$1,500,000,000
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of
July 31, 2000
among
CENTURYTEL, INC.,
THE LENDERS NAMED HEREIN,
and
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A., as Syndication Agent,
and
BANC OF AMERICA SECURITIES LLC
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Joint Lead Arranger\s and Joint Book Managers
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
-----------------------
1.1 Certain Defined Terms..........................................1
1.2 Number and Gender of Words.....................................13
1.3 Accounting Principles..........................................13
SECTION 2. FACILITIES 14
2.1 Facility A Commitments.........................................14
2.2 Facility B Commitments.........................................14
2.3 Extension of Facility A Termination Date.......................14
2.4 Borrowing Procedure............................................16
2.5 Conversions....................................................16
2.6 Commitment Fees................................................17
2.7 Optional Termination and Reduction of Commitments..............17
2.8 Loans..........................................................18
2.9 Notes..........................................................19
2.10 Interest on Loans..............................................19
2.11 Interest on Overdue Amounts....................................20
2.12 Alternate Rate of Interest for Eurodollar Loans................20
2.13 Mandatory and Optional Prepayment of Loans.....................20
2.14 Reserve Requirements; Change in Circumstances..................21
2.15 Change in Legality.............................................23
2.16 INDEMNITY......................................................24
2.17 Pro Rata Treatment.............................................25
2.18 Sharing of Setoffs.............................................25
2.19 Payments ......................................................26
2.20 Calculation of Eurodollar Rate.................................27
2.21 Booking Loans..................................................27
2.22 Quotation of Rates.............................................27
SECTION 3 REPRESENTATIONS AND WARRANTIES 27
3.1 Purpose of Credit Facility.....................................27
3.2 Corporate Existence, Good Standing, and Authority..............28
3.3 Subsidiaries...................................................28
3.4 Financial Statements...........................................28
3.5 Compliance with Laws, Charter, and Agreements..................28
3.6 Litigation.....................................................29
3.7 Taxes..........................................................29
3.8 Environmental Matters..........................................29
3.9 Employee Benefit Plans.........................................29
3.10 Properties; Liens..............................................29
3.11 Holding Company and Investment Company Status..................29
3.12 Transactions with Affiliates...................................30
3.13 Leases.........................................................30
3.14 Labor Matters..................................................30
3.15 Insurance......................................................30
3.16 Solvency ......................................................30
3.17 Business ......................................................30
3.18 General ......................................................30
SECTION 4 CONDITIONS PRECEDENT 30
4.1 Initial Loan...................................................30
4.2 Acquisition Loans..............................................31
4.3 Each Loan......................................................31
4.4 Materiality of Conditions......................................32
4.5 Waiver of Conditions...........................................32
SECTION 5 COVENANTS 32
5.1 Use of Proceeds................................................32
5.2 Books and Records..............................................32
5.3 Items to be Furnished..........................................32
5.4 Inspection.....................................................33
5.5 Taxes ......................................................33
5.6 Payment of Obligations.........................................34
5.7 Expenses ......................................................34
5.8 Maintenance of Existence, Assets, Business, and Insurance......34
5.9 Preservation and Protection of Rights..........................34
5.10 Employee Benefit Plans.........................................34
5.11 Liens ......................................................34
5.12 Restricted Payments............................................35
5.13 [Intentionally Omitted]........................................35
5.14 Acquisitions, Mergers, and Dissolutions........................35
5.15 Loans, Advances, and Investments...............................35
5.16 Transactions with Affiliates...................................36
5.17 Sale of Assets.................................................36
5.18 Compliance with Laws and Documents.............................36
5.19 New Businesses.................................................36
5.20 Assignment.....................................................36
5.21 Fiscal Year and Accounting Methods.............................37
5.22 Holding Company and Investment Company Status..................37
5.23 Environmental Laws.............................................37
5.24 Environmental Indemnification..................................37
5.25 Financial Covenants............................................37
SECTION 6 DEFAULT 38
6.1 Payment of Obligation..........................................39
6.2 Covenants......................................................39
6.3 Debtor Relief..................................................39
6.4 Attachment.....................................................39
6.5 Payment of Judgments...........................................39
6.6 Default Under Other Agreements.................................40
6.7 Antitrust Proceedings..........................................40
6.8 Misrepresentation..............................................40
6.9 Change in Control..............................................40
6.10 ERISA ......................................................41
6.11 Validity and Enforceability of Loan Documents..................41
SECTION 7 RIGHTS AND REMEDIES 41
7.1 Remedies Upon Event of Default.................................41
7.2 Waivers ......................................................42
7.3 Performance by Administrative Agent............................42
7.4 Delegation of Duties and Rights................................42
7.5 Lenders Not in Control.........................................42
7.6 Waivers by Lenders.............................................42
7.7 Cumulative Rights..............................................42
7.8 Application of Proceeds........................................43
7.9 Certain Proceedings............................................43
7.10 Setoff ......................................................43
SECTION 8 AGREEMENT AMONG LENDERS 43
8.1 Agents ......................................................43
8.2 Expenses ......................................................45
8.3 Proportionate Absorption of Losses.............................45
8.4 Delegation of Duties; Reliance.................................45
8.5 Limitation of Liability........................................46
8.6 Default ......................................................47
8.7 Limitation of Liability of Lenders.............................47
8.8 Relationship of Lenders........................................47
8.9 Foreign Lenders................................................47
8.10 Benefits of Agreement..........................................48
SECTION 9 MISCELLANEOUS 48
9.1 Changes in GAAP................................................48
9.2 Money and Interest.............................................48
9.3 Number and Gender of Words.....................................48
9.4 Headings ......................................................48
9.5 Exhibits ......................................................49
9.6 Communications.................................................49
9.7 Form and Number of Documents...................................49
9.8 Exceptions to Covenants........................................49
9.9 Survival ......................................................49
9.10 Governing Law..................................................49
9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL..........................49
9.12 Maximum Interest Rate..........................................50
9.13 Invalid Provisions.............................................50
9.14 Entire Agreement...............................................50
9.15 Amendments, Etc................................................51
9.16 Waivers ......................................................51
9.17 Taxes ......................................................51
9.18 Governmental Regulation........................................51
9.19 Multiple Counterparts..........................................51
9.20 Successors and Assigns; Participations; Assignments............52
9.21 Confidentiality................................................53
9.22 Conflicts and Ambiguities......................................54
9.23 General Indemnification........................................54
9.24 Investment Representation......................................54
SCHEDULES
Parties, Addresses, Commitments, Wiring Information Schedule 1
Permitted Liens Schedule 2
Transactions with Affiliates Schedule 3.12
Business of Companies Schedule 3.17
EXHIBITS
Notice of Borrowing Exhibit A
Facility A Note Exhibit B-1
Facility B Note Exhibit B-2
Opinion of Borrower's Counsel Exhibit C
Financial Report Certificate Exhibit D
Assignment and Acceptance Exhibit E
REVOLVING CREDIT FACILITY AGREEMENT
REVOLVING CREDIT FACILITY AGREEMENT dated as of July 31, 2000, among
CENTURYTEL, INC., a Louisiana corporation (the "Borrower"), the lenders listed
on the signature pages hereof (the "Lenders"), BANK OF AMERICA, N.A., a national
banking association, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), CITIBANK, N.A., a national banking association, as
syndication agent (in such capacity, the "Syndication Agent") and BANC OF
AMERICA SECURITIES LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. as Joint Lead Arrangers and
Joint Book Managers (in such capacity, collectively the "Arrangers").
The Borrower has requested the Lenders to extend credit to the Borrower
in order to enable it to borrow on a revolving credit basis a principal amount
not in excess of $1,500,000,000 at any time outstanding.
The Lenders are willing to extend such credit to the Borrower on the
terms and conditions herein set forth. Accordingly, the Borrower, the Agents,
and the Lenders 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):
"Acquisitions" means the acquisition by the Borrower or its
subsidiaries of certain properties owned by the GTE Entities pursuant to the
provisions of the Asset Purchase Agreements.
"Acquisition Documents" means the Asset Purchase Agreements and any and
all other documents and instruments executed in connection with the
Acquisitions.
"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 telephone or
cellular mobile communications business) and similar intangible or intellectual
property, and (iii) unamortized debt discount and expense (other than debt
discount and expense of the Companies located in jurisdictions where such items
are considered by Tribunals when setting rates).
"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
Arrangers.
"Agreement" means this Revolving Credit Facility Agreement, as the same
may be amended, supplemented, modified or restated from time to time.
"Alternate Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the greater of (a)
the Federal Funds Rate for such day plus one-half of one percent (0.5%) and (b)
the Prime Rate for such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
"Applicable Lending Office" means, with respect to each Lender, and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such Type of Loan on the signature pages hereof or
such other office of such Lender (or an Affiliate of such Lender) as such Lender
may from time to time specify to the Administrative Agent and the Borrower by
written notice in accordance with the terms hereof as the office by which its
Loans of such Type are to be made and maintained.
"Applicable Margin" means, at the time of any determination thereof,
for purposes of all Loans, the margin of interest over the Alternate Base Rate
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 Borrower's Senior Unsecured Long-Term Debt
Rating (as hereinafter defined), as determined as of the last day of the
immediately preceding fiscal quarter of the Borrower, as follows:
Borrower's Senior
Unsecured Long-Term Eurodollar Loan Base Rate
Debt Rating Margin Loan Margin
---------------------------------------------------------------------------
A or A2 or better 30.0 basis points 0 basis points
A- or A3 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
below BBB or Baa2 75.0 basis points 0 basis points
---------------------------------------------------------------------------
Notwithstanding the foregoing, in the event that (i) the Borrower's Senior
Unsecured Long-Term Debt Rating is below BBB or Baa2 and (ii) the outstanding
principal balance of the Facility A Loans or the Facility B Loans equals or
exceeds one-third of the Total Facility A Commitment or the Total Facility B
Commitment, as the case may be, then the Applicable Margin for such Facility A
Loans or Facility B Loans shall be 87.5 basis points rather than 75.0 basis
points.
"Arrangers" is defined in the introduction to this Agreement.
"Asset Purchase Agreements" means that certain Amended and Restated
Asset Purchase Agreement between GTE Arkansas Incorporated, GTE Midwest
Incorporated, GTE Southwest Incorporated and CenturyTel, Inc. dated as of June
29, 1999, that certain Asset Purchase Agreement between GTE Midwest Incorporated
and Spectra Communications Group LLC dated as of July 8, 1999, that certain
Asset Purchase Agreement between GTE North Incorporated and Telephone USA of
Wisconsin, LLC dated August 19, 1999, and that certain Asset Purchase Agreement
between GTE North Incorporated and CenturyTel, Inc. dated October 11, 1999, as
any of the same may have been amended or modified prior to the date hereof.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Base Rate Loan" means any Loan with respect to which the Borrower
shall have selected an interest rate based on the Alternate Base Rate in
accordance with the provisions of Section 2.
"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 Facility A Borrowing or a Facility B Borrowing.
"Borrowing Date" means the Business Day upon which the proceeds of any
Borrowing are to be made available to the Borrower.
"Business Day" means a day when the Administrative Agent and each
Lender's Applicable Lending Office are open for business, other than a Saturday
or Sunday, and if the applicable Business Day relates to any Eurodollar Loan, a
day on which dealings in dollar deposits are carried on in the London interbank
market and commercial banks are open for domestic or international business in
London, England, in New York, New York, and in Dallas, Texas.
"Code" means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
"Commitment" means, with respect to any Lender, collectively, its
Facility A Commitment and Facility B Commitment.
"Commitment Fee" is defined in Section 2.6.
"Commitment Fee Percentage" is defined in Section 2.6
"Companies" means, collectively, Borrower and its Subsidiaries and
"Company" means any of the same.
"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 Statements No. 101
and 106 of the Financial Accounting Standards Board.
"Current Date" means any date after March 31, 2000.
"Current Financials" means the consolidated Financial Statements of the
Companies for the fiscal year ended December 31, 1999, and the fiscal quarter
ended March 31, 2000.
"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 interest rate swap, collar, floor, cap or similar
contract.
"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.
"Default Rate" means an annual interest rate equal to the lesser of (a)
2% plus the greater of (i) the Alternate Base Rate and (ii) the Eurodollar Rate
and (b) the Highest Lawful Rate.
