of page left intentionally blank. Signature pages follow.]
EXECUTED as of the day and year first mentioned.
CENTURYTEL, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
----------------------------------
Title: EVP & CFO
--------------------------------
JPMORGAN CHASE BANK, N.A.
as the Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
WACHOVIA BANK, N.A.,
as Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
BANK OF AMERICA, N.A.,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
SUNTRUST BANK,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇
----------------------------------
Title: Director
---------------------------------
COBANK, ACB,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
▇▇▇▇▇▇ BROTHERS BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Authorized Signatory
---------------------------------
REGIONS BANK
By: /s/ C. ▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: C. ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Senior Relationship Manager
---------------------------------
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Director
---------------------------------
BAYERISCHE HYPO- UND VEREINSBANK, AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Managing Director
---------------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Associate Director
---------------------------------
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: SVP
---------------------------------
UNION BANK OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: Assistant Vice President
---------------------------------
US BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
FIFTH THIRD BANK
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
UFJ BANK LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: First Vice President
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HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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KBC BANK N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: First Vice President
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PROGRESSIVE BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Sr. Vice President
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