CREDIT AGREEMENT dated as of July 17, 2006 among ALLTEL HOLDING CORP. (to be known as WINDSTREAM CORPORATION), The Lenders Party Hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent, MERRILL LYNCH, PIERCE, FENNER & SMITH...
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Exhibit 10.5
EXECUTION COPY
dated as of
July 17, 2006
among
ALLTEL HOLDING CORP.
(to be known as WINDSTREAM CORPORATION),
(to be known as WINDSTREAM CORPORATION),
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent,
as Administrative Agent and Collateral Agent,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Syndication Agent,
as Syndication Agent,
and
BANK OF AMERICA, N.A.,
CITIBANK, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
CITIBANK, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
|
and | ▇▇▇▇▇▇▇ LYNCH, PIERCE, | ||
| ▇▇▇▇▇▇ & ▇▇▇▇▇ | ||||
| INCORPORATED and | ||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., |
as Joint Bookrunners and Co-Lead Arrangers
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SCHEDULES:
Schedule 1.01-A — Additional Facility Obligations
Schedule 1.01-B — Existing Letters of Credit
Schedule 2.01 — Commitments
Schedule 3.05 — Real Properties
Schedule 3.06 — Disclosed Matters
Schedule 3.12 — Subsidiaries
Schedule 3.13 — Insurance
Schedule 1.01-B — Existing Letters of Credit
Schedule 2.01 — Commitments
Schedule 3.05 — Real Properties
Schedule 3.06 — Disclosed Matters
Schedule 3.12 — Subsidiaries
Schedule 3.13 — Insurance
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Schedule 5.10 — Certain Regulated Subsidiaries
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04 — Existing Investments
Schedule 6.06 — Sale and Leaseback Transactions
Schedule 6.09 — Transactions with Affiliates
Schedule 6.10 — Existing Restrictions
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04 — Existing Investments
Schedule 6.06 — Sale and Leaseback Transactions
Schedule 6.09 — Transactions with Affiliates
Schedule 6.10 — Existing Restrictions
EXHIBITS:
Exhibit A
— Form of Assignment and Assumption
Exhibit B-1 — Form of Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the Borrower
Exhibit B-2 — Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of Valor
Exhibit B-3 — Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties
Exhibit B-4 — Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, special regulatory counsel for the Loan Parties
Exhibit C — Form of Guarantee Agreement
Exhibit D — Form of Security Agreement
Exhibit B-1 — Form of Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the Borrower
Exhibit B-2 — Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of Valor
Exhibit B-3 — Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties
Exhibit B-4 — Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, special regulatory counsel for the Loan Parties
Exhibit C — Form of Guarantee Agreement
Exhibit D — Form of Security Agreement
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CREDIT AGREEMENT dated as of July 17, 2006, among ALLTEL HOLDING CORP., the LENDERS party
hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent, ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as Syndication Agent, and BANK OF AMERICA, N.A., CITIBANK,
N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Documentation Agents.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
“2006 Equity Incentive Plan” means Windstream Corporation’s 2006 Equity Incentive Plan,
attached as Annex G to the Registration Statement.
“2016 Notes” means the 85/8% senior unsecured notes due 2016 of the Borrower
issued to Alltel on or prior to the Effective Date in an aggregate principal amount not to exceed
$1,746,000,000.
“2013 Notes” means the 81/8% senior unsecured notes due 2013 of the Borrower
issued under Rule 144A under the Securities Act on or prior to the Effective Date in an aggregate
principal amount not to exceed $800,000,000.
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.
“AC Holdings” means Alltel Communications Holdings of the Midwest, Inc., a Nebraska
corporation (formerly known as Aliant Communications Inc.).
“AC Holdings Bonds” means the 63/4% Notes due 2028 issued by AC Holdings in
an aggregate principal amount not to exceed $100,000,000.
“AC Holdings Indenture” means the Indenture dated as of February 23, 1998 under which the AC
Holdings Bonds were issued.
“Acquisition” means any purchase or acquisition by any Wireline Company in a single
transaction or a series of transactions individually or, together with its Affiliates, of (a) any
Equity Interests in another Person which are sufficient to permit such Wireline Company and its
Affiliates to Control such other Person or (b) all or substantially all of the assets of, or assets
comprising a
division, unit or line of business of, another Person, whether or not involving a
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merger or
consolidation with such other Person. “Acquire” has a meaning correlative thereto.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a)
the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent for the Lenders hereunder and under the other Loan Documents, and its permitted successors in
such capacity as provided in Article 8.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agents” means the Administrative Agent, the Collateral Agent, the Syndication Agent, the
Co-Documentation Agents and the Lead Arrangers.
“Alltel” means Alltel Corporation, a Delaware corporation.
“Alltel Georgia” means Alltel Georgia Communications Corp., a Georgia corporation.
“Alltel ▇▇▇▇▇▇▇ ▇▇▇▇▇” means the 61/2% Debentures due 2013 issued by Alltel
Georgia in an aggregate principal amount not to exceed $80,000,000.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Applicable Rate” means, for any day, (a) with respect to any Revolving Loan, Tranche A Term
Loan or Tranche C Term Loan, (i) 0.25% per annum in the case of an ABR Loan and (ii) 1.25% per
annum in the case of a Eurodollar Loan, and (b) with respect to any Tranche B Term Loan, (i) 0.75%
per annum in the case of an ABR Loan and (ii) 1.75% per annum in the case of a Eurodollar Loan; and
(c) with respect to any Incremental Loan, the rate specified in the Incremental Facility Amendment.
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“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Asset Disposition” means (a) any sale, lease, transfer or other disposition (including
pursuant to a Sale and Leaseback Transaction) of any assets of any Wireline Company pursuant to
Section 6.05(b)(ii), (h), (k) or (m), (b) the issuance by any Subsidiary of any Equity Interest, or
(c) the receipt by any Subsidiary of any capital contribution, other than (x) any such issuance of
an Equity Interest to, or the receipt of any such capital contribution from, another Wireline
Company and (y) directors’ qualifying shares and shares issued to foreign nationals to the extent
required by applicable law; provided that any single transaction or series of related transactions
that involves assets or Equity Interests having a Fair Market Value of less than $25,000,000 shall
not be deemed to be an Asset Disposition.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by
the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
“Assumed Bonds” means the AC Holdings Bonds, the Alltel ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Assumed Valor
Bonds.
“Assumed Valor Bonds” means the Valor Bonds, other than, after the Change of Control Payment
Date (as defined in, and determined pursuant to, the Valor Indenture), any Tendered Valor Bonds
(whether or not repurchased pursuant to the Valor Indenture).
“Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value will be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.
“Available Cash” means, on any date of determination, an amount (which may be a negative
amount) equal to the sum of the following in respect of the Wireline Companies on a consolidated
basis for the period commencing on the first day of the first Fiscal Quarter commencing after the
Effective Date and ending on the last day of the most recent Fiscal Quarter for which a certificate
shall have been delivered to the Administrative Agent pursuant to Section 5.01(c) (and which the
Administrative Agent shall have had an opportunity to review for not less than five Business Days):
(a) Consolidated Adjusted EBITDA for such period; plus
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(b) to the extent not included in calculating such Consolidated Adjusted EBITDA, any
extraordinary or non-recurring cash gain during such period, other than any such gain resulting
from any sale, transfer or other disposition of assets; minus
(c) without duplication and to the extent included in determining such Consolidated Adjusted
EBITDA, the sum of (i) Consolidated Cash Interest Expense for such period, except to the extent
constituting Restricted Payments; (ii) all taxes of the Wireline Companies paid in cash during such
period; and (iii) any extraordinary or nonrecurring loss, expense or charge paid in cash during
such period; provided that amounts shall be included in this clause (c) for any period only to the
extent not duplicative of any cost or expense which was (x) included in determining Consolidated
Adjusted Net Income for such period and (y) not been added back to such Consolidated Adjusted Net
Income in determining Consolidated Adjusted EBITDA for such period.