"EBIT" means, for any period, net income before income Tax expense and
interest expense and excluding the effects of nonrecurring and/or unusual
non-cash transactions that reduce net income and items that do not reduce the
cash flow of the Companies (e.g., write-off of intangibles, write-down of
assets, effect of new accounting pronouncements, etc.).
"EBITDA" means, for any period, the sum of (a) EBIT, plus (b) deprecia-
tion and amortization.
"Eligible Assignee" means (a) any Lender and any Affiliate of any
Lender so long as such Affiliate directly or through one or more of its
Subsidiaries engages in commercial financing transactions in the ordinary course
of its business, and (b) any other commercial bank, savings and loan
association, savings bank, finance company, insurance company, mutual fund or
other financial institution, fund or investor which has been approved in writing
by the Borrower and the Administrative Agent as an Eligible Assignee for
purposes of this Agreement, provided that in each such case such approval shall
not be unreasonably withheld.
"Environmental Law" means any Law that relates to the environment or
handling or control of Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any company or trade or business (whether or
not incorporated) which, 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 Liabilities" is defined in Regulation D.
"Eurodollar Loan" means any Loan with respect to which the Borrower
shall have selected an interest rate based on the Eurodollar Rate in accordance
with the provisions of Section 2.
"Eurodollar Rate" means, for any Interest Period for any Eurodollar
Loan, an interest rate per annum (rounded upward to the nearest whole multiple
of 0.01% per annum) obtained by dividing (a) the rate per annum appearing on the
Dow ▇▇▇▇▇ Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
If for any reason the rate specified in subsection (a) above is not available,
the applicable rate for purposes of subsection (a) shall be the rate per annum
appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Rate Reserve Percentage" for any Interest Period for any
Eurodollar Loan means the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Loans is determined) having a term equal to such
Interest Period.
"Event of Default" means any of the events described in Section 6,
provided there has been satisfied any requirement in connection therewith for
the giving of notice, lapse of time, or happening of any further condition,
event, or act.
"Existing Credit Agreement" means that certain Competitive Advance and
Revolving Credit Facility Agreement dated as of August 28, 1997, by and among
CenturyTel, Inc. (formerly known as Century Telephone Enterprises, Inc.), the
lenders party thereto from time to time, and Bank of America, N.A. (formerly
known as NationsBank, N.A. and successor by merger to NationsBank of Texas,
N.A.), as agent for such lenders and as auction administrative agent, as the
same has been and may be amended, restated, supplemented or modified from time
to time.
"Facility A Commitment" means, with respect to each Lender, the amount
set forth opposite the name of such Lender on Schedule 1, as amended from time
to time.
"Facility A Borrowing" means a borrowing consisting of simultaneous
Facility A Loans from each of the Lenders distributed ratably among the Lenders
in accordance with their respective Facility A Commitments.
"Facility A Loan" means a Loan by a Lender to the Borrower under
Facility A pursuant to Section 2.1, and shall be either a Eurodollar Loan or a
Base Rate Loan.
"Facility A Note" means a promissory note of the Borrower payable to
the order of each Lender, in substantially the form of Exhibit B-1 hereto, with
the blanks appropriately completed, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Facility A Loans made by such Lender
to the Borrower, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Facility A Termination Date" means, at any time, July 30, 2001, or
such later date, if any, to which the Total Facility A Commitment is extended
pursuant to Section 2.3, subject, however, to termination in whole of the Total
Facility A Commitment pursuant to Section 2.7.
"Facility B Commitment" means, with respect to each Lender, the amount
set forth opposite the name of such Lender on Schedule 1, as amended from time
to time.
"Facility B Borrowing" means a borrowing consisting of simultaneous
Facility B Loans from each of the Lenders distributed ratably among the Lenders
in accordance with their respective Facility B Commitments.
"Facility B Loan" means a Loan by a Lender to the Borrower under
Facility B pursuant to Section 2.2, and shall be either a Eurodollar Loan or a
Base Rate Loan.
"Facility B Note" means a promissory note of the Borrower payable to
the order of each Lender, in substantially the form of Exhibit B-2 hereto, with
the blanks appropriately completed, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Facility B Loans made by such Lender
to the Borrower, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Facility B Termination Date" means, at any time, July 30, 2001, or the
earlier date of termination in whole of the Total Facility B Commitment pursuant
to Section 2.7.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by the Administrative Agent.
"Financial Report Certificate" means a certificate substantially in the
form of Exhibit D.
"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" shall mean and include, as of any date as of which the
amount thereof is to be determined, (i) all funded indebtedness of the
Companies, (ii) all funded indebtedness of any Subsidiary (other than funded
indebtedness of such Subsidiary owing to the Borrower or another Subsidiary),
and (iii) all indebtedness for borrowed money, but not (iv) indebtedness secured
by or borrowed against the cash surrender value of life insurance policies up to
the amount of such cash surrender value.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable as of the date of
the Financial Statements in question.
"GTE Entities" means GTE Arkansas Incorporated, GTE Midwest
Incorporated, GTE North Incorporated and GTE Southwest Incorporated,
collectively.
"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 obligatio n of the primary obligor against loss in respect thereof.
"Hazardous Substance" means any hazardous or toxic waste, pollutant,
contaminant, or substance.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under applicable Laws, the Lenders are then
permitted to charge the Borrower on the Obligation. If the maximum rate of
interest which, under applicable Laws, the Lenders are permitted to charge the
Borrower on the Obligation shall change after the date hereof, the Highest
Lawful Rate shall be automatically increased or decreased, as the case may be,
as of the effective time of such change without notice to the Borrower.
"Indemnified Parties" is defined in Section 9.23.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
each Quarterly Payment Date, or if earlier the Facility A Termination Date or
the Facility B Termination Date, as applicable, or the date of prepayment of
such Loan or conversion of such Loan to a Eurodollar Loan, and (ii) with respect
to any Eurodollar Loan, the last day of the Interest Period applicable thereto
and, in addition in the case of a Eurodollar Loan with an Interest Period longer
than three months, each day that would have been the Interest Payment Date for
such Loan had an Interest Period of three months been applicable to such Loan.
"Interest Period" means, with respect to each Loan, the duration of
such Loan and as to any Eurodollar Loan, the period commencing on the date of
such Loan and ending on the numerically corresponding day (or if there is no
corresponding day, the last day) in the calendar month that is one, two, three,
or six months thereafter, as the Borrower may elect; provided, however, (i) if
any Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day,
and (ii) no Interest Period may be selected that ends later than the Facility B
Termination Date or the Facility A Termination Date, as applicable. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Laws" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, or opinions
of any Tribunal.
"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.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor to have his claim satisfied out of any
property or assets, or the proceeds therefrom, prior to the general creditors of
the owner thereof.
"Litigation" means any action conducted, pending, or threatened by or
before any Tribunal.
"Loan" means a Facility A Loan, a Facility B Loan, a Eurodollar Loan
or a Base Rate Loan.
"Loan Papers" means (i) this Agreement, certificates delivered pursuant
to this Agreement, and exhibits and schedules hereto, (ii) any notes, security
documents, guaranties, and other agreements in favor of the Agents 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.
"Majority Lenders" means at any time the Lenders holding at least 51%
of the then aggregate unpaid principal amount of the Loans or, if no Loans 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 cash proceeds received by the Borrower
from (a) a sale of its assets (including, without limitation, all cash proceeds
received by way of (i) deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received and (ii)
receivables and other assets retained by the Borrower as part of the sales
consideration, minus payments made to retire Debt secured by such assets being
sold or otherwise disposed of where payment of such Debt is required in
connection with such sale or disposition) or (b) the issuance of any public or
privately placed Debt or equity, in either case net of all ordinary reasonable
legal expenses, commissions and other fees and expenses paid or to be paid to
Persons not Affiliates of the Companies and all Taxes assessed in connection
therewith.
"Note" means a Facility A Note or a Facility B Note.
"Notice of Borrowing" is defined in Section 2.4.
"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.
"Participant" is defined in Section 9.20(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"Permitted Liens" means the Liens described on Schedule 2.
"Person" means and includes an individual, partnership, 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.
"Prime Rate" means the per annum rate of interest established from time
to time by Bank of America as its prime rate, which rate may not be the lowest
rate of interest charged by Bank of America to its customers.
"Purchaser" is defined in Section 9.20(c).
"Quarterly Payment Date" means the last Business Day of each March,
June, September and December of each year, the first of which shall be the first
such day after the date of this Agreement.
"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.
"Restricted Payment" means
(a) the declaration or payment of dividends by the Borrower, or
distribution (in cash, property, obligations or other securities or any combi-
nation 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.
"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
public debt rating that has been most recently announced by S&P and ▇▇▇▇▇'▇ 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. For purposes of the foregoing,
(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
2.6) 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 Moody's for such class
of debt; and (f) if neither S&P nor Moody's 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.
"Significant Subsidiary" means a Subsidiary of the Borrower (i) the
assets of which equal or exceed 5% of all assets of the Borrower and its
Subsidiaries as shown on a consolidated balance sheet of the Borrower and its
Subsidiaries, (ii) the operating revenue of which, for the most recently ended
period of twelve consecutive months, equals or exceeds 5% of the operating
revenues of the Borrower and its Subsidiaries for such period, or (iii) the net
income of which, for the most recently ended period of twelve consecutive
months, equals or exceeds 5% of the net income of the Borrower and its
Subsidiaries for such period.
"Solvent" means, as to any Person at the time of determination, that
(a) the aggregate fair value of such Person's assets exceeds the present value
of its liabilities (whether contingent, subordinated, unmatured, unliquidated,
or otherwise), and (b) such Person has sufficient cash flow to enable it to pay
its Debts as they mature.
"Subsidiary" means any Person with respect to which Borrower or any one
or more Subsidiaries owns directly or indirectly 50% or more of the issued and
outstanding voting stock (or equivalent interests).
"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.
"Total Commitments" means, at any time the aggregate amount of the
Lenders' Facility A Commitments and Facility B Commitments, as in effect at such
time.
"Total Facility A Commitment" means at any time the aggregate amount of
the Lenders' Facility A Commitments, as in effect at such time.
"Total Facility B Commitment" means at any time the aggregate amount of
the Lenders' Facility B Commitments, as in effect at such time.
"Tribunal" means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision, agency, department,
commission, board, bureau, or instrumentality.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
Eurodollar Loan).
"United States" and "U.S." each means United States of America.
"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).
1.2 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 shall include each other gender where
appropriate.
1.3 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 Agree-
ment, 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, 1999.
SECTION 2. FACILITIES.
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2.1 Facility A Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender,
severally and not jointly, agrees to make revolving credit loans ("Facility A
Loans") to the Borrower, at any time and from time to time on and after the
date hereof and until the Facility A Termination Date. Notwithstanding the
foregoing, the aggregate principal amount of all Facility A Loans of a Lender
shall not exceed at any time outstanding such Lender's Facility A Commitment.
Within the foregoing limits, the Borrower may borrow, repay, prepay, and
reborrow hereunder, on and after the date hereof and prior to the Facility A
Termination Date, subject to the terms, provisions, and limitations set
forth herein.
2.2 Facility B Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender,
severally and not jointly, agrees to make revolving credit loans ("Facility B
Loans") to the Borrower, at any time and from time to time on and after the
date hereof and until the Facility B Termination Date. Notwithstanding the
foregoing, the aggregate principal amount of all Facility B Loans of a Lender
shall not exceed at any time outstanding such Lender's Facility B Commitment.
Within the foregoing limits, the Borrower may borrow, repay, prepay and reborrow
hereunder, on and after the date hereof and prior to the Facility B Termination
Date, subject to the terms, provisions, and limitations set forth herein.
2.3 Extension of Facility A Termination Date. (a) The Borrower may
request an extension of the Facility A Termination Date by submitting a request
for an extension to the Administrative Agent (an "Extension Request") not more
than 60, nor less than 45, days prior to the Facility A Termination Date. The
new Facility A Termination Date shall be no more than 364 days after the
Facility A Termination Date in effect at the time the Extension Request is
received, including the Facility A Termination Date as one of the days in the
calculation of the days elapsed. Promptly following receipt of an Extension
Request, the Administrative Agent shall notify each Lender of the Extension
Request and shall specify the date (which must be at least 15 days after the
Extension Request is delivered to the Lenders) as of which the Lenders must
respond to the Extension Request (the "Reply Date"). No extension of the
Facility A Termination Date shall be effective as to a particular Lender without
the approval of such extension by such Lender, and no Lender may submit its
approval more than 45 days prior to the existing Facility A Termination Date.