“Available Distributable Cash” means, on any date of determination, an amount (which may be a
negative amount) equal to the sum of:
(a) Available Cash as of such date of determination; minus
(b) without duplication, the sum of the following amounts, in each case for the period
commencing on the Effective Date and ending on such date of determination:
(i) the aggregate amount of Restricted Payments made by the Wireline Companies during
such period, other than any such Restricted Payments (A) made to another Wireline Company,
(B) paid from Available Equity Proceeds, (C) made as a part of the Transactions, (D)
permitted under clause (ii) or (ix) of Section 6.08(a) or (E) permitted under clause (x)
of Section 6.08(a) to the extent not exceeding the amount of cash and Cash Equivalents
owned by Valor immediately prior to, and by the Borrower immediately after giving effect
to, the Merger;
(ii) the aggregate amount of Investments, determined net (without duplication of any
other netting) of the aggregate amount of cash proceeds received by the Wireline Companies
from any subsequent sale or repayment thereof, made by the Wireline Companies during such
period, other than any such Investments (A) in connection with a Permitted Acquisition,
but only to the extent funded with the proceeds of Permitted Additional Debt, (B) in
connection with a Permitted Asset Exchange, but only to the extent the consideration paid
by the Wireline Companies consists of assets or properties (other than cash) or cash
consideration funded with the proceeds of Permitted Additional Debt, (C) in any Collateral
Support Party (except, in the case of any Investment by a Loan
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Party in a Collateral Support Party that is not a Loan Party, to the extent that the
distribution or repayment to such Loan Party of such Investment is not at the date of
determination permitted without any prior governmental approval (that has not been
obtained) or directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Collateral Support Party or its equity holders), (D) funded from
Available Equity Proceeds or (E) permitted under clause (a), (b), (g), (h), (j), (k), (l),
(m), (n) (but only to the extent such Investment is reflected in and duplicative of all or
a portion of a Permitted Acquisition), (o), (p) or (q) of Section 6.04);
(iii) the aggregate amount of payments made by the Wireline Companies to repay,
prepay, redeem, defease or acquire for value at or prior to stated maturity, or to refund,
refinance or exchange, any Indebtedness (other than (A) Revolving Loans hereunder, (B) any
of the Refinancings, or (C) any Indebtedness incurred pursuant to Section 6.01(a)(v)
unless such Indebtedness is a Distribution Advance) or make any other scheduled, mandatory
or voluntary payment of any such Indebtedness, other than any such payments funded from
(1) Available Equity Proceeds, (2) the proceeds of Permitted Additional Debt or (3) the
proceeds of Permitted Refinancing Indebtedness; and
(iv) the aggregate amount of Capital Expenditures made during such period, other than
Capital Expenditures financed with (1) Available Equity Proceeds, (2) Reinvestment Funds
or (3) the proceeds of a Debt Issuance (other than proceeds of Revolving Loans).
“Available Equity Proceeds” means, on any date of determination, an amount equal to the sum of
the following amounts, in each case for the period commencing on the Effective Date and ending on
such date of determination:
(a) the aggregate amount of Net Proceeds of any Equity Issuances (excluding Equity Issuances
of Disqualified Stock but including Equity Issuances pursuant to the conversion or exchange of
Indebtedness or Disqualified Stock) during such period; minus
(b) the aggregate amount of such Net Proceeds of Equity Issuances which have been applied
prior to such date of determination to fund any of the following payments, without duplication:
(i) all or a portion of the consideration payable by the Wireline Companies in
connection with a Permitted Acquisition;
(ii) Capital Expenditures;
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(iii) any other Investments, determined net (without duplication of any other
netting) of the aggregate amount of cash proceeds received by the Wireline Companies from
any subsequent sale or repayment thereof, made by the Wireline Companies (other than (A)
Investments in any Collateral Support Party (except, in the case of any Investment by a
Loan Party in a Collateral Support Party that is not a Loan Party, to the extent that the
distribution or repayment to such Loan Party of such Investment is not at the date of
determination permitted without any prior governmental approval (that has not been
obtained) or directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Collateral Support Party or its equity holders); and (B) Investments
permitted under clause (b), (h), (j), (k), (o), (n) (but only to the extent such
Investment is reflected in and duplicative of all or a portion of a Permitted Acquisition)
or (q) of Section 6.04);
(iv) Restricted Payments made by the Wireline Companies (other than Restricted
Payments to any Wireline Company); provided that any such Restricted Payment by a Wireline
Company to any other Person (other than another Wireline Company) which is made with the
proceeds of a substantially contemporaneous Restricted Payment from another Wireline
Company shall be deemed to be a single Restricted Payment for these purposes; and
(v) any payments made by the Wireline Companies to repay, prepay, redeem, defease or
acquire for value at or prior to stated maturity, or to refund, refinance or exchange any
Indebtedness (other than (i) Revolving Loans hereunder or (ii) any Indebtedness incurred
pursuant to Section 6.01(a)(v), unless such Indebtedness is a Distribution Advance) or
make any other scheduled, mandatory or voluntary payment of any such Indebtedness.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” will have a corresponding meaning.
“Board” means the Board of Governors of the Federal Reserve System of the United States of
America.
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“Borrower” means ALLTEL Holding Corp., a Delaware corporation, together with its successors
(including Valor as the surviving entity of the Merger, to be renamed “Windstream Corporation”).
“Borrowing” means Loans of the same Class and Type, made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section
2.03.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed; provided that, when used
in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank market.
“Capital Expenditures” means, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of the Wireline Companies that are (or should be) set
forth in a consolidated statement of cash flows of the Wireline Companies for such period prepared
in accordance with GAAP and (b) any Capital Lease Obligations incurred by the Wireline Companies
during such period in connection with any such capital expenditures, but excluding (i) the Merger
and Permitted Acquisitions, or (ii) the purchase price of equipment that is purchased substantially
contemporaneously with the trade-in of existing equipment but only to the extent such purchase
price does not exceed the credit granted by the seller of such equipment for the equipment being
traded in at such time.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be classified and accounted
for as capital leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Cash Collateral Account” has the meaning specified in Section 8 of the Security Agreement.
“Cash Consideration” means the consideration received by the Wireline Companies for any Asset
Disposition that is in the form of cash, Cash Equivalents or Replacement Assets or a combination of
the foregoing. For purposes of this provision, each of the following will be deemed to be cash:
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(a) any liabilities (as shown on the Borrower’s most recent balance sheet) of the Wireline
Companies (other than contingent liabilities, Restricted Indebtedness and liabilities to the extent
owed to any Wireline Company) that are assumed by the transferee of any such assets or Equity
Interests pursuant to a written assignment and assumption agreement that releases the applicable
Wireline Companies from further liability therefor;
(b) any securities, notes or other obligations received by the Wireline Companies from such
transferee that are converted by the Wireline Companies into Cash Equivalents or Replacement Assets
within 180 days of the receipt thereof (to the extent of the Cash Equivalents or Replacement Assets
received in that conversion); and
(c) any Designated Noncash Consideration received by the Wireline Companies in such Asset
Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed
the greater of (x) 1.5% of Total Assets at such time and (y) $100,000,000 (with the Fair Market
Value of each item of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value).