Approval or disapproval of such extension shall be in the sole and absolute
discretion of each Lender. Each Lender shall notify the Administrative Agent and
the Borrower in writing prior to the Reply Date whether it will extend the
Facility A Termination Date. If all Lenders approve such extension on or before
the Reply Date, the Facility A Termination Date specified in the Extension
Request shall become effective on the existing Facility A Termination Date and
the Administrative Agent shall promptly notify the Borrower and each Lender of
the new Facility A Termination Date. If Lenders holding less than 66-2/3% of the
then aggregate principal amount of the Facility A Loans fail to approve such
extension on or before the Reply Date, the Facility A Termination Date shall not
be extended.
(b) If Lenders holding at least 66-2/3%, but less than 100%,
of the then aggregate principal amount of the Facility A Loans approve
such extension on or before the Reply Date, the Borrower may, by notice
given to the Administrative Agent within ten days of the Administrative
Agent's notification to the Borrower of the failure of all such Lenders
to approve such extension, elect to take one of the following actions
with respect to all Lenders (each a "Non-Consenting Facility A Lender")
that do not approve such extension: (i) terminate the Facility A
Commitments of the Non-Consenting Facility A Lenders, in which case the
Borrower shall pay in full the amounts owing in respect of the Facility
A Loans of all Non-Consenting Facility A Lenders no later than the
existing Facility A Termination Date and the Facility A Commitments of
all Non-Consenting Facility A Lenders shall terminate on such date; or
(ii) replace the Non-Consenting Facility A Lenders in accordance with
subsection (c) below or, to the extent that the Non-Consenting Facility
A Lenders are not entirely replaced, the Borrower shall pay in full the
amounts owing in respect of the Facility A Loans of such Non-Consenting
Facility A Lenders and their Facility A Commitments shall be terminated
as of the existing Facility A Termination Date. Provided the Borrower
gives the Administrative Agent timely notice of such election and pays
or causes to be paid to each of the Non-Consenting Facility A Lenders,
on or before the existing Facility A Termination Date, an amount equal
to all sums owing to such Non-Consenting Facility A Lenders in respect
of their Facility A Loans, then (A) the Facility A Termination Date
shall be extended with respect to all Lenders that approved such
extension and (B) the Total Facility A Commitment shall be reduced by
the amount of the Non-Consenting Facility A Lenders' Facility A
Commitments (except as such are replaced in accordance with Section
2.3(c)). Notwithstanding the foregoing, if the Borrower shall fail to
give timely notice of an election under clauses (i) or (ii) above, or,
having given such notice, shall fail to pay or cause to be paid to the
Non-Consenting Facility A Lenders, on or before the existing Facility A
Termination Date, the amounts required to be paid hereunder, then the
Facility A Termination Date shall not be extended and the Total
Facility A Commitment shall terminate.
(c) In the event a Lender (the "Affected Lender") is a
Non-Consenting Facility A Lender, the Borrower may, upon written notice
to such Affected Lender and to the Administrative Agent, require such
Affected Lender to assign, and such Affected Lender shall assign,
within five Business Days after the date of such notice, to one or more
assignees selected by the Borrower and that are Eligible Assignees and
otherwise comply with the provisions of Section 9.20(c) (each, a
"Replacement Lender"), all of such Affected Lender's Facility A
Commitment and Facility A Loans. With respect to any such assignment,
the Affected Lender shall concurrently with such assignment receive
payment in full of all amounts due and owing to it hereunder or under
any of the other Loan Documents with respect to the Loans and
Commitment so assigned, including without limitation the aggregate
outstanding principal amount of such Loans owed to such Affected
Lender, together with accrued interest thereon through the r date of
such assignment, amounts payable to such Affected Lender under Section
2.14 with respect to such Loans and all fees payable to such Affected
Lender hereunder with respect to such Loans and Commitment so assigned.
Any assignment to a Replacement Lender pursuant to the provisions of
this Section 2.3 shall be in accordance with the provisions of Section
9.20(c) hereof.
2.4 Borrowing Procedure. In order to effect a Borrowing, the Borrower
shall hand deliver or telecopy to the Administrative Agent a duly completed
request for Borrowing, substantially in the form of Exhibit A hereto (a "Notice
of Borrowing"), (i) in the case of Eurodollar Loans, not later than 11:00 a.m.,
Dallas, Texas time, three Business Days before the Borrowing Date specified for
a proposed Borrowing, and (ii) in the case of Base Rate Loans, not later than
11:00 a.m., Dallas, Texas time, on the Business Day which is the Borrowing Date
specified for a proposed Borrowing. No Facility B Loan shall be requested or
made after the Facility B Termination Date. Such notice shall be irrevocable and
shall in each case refer to this Agreement and specify (w) whether the Loans
then being requested are to be made as Facility A Loans or Facility B Loans, (x)
whether the Loans then being requested are to be Eurodollar Loans or Base Rate
Loans, (y) the Borrowing Date of such Loans (which shall be a r Business Day)
and the aggregate amount thereof (which shall not be less than $5,000,000 and
shall be an integral multiple of $1,000,000), and (z) in the case of a
Eurodollar Loan, the Interest Period with respect thereto (which shall not end
later than the Facility A Termination Date or the Facility B Termination Date,
as applicable). If no Interest Period with respect to any Eurodollar Loan is
specified in any such Notice of Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. Promptly, and in any
event on the same day the Administrative Agent receives a Notice of Borrowing
pursuant to this Section 2.4, if such notice is received by 10:00 a.m., Dallas,
Texas time on a Business Day and otherwise on the next succeeding Business Day,
the Administrative Agent shall advise the other Lenders of such Notice of
Borrowing and of each Lender's portion of the requested Facility A or Facility B
Borrowing by telecopier. Each Borrowing shall consist of Loans of the same Type
made on the same day and having the same Interest Period.
2.5 Conversions. Subject to the conditions and limitations set forth
in this Agreement, the Borrower shall have the right from time to time to
convert all or part of one Type of Loan into another Type of Loan or to continue
all or a part of any Loan that is a Eurodollar Loan from one Interest Period to
another Interest Period by giving the Administrative Agent written notice (by
means of a Notice of Borrowing) (i) in the case of Eurodollar Loans, not later
than 10:00 a.m., Dallas, Texas time, three Business Days before the date
specified for such proposed conversion or continuation, and (ii) in the case of
Base Rate Loans, not later than 10:00 a.m., Dallas, Texas time, on the Business
Day which is the date specified for such proposed conversion or continuation.
Such notice shall specify (A) the proposed date for conversion or continuation,
(B) the amount of the Loan to be converted or continued, (C) in the case of
conversions, the Type of Loan to be converted into, and (D) in the case of a
continuation of or conversion into a Eurodollar Loan, the duration of the
Interest Period applicable thereto; provided that (1) Eurodollar Loans may be
converted only on the last day of the applicable Interest Period, (2) except for
conversions to Base Rate Loans, no conversion shall be made while a Default or
Event of Default has occurred and is continuing and no continuations of any
Eurodollar Loan from one Interest Period to another Interest Period shall be
made while a Default or Event of Default has occurred and is continuing, unless
such conversion or continuation has been approved by Majority Lenders, and (3)
each such conversion or continuation shall be in an amount not less than
$5,000,000 and shall be an integral multiple of $1,000,000. All notices given
under this Section shall be irrevocable. If the Borrower shall fail to give the
Administrative Agent the notice as specified above for continuation or
conversion of a Eurodollar Loan prior to the end of the Interest Period with
respect ase thereto, such Eurodollar Loan shall automatically be converted into
a Base Rate Loan on the last day of the Interest Period for such Eurodollar
Loan.
2.6 Commitment Fees. The Borrower agrees to pay to each Lender,
through the Administrative Agent, on each Quarterly Payment Date and on the
Facility A Termination Date or the Facility B Termination Date, as applicable,
in immediately available funds, a commitment fee (a "Commitment Fee") calculated
on both the unused Facility A Commitment and the unused Facility B Commitment
by multiplying the applicable percentage (the "Commitment Fee Percentage") set
forth below by the average daily unused portion of the Facility A Commitment
and the Facility B Commitment of such Lender, as applicable, during the
preceding quarter (or shorter period commencing with the date hereof and/or
ending with the Facility A Termination Date or the Facility B Termination Date,
as applicable):
Borrower's Senior Unsecured Commitment Fee Percentage
Long-Term Debt Rating
---------------------------------------------------------------------------
A or A2 or better .065 percent
A- or A3 .08 percent
BBB+ or Baa1 .10 percent
BBB or Baa2 .125 percent
below BBB or Baa2 .15 percent
---------------------------------------------------------------------------
Notwithstanding the foregoing, the Commitment Fee Percentage from the date
hereof until completion of the primary general syndication of the Loans shall be
.10 percent so long as the Borrower's Senior Unsecured Long-Term Debt Rating is
BBB or Baa2 or better.
All Commitment Fees shall be computed by the Administrative Agent on
the basis of the actual number of days elapsed in a year of 365 days, and shall
be conclusive and binding for all purposes, absent manifest error. The
Commitment Fee due to each Lender shall commence to accrue on the date hereof
and shall cease to accrue on the earlier of the Facility A Termination Date or
the Facility B Termination Date, as applicable, and the termination of the
Facility A Commitment or Facility B Commitment, as applicable, of such Lender as
provided herein. No Commitment Fee shall be payable on the Facility B Commitment
after the Facility B Termination Date. Notwithstanding the foregoing, in no
event shall any Lender be permitted to receive any compensation hereunder
constituting interest in excess of the Highest Lawful Rate.
2.7 Optional Termination and Reduction of Commitments.(a) Subject to
Section 2.13(b), the Borrower may permanently terminate, or from time to time
in part permanently reduce, either or both of the Total Facility A Commitment
or the Total Facility B Commitment, in each case upon at least two Business Days
prior written notice to the Administrative Agent (who shall promptly forward a
copy thereof to each Lender). Such notice shall specify the date and the amount
of the termination or reduction of either or both of the Total Facility A
Commitment or the Total Facility B Commitment. Each such partial reduction of
either or both of the Total Facility A Commitment or the Total Facility B
Commitment shall be in a minimum aggregate principal amount of $5,000,000 and
in an integral multiple of $1,000,000.
(b) On the Facility A Termination Date the Total Facility A
Commitment shall be zero.
(c) On the Facility B Termination Date, the Total Facility B
Commitment shall be zero.
(d) Each reduction in the Total Facility A Commitment or the
Total Facility B Commitment pursuant to this paragraph shall be made
ratably among the Lenders in accordance with their respective Facility
A Commitments or Facility B Commitments, as applicable.
(e) Simultaneously with any termination or reduction of the
Facility A Commitments or Facility B 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
Facility A or Facility B Commitment, as applicable, so terminated or
reduced, accrued through the date of such termination or reduction.
2.8 Loans. (a) Each Borrowing made by the Borrower on any date shall
be in an integral multiple of $1,000,000 and in a minimum aggregate principal
amount of $5,000,000. Loans shall be made by the Lenders ratably in accordance
with their respective Commitments on the Borrowing Date of the Borrowing;
provided, however, that the failure of any Lender to make any Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder.
(b) Each Loan shall be a Eurodollar Loan or a Base Rate Loan,
as the Borrower may request subject to and in accordance with Section
2.4. Each Lender may at its option make any Eurodollar Loan by causing
a foreign branch of such Lender to make such Loan; provided, however,
that any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms of the
applicable Note and this Agreement. Loans of more than one interest
rate option may be outstanding at the same time; provided, however,
that the Borrower shall not be entitled to request any Loan which, if
made, would result in an aggregate of more than 10 separate Borrowings
being outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Loans.
(c) Subject to Section 2.5, each Lender shall make its portion
of each Borrowing on the proposed Borrowing Date thereof by paying the
amount required to the Administrative Agent in Dallas, Texas in imme-
diately available funds not later than 12:00 noon, Dallas, Texas time,
and the Administrative Agent shall by 2:00 p.m., Dallas, Texas time,
credit the amounts so received to the general deposit account of the
Borrower with the Administrative Agent or, if Loans are not made on
such date because any condition precedent to a Borrowing herein
specified shall not have been met, return the amounts so received to
the respective Lenders as soon as practicable; provided, however, if
and to the extent the Administrative Agent fails to return any such
amounts to a Lender on the Borrowing Date for such Borrowing, the
Administrative Agent shall pay interest on such unreturned amounts,
for each day from such Borrowing Date to the date such amounts are
returned to such Lender, at the Federal Funds Rate.
(d) The outstanding principal amount of each Loan which is a
Eurodollar Loan shall be due and payable on the last day of the
Interest Period applicable to such Loan, as the case may be, and the
outstanding principal balance of each Loan which is a Base Rate Loan
shall be due and payable on the Facility A Termination Date or the
Facility B Termination Date, as applicable.
2.9 Notes. The Facility A Loans made by each Lender shall be
evidenced by a single Facility A Note, payable to the order of such Lender in a
principal amount equal to the Facility A Commitment of such Lender. The Facility
B Loans made by each Lender shall be evidenced by a single Facility B Note
payable to the order of such Lender in a principal amount equal to the Facility
B Commitment of such Lender. Each Note shall bear interest from the date thereof
on the outstanding principal balance thereof as set forth in Section 2.10 and
Section 2.11. Each Lender shall, and is hereby authorized by the Borrower to,
make in its records relating to such Note an appropriate notation evidencing the
date and amount of each Loan of such Lender, and each payment or prepayment of
principal of any Loan. The aggregate unpaid principal amount so recorded shall
be presumptive evidence of the principal amount owing by the Borrower to a
Lender and unpaid under the Note of such Lender. The failure of any Lender to
make such a notation or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans made by such Lender in accordance
with the terms of the relevant Note.
2.10 Interest on Loans. (a) Subject to the provisions of Section
2.11, each Eurodollar Loan shall bear interest at a rate per annum (computed on
the basis of the actual number of days elapsed over a year of 360 days) equal to
the lesser of (i) the Highest Lawful Rate and (ii) the Eurodollar Rate for the
Interest Period in effect for such Loan, plus the Applicable Margin. Interest on
each Eurodollar Loan shall be payable on each Interest Payment Date applicable
thereto. The applicable Eurodollar Rate for each Interest Period shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(b) Subject to the provisions of Section 2.11, each Base Rate
Loan shall bear interest at the rate per annum (computed on the basis
of the actual number of days elapsed over a year of (x) 365 or 366
days, as the case may be if the Base Rate is based on the Prime Rate
or (y) 360 days if the Base Rate is based on the Federal Funds Rate)
equal to the lesser of (i) the Highest Lawful Rate and (ii) the Base
Rate plus the Applicable Margin. Interest on each Base Rate Loan shall
be payable on each Quarterly Payment Date applicable thereto. The
applicable Base Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
2.11 Interest on Overdue Amounts. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, the Borrower shall on demand from time to time pay
interest, to the extent permitted by Law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the
Default Rate.
2.12 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 a Base Rate Loan. Each determination by the Administrative
Agent hereunder shall be conclusive absent manifest error.
2.13 Mandatory and Optional Prepayment of Loans. (a) Prior to the
Facility A Termination Date or the Facility B Termination Date, as applicable,
the Borrower shall have the right at any time to prepay any Borrowing, in whole
or in part, subject to the requirements of Section 2.16 and Section 2.17 but
otherwise without premium or penalty, but prepayment of Eurodollar Loans shall
require at least two 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, shall be irrevocable
and shall commit the Borrower to prepay such Borrowing by the amount stated
therein.
(b) On the date of any termination or reduction of the Total
Facility A Commitment or the Total Facility B Commitment pursuant to
Section 2.7(a), the Borrower shall pay or prepay so much of the Loans
as shall be necessary in order that the aggregate principal amount of
the Loans outstanding will not exceed the Total Facility A Commitment
or the Total Facility B Commitment following such termination or
reduction. Subject to the foregoing and the requirements of Section
2.7, 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 2.16 and Section 2.17.
(c) All Facility A Loans, together with accrued and unpaid
interest thereon, shall be due and payable in full on the Facility A
Termination Date.
(d) All Facility B Loans, together with accrued and unpaid
interest thereon, shall be due and payable in full on the Facility B
Termination Date.
(e) Upon the sale by the Borrower or any Subsidiary of any of
its assets, the Borrower shall prepay the Facility B Loans in an amount
equal to 100% of the Net Cash Proceeds received above five percent of
the Consolidated Net Worth of the Companies by the Borrower or any
Subsidiary; provided that no prepayment shall be required if the
proceeds of such asset sale are reinvested in equivalent assets within
the 12-month period immediately following the sale; and provided,
further, that no prepayment shall be required unless and until Borrower
has first made any prepayment required pursuant to Section 2.13(e) of
the Existing Credit Agreement. Any prepayment made under this Section
2.13(e) shall reduce the Total Facility B Commitment by the amount of
such prepayment.
(f) Upon the issuance by the Borrower of any public or privately
placed Debt or equity securities, the Borrower shall prepay the
Facility B Loans in an amount equal to 100% of the Net Cash Proceeds
received by the Borrower; provided however, the Borrower shall not be
required to make any prepayments under this Section 2.13(f) if such
issuance by the Borrower is of privately placed equity or equity-linked
securities. Any prepayment made under this Section 2.13(f) shall
reduce the total Facility B Commitment by the amount of such pre-
payment.
(g) All prepayments under this Section 2.13 shall be accompanied
by accrued interest on the principal amount being prepaid to the date
of prepayment.
2.14 Reserve Requirements; Change in Circumstances. (a) Notwith-
standing 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, 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 compensate 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). Notwithstanding the foregoing, in no event shall any Lender be permitted
to receive any compensation hereunder constituting interest in excess of the
Highest Lawful Rate.
(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). Notwithstanding the foregoing, in no event shall any Lender be
permitted to receive any compensation hereunder constituting interest
in excess of the Highest Lawful Rate.
(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 compen-
sation under this Section 2.14, 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 compen-
sation 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 2.14 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 2.14, 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 Eligible Assignees 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 2.14 agrees to sell its Commitment, Loans, Notes, and
interest in this Agreement and the other Loan Papers to any such
Eligible Assignee for an amount equal to the sum of the outstanding
unpaid principal of and accrued interest on such Loans and Notes plus
all other fees and amounts (including, without limitation, any
compensation claimed by such Lender under this Section 2.14 and as to
which such Lender has delivered the certificate required by Section
2.14(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 2.14, then such
Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable 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 other obligations
of the Borrower hereunder, the obligations of the Borrower under this
Section 2.14 shall survive for one year after the termination of this
Agreement and/or the payment or assignment of any of the Loans or
Notes.
2.15 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 Admini-
strative 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 Lender
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 Base Rate Loans, in which
event (A) all such Eurodollar Loans shall be automatically
converted to Base Rate Loans as of the effective date of such
notice as provided in paragraph (b) below and (B) all payments
and prepayments of principal which would otherwise have been
applied to repay the converted Eurodollar Loans shall instead
be applied to repay the Base Rate Loans resulting from the
conversion of such Eurodollar Loans.
(b) For purposes of this Section 2.15, 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.
2.16 INDEMNITY. THE BORROWER SHALL INDEMNIFY EACH LENDER AGAINST ANY
LOSS OR REASONABLE EXPENSE WHICH SUCH LENDER MAY SUSTAIN OR INCUR AS A
CONSEQUENCE OF (A) ANY FAILURE BY THE BORROWER TO FULFILL ON THE DATE OF ANY
BORROWING HEREUNDER THE APPLICABLE CONDITIONS SET FORTH IN SECTION 4, (B) ANY
FAILURE BY THE BORROWER TO BORROW HEREUNDER AFTER A NOTICE OF BORROWING PURSUANT
TO SECTION 2 HAS BEEN GIVEN, (C) ANY PAYMENT, PREPAYMENT, OR CONVERSION OF A
EURODOLLAR LOAN REQUIRED BY ANY OTHER PROVISION OF THIS AGREEMENT OR OTHERWISE
MADE ON A DATE OTHER THAN THE LAST DAY OF THE APPLICABLE INTEREST PERIOD FOR ANY
REASON, INCLUDING WITHOUT LIMITATION THE ACCELERATION OF OUTSTANDING LOANS AS A
RESULT OF ANY EVENT OF DEFAULT, (D) ANY FAILURE BY THE BORROWER FOR ANY REASON
(INCLUDING WITHOUT LIMITATION THE EXISTENCE OF A DEFAULT OR AN EVENT OF DEFAULT)
TO PAY, PREPAY OR CONVERT A EURODOLLAR LOAN ON THE DATE FOR SUCH PAYMENT,
PREPAYMENT OR CONVERSION, SPECIFIED IN THE RELEVANT NOTICE OF PAYMENT,
PREPAYMENT OR CONVERSION UNDER THIS AGREEMENT. THE INDEMNITY OF THE BORROWER
PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE SHALL INCLUDE, BUT NOT BE LIMITED
TO, ANY LOSS OR REASONABLE EXPENSE SUSTAINED OR INCURRED OR TO BE SUSTAINED OR
INCURRED IN LIQUIDATING OR EMPLOYING DEPOSITS FROM THIRD PARTIES ACQUIRED TO
EFFECT OR MAINTAIN SUCH LOAN OR ANY PART THEREOF AS A EURODOLLAR LOAN. SUCH LOSS
OR REASONABLE EXPENSE SHALL INCLUDE, WITHOUT LIMITATION, AN AMOUNT EQUAL TO THE
EXCESS, IF ANY, AS REASONABLY DETERMINED BY EACH LENDER OF (I) ITS COST OF
OBTAINING THE FUNDS FOR THE LOAN BEING PAID, PREPAID, OR CONVERTED OR NOT
BORROWED, PAID, PREPAID OR CONVERTED (BASED ON THE EURODOLLAR RATE APPLICABLE
THERETO) FOR THE PERIOD FROM THE DATE OF SUCH PAYMENT, PREPAYMENT, OR CONVERSION
OR FAILURE TO BORROW, PAY, PREPAY OR CONVERT TO THE LAST DAY OF THE INTEREST
PERIOD FOR SUCH LOAN (OR, IN THE CASE OF A FAILURE TO BORROW, PAY, PREPAY OR
CONVERT, THE INTEREST PERIOD FOR THE LOAN WHICH WOULD HAVE COMMENCED ON THE DATE
OF SUCH FAILURE TO BORROW, PAY, PREPAY OR CONVERT) OVER (II) THE AMOUNT OF
INTEREST (AS REASONABLY DETERMINED BY SUCH LENDER) THAT WOULD BE REALIZED BY
SUCH LENDER IN REEMPLOYING THE FUNDS SO PAID, PREPAID, OR CONVERTED OR NOT
BORROWED, PAID, PREPAID OR CONVERTED FOR SUCH PERIOD OR INTEREST PERIOD, AS THE
CASE MAY BE. A CERTIFICATE OF EACH LENDER SETTING FORTH ANY AMOUNT OR AMOUNTS
AND, IN REASONABLE DETAIL, THE COMPUTATIONS THEREOF, WHICH SUCH LENDER IS
ENTITLED TO RECEIVE PURSUANT TO THIS SECTION 2.16 SHALL BE DELIVERED TO THE
BORROWER (WITH A COPY TO THE ADMINISTRATIVE AGENT) AND SHALL BE CONCLUSIVE, IF
MADE IN GOOD FAITH, ABSENT MANIFEST ERROR. THE BORROWER SHALL PAY TO THE
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH LENDER THE AMOUNT SHOWN AS DUE ON
ANY CERTIFICATE WITHIN 30 DAYS AFTER ITS RECEIPT OF THE SAME. NOTWITHSTANDING
THE FOREGOING, IN NO EVENT SHALL ANY LENDER BE PERMITTED TO RECEIVE ANY
COMPENSATION HEREUNDER CONSTITUTING INTEREST IN EXCESS OF THE HIGHEST LAWFUL
RATE. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER OBLIGATIONS OF THE BORROWER
HEREUNDER, THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION 2.16 SHALL SURVIVE
FOR ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT AND/OR THE PAYMENT OR
ASSIGNMENT OF ANY OF THE LOANS OR NOTES.
2.17 Pro Rata Treatment. (a) 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 accor-
dance with the respective principal amounts of the Loans extended by each
Lender, if any, with respect to such Borrowing, and (b) 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.