“Cash Equivalents” means:
(a) dollars and foreign currency received in the ordinary course of business or exchanged into
dollars within 180 days;
(b) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof), maturing, unless such securities are deposited to
defease any Indebtedness, not more than one year from the date of acquisition;
(c) certificates of deposit and eurodollar time deposits with maturities of one year or less
from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and
overnight bank deposits, in each case, with any Lender Party or any domestic commercial bank having
capital and surplus in excess of $500,000,000 and a rating at the time of acquisition thereof of
P-1 or better from ▇▇▇▇▇’▇ or A-1 or better from S&P;
(d) repurchase obligations for underlying securities of the types described in clauses (b) and
(c) above entered into with any financial institution meeting the qualifications specified in
clause (c) above;
(e) commercial paper issued by a corporation (other than an Affiliate of the Borrower) rated
at least “A-2” or higher from ▇▇▇▇▇’▇ or S&P and in each case maturing within one year after the
date of acquisition;
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(f) securities issued and fully guaranteed by any state, commonwealth or territory of the
United States, or by any political subdivision or taxing authority thereof, rated at least “A” by
▇▇▇▇▇’▇ or S&P and having maturities of not more than one year from the date of acquisition; and
(g) money market funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (a) through (f) of this definition.
“Cash Management Agreements” means all agreements between the Borrower and any Lender or any
Affiliate of a Lender (determined at the time such agreement is designated as a Cash Management
Agreement pursuant to Section 20 of the Security Agreement) in respect of any overdraft and related
liabilities arising from treasury, depository and cash management services or any automated
clearing house transfers of funds.
“Casualty Event” means any casualty or other insured damage to any property of any Wireline
Company with a fair market value immediately prior to such event of at least $10,000,000, or any
taking of any such property under power of eminent domain or by condemnation or similar proceeding,
or any transfer of any such property in lieu of a condemnation or similar taking thereof.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any
Lender, Issuing Bank or Participant (or, for purposes of Section 2.14(b), by any lending office of
such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any Governmental Authority made
or issued after the date of this Agreement.
“Change of Control” means the occurrence of any of the following:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the Beneficial Owner, directly or indirectly, of 50% or more of the voting
power of the Voting Stock of the Borrower;
(b) the first day on which a majority of the members of the board of directors of the Borrower
are not Continuing Directors;
(c) the Borrower consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into any Wireline Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Borrower or such other Person is
converted into or exchanged for cash, securities or other property, other than any such transaction
where (i) the Voting Stock of the Borrower outstanding immediately prior to such
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transaction continues as, or is converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a majority of the outstanding shares of such Voting
Stock of such surviving or transferee Person (immediately after giving effect to such issuance) and
(ii) immediately after such transaction, no “person” or “group” (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the Beneficial Owner of 50%
or more of the voting power of the Voting Stock of the surviving or transferee Person; or
(d) the occurrence of any “Change in Control” (or similar event, however denominated) under
any indenture or other agreement in respect of Material Indebtedness, except for a “Change of
Control” under the Valor Indenture resulting from the Merger.
“Class” (a) when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Loans, Tranche A Term Loans, Tranche B Term
Loans or Tranche C Term Loans, (b) when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, Tranche A Commitment, Tranche B Commitment or Tranche C
Commitment and (c) when used in reference to any Lender, refers to whether such Lender is a
Revolving Lender, Tranche A Lender, Tranche B Lender or Tranche C Lender.
“Co-Documentation Agents” means Bank of America, N.A., Citibank, N.A. and Wachovia Bank,
National Association, each in its capacity as a co-documentation agent.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means any and all “Collateral”, as defined in any applicable Security Document.
“Collateral Agent” means JPMorgan Chase Bank, N.A, in its capacity as collateral agent for the
Secured Parties hereunder and under the other Loan Documents, and its permitted successors in such
capacity as provided in Article 8.
“Collateral and Guarantee Requirement” means at any time the requirement that:
(a) the Collateral Agent shall have received from each Loan Party either (i) counterparts of
the Guarantee Agreement and the Security Agreement, duly executed and delivered on behalf of such
Loan Party, or (ii) in the case of any Person that becomes a Loan Party after the Effective Date,
supplements to the Guarantee Agreement and the Security Agreement, in the form specified therein,
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duly executed and delivered on behalf of such Person (within the time frames required thereby);
(b) all outstanding Equity Interests in and all outstanding promissory notes issued by any
Wireline Company owned by or on behalf of any Loan Party shall have been pledged pursuant to the
Security Agreement (except that the Loan Parties shall not be required to pledge more than 66% of
the outstanding voting Equity Interests in any Foreign Subsidiary that is not a Loan Party) and the
Collateral Agent shall have received all certificates or other instruments representing such Equity
Interests (except to the extent such Equity Interests are not represented by certificates or other
instruments) and Indebtedness, together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(c) except as otherwise provided in the Security Agreement, all documents and instruments,
including Uniform Commercial Code financing statements, required by law or reasonably requested by
the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created
by the Security Documents and perfect or record such Liens to the extent, and with the priority,
required by this Agreement and the Security Agreement, shall have been (or shall have made
arrangements to provide for) filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or recording;
(d) each Loan Party shall have obtained all consents and approvals required to be obtained by
it in connection with the execution and delivery of all Security Documents to which it is a party,
the performance of its obligations thereunder and the granting of the Liens granted by it
thereunder, in each case to the extent required by this Agreement and the Security Documents; and
(e) each Loan Party shall have taken all other action required to perfect, register and/or
record the Liens granted by it thereunder, in each case to the extent required by this Agreement
and the Security Documents.
“Collateral Support Parties” means (a) the Loan Parties and (b) each other Subsidiary (i) that
is not required to Guarantee the Facility Obligations pursuant to the Loan Documents (other than
any Insignificant Subsidiary) and (ii) all Equity Interests in which, and all Indebtedness owing to
any Loan Party of which, shall have been pledged and delivered to the Collateral Agent in
accordance with the Collateral and Guarantee Requirement.
“Commitment” means a Revolving Commitment, Tranche A Commitment, Tranche B Commitment or
Tranche C Commitment, or any combination thereof (as the context may require).
“Commitment Fee Rate” means, for any day, a rate per annum equal to (a) if the Leverage Ratio
on the most recent determination date is 2.00 to 1.0 or
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higher, 0.25% and (b) otherwise, 0.20%.
For purposes of this definition, (x) the Leverage Ratio shall be determined as of the end of each
Fiscal Quarter based on the Borrower’s consolidated financial statements delivered pursuant to
Section 5.01(a) or 5.01(b) and (y) each change in the Commitment Fee Rate resulting from a change
in the Leverage Ratio shall be effective during the period from and including the day when the
Administrative Agent receives the financial statements indicating such change to but excluding the
effective date of the next such change; provided that, at the option of the Administrative Agent
(or at the request of the Required Lenders), if the Borrower fails to deliver consolidated
financial statements to the Administrative Agent as and when required by Section 5.01(a) or
5.01(b), the Commitment Fee Rate will be that set forth in clause (a) above during the period from
the expiration of the time specified for such delivery until such financial statements are so
delivered.
“Commitment Letter” means the Commitment Letter dated as of December 8, 2005 among Alltel, the
Lead Arrangers and JPMCB and MLCC, as amended by the letter agreement among such parties dated
April 12, 2006.
“Communications Act” means, collectively, the Communications Act of 1934, as amended, the
rules and regulations of the FCC, and written orders, policies, and decisions of the FCC and the
courts’ interpretation of the foregoing.
“Consolidated Adjusted EBITDA” means, for any period, Consolidated Adjusted Net Income for
such period plus, without duplication:
(a) provision for taxes based on income or profits of the Wireline Companies for such period,
to the extent that such provision for taxes was deducted in computing such Consolidated Adjusted
Net Income; plus
(b) Interest Expense of the Wireline Companies for such period, to the extent that such
Interest Expense was deducted in computing such Consolidated Adjusted Net Income; plus
(c) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period), goodwill impairment
charges and other non-cash expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of the Wireline Companies for such period to
the extent that such depreciation, amortization and other non-cash charges or expenses were
deducted in computing such Consolidated Adjusted Net Income; plus
(d) the amount of any minority interest expense deducted in computing such Consolidated
Adjusted Net Income; plus
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(e) any non-cash compensation charge arising from any grant of stock, stock options or other
equity-based awards, to the extent deducted in computing such Consolidated Adjusted Net Income;
plus
(f) any non-cash Statement of Financial Accounting Standards No. 133 income (or loss) related
to hedging activities, to the extent deducted in computing such Consolidated Adjusted Net Income;
minus
(g) non-cash items increasing such Consolidated Adjusted Net Income for such period, other
than (i) the accrual of revenue consistent with past practice and (ii) the reversal in such period
of an accrual of, or cash reserve for, cash expenses in a prior period, to the extent such accrual
or reserve did not increase Consolidated Adjusted EBITDA in a prior period;
in each case determined on a consolidated basis in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, the
Interest Expense of, and the depreciation and amortization and other non-cash expenses of, a
Subsidiary will be added to Consolidated Adjusted Net Income to compute Consolidated Adjusted
EBITDA (A) in the same proportion that the Net Income of such Subsidiary was added to compute such
Consolidated Adjusted Net Income and (B) only to the extent that a corresponding amount would be
permitted, as of such determination date, to be dividended or distributed to the Borrower by such
Subsidiary (x) without direct or indirect restriction pursuant to the terms of its charter and all
agreements and instruments applicable to such Subsidiary or its stockholders and (y) solely for
purposes of any determination of Available Distributable Cash, without prior governmental approval
(that has not been obtained) (unless and to the extent that such amount constitutes a Distribution
Advance) and without direct or indirect restriction pursuant to the terms of any judgments,
decrees, orders, statutes, rules and/or governmental regulations applicable to such Subsidiary
and/or its any of stockholders.
“Consolidated Adjusted Net Income” means, for any period, the aggregate of the Net Income of
the Wireline Companies for such period, determined on a consolidated basis in accordance with GAAP;
provided that:
(a) the Net Income of any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting will be included only to the extent of the amount of dividends or
distributions paid in cash to a Wireline Company during such period (and the net loss of any such
Person will be included only to the extent that such loss is funded in cash by a Wireline Company
during such period);
(b) the Net Income of any Subsidiary will be excluded to the extent that the declaration or
payment of dividends or similar distributions by such
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Subsidiary of such Net Income is not, as of
such date of determination, permitted (x) directly or indirectly, by operation of the terms of its
charter or any agreement or instrument applicable to such Subsidiary or its equityholders or (y)
solely for purposes of any determination of Available Distributable Cash, without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation of the
terms of any judgment, decree, order, statute, rule or governmental regulation applicable to such
Subsidiary or its equityholders, in each case except to the extent that such amount was advanced
prior to such date in cash by such Subsidiary (directly or indirectly) to the Borrower in
accordance with Section 6.01(a)(v) (any such advance, except to the extent it has been repaid,
prepaid, redeemed, acquired or otherwise returned (directly or indirectly) to such Subsidiary, a
“Distribution Advance”);
(c) the Net Income of any Person acquired during the specified period for any period prior to
the date of such acquisition will be excluded; and
(d) the cumulative effect of a change in accounting principles will be excluded.
“Consolidated Cash Interest Expense” means, for any period, the excess of (a) the sum of (i)
Interest Expense of the Borrower and the Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP, and (ii) any cash payments made by or on behalf of the Borrower or
any Subsidiary during such period in respect of Interest Expense that were or will be amortized,
accrued or otherwise recognized in a previous or future period, minus (b) the sum of (i) to the
extent included in such consolidated Interest Expense for such period, any non-cash amounts
amortized, accrued or otherwise recognized in such period, and (ii) cash interest income actually
received by the Borrower or any Subsidiary (determined on a consolidated basis) in such period.
“Consolidated Debt” means, as of any date, the principal amount of Indebtedness of the
Wireline Companies outstanding as of such date, determined on a consolidated basis; provided that,
for purposes of this definition, the term “Indebtedness” will not include (i) contingent
obligations of any Wireline Company as an account party or applicant in respect of any letter of
credit or letter of guaranty, unless such letter of credit or letter of guaranty supports an
obligation that constitutes Indebtedness of a Person other than a Wireline Company, (ii) any
obligation constituting Indebtedness pursuant to clause (j) of the definition thereof, (iii) any
Earn-out Obligation or obligation in respect of purchase price adjustment permitted pursuant to
Section 6.01(a)(xv) and (iv) any bonds or similar instruments in the nature of surety, performance,
appeal or similar bonds.
“Continuing Directors” means, as of any date of determination, any member of the board of
directors of the Borrower who:
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(a) was a member of such board of directors on the Effective Date; or
(b) was nominated for election or elected to such board of directors with the approval of a
majority of the Continuing Directors who were members of such board of directors at the time of
such nomination or election.
“Contributed Subsidiaries” means the subsidiaries of Alltel that, after giving effect to the
Preliminary Restructuring, own any assets, liabilities or operations of Alltel’s wireline
telecommunications business.
“Contribution” means the contribution by Alltel to the Borrower, directly or indirectly, of
all of the issued and outstanding capital stock or other Equity Interests in the Contributed
Subsidiaries in exchange for all of the issued and outstanding shares of common stock of the
Borrower, the 2016 Notes and the Special Dividend.
“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ownership of voting
securities, by agreement or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.
“Debt Exchange” means the exchange for its outstanding debt securities or other transfer to
its creditors of the 2016 Notes by Alltel.
“Debt Issuance” means the issuance or other incurrence by any Wireline Company of any
Indebtedness for borrowed money.
“Default” means any event or condition which constitutes an Event of Default or which, upon
notice, lapse of time or both, would, unless cured or waived, become an Event of Default under
Article 7.
“Defaulting Lender” has the meaning assigned to such term in Section 2.18(b).
“Designated Noncash Consideration” means the Fair Market Value of noncash consideration
received by the Wireline Companies in connection with an
Asset Disposition that is so designated as Designated Noncash Consideration pursuant to a
certificate of a Financial Officer, setting forth the basis of such valuation, less the amount of
Cash Equivalents received in connection with a subsequent sale of such Designated Noncash
Consideration.
“Disclosed Matters” means the actions, suits and proceedings and the environmental matters
disclosed in Schedule 3.06.
“Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of any
security into which it is convertible, or for which it is
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exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 123 days after the Tranche B Maturity
Date or, if such Equity Interests are issued after the Borrower has obtained any Incremental Loans
constituting term loans or while any Commitments from Incremental Lenders to make Incremental Loans
constituting term loans remain in effect, 123 days after the maturity date for such Incremental
Loans, unless all such Incremental Loans have been repaid in full and all Commitments in respect
thereof have been terminated; provided, however, that only the portion of such Equity Interests
which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such dates shall be deemed to be
Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interests that would
constitute Disqualified Stock solely because the holders thereof have the right to require a
Wireline Company to repurchase such Equity Interests upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the terms of such Equity Interest provide
that the Wireline Companies may not repurchase or redeem any such Equity Interest pursuant to such
provisions unless such repurchase or redemption complies with Section 6.08. The term “Disqualified
Stock” will also include any options, warrants or other rights that are convertible into
Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed,
prior to the date that is 123 days after the Tranche B Maturity Date or, if such Equity Interests
are issued after the Borrower has obtained any Incremental Loans constituting term loans or while
any Commitments from Incremental Lenders to make Incremental Loans constituting term loans remain
in effect, 123 days after the maturity date for such Incremental Loans, unless all such Incremental
Loans have been repaid in full and all Commitments in respect thereof have been terminated.
“Distribution” means the distribution by Alltel to its shareholders of all of the common stock
of the Borrower.
“Distribution Advance” has the meaning set forth in clause (b) of the definition of
“Consolidated Adjusted Net Income”.
“Distribution Agreement” means the Distribution Agreement dated as of December 8, 2005 between
Alltel and the Borrower, as filed with the SEC as Annex B to the Registration Statement.