2.18 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 2.14 or Section
2.16) 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 2.18
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.
2.19 Payments. (a) The Borrower shall make each payment hereunder
and under any instrument delivered hereunder not later than 1:00 p.m. (Dallas,
Texas time) on the day when due in dollars to the Administrative Agent at its
address referred to on Schedule 1 for the account of the Lenders, in immediately
available funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal of or interest on
Loans (other than pursuant to Section 2.14 and Section 2.16) or Commitment Fees
ratably to the Lenders and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of
this Agreement.
(b) Whenever any payment hereunder or under any Note shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in all such case be included in the computation of payment of
interest or Commitment Fee, as the case may be; provided, however, if
such extension would cause payment of interest on or principal of a
Eurodollar Loan to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made or will
make such payment in full to the Administrative Agent on such date and
the Administrative Agent may, in reliance upon such assumption, cause
to be distributed to each Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent the Borrower
shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent forthwith
on demand such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Admini-
strative Agent, at the Federal Funds Rate.
(d) All payments (whether of principal, interest, fees,
reimbursements, or otherwise) by the Borrower under this Agreement
shall be made without setoff or counterclaim and shall be made free and
clear of and without deduction for any present or future Tax, levy,
impost, or any other charge against the Borrower, if any, of any nature
whatsoever now or hereafter imposed by any Tribunal excluding, in the
case of each Lender and the Agents, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the Laws of
which such Lender (or its Applicable Lending Office) or such Agent (as
the case may be) is organized or any political subdivision thereof. If
the making of such payments by the Borrower is prohibited by Law unless
such a Tax, levy, impost, or other charge is deducted or withheld
therefrom, the Borrower shall pay to the Administrative Agent, on the
date of each such payment, such additional amounts (without duplication
of any other amounts required to be paid by the Borrower pursuant to
Section 2.14) as may be necessary in order that the net amounts
received by the Lenders after such deduction or withholding shall equal
the amounts which would have been received if such deduction or
withholding were not required. The Borrower shall confirm that all
applicable Taxes, if any, imposed on this Agreement or transactions
hereunder shall have been properly and legally paid by it to the
appropriate taxing authorities by sending official Tax receipts or
notarized copies of such receipts to the Administrative Agent within 30
days after payment of any applicable Tax.
(e) So long as no Event of Default has occurred and is
continuing, payments and prepayments of the Obligation shall be applied
first to accrued interest then due and payable and to the remaining
Obligation in the order and manner as the Borrower may direct;
provided, however, unless a Default or Event of Default has occurred
and is continuing, any payments and prepayments made pursuant to
Section 2.7(a) or Sections 2.13(a) through (f) shall be applied first
to accrued interest then due and payable, then to principal of Facility
B Loans and finally to principal of Facility A Loans. At any time
during which an Event of Default has occurred and is continuing or if
the Borrower fails to give direction, any payment or prepayment shall
be applied in the following order: (i) to expenses and fees for which
the Agents and the Lenders have not been reimbursed in accordance with
the Loan Papers; (ii) to accrued interest; and (iii) to the remaining
Obligation in the order and manner as the Majority Lenders deem
appropriate.
2.20 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.
2.21 Booking Loans. Any Lender may make, carry, or transfer Loans
at, to, or for the account of any of its branch offices.
2.22 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.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agents and the Lenders as follows:
3.1 Purpose of Credit Facility. The Borrower will use Loan
proceeds only (i) to finance the Acquisitions, (ii) to repay indebtedness of
the Borrower with respect to commercial paper issued by it or for its account,
and (iii) for working capital and other lawful corporate purposes of the
Companies. The proceeds loaned hereunder will not be used directly or
indirectly for the purpose of purchasing or carrying, or for the purpose of
extending credit to others for the purpose of purchasing or carrying, any
Margin Stock, or to repay any Debt which was created for such purposes.
3.2 Corporate Existence, Good Standing, and Authority. Each Company
is, to the best of the Borrower's knowledge, duly organized, validly existing,
and in good standing 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.
3.3 Subsidiaries. Exhibit 21 of 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 Subsidiaries of the Borrower and correctly
lists, as to each Subsidiary, (a) its name and (b) its jurisdiction of
incorporation. The shares of capital stock of each Subsidiary owned by the
Borrower (either directly or indirectly through another Subsidiary) as set
forth on Exhibit 21 of 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 Subsidiary and are owned
by the Borrower free and clear of all Liens except Permitted Liens.
3.4 Financial Statements. The Current Financials were prepared in
accordance with GAAP and present fairly the consolidated financial condition
and the results of operations of the 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 connec-
tion with acquisitions and financing activities.
3.5 Compliance with Laws, Charter, and Agreements. No Company is,
nor will the execution, delivery, performance, or observance of the Loan Papers
cause any Company to be, in violation of any Laws or any Material Agreements to
which it is a party, other than such violations which would not reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any
Significant Subsidiary is, nor will the execution, delivery, performance, or
observance of the Loan Papers cause the Borrower or any Significant Subsidiary
to be, in violation of its bylaws or charter.
3.6 Litigation. Except as described in the Form 10-Q filed by the
Borrower for the quarterly period ended March 31, 2000 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 3.6 in
relation to Litigation would include any actions or proceedings pending or
threatened against any Company before any court or Tribunal seeking damages,
net of insurance proceeds to the Company, in excess of $10,000,000 in any case
or 1% of Consolidated Net Worth in the aggregate, or which might result in any
Material Adverse Effect.
3.7 Taxes. All 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 due and payable have been paid
other than Taxes for which the criteria for Permitted Liens have been satisfied.
3.8 Environmental Matters. No Company's ownership of its assets
violates any applicable Environmental Law, other than such violations which
would not reasonably be expected to have a Material Adverse Effect. To the
Borrower's knowledge, no investigation or review is pending or threatened by
any Tribunal with respect to any alleged violation of any Environmental Law in
connection with any Company's assets. None of any Company's assets have been
used by such Company or, to the Borrower's knowledge, any other Person as a
dump site for any Hazardous Substance except where such use would not
reasonably be expected to have a Material Adverse Effect.
3.9 Employee Benefit Plans. (a) No employee benefit plan as defined
in the Code and Title IV of ERISA of any Company has incurred an accumulated
funding deficiency in an amount sufficient to have a Material Adverse Effect,
(b) no Company has incurred 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 partici-
pation 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.
3.10 Properties; Liens. Each Company has good and marketable
(except for Permitted Liens) title to all its property reflected on the Current
Financials (except for dispositions of property in the ordinary course of
business between the date or dates thereof and the date hereof). Except for
Permitted Liens, there is no Lien on any property of any Company, and the
execution, delivery, performance, or observance of the Loan Papers will not
require or result in the creation of any Lien other than Permitted Liens.
3.11 Holding Company and Investment Company Status. The Borrower is
not (a) a "holding company," a "subsidiary company" of a "holding company," an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, (b) a "public utility" within the meaning of
the Federal Power Act, as amended, (c) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (d) an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended,
or (e) directly subject to the jurisdiction of the Federal Communications
Commission or any public service commission.
3.12 Transactions with Affiliates. Except as disclosed on Schedule
3.12, no Company is a party to a material transaction with any of its Affiliates
other than transactions in the ordinary course of business and upon fair and
reasonable terms not materially less favorable than such Company could obtain or
could become entitled to in an arm's-length transaction with a Person that was
not its Affiliate. For purposes of this Section 3.12, such transactions are
"material" if they, individually or in the aggregate, require any Company to pay
more than 1 percent of Consolidated Net Worth over the course of such
transactions.
3.13 Leases. All material leases under which any Company is lessee
or tenant are in full force and effect, and no default or potential default
exists thereunder.
3.14 Labor Matters. There are no actual or, to the Borrower's
knowledge, threatened strikes, labor disputes, slow downs, walkouts, or other
concerted interruptions of operations by any Company's employees, the effect of
which would have a Material Adverse Effect.
3.15 Insurance. Each Company maintains with financially sound
insurance companies or associations (or, as to workers' compensation or similar
insurance, with an insurance fund or by self-insurance authorized by the
jurisdictions in which it operates) insurance concerning its properties and
businesses against such casualties and contingencies and of such types and in
such amounts (and with co-insurance and deductibles) as is customary in the case
of same or similar businesses; provided, however, a program of self-insurance in
such amounts and against such risks as are prudent and which is consistent with
accepted business practice shall constitute compliance with this Section 3.15.
3.16 Solvency. The Companies are, and after giving effect to the
transactions contemplated under the Loan Papers will be, Solvent.
3.17 Business. The business of the Borrower, as presently conducted
and as proposed to be conducted, is set forth on Schedule 3.17.
3.18 General. 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 4. CONDITIONS PRECEDENT.
4.1 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, the Notes, a Notice of
Borrowing, and the Current Financials.
(b) Officers' Certificates. A certificate dated as of the
date hereof, executed and delivered by the Borrower, certifying
that (i) attached is a true, correct, and complete copy of (A) the
Borrower's charter, certified by the appropriate state official and
dated 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 opinion,
dated the Closing Date and substantially in the form of Exhibit C of
Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., special
counsel to the Borrower.
(e) 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.
(f) Other. Such other agreements, documents, instruments,
opinions, certificates, and evidences as the Administrative Agent
may reasonably request.
4.2 Acquisition Loans. No Lender will be obligated to fund any
Loan to finance any Acquisition unless the Administrative Agent has received,
in form and substance satisfactory to the Acquisition Agent and its special
counsel:
(a) Closing of Acquisition. Evidence that all conditions
precedent to the closing of such Acquisition (except payment of the
purchase price) have been satisfied, together with copies of all of
the executed Acquisition Documents relating thereto.
(b) Opinions of GTE Entities' Counsel. A letter from the GTE
Entities' counsel stating that the Administrative Agent and the Lenders
may rely on GTE Entities' counsel's opinion to the Borrower issued in
connection with such Acquisition, together with a copy of such opinion,
both in form and substance satisfactory to Administrative Agent.
4.3 Each Loan. In addition, the Lenders will not be obligated to
fund any Loan unless at the time of such funding (a) the representations and
warranties made in the Loan Papers are true and correct in all material respects
(except to the extent that (i) the representations and warranties speak to a
specific date or (ii) the facts on which such representations and warranties
are based have been changed by transactions contemplated or permitted by this
Agreement), (b) no Default or Event of Default shall have occurred and shall be
continuing, (c) the funding of such Loan is permitted by Law, and (d) if
requested by the 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.
4.4 Materiality of Conditions. Each condition precedent herein is
material to the transactions contemplated herein, and time is of the essence
in respect of each thereof.
4.5 Waiver of Conditions. Subject to the provisions of Section
9.15, 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 9.15,
all Lenders) specifically waive each such item in writing.
SECTION 5. 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, unless the Borrower receives a prior written notice from the Majority
Lenders (or, if required by Section 9.15, all Lenders) that they do not object
to a deviation, the Borrower covenants and agrees with the Agents and the
Lenders as follows:
5.1 Use of Proceeds. Proceeds of Loans advanced hereunder shall
be used only as represented herein.
5.2 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.
5.3 Items to be Furnished. The Borrower shall cause the following
to be furnished to 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 Peat Marwick 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, statements, documents, plans, and other
written communications furnished by or on behalf of any Company to
stockholders or to the Securities and Exchange Commission. However,
only registration statements covering more than 2 percent of the
Borrower's outstanding shares of common stock shall be required to be
furnished unless specifically requested by the 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 adversely affect the material franchises,
permits, or rights for the operation of the business of any Company.
(e) Notice, promptly after the Borrower knows or has reason
to know of, (i) the existence of any Material Litigation as defined in
Section 3.6, (ii) any material change in any material fact or circum-
stance 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 5.25(c).
(g) Promptly upon the Administrative Agent's reasonable
request, such information (not otherwise required to be furnished
under the Loan Papers) respecting the business affairs, assets, and
liabilities of any Company, and any opinions, certifications, and
documents, in addition to those mentioned herein.
5.4 Inspection. The Borrower shall allow the 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.
5.5 Taxes. Each Company shall promptly pay when due any Taxes,
except those which if unpaid would not cause a Material Adverse Effect and Taxes
for which the criteria for Permitted Liens have been satisfied. No Company shall
use any proceeds of Loans to pay the wages of employees unless a timely payment
to or deposit with the United States of America of all amounts of Tax required
to be deducted and withheld with respect to such wages is also made.