“Dividend Suspension Period” means any period (a) commencing on any day on which consolidated
financial statements are delivered pursuant to Section 5.01(a) or 5.01(b) (or, if applicable, the
last day of the most recently completed Dividend Suspension Period) if the Leverage Ratio as of the
last day of the then most recently completed Fiscal Quarter covered thereby is greater than 4.50 to
1.0
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and (b) ending on the first day thereafter on which a Financial Officer delivers consolidated
financial statements pursuant to Section 5.01(a) or 5.01(b) and a certificate pursuant to Section
5.01(c), all demonstrating that the Leverage Ratio was equal to or less than 4.50 to 1.0 as of the
last day of the then most recently completed Fiscal Quarter covered thereby.
“dollars” or “$” refers to lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.
“Earn-out Obligation” means any contingent consideration based on the future operating
performance of an acquired entity or assets, or other purchase price adjustment or indemnification
obligation, payable following the consummation of an acquisition (including pursuant to a merger or
consolidation) based on criteria set forth in the documentation governing or relating to such
acquisition.
“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, having the force or effect of law and relating in any way to the
environment, preservation or reclamation of natural resources, the management, release or
threatened release of, or exposure to, any pollutant, toxic, radioactive, ignitable, corrosive,
reactive or otherwise hazardous substance, waste or material or to occupational health and safety
matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any
Wireline Company directly or indirectly resulting from or based upon (a) actual or alleged
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the environment or (e)
any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests
in a limited liability company, beneficial interests in a trust or other equity ownership interests
in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest
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but excluding any debt security that is convertible into, or
exchangeable for, any of the foregoing.
“Equity Issuance” means any issuance by the Borrower of any of its Equity Interests to any
Person (other than another Wireline Company) or receipt by any Wireline Company of a capital
contribution from any Person (other than another Wireline Company), including the issuance of
Equity Interests pursuant to the exercise of options or warrants and the conversion of any
Indebtedness to equity.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together
with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for which the 30 day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in Article 7.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules of the SEC
thereunder.
“Excluded Taxes” means, with respect to any Agent, any Lender, any Issuing Bank, any
Participant or any other recipient of any payment to be made by or with respect to any obligation
of the Borrower hereunder (each, a “Recipient”), (a) income or franchise taxes imposed on (or
measured by) its net income by any jurisdiction, (b) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Recipient (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any withholding tax that (i) is imposed by a Governmental
Authority in the United States on amounts payable to such Foreign Recipient at the time such
Foreign Recipient becomes a party to this Agreement (or designates a new Lending Affiliate or
lending office) or, in the case of a Participant, at the time the Participant purchases the
relevant participation, except to the extent that such Foreign Recipient (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
2.16(a), or (ii) is attributable to such Foreign Recipient’s failure to comply with Section
2.16(e).
“Existing Letters of Credit” means the letters of credit previously issued pursuant to the
Valor 2005 Credit Facility which are (i) outstanding on the Effective Date and (ii) listed on
Schedule 1.01-B.
“Facilities” means the credit facilities provided to the Loan Parties under the Loan
Documents.
“Facility Guarantee” has the meaning specified in Section 1(b) of the Guarantee Agreement.
“Facility Obligations” means (i) all principal of all Loans and LC Reimbursement Obligations
outstanding from time to time under this Agreement, all interest (including Post-Petition Interest)
on such Loans and LC Reimbursement Obligations and all other amounts now or hereafter payable by
the Borrower to the Lenders pursuant to the Loan Documents, (ii) all obligations
of the Borrower under the Cash Management Agreements and Swap Agreements listed on Schedule
1.01-A and all interest (including Post-Petition Interest) thereon and (iii) all obligations (if
any) designated by the Borrower as additional Facility Obligations pursuant to Section 20 of the
Security Agreement.
“Fair Market Value” means a price that would be paid in an arm’s-length transaction between an
informed and willing seller under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by a Financial Officer of the Borrower, whose
determination, unless
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otherwise specified below, will be conclusive if evidenced by an officer’s
certificate. Notwithstanding the foregoing, a Financial Officer’s determination of Fair Market
Value must be evidenced by a certificate of a Financial Officer delivered to the Administrative
Agent if the Fair Market Value exceeds $25,000,000.
“FCC” means the Federal Communications Commission or any successor Governmental Authority
exercising similar functions.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee Letters” means (a) the Fee Letter dated as of December 8, 2005 among Alltel, the Lead
Arrangers and JPMCB and MLCC and (b) the Fee Letter dated as of July 17, 2006 between the Borrower
and the Administrative Agent.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer
or controller of the Borrower.
“Fiscal Quarter” means a fiscal quarter of the Borrower.
“Fiscal Year” means a fiscal year of the Borrower.
“Foreign Recipient” has the meaning assigned to such term in Section 2.16(e)
“Foreign Subsidiary” means a Subsidiary (which may be a corporation, limited liability
company, partnership or other legal entity) organized under the laws of a jurisdiction outside the
United States, other than any such entity that is
(whether as a matter of law, pursuant to an election by such entity or otherwise) treated as a
partnership in which any Loan Party is a partner or as a branch of any Loan Party for United States
income tax purposes.
“GAAP” means generally accepted accounting principles in the United States.
“Governmental Authority” means the government of the United States, any other nation or any
political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body (including the FCC and
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any PUC, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government).
“Governmental Authorization” means any authorization, approval, consent, franchise,
license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar
right, undertaking or other action of, to or by, or any filing, qualification or registration with
any Governmental Authority.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of business; and provided,
further, that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to
the stated or determinable amount of the primary obligation in respect of which such Guarantee is
made and (ii) the maximum amount for which such guarantor may be liable pursuant to the terms of
the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of
the entire amount of the primary obligation and such maximum amount is not stated or determinable,
the amount of such guarantor’s maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
“Guarantee Agreement” means the Guarantee Agreement between the Subsidiaries party thereto and
the Collateral Agent, substantially in the form of Exhibit C.
“Guarantors” means each Person listed on the signature pages of the Guarantee Agreement under
the caption “Guarantors” and each Subsidiary that shall, at any time after the date hereof, become
a Guarantor pursuant to Section 5.10, until such time as released from their obligations under the
Guarantee Agreement.
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“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law because of their harmful, dangerous or deleterious properties or
characteristics.
“Incremental Facility Amendment” has the meaning specified in Section 2.01(b)(iii).
“Incremental Lender” has the meaning specified in Section 2.01(b)(iii).
“Incremental Loan” has the meaning specified in Section 2.01(b)(i).
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding accrued
obligations or trade payables, in each case incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
unconditional right to be secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations and Attributable Debt of such Person,
(h) all obligations, contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such
Person in respect of bankers’ acceptances, (j) all net obligations of such Person under any Swap
Agreements, and (k) all obligations of such Person to redeem, repay or otherwise repurchase any
Disqualified Stock, valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general partner) to the extent
such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor. The amount of Indebtedness of any Person pursuant to clause
(e) of this definition shall (unless such Indebtedness has been assumed by such Person) be deemed
to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the Fair
Market Value of the property encumbered thereby at the date of determination of the amount of such
Indebtedness. The amount of any Indebtedness outstanding as of any date will be the outstanding
balance at such date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum
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liability upon the occurrence of the contingency giving rise to
the obligation, and will be: (1) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount; and (2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other Indebtedness.
“Indemnified Taxes” means Taxes imposed by any Governmental Authority of or in the United
States or any other jurisdiction from which or through which payments are made under the Loan
Documents, other than Excluded Taxes.
“Information Memorandum” means the Confidential Information Memorandum dated June 2006
relating to the Wireline Companies and the Transactions.
“Insignificant Subsidiary” means any Subsidiary of the Borrower that has total assets of not
more than $5,000,000 and that is designated by the Borrower as an “Insignificant Subsidiary,”
provided that the total assets of all Subsidiaries that are so designated, as reflected on the
Borrower’s most recent consolidating balance sheet prepared in accordance with GAAP, may not in the
aggregate at any time exceed $25,000,000.