5.6 Payment of Obligations. Each Company shall promptly pay (or
renew and extend) all of its material obligations as the same become due, but no
Company will make any voluntary prepayment of the principal of any Debt other
than the Obligation, whether subordinate to the Obligation or not, if a Default
or Event of Default exists under any Loan Paper.
5.7 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
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.
5.8 Maintenance of Existence, Assets, Business, and Insurance.
Except as permitted by Section 5.14, each Company shall at all times: Maintain
its corporate existence and authority to transact business and good standing in
its jurisdiction of incorporation or organization and all other jurisdictions
where the failure to so maintain could reasonably be expected to have a Material
Adverse Effect; maintain all licenses, permits, and franchises necessary for its
business, where the failure to so maintain could reasonably be expected to have
a Material Adverse Effect; keep all of its assets which are necessary to its
business in good working order and condition (ordinary wear and tear excepted),
and make all necessary repairs and replacements thereto; and maintain either (a)
insurance with such insurers, in such amounts, and covering such risks, as shall
be ordinary and customary in the industry or (b) a comparable self-insurance
program.
5.9 Preservation and Protection of Rights. Each Company shall
perform such acts and duly authorize, execute, acknowledge, deliver, file, and
record any additional agreements, documents, instruments, and certificates as
the 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.
5.10 Employee Benefit Plans. No Company will, directly or indirectly
if it would have a Material Adverse Effect, (a) engage in any "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the Code),
(b) permit the funding requirements under ERISA with respect to any employee
benefit plan established or maintained by any Company to ever be less than the
minimum required by ERISA, (c) permit any employee benefit plan established or
maintained by any Company to ever be subject to involuntary termination
proceedings, or (d) fully or partially withdraw from any Multiemployer Plan.
5.11 Liens. No Company will create, incur, or suffer or permit to
be created or incurred or to exist any Lien (other than Permitted Liens) upon
any of its assets 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.
5.12 Restricted Payments. The Borrower will not directly or
indirectly make or declare any Restricted Payment, unless no Default has
occurred and is continuing or would result from such Restricted Payment.
5.13 [Intentionally Omitted]
5.14 Acquisitions, Mergers, and Dissolutions. No Company will merge
or consolidate with any Person other than any merger or consolidation whereby
the Borrower (or another Company, if the Borrower is not a party thereto) is the
surviving corporation and immediately after such merger or consolidation there
shall not exist any Default or Event of Default.
5.15 Loans, Advances, and Investments.Except as permitted by Section
5.14, 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) the Acquisitions, (b) expense accounts for and other
advances to directors, officers, and employees of such Company in the ordinary
course of business not to exceed $1,000,000 in the aggregate outstanding at any
time; (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) certificates
of deposit issued by any of the Lenders; (e) certificates of deposit which are
fully insured by the Federal Deposit Insurance Corporation or are issued by
commercial banks organized under the Laws of the United States of America or any
state thereof and having combined capital, surplus, and undivided profits of not
less than $100,000,000 (as shown on such Person's most recently published
statement of condition), and 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-1 by
▇▇▇▇▇'▇ or P-1 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, 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 5.15; (k) investments in the capital stock or securities of
or loans to or Guaranties of the Debt of any Person engaged in business
comparable to the general business of any Company (x) in which a Company
possesses (or will possess, after such investment) an equity ownership interest
in such Person or (y) secured by the borrower's interest in such business; (l)
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; (m) Guaranties
of the Debt of the Borrower's Employee Stock Ownership Plan; and (n) other
loans, advances, Guaranties, and investments which never exceed in the aggregate
at any time 25% of Adjusted Consolidated Net Worth (valued on the basis of
original cost, plus subsequent cash and stock additions, less any write-down in
value).
5.16 Transactions with Affiliates. No Company will enter into any
material transaction with any of its Affiliates, other than transactions in the
ordinary course of business and upon fair and reasonable terms not materially
less favorable than such Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate. For purposes
of this Section 5.16, 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.
5.17 Sale of Assets. No Company will sell, lease, or otherwise
dispose of all or any substantial part of its assets other than (a) sales of
inventory in the ordinary course of business, (b) sales of equipment for a fair
and adequate consideration, provided that if any such equipment is sold, and a
replacement is necessary for the proper operation of the business of such
Company, such Company will replace such equipment with adequate equipment, (c)
the exchange of assets -- other than equipment -- for similar assets of equal or
greater value, (d) the sale, discount, or transfer of delinquent notes or
accounts receivable in the ordinary course of business for purposes of
collection, and (e) in any 12-month period, dispositions of assets (net of
acquisitions of similar assets) that, when added to all other such dispositions
by all Companies, do not exceed 10 percent of Consolidated Net Worth.
5.18 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.
5.19 New Businesses. No Company will engage in any material
business other than the businesses in which it is presently engaged or
businesses related thereto, as described on Schedule 3.17.
5.20 Assignment. The Borrower will not assign or transfer any of
its Rights, duties, or obligations under any of the Loan Papers.
5.21 Fiscal Year and Accounting Methods. The Borrower will not
change its fiscal year or accounting methods (other than immaterial changes and
changes required by changes in GAAP) without the prior written consent of the
Administrative Agent (which shall not be unreasonably withheld).
5.22 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.
5.23 Environmental Laws. Each Company shall conduct its business
so as to comply with all applicable Environmental Laws and shall promptly take
corrective action to remedy any non-compliance with any Environmental Law,
except where failure to so comply or take such action would not reasonably be
expected to have a Material Adverse Effect. Each Company shall maintain a system
which, in its reasonable business judgment, will assure its continued compliance
with Environmental Laws.
5.24 Environmental Indemnification. Borrower shall indemnify,
protect, and hold each Indemnified Party harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, proceedings, costs, expenses (including, without limitation, all
reasonable attorneys' fees and legal expenses whether or not suit is brought),
and disbursements of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against such Indemnified Parties, with
respect to or as a direct or indirect result of the violation by any Company of
any Environmental Law; or with respect to or as a direct or indirect result of
any Company's generation, manufacture, production, storage, release, threatened
release, discharge, disposal or presence in connection with its properties of a
Hazardous Substance including, without limitation, (a) all damages of any such
use, generation, manufacture, production, storage, release, threatened release,
discharge, disposal, or presence, or (b) the costs of any required or necessary
environmental investigation, monitoring, repair, cleanup, or detoxification and
the preparation and implementation of any closure, remedial, or other plans. The
provisions of and undertakings and indemnification set forth in this paragraph
shall survive the satisfaction and payment of the Obligation and termination of
this Agreement for a period of time set forth in the statute of limitations in
any applicable Environmental Law.
5.25 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 Funded Debt of the Companies 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 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 Funded Debt of its Subsidiaries to EBITDA
of the Companies to exceed 1.50 to 1.0.
(c) 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 EBIT of the Companies to the sum of (i) consolidated interest
expense of the Companies 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 5.25(c), EBIT 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
5.25(c), "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.
(d) 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 5.25 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 of the Acquisitions, calculations under this Section 5.25 shall be
made on a pro forma basis as if the properties acquired in connection with such
Acquisitions were properties of the Companies during the period of calculation.
SECTION 6. DEFAULT. The term "Event of Default" means the occurrence and
continuance of any one or more of the following events (including the passage
of time, if any, specified therefor) (provided that, if any such event occurs
and the Lenders or Majority Lenders, as required by the provisions of Section
9.15, subsequently agree in writing that they will not exercise any remedies
hereunder as a result thereof, the occurrence and continuance of such event
shall no longer be deemed an Event of Default hereunder insofar as the state
of facts giving rise to such event is concerned):
6.1 Payment of Obligation. The failure or refusal of the Borrower to
pay any portion of the Obligation, as the same become due in accordance with
the terms of the Loan Papers and, in the case of an interest payment, such
failure or refusal continues for a period of 5 Business Days (no grace period
being given for failure or refusal to make a principal payment). Notwithstanding
the foregoing, the Borrower's failure to pay, if caused solely by a wire
transfer malfunction or similar problem outside the Borrower's control, shall
not be deemed an Event of Default.
6.2 Covenants.
(a) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition con-
tained in Sections 5.3(e)(iii), 5.11, 5.12, 5,14, 5.16, 5.19, 5.20,
5.21, 5.22 and 5.25.
(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.
6.3 Debtor Relief. The Companies shall not be Solvent, or any
Company (a) fails to pay its Debts generally as they become due, (b) voluntarily
seeks, consents to, or acquiesces in the benefit of any Debtor Relief Law, or
(c) becomes a party to or is made the subject of any proceeding provided for by
any Debtor Relief Law, other than as a creditor or claimant, that could suspend
or otherwise adversely affect the Rights of the Agents or the 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).
6.4 Attachment. The failure of any Company to have discharged within
60 days after commencement any attachment, sequestration, or similar proceeding
which, individually or together with all such other proceedings then pending,
affects assets of such Company having a value (individually or collectively) of
1 percent of Consolidated Net Worth or more.
6.5 Payment of Judgments. Any Company fails to pay any judgments or
orders for the payment of money in excess of 1 percent of Consolidated Net Worth
(individually or collectively) rendered against it or any of its assets and
either (a) any enforcement proceedings shall have been commenced by any creditor
upon any such judgment or order or (b) a stay of enforcement of any such
judgment or order, by reason of pending appeal or otherwise, shall not be in
effect prior to the time its assets may be lawfully sold to satisfy such
judgment.
6.6 Default Under Other Agreements. A default exists under any
Material Agreement to which any Company is a party, the effect of which is to
cause, or which permits the holder thereof (or a trustee or representative of
such holder) to cause, unpaid consideration of at least 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.
6.7 Antitrust Proceedings. A petition or complaint is filed before
or by any Tribunal (including, without limitation, the Federal Trade Commission,
the United States Justice Department, or the Federal Communications Commission)
seeking to cause the Borrower or any Subsidiary to divest a significant portion
of its assets or any of its Subsidiaries pursuant to any antitrust, restraint
of trade, unfair competition, or similar Laws, and such petition or complaint
is not dismissed or discharged within 270 days after the filing thereof.
6.8 Misrepresentation. 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 Admini-
strative Agent or any Lender pursuant to the Loan Papers is false, misleading,
or erroneous when made or delivered in any material respect.
6.9 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
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 Borrower's outstanding voting securities
ordinarily having the right to vote for the election of directors of
Borrower; or
(b) the individuals who, as of June 30, 2000 constituted the
Board of Directors of Borrower (the "Board" generally and as of June
30, 2000 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 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 June 30, 2000, 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.
6.10 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.
6.11 Validity and Enforceability of Loan Documents. 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 7. RIGHTS AND REMEDIES.
7.1 Remedies Upon Event of Default.
(a) Should an Event of Default occur and be continuing under
Section 6.3, the commitment of the Lenders to make Loans shall auto-
matically 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 7.1(a), declare the entire unpaid balance of the
Obligation, or any part thereof, immediately due and payable, whereupon
it shall be due and payable (and notice of such declaration shall
promptly be given thereafter by the 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.
7.2 Waivers. The Borrower hereby waives presentment and demand
for payment, protest, notice of intention to accelerate, notice of acceleration,
and notice of protest and nonpayment, and agrees that its liability with respect
to the Obligation, or any part thereof, shall not be affected by any renewal or
extension in the time of payment of the Obligation, by any indulgence, or by
any release or change in any security for the payment of the Obligation.
7.3 Performance by 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.
7.4 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.
7.5 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 7.
7.6 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.
7.7 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.
7.8 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 2.19.
7.9 Certain Proceedings. The Borrower will promptly execute and
deliver or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers the
Agents or the 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.
7.10 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 8. AGREEMENT AMONG LENDERS.
8.1 Agents.
(a) Each Lender hereby irrevocably appoints and authorizes
the Administrative Agents to act on its behalf and to exercise such
powers under this Agreement as are specifically delegated to or
required of the Administrative Agent by the terms hereto, together
with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement or the Notes
(including, without limitation, enforcement or collection of the
Notes), the Administrative Agents shall not be required to exercise
any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders,
and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Administrative Agent shall not
be required to take any action which exposes it to personal liability
or which is contrary to this Agreement or applicable Law.
(b) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be
removed as the Administrative Agent under this Agreement and the Notes
at any time with cause by all Lenders other than the Administrative
Agent (the "Removing Lenders"). Upon any such resignation or removal,
the Majority Lenders shall have the right, with the consent of the
Borrower, not to be unreasonably withheld, to appoint a successor
Administrative Agent from among the Lenders (other than the resigning
Administrative Agent). If no successor Administrative Agent shall have
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 calendar days after the retiring Administrative
Agent's giving notice of resignation or the Removing Lenders' removal
of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, with the consent of the Borrower,
not to be unreasonably withheld, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the Laws of or
authorized to do business in the United States of America or any state
thereof and having a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as the
Administrative Agent hereunder and under the Notes by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the Notes. After any retiring
Administrative Agent's resignation or removal as the Administrative
Agent hereunder and under the Notes, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement
and the Notes.
(c) Citibank, N.A. is hereby appointed to act as Syndication
Agent hereunder. Banc of America Securities LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. are hereby appointed as Joint Lead Arrangers and Joint
Book Managers hereunder. Neither the Syndication Agent nor the Joint
Lead Arrangers and Joint Book Managers shall have any Right, obliga-
tion, liability, responsibility or duty under this Agreement in such
capacity.
(d) If Administrative Agent fails to take any action under
any Loan Paper after an Event of Default and within a reasonable time
after being reasonably requested to do so by any Lender (when such
Lender is entitled to make such request under the Loan Papers and after
such requesting Lender has obtained the concurrence of such other
Lenders as may be required hereunder), the Administrative Agent shall
not suffer or incur any liability as a result of such failure or
refusal, but such requesting Lender may request the Administrative
Agent to resign as the Administrative Agent, whereupon the Administra-
tive Agent shall so resign upon receiving such request.
(e) The Administrative Agent, in its capacity as a Lender,
shall have the same Rights under the Loan Papers as any other Lender
and may exercise the same as though it were not acting as the Admini-
strative Agent; the term "Lender" shall, unless the context otherwise
indicates, include the Administrative Agent; and any resignation by
the Administrative Agent hereunder shall not impair or otherwise affect
any Rights which it has or may have in its capacity as an individual
Lender.
(f) Subject in all respects to the terms and conditions of
the Loan Papers, the Agents may be engaged in, or may hereafter engage
in, one or more loan, letter of credit, leasing, or other financing
transactions (collectively, the "other financings") not the subject of
the Loan Papers, with one or more of the Companies, or may act as
trustee on behalf of, or depositary for, or otherwise engage in other
business transactions with one or more of the Companies, in each case
with no responsibility to account therefor to the Lenders. Without
limiting Rights to which the Lenders are specifically entitled under
the Loan Papers, no other Lenders shall have, by virtue of their being
parties hereto, any interest in (i) any such other financings, (ii) any
present or future guaranties by or for the account of any Company which
are not contemplated or included in the Loan Papers, (iii) any present
or future offset exercised by such Agent in respect of such other
financings, or (iv) any present or future property taken as security
for any such other financings, even if such property may become
security for the obligations of any Company arising under the Loan
Papers by reason of a general description of indebtedness related to
any such other financings; provided that, if any payments in respect of
such guaranties or such property or the proceeds thereof shall be
applied to reduce the Obligation, then each Lender shall be entitled to
share in such application according to its pro rata part thereof.
8.2 Expenses. Each Lender shall pay its pro rata part of any
reasonable expenses (including, without limitation, court costs, reasonable
attorneys' fees, and other costs of collection) incurred by the Administrative
Agent in connection with any of the Loan Papers if the Administrative Agent does
not receive reimbursement therefor from other sources within 60 days after
incurred; provided that each Lender shall be entitled to receive its pro rata
part of any reimbursement for such expenses, or part thereof, which the
Administrative Agent subsequently receives from such other sources.
8.3 Proportionate Absorption of Losses. Except as herein provided,
nothing in the Loan Papers shall be deemed to give any Lender any advantage over
any other Lender insofar as the portion of the Obligation arising under the Loan
Papers is concerned, or to relieve any Lender from absorbing its pro rata part
of any losses sustained with respect to the Obligation (except to the extent
unilateral actions or inactions by any Lender result in any credit, allowance,
setoff, defense, or counterclaim solely with respect to all or any part of such
Lender's pro rata part of the Obligation).
8.4 Delegation of Duties; Reliance. The Administrative Agent may
exercise any of its duties under the Loan Papers by or through its officers,
directors, employees, attorneys, or agents (collectively, "Representatives"),
and the Administrative Agent and its Representatives shall (a) be entitled to
rely upon (and shall be protected in relying upon) any writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telecopy, telegram
or teletype message, statement, order, or other documents or conversation
believed by it or them to be genuine and correct and to have been signed or made
by the proper Person and, with respect to legal matters, upon opinion of counsel
selected by the Administrative Agent, (b) be entitled to deem and treat each
Lender as the owner and holder of its pro rata part of the Obligation for all
purposes until, subject to Section 9.20, written notice of the assignment or
transfer thereof shall have been given to and received by the Administrative
Agent (and, any request, authorization, consent, or approval of any Lender shall
be conclusive and binding on each subsequent holder, assignee, or transferee of
such Lender's pro rata part of the Obligation or Participant therein), and (c)
not be deemed to have notice of the occurrence of an Event of Default unless an
officer of the Administrative Agent has actual knowledge thereof or the
Administrative Agent has been notified thereof by a Lender or the Borrower.
8.5 Limitation of Liability.
(a) Neither the Administrative Agent nor any of its
Representatives (as defined in Section 8.4) shall be liable for any
action taken or omitted to be taken by it or them under the Loan
Papers in good faith and believed by it or them to be within the
discretion or power conferred upon it or them by the Loan Papers or be
responsible for the consequences of any error of judgment, except for
fraud, gross negligence, or willful misconduct (IT BEING THE EXPRESS
INTENTION OF THE PARTIES THAT THE ADMINISTRATIVE AGENT AND ITS
REPRESENTATIVES SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS
RESULTING FROM THEIR ORDINARY CONTRIBUTORY NEGLIGENCE), and neither
the Administrative Agent nor any of its Representatives has a fiduciary
relationship with any Lender by virtue of the Loan Papers (provided
that nothing herein shall negate the obligation of Administrative Agent
to account for funds received by it for the account of any Lender).
(b) Unless indemnified to its satisfaction against loss, cost,
liability, and expense, the Administrative Agent shall not be compelled
to do any act under the Loan Papers or to take any action toward the
execution or enforcement of the powers thereby created or to prosecute
or defend any suit in respect of the Loan Papers. If the Administrative
Agent requests instructions from the Lenders or from the Majority
Lenders, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with
any Loan Paper, the Administrative Agent shall be entitled (but shall
not be required) to refrain (without incurring any liability to any
Person by so refraining) from such act or action unless and until it
has received such instructions. In no event, however, shall the
Administrative Agent or any of its Representatives be required to take
any action which it or they reasonably determine could incur for it or
them criminal or onerous civil liability.
(c) The Administrative Agent shall not be responsible in any
manner to any Lender or any Participant for, and each Lender represents
and warrants that it has not relied upon the Administrative Agent in
respect of, (i) the creditworthiness of the Borrower and the risks
involved to such Lender, (ii) the effectiveness, enforceability,
genuineness, validity, or the due execution of any Loan Paper, (iii)
any representation, warranty, document, certificate, report, or
statement made therein or furnished thereunder or in connection
therewith, or (iv) observation of or compliance with any of the terms,
covenants, or conditions of any Loan Paper on the part of any Company.
Each Lender also acknowledges and agrees that it will, independently
and without reliance upon the Administrative Agent or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement. Each Lender agrees to
indemnify the Administrative Agent and its Representatives and hold
them harmless from and against (but limited to such Lender's pro rata
part of) any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses, and
reasonable disbursements of any kind or nature whatsoever which may be
imposed on, asserted against, or incurred by any of them in any way
relating to or arising out of the Loan Papers or any action taken or
omitted by them under the Loan Papers, except to the extent the same
result solely from fraud, gross negligence, or willful misconduct by
the Administrative Agent or its Representatives (it being the express
intention of the parties that the Administrative Agent and its
Representatives shall have no liability for actions and omissions
resulting from their ordinary contributory negligence).
8.6 Default. Upon the occurrence and continuance of an Event of
Default, the Lenders agree to promptly confer in order that the Majority Lenders
(or, if required by Section 9.15, all Lenders) may agree upon a course of action
for the enforcement of the Rights of the Lenders; provided that the
Administrative Agent shall be entitled (but not obligated) to proceed to take
any actions necessary in its reasonable judgment to preserve the Rights of the
Administrative Agent and the Lenders hereunder, pending agreement by the
Majority Lenders (or, if required by Section 9.15, all Lenders) on the course of
action to be taken.
8.7 Limitation of Liability of Lenders. No Lender or any
Participant shall incur any liability to any other Lender or Participant except
for acts or omissions in bad faith, and no Lender or any Participant shall incur
any liability to any Company or any other Person for any act or omission of any
other Lender or any Participant.
8.8 Relationship of Lenders. Nothing herein shall be construed
as creating a partnership or joint venture among the Agents, the Agents and the
Lenders, or the Lenders.
8.9 Foreign Lenders. Each Lender that is organized under the
Laws of any jurisdiction other than the United States of America or any State
thereof (a) represents to the Administrative Agent and the Borrower that (i)
under applicable Laws and treaties no Taxes will be required to be withheld by
the Administrative Agent or the Borrower with respect to any payments to be made
to such Lender in respect of the Obligation and (ii) it has furnished to the
Administrative Agent and the Borrower two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such Lender claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder), and (b) covenants to (i)
provide the Administrative Agent and the Borrower a new Form 4224 or Form 1001
upon the obsolescence of any previously delivered form in accordance with
applicable U.S. Laws and amendments thereto duly executed and completed by such
Lender and (ii) comply from time to time with all applicable U.S. Laws with
regard to such withholding tax exemption.
8.10 Benefits of Agreement. Except for requiring the Borrower's
consent under Section 8.1(b) and the representations and covenants in Section
8.9 in favor of the Borrower, none of the provisions of this Section 8 shall
inure to the benefit of any Company or any Person other than the Agents, the
Lenders, and the Participants; consequently, neither any Company nor any other
Person shall be entitled to rely upon, or to raise as a defense, in any manner
whatsoever, the failure of any Agent or any Lender to comply with such
provisions.
SECTION 9. MISCELLANEOUS.
----------------------------------------
9.1 Changes in GAAP. All accounting and financial terms used in
any of the Loan Papers and the compliance with each covenant contained in the
Loan Papers which relates to financial matters shall be determined in accordance
with GAAP, except to the extent that a deviation therefrom is expressly stated
in such Loan Papers. Should a change in GAAP require a change in any method of
accounting or should any voluntary change in the accounting methods be permitted
pursuant to Section 5.21, 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.
9.2 Money and Interest. Unless stipulated otherwise (a) all
references in any of the Loan Papers to "dollars," "money," "payments," or other
similar financial or monetary terms are references to currency of the United
States of America and (b) all references to interest are to simple and not
compound interest.
9.3 Number and Gender of Words. Whenever in any Loan Paper the
singular number is used, the same shall include the plural where appropriate,
and vice versa; and words of any gender in any Loan Paper shall include each
other gender where appropriate. The words "herein," "hereof," and "hereunder,"
and other words of similar import refer to the relevant Loan Paper as a whole
and not to any particular part or subdivision thereof.
9.4 Headings. The headings, captions, and arrangements used in
any of the Loan Papers are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify, or modify the terms of the Loan Papers,
nor affect the meaning thereof.
9.5 Exhibits. If any Exhibit, which is to be executed and
delivered, contains blanks, the same shall be completed correctly and in
accordance with the terms and provisions contained and as contemplated herein
prior to, at the time of, or after the execution and delivery thereof.
9.6 Communications. Unless specifically otherwise provided,
whenever any Loan Paper requires or permits any consent, approval, notice,
request, or demand from one party to another, such communication must be in
writing (which may be by telecopy) to be effective and shall be deemed to have
been given on the day actually delivered or, if mailed, on the Business Day it
is received by the party to be notified at the address indicated on Schedule 1
(unless changed by notice pursuant hereto).