“Interest Coverage Ratio” means, on any date of determination, the ratio of (a) Consolidated
Adjusted EBITDA to (b) Consolidated Cash Interest Expense for the period of four consecutive Fiscal
Quarters ended on such day (or, in the case of any calculation to be made on Pro Forma Basis, if
such day is not the last day of a Fiscal Quarter, ended on the last day of the Fiscal Quarter most
recently ended before such day).
“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing
in accordance with Section 2.06.
“Interest Expense” means, with respect to any specified Person for any period, the sum,
without duplication, of:
(a) the consolidated interest expense of such Person and its subsidiaries for such period,
whether paid or accrued, including, without limitation, original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the interest component of any
deferred payment obligations, the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net
of the effect of all payments made or received pursuant to Swap Agreements, but excluding the
amortization or write-off of debt issuance costs; plus
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(b) the consolidated interest of such Person and its subsidiaries that was capitalized during
such period; plus
(c) any interest expense on Indebtedness of another Person that is Guaranteed by such Person
or one of its subsidiaries or secured by a Lien on assets of such Person or one of its
subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(d) all dividends, whether paid or accrued and whether or not in cash, on any series of
Disqualified Stock of such Person, other than dividends on Equity Interests payable solely in
Equity Interests (other than Disqualified Stock) of such Person or to such Person or to a
subsidiary of such Person,
in each case determined on a consolidated basis in accordance with GAAP.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March,
June, September and December and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.
“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter (or nine or twelve months thereafter if, at the
time of the relevant borrowing or conversion or continuation thereof, all Lenders participating
therein agree to make an interest period of such duration available), as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
“Investment” has the meaning set forth in Section 6.04.
“Issuing Bank” means, as the context may require, JPMorgan Chase Bank, N.A., or, at any time
and from time to time, up to three other Revolving
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Lenders that are designated in writing by the
Borrower, are reasonably acceptable to the Administrative Agent, and that agree to issue one or
more Letters of Credit hereunder and to report in writing to the Administrative Agent all activity
with respect to such Letters of Credit in a manner reasonably satisfactory to the Administrative
Agent, in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors
in such capacity as provided in Section 2.04(i); provided that with respect to the Existing Letters
of Credit, the Revolving Lender which issued the same shall be an Issuing Bank with respect
thereto. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
“JPMCB” means JPMorgan Chase Bank, N.A.
“Knowledge” means the actual knowledge of a Responsible Officer.
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Reimbursement
Obligations at such time. The LC Exposure of any Revolving Lender at any time shall be its
Revolving Percentage of the total LC Exposure at such time.
“LC Reimbursement Obligations” means, at any time, all obligations of the Borrower to
reimburse the Issuing Bank for amounts paid by it in respect of drawings under Letters of Credit,
including any portion of such obligations to which Lenders have become subrogated by making
payments to the Issuing Bank pursuant to Section 2.04(e).
“Lead Arrangers” means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., in their capacity as Co-Lead Arrangers and Joint Bookrunners.
“Lender Parties” means the Lenders, the Issuing Banks and the Agents.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption and the terms and provisions in
Section 9.04, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption and the terms and provisions in Section 9.04.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement (including
each Existing Letter of Credit).
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“Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Debt as of
such day to (b) Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters
ended on such day (or, in the case of any calculation to be made on a Pro Forma Basis, if such day
is not the last day of a Fiscal Quarter, ended on the last day of the Fiscal Quarter most recently
ended before such day).
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”) from Telerate Successor
Page 3750, as published by Reuters (or other commercially available source providing quotations of
BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
“Loan Documents” means this Agreement, the Commitment Letter, the Fee Letters, any Incremental
Facility Amendment and the Security Documents.
“Loan Parties” means the Borrower and the Guarantors.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
properties or liabilities or (I) in the case of any determination to be made prior to the Merger,
condition (financial or otherwise) or (II) in the case of any other determination, financial
condition of (x) the Wireline Companies taken as a whole or (y) with respect to any determination
to be made prior to the Merger, Valor and its subsidiaries, in each case taken as a whole, or the
ability of
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the Borrower or Valor to perform its obligations under the Merger Agreement; excluding,
in the case of any determination to be made prior to the Merger, any facts, events, changes,
effects or developments (i) generally affecting the rural, regional or nationwide wireline voice
and data industry in the United States or in other countries in which such person or its
subsidiaries conduct business, including regulatory and political developments and changes in law
or generally accepted accounting principles, (ii) generally affecting the economy or financial
markets in the United States or in other countries in which such person or its subsidiaries conduct
business, or (iii) resulting from the announcement of the Merger or the taking of any action
required by the Merger Agreement or related agreements in connection with the Merger (including any
decrease in customer demand, any reduction in revenues, any disruption in supplier, partner or
similar relationships, or any loss of employees), (b) the ability of any Loan Party to perform any
of its payment obligations under any Loan Document or (c) the rights of or remedies available to
any Lender Party under any Loan Document.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit) of any
one or more of the Wireline Companies in an aggregate principal amount exceeding $75,000,000. For
purposes of determining Material Indebtedness, the “principal amount” of the obligations of any
Wireline Company in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Wireline Company would be required to pay if
such Swap Agreement were terminated at such time.
“Merger” means the merger of the Borrower with and into Valor, with Valor as the surviving
entity, followed immediately by the merger of the Windstream Corporation, a Delaware corporation,
with and into Valor, with Valor as the surviving entity (to be renamed “Windstream Corporation”).
“Merger Agreement” means the Agreement and Plan of Merger dated as of December 8, 2005 among
Alltel, the Borrower and Valor, as filed with the SEC as Annex A to the Registration Statement, as
amended on May 18, 2006.
“MLCC” means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation.
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:
(a) any gain or loss, together with any related provision for taxes on such gain or loss,
realized in connection with: (i) any sale of assets outside the
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ordinary course of business of such
Person or any of its subsidiaries; or (ii) the disposition of any securities by such Person or any
of its subsidiaries or the extinguishment of any Indebtedness of such Person or any of its
subsidiaries; and
(b) any extraordinary or non-recurring gain, loss, expense or charge (including any one-time
expenses related to the Transactions), together with any related provision for taxes; provided that
non-recurring cash charges other than related to the Transactions shall not exceed $25,000,000 in
any period of four consecutive Fiscal Quarters.
“Net Proceeds” means the aggregate cash proceeds (including (x) payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but not the interest
component, thereof) and (y) any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Disposition or Casualty Event) received by the Borrower or any
of its Subsidiaries in respect of any Asset Disposition or Casualty Event, net of (1) the direct
costs relating to such Asset Disposition or Casualty Event and the sale or other disposition of any
such non-cash consideration, including, without limitation, legal, accounting, investment banking
and brokerage fees, and sales commissions, and any relocation expenses incurred as a result
thereof, (2) Taxes paid or payable as a result thereof, in each case, after taking into account any
available Tax credits or deductions and any Tax sharing arrangements, (3) amounts required to be
applied to the repayment of Indebtedness or other liabilities secured by a Lien on the asset or
assets that were the subject of such Asset Disposition or Casualty Event or required to be paid as
a result of such Asset Disposition or Casualty Event, (4) any reserve for adjustment in respect of
the sale price of such asset or assets established in accordance with GAAP, (5) in the case of any
Asset Disposition by a Subsidiary of the Borrower, payments to holders of Equity Interests in such
Subsidiary in such capacity (other than such Equity Interests held by the Borrower or any
Subsidiary) to the extent that such payment is required to permit the distribution of such proceeds
in respect of the Equity Interests in such Subsidiary held by the Borrower or such Subsidiary and
(6) appropriate amounts to be provided by the Borrower or its Subsidiaries as a reserve against
liabilities associated with such Asset Disposition or Casualty Event, including, without
limitation, pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations associated with such
Asset Disposition or Casualty Event, all as determined in accordance with GAAP; provided that (a)
any excess amounts set aside for payment of Taxes pursuant to clause (2) above that are remaining
after such Taxes have been paid in full or the statute of limitations therefor has expired and (b)
any amounts held in reserve pursuant to clause (6), will, in each case when no longer so held,
become Net Proceeds.