9.7 Form and Number of Documents. Each agreement, document,
instrument, or other writing to be furnished under any provision of this
Agreement must be in form and substance and in such number of counterparts as
may be reasonably required by the Administrative Agent and its counsel.
9.8 Exceptions to Covenants. The Borrower shall not take any
action or fail to take any action which is permitted as an exception to any of
the covenants contained in any of the Loan Papers if such action or omission
would result in the breach of any other covenant contained in any of the Loan
Papers.
9.9 Survival. All covenants, agreements, undertakings, repre-
sentations, and warranties made in any of the Loan Papers (a) shall survive all
closings under the Loan Papers, (b) except as otherwise indicated, shall not be
affected by any investigation made by any party, and (c) unless otherwise
provided herein shall terminate upon the later of the termination of this
Agreement and the payment in full of the Obligation.
9.10 Governing Law. The Laws (other than conflict-of-laws
provisions thereof) of the State of New York and of the United States of America
shall govern the Rights and duties of the parties hereto and the validity,
construction, enforcement, and interpretation of the Loan Papers.
9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY HERETO, IN
EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (a) IRREVOCABLY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF
TEXAS AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY
LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE LOAN PAPERS AND THE
OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY TEXAS LAW, (b) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN
CONNECTION WITH THE LOAN PAPERS AND THE OBLIGATION BROUGHT IN DISTRICT COURTS OF
DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, DALLAS DIVISION, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM,
(d) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN DALLAS,
TEXAS, IN CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO THE AGENT
EVIDENCE THEREOF, IF REQUESTED, (e) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (f) IRREVOCABLY AGREES THAT ANY LEGAL
PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS ON THE OBLIGATION SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED
COURTS, AND (g) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RIGHT TO A JURY TRIAL IN ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS AND THE OBLIGATION.
9.12 Maximum Interest Rate. Regardless of any provision contained
in any of the Loan Papers, no Lender shall ever be entitled to contract for,
charge, take, reserve, receive, or apply, as interest on the Obligation, or any
part thereof, any amount in excess of the Highest Lawful Rate, and, in the event
the Lenders ever contract for, charge, take, reserve, receive, or apply as
interest any such excess, it shall be deemed a partial prepayment without
penalty of principal and treated hereunder as such and any remaining excess
shall be refunded to the Borrower. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the Highest Lawful
Rate, the Borrower and the Lenders shall, to the maximum extent permitted under
applicable Law, (a) treat all Borrowings as but a single extension of credit
(and the Lenders and the Borrower agree that such is the case and that provision
herein for multiple Borrowings and multiple Notes is for convenience only), (b)
characterize any nonprincipal payment as an expense, fee, or premium rather than
as interest, (c) exclude voluntary prepayments and the effects thereof, and (d)
"spread" the total amount of interest throughout the entire contemplated term of
the Obligation; provided that, if the Obligation is paid and performed in full
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Highest Lawful
Rate, the Lenders shall refund such excess, and, in such event, the Lenders
shall not be subject to any penalties provided by any Laws for contracting for,
charging, taking, reserving, or receiving interest in excess of the Highest
Lawful Rate.
9.13 Invalid Provisions. If any provision in any Loan Paper is
held to be illegal, invalid, or unenforceable, such provision shall be fully
severable; the appropriate Loan Paper shall be construed and enforced as if such
provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom. Furthermore, in lieu of such provision
there shall be added automatically as a part of such Loan Paper a provision as
similar thereto as may be possible and be legal, valid, and enforceable.
9.14 Entire Agreement. THIS AGREEMENT (AS AMENDED IN WRITING FROM
TIME TO TIME) AND THE OTHER WRITTEN LOAN PAPERS EXECUTED BY THE BORROWER, THE
AGENTS, AND THE LENDERS (OR BY THE BORROWER FOR THE BENEFIT OF THE AGENTS OR ANY
LENDER) REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
9.15 Amendments, Etc. No amendment or waiver of any provision of
any Loan Paper nor consent to any departure therefrom by the Borrower shall be
effective unless the same shall be in writing and signed by the Majority
Lenders, and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver, or consent shall, unless in writing and
signed by all Lenders, do any of the following: (a) increase the Commitment, or
extend the due date for payment of any of the Obligation (except as provided in
Section 2.3), (b) reduce the principal amount of Loans due hereunder or any
interest rate or the amount of fees applicable to the Obligation (except such
reductions as are contemplated by this Agreement), (c) amend or waive compliance
with this Section 9.15 or (d) amend the definition of Majority Lenders; provided
that no amendment, waiver, or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this or
any other Loan Paper.
9.16 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.
9.17 Taxes. Any Taxes (excluding income, gross receipts and
franchise taxes) payable or ruled payable by any Tribunal in respect of this
Agreement or any other Loan Paper shall be paid by the Borrower, together with
interest and penalties, if any.
9.18 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, the Lenders shall not be obligated to extend
credit to the Borrower in violation of any Law.
9.19 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one Agreement; but, in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that each Lender execute
the same counterpart so long as identical counterparts are executed by the
Borrower and each Lender. This Agreement shall become effective when
counterparts hereof shall have been executed and delivered to the Administrative
Agent by each Lender, the Agents, and the Borrower, or, in the case only of the
Lenders, when the Administrative Agent shall have received telecopied or other
evidence satisfactory to it that each Lender has executed and is delivering to
the Administrative Agent a counterpart hereof.
9.20 Successors and Assigns; Participations; Assignments.
(a) This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective successors and
assigns, except that (i) the Borrower may not, directly or indirectly,
assign or transfer, or attempt to assign or transfer, any of its
Rights, duties, or obligations under any Loan Papers to which it is a
party without the express written consent of all Lenders, and (ii)
except as permitted under Section 2.21 and this Section 9.20, no Lender
may transfer, pledge, assign, sell participations in, or otherwise
encumber its portion of the Obligation.
(b) Subject to the provisions of this Section 9.20, any Lender
may sell to one or more Persons (each a "Participant") participating
interests (in each case not less than $5,000,000) in its portion of the
Obligation; provided that the Administrative Agent and the Borrower
shall have the right to approve any Participant which is not a
financial institution. In the event of any such sale to a Participant,
(i) such Lender shall remain a "Lender" under this Agreement and the
Participant shall not constitute a "Lender" hereunder, (ii) such
Lender's obligations under this Agreement shall remain unchanged, (iii)
such Lender shall remain solely responsible for the performance
thereof, (iv) such Lender shall remain the holder of its share of the
Obligation for all purposes under this Agreement, and (v) the Borrower
and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's Rights and
obligations under the Loan Papers. Participants shall have no Rights
under the Loan Papers, other than certain voting rights as provided
below. Each Lender shall be entitled to obtain (on behalf of its
Participants) the benefits of Section 2 with respect to all
participations in its Loans outstanding from time to time. No Lender
shall sell any participating interest under which the Participant shall
have any Rights to approve any amendment, modification, or waiver of
any Loan Paper, except to the extent such amendment, modification, or
waiver extends the due date for payment of any amount in respect of
principal, interest, or fees due under the Loan Papers, or reduces the
interest rate or the amount of principal or fees applicable to the
Obligation (except such reductions as are contemplated by this
Agreement); provided that in those cases where a Participant is
entitled to the benefits of Section 2 or a Lender grants Rights to its
Participants to approve amendments to or waivers of the Loan Papers
respecting the matters previously described in this sentence, such
Lender must include a voting mechanism in the relevant participation
agreement whereby a majority of such Lender's portion of the Obligation
(whether held by such Lender or participated) shall control the vote
for all of such Lender's portion of the Obligation. Except in the case
of the sale of a participating interest to a Lender, the relevant
participation agreement shall not permit the Participant to transfer,
pledge, assign, sell participations in, or otherwise encumber its
portion of the Obligation.
(c) Subject to the provisions of this Section 9.20, any Lender
may sell to one or more Eligible Assignees (each a "Purchaser") a
proportionate part (in each case not less than $5,000,000) of its
Rights and obligations under the Loan Papers pursuant to an Assignment
and Acceptance (herein so called) between such Purchaser and such
Lender in the form of Exhibit E hereto. Upon (i) delivery of an
executed copy of the Assignment and Acceptance to the Borrower and the
Administrative Agent and (ii) payment of a fee of $3,500 from such
Lender to the Administrative Agent, from and after the assignment's
effective date (which shall be after the date of such delivery), such
Purchaser shall for all purposes be a Lender hereunder and shall have
all the Rights and obligations of a Lender hereunder to the same extent
as if it were an original party hereto with commitments as set forth in
the Assignment and Acceptance, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent. Upon
any transfer pursuant to this Section 9.20(c), Schedule 1 shall
automatically be deemed to reflect the name, address, and Commitment of
such Purchaser and the Administrative Agent shall deliver to the
Borrower and the Lenders an amended Schedule 1 reflecting such changes.
A Purchaser shall be subject to all the provisions in this Section 9.20
the same as if it were a Lender as of the date hereof.
(d) If pursuant to Section 9.20(c) any interest in the
Obligation is transferred to any Purchaser which is organized under the
Laws of any jurisdiction other than the United States of America or any
State thereof, the transferor Lender shall cause such Purchaser,
concurrently with the effectiveness of such transfer, (i) to represent
to the transferor Lender (for the benefit of the transferor Lender, the
Administrative Agent, and the Borrower) that under applicable Laws and
treaties no Taxes will be required to be withheld by the Administrative
Agent, the Borrower, or the transferor Lender with respect to any
payments to be made to such Purchaser in respect of the Obligation,
(ii) to furnish to each of the transferor Lender, the Administrative
Agent, and the Borrower two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service
Form 1001 (wherein such Purchaser claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments
hereunder), and (iii) to agree (for the benefit of the transferor
Lender, the Administrative Agent, and the Borrower) to provide the
transferor Lender, the Administrative Agent, and the Borrower a new
Form 4224 or Form 1001 upon the obsolescence of any previously
delivered form in accordance with applicable U.S. Laws and amendments
thereto duly executed and completed by such Purchaser, and to comply
from time to time with all applicable U.S. Laws with regard to such
withholding tax exemption.
(e) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Loans and Notes hereunder to a Federal Reserve
Bank in support of borrowings by such Lender from such Federal Reserve
Bank.
9.21 Confidentiality. All nonpublic information furnished by the
Companies to the Agents or the Lenders in connection with the Loan Papers and
the transactions contemplated thereby will be treated as confidential, but
nothing herein contained shall limit or impair any Agent's or any Lender's
right, and each Agent and the Lenders shall be entitled, (a) to disclose the
same to any Tribunal or as otherwise required by Law or to any prospective or
actual Participant or Purchaser or to the respective affiliates, directors,
officers, employees, attorneys, and agents of any prospective or actual
Participant or Purchaser (provided that such prospective or actual Participant
or Purchaser has agreed in writing to comply with this Section 9.21 and provided
further that the Borrower has given its prior written consent to such
distribution), (b) to use such information to the extent pertinent to an
evaluation of the Obligation, (c) to enforce compliance with the terms and
conditions of the Loan Papers, and (d) to take any action which such Agent or
any Lender deems necessary to protect its interests if an Event of Default has
occurred and is continuing.
9.22 Conflicts and Ambiguities. Any conflict or ambiguity between
the terms and provisions herein and terms and provisions in any other Loan Paper
shall be controlled by the terms and provisions herein.
9.23 General Indemnification. THE BORROWER SHALL 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.
9.24 Investment Representation. The Notes are being acquired by the
Lenders for their own respective account for investment and not with the view
to, or for sale in connection with, any distribution thereof. The Lenders
understand that the Notes will not be registered under the Securities Act of
1933 or any securities act of any state pursuant to an exemption from the
registration provisions thereof. Each Lender shall indemnify the Borrower
against and hold it harmless from any claim, and any cost or expense therefrom,
that the Borrower shall have committed a violation of applicable Law by virtue
of the exercise by such Lender of its right to sell participations or make
assignments hereunder.
[Remainder of page left intentionally blank. Signature pages follow.]
EXECUTED as of the day and year first mentioned.
CENTURYTEL, INC.
By:
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Name:
--------------------------------
Title:
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BANK OF AMERICA, N.A.
as the Administrative Agent and a Lender
By:
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Name:
--------------------------------
Title:
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CITIBANK, N.A.,
as the Syndication Agent and a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Book Manager
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Joint Lead Arranger and Joint Book Manager
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