“New Notes” means the 2016 Notes and the 2013 Notes.
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“New Notes Documents” means the indenture under which the New Notes are issued and all other
instruments, agreements and other documents evidencing or governing the New Notes or providing for
any Guarantee or other right in respect thereof.
“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(c).
“Other Taxes” means any and all present or future recording, stamp or documentary taxes or any
other excise, transfer, sales or property taxes, charges or similar levies arising from any payment
made hereunder or from the execution, delivery or enforcement of this Agreement.
“Participant” has the meaning set forth in Section 9.04.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.
“Perfection Certificate” means a certificate in the form of Exhibit E to the Security
Agreement or any other form approved by the Collateral Agent and the Borrower.
“Permitted Acquisition” means any Acquisition by a Collateral Support Party; provided that:
(a) the property acquired (or the property of the Person acquired) in such Acquisition shall
be used or useful in a Permitted Business;
(b) the Borrower shall be in compliance with Sections 6.14 and 6.15, determined on a Pro Forma
Basis;
(d) no Default shall have occurred and be continuing or would result from such Acquisition;
and
(e) if the aggregate consideration paid by the Wireline Companies for any Acquisition
(including the principal amount of Indebtedness assumed by the Wireline Companies in connection
therewith) exceeds $100,000,000, the Administrative Agent shall have received a certificate from a
Financial Officer describing such Acquisition and certifying as to the foregoing matters and
demonstrating such compliance in reasonable detail.
“Permitted Additional Debt” means unsecured Indebtedness of any Loan Party that (a) does not
require any scheduled payment of principal (including pursuant to a sinking fund obligation) or
mandatory redemption or redemption at the option of the holders thereof (except for redemptions in
respect of asset sales and changes in control on terms that are market terms on the date of
issuance)
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prior to the date that is 123 days after the Tranche B Maturity Date or, if such
Indebtedness is incurred after the Borrower has obtained any Incremental Loans constituting term
loans or while any Commitments from Incremental Lenders to make Incremental Loans constituting term
loans remain in effect, 123 days after the maturity date for such Incremental Loans, unless all
such Incremental Loans have been repaid in full and all Commitments in respect thereof have been
terminated, (b) contains other terms (including covenants, events of default, remedies, redemption
provisions and change of control provisions) that are market terms on the date of issuance as
determined by a Financial Officer in good faith, provided that such covenants and events of default
are not materially more restrictive than the covenants and events of default contained in this
Agreement and do not require the maintenance or achievement of any financial performance standards
other than as a condition to the taking of specified actions, and (c) bears interest at a market
rate of interest on the date of issuance of such Indebtedness.
“Permitted Asset Exchange” means a disposition of assets and property of any of the Wireline
Companies in consideration for the Acquisition of assets and property of a Person engaged in the
Permitted Business (other than an Affiliate of any Wireline Company); provided that:
(a) the aggregate assets and properties of the Wireline Companies which may be disposed of in
all Permitted Asset Exchanges shall not relate to more than 35% of the access lines of the Wireline
Companies determined at the time of any disposition;
(b) the assets and properties disposed of in any Permitted Asset Exchange, together with any
cash consideration paid by the Wireline Companies, shall have a Fair Market Value substantially
equivalent to the Fair Market Value of the assets and properties Acquired by the Wireline Companies
in such Permitted Asset Exchange, together with any cash consideration received by the Wireline
Companies;
(c) the Borrower shall comply with Section 2.10(b) with respect to any Net Proceeds received
by the Wireline Companies in respect of any Permitted Asset Exchange;
(d) any cash consideration paid by the Wireline Companies in respect of any Permitted Asset
Exchange (but not any other property or assets disposed of in any such transaction) shall be
treated hereunder as consideration paid by the Wireline Companies for a Permitted Acquisition for
purposes of determining whether a certificate is required to be delivered by the Borrower pursuant
to clause (e) of the definition of such term; and
(e) if the Net Proceeds thereof exceed $100,000,000, (i) the Borrower shall be in compliance
with Sections 6.14 and 6.15, determined on a Pro Forma
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Basis; and (ii) no Default shall have
occurred and be continuing or would result therefrom.
“Permitted Business” means any business conducted or proposed to be conducted (as described in
the Information Memorandum) by the Wireline Companies on the Effective Date and other businesses
reasonably related thereto, including any reasonable extension or expansion thereof.
“Permitted Encumbrances” means:
(a) Liens for Taxes, assessments and governmental charges not yet delinquent or which are
being contested in compliance with Section 5.05;
(b) Liens incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other social security obligations;
(c) Liens, deposits or pledges to secure the performance of bids, tenders, trade contracts,
leases, or other similar obligations, in each case in the ordinary course of business;
(d) Liens, deposits or pledges to secure public or statutory obligations, surety, stay,
appeal, indemnity, performance or other similar bonds or obligations; and deposits or pledges in
lieu of such bonds or obligations, or to secure such bonds or obligations, or to secure letters of
credit in lieu of or supporting the payment of such bonds or obligations;
(e) judgment and attachment liens that do not constitute an Event of Default under clause (k)
of Article 7 and notices of lis pendens and associated rights related to litigation being contested
in good faith by appropriate proceedings and for which reserves have been made in accordance with
GAAP;
(f) survey exceptions, encumbrances, easements or reservations of, or rights of other for,
rights of way, zoning or other restrictions as to the use of properties, and defects in title
which, in the case of any of the foregoing, were not incurred or created to secure the payment of
Indebtedness, and which in the aggregate do not materially adversely affect the value of such
properties or materially impair the use for the purposes of which such properties are held by any
Wireline Company;
(g) Liens in favor of collecting or payor banks having a right of setoff, revocation, refund
or chargeback with respect to money or instruments of the Borrower or any Subsidiary thereof on
deposit with or in possession of such bank;
(h) Liens representing any interest or title of a licensor, lessor or sublicensor or
sublessor, or a licensee, lessee or sublicensee or sublessee, in the
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property subject to any lease,
license or sublicense permitted by this Agreement (other than any property that is the subject of a
Sale and Leaseback Transaction); and
(i) Liens arising from precautionary Uniform Commercial Code financing statements regarding
operating leases;
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Refinancing Indebtedness” means any Indebtedness of the Borrower or any of its
Subsidiaries incurred in exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund other Indebtedness of the Borrower or any of its Subsidiaries
(other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the Borrower or
any other Subsidiary); provided that:
(a) the amount of such Permitted Refinancing Indebtedness does not exceed the amount of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued and
unpaid interest thereon and the amount of any reasonably determined premium necessary to accomplish
such refinancing and such reasonable expenses incurred in connection therewith);
(b) such Permitted Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the then
Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(c) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Secured Obligations, such Permitted Refinancing
Indebtedness has a final maturity date later than 123 days after the Tranche B Maturity Date or, if
such Equity Interests are issued after the Borrower has obtained any Incremental Loans constituting
term loans or while any Commitments from Incremental Lenders to make Incremental Loans constituting
term loans remain in effect, 123 days after the maturity date for such Incremental Loans, unless
all such Incremental Loans have been repaid in full and all Commitments in respect thereof have
been terminated and is subordinated to the Secured Obligations on terms at least as favorable,
taken as a whole, to the Secured Parties as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(d) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is
unsecured, such Permitted Refinancing Indebtedness is unsecured;
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(e) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is
Indebtedness under the Loan Documents, the Assumed Valor Bonds or the AC Holdings Bonds, such
Permitted Refinancing Indebtedness is unsecured; and
(f) such Indebtedness is incurred by either (i) by the Borrower or any Loan Party or (ii) by
the Subsidiary that is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is an “employer” as defined in Section 3(5)
of ERISA.
“Post-Petition Interest” has the meaning specified in Section 1(c) of the Security Agreement.
“Preferred Stock” means, with respect to any Person, any Equity Interests in such Person that
have preferential rights to any other Equity Interests in such Person with respect to dividends or
redemptions upon liquidation.
“Preliminary Restructuring” means the contribution by Alltel of all of the assets, liabilities
and operations of its wireline telecommunications business to its subsidiaries.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
“Pro Forma Basis” means, with respect to the preparation of the Pro Forma Financial Statements
and the calculation of the Leverage Ratio or the Interest Coverage Ratio at any time, that such
calculation shall give pro forma effect to all Permitted Acquisitions, all Permitted Asset
Exchanges, all issuances, incurrences or assumptions or repayments of Indebtedness (and the
application of proceeds thereof) and all sales, transfers or other dispositions of any Subsidiary,
line of business or division (any of the foregoing, an “Applicable Transaction”) and to the
Transactions (with any such Indebtedness being deemed to be amortized over the applicable
measurement period in accordance with its terms and, if any such Indebtedness bears interest at a
floating rate, assuming that such Indebtedness bears interest during any portion of such
measurement period prior
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to the consummation of the Applicable Transaction or the Transactions at
the interest rate applicable to such Indebtedness at such time), in each case that have occurred
during (or, if such calculation is being made for the purpose of determining whether any proposed
transaction will constitute a Permitted Acquisition or Permitted Asset Exchange or an incurrence of
Indebtedness pursuant to Section 6.01(a)(viii) or Section 6.01(a)(xviii), Permitted Additional Debt
or Incremental Loans, since the beginning of) the four consecutive Fiscal Quarter period of the
Borrower most recently ended on or prior to such date as if they had occurred on the first day of
such four consecutive Fiscal Quarter period (including cost savings (i) to the extent such cost
savings would be permitted to be reflected in pro forma financial information complying with the
requirements of GAAP and Article 11 of Regulation S-X under the Securities Act, as interpreted by
the Staff of the SEC, and as certified by a Financial Officer and (ii) which, in the case of the
Transactions, may include additional cost savings which have otherwise been realized or for which
steps necessary for realization have been taken or are reasonably expected to be taken following
the Transactions as determined in good faith by a Financial Officer, provided that the net cost
savings in connection with the Transactions pursuant to clauses (i) and (ii) above that may be
given such effect shall not exceed $50,000,000 in the aggregate for purposes of any calculation
during the first of four consecutive Fiscal Quarters after the Effective Date (or, in any case
thereafter, such amount less $12,500,000 for each additional full Fiscal Quarter thereafter).
“Pro Forma Financial Statements” has the meaning set forth in Section 3.04(b).
“PUC” means any state public service or public utility commission or other state Governmental
Authority that exercises jurisdiction over the rates or services or the acquisition, construction
or operation of any telecommunications system of any Person who owns, constructs or operates any
telecommunications system, in each case by reason of the nature or type of the business subject to
regulation and not pursuant to laws and regulations of general applicability to Persons conducting
business in such state.
“Refinancings” means the repayment of all principal of, all accrued interest on, and all
premiums, fees and other amounts owing in respect of (a) the 9.44% Sinking Fund Debentures due
2009, the 9.55% Sinking Fund Debentures due 2009 and the 9.14% Sinking Fund Debentures due 2011, in
each case issued by Alltel New York, Inc. (formerly Midstate Telephone Corporation), (b) the 8.05%
Senior Notes (Series A) due 2009 and the 8.17% Senior Notes (Series B) due 2014, in each case
issued by Georgia Alltel Telecom, Inc., (c) the 9.07% Sinking Fund Debentures due 2011 issued by
Alltel Pennsylvania, Inc. (formerly Mid-Penn Telephone Corporation), (d) the 8.11% Senior Notes due
2018 issued by Texas Alltel, Inc., (e) the 8.05% Senior Notes (Series A) due 2009 and the 8.17%
Senior Notes (Series B) due 2014, in each case issued by The Western
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Reserve Telephone Company, (f)
the Valor 2005 Credit Facility and (g) the Tendered Valor Bonds, and the termination and release of
all Guarantees of and all Liens securing any of the foregoing.
“Register” has the meaning set forth in Section 9.04(b).
“Registration Statement” means Valor’s Registration Statement on Form S-4, as filed with the
SEC on February 28, 2006, as amended to the Effective Date.
“Regulatory Authorization” means any Governmental Authorization of the FCC or any PUC.
“Reinvestment Funds” means any Net Proceeds of an asset disposition of, or casualty event with
respect to, non-current assets that are not otherwise required to be applied to prepay Loans
pursuant to Section 2.10(b) or (c).
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and
the respective directors, officers, employees, agents, trustees and advisors of such Person and
such Person’s Affiliates.
“Replacement Assets” means (a) non-current assets (including any such assets acquired by
capital expenditures) that will be used or useful in a Permitted Business or (b) substantially all
the assets of a Permitted Business or the voting stock of any Person engaged in a Permitted
Business that will become on the date of Acquisition thereof a Collateral Support Party.
“Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) having
Revolving Credit Exposures, outstanding Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Credit Exposures, outstanding Term Loans and unused
Commitments at such time (excluding any Revolving Credit Exposures, outstanding Term Loans and
unused Commitments of Defaulting Lenders).
“Required Revolving Lenders” means, at any time, Lenders (other than Defaulting Lenders)
having Revolving Credit Exposures and unused Revolving Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Revolving Commitments at such time
(excluding any Revolving Credit Exposures and unused Revolving Commitments of Defaulting Lenders).
“Required Tranche C Lenders” means, at any time, Lenders (other than Defaulting Lenders)
having outstanding Tranche C Term Loans or unused Tranche C Commitments representing more than 50%
of the sum of the total outstanding Tranche C Term Loans or unused Tranche C Commitments at such
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time (excluding any outstanding Tranche C Term Loans and unused Tranche C Commitments of Defaulting
Lenders).
“Requirement of Law” means, with respect to any Person, (a) the charter, articles or
certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person and (b) any statute, law, treaty, rule, regulation, order, decree, writ,
injunction or determination of any arbitrator or court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
“Responsible Officer” means the chief executive officer, president, chief financial officer or
any vice president of the Borrower or any other Financial Officer.
“Restricted Indebtedness” means the New Notes, the Assumed Bonds and any Permitted Additional
Debt.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any Equity Interests in any Wireline Company, or any payment
(whether in cash, securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or termination of any
such Equity Interests in any Wireline Company, or any other payment (including, without limitation,
any payment under a Swap Agreement) that has a substantially similar effect to any of the
foregoing.
“Revolving Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Revolving Maturity Date and the date of termination of the Revolving
Commitments.
“Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to
make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving
Commitments is $500,000,000.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such time.
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“Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments
have terminated or expired, a Lender with a Revolving Credit Exposure.
“Revolving Loan” means a Loan made pursuant to Section 2.01(a)(iv).
“Revolving Maturity Date” means July 17, 2011.
“Revolving Percentage” means, with respect to any Revolving Lender, the percentage of the
total Revolving Commitments represented by such Lender’s Revolving Commitments. If the Revolving
Commitments have terminated or expired, the Revolving Percentages shall be determined based upon
the Revolving Commitments most recently in effect, giving effect to any assignments that occur
after such termination or expiration.
“S&P” means Standard & Poor’s Ratings Group, Inc.
“Sale and Leaseback Transaction” has the meaning set forth in Section 6.06.
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to
any of its principal functions.
“Secured Obligations” has the meaning specified in Section 1(c) of the Security Agreement.
“Secured Parties” has the meaning specified in Section 1(c) of the Security Agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” means the Security Agreement among the Loan Parties and the Collateral
Agent, substantially in the form of Exhibit D.
“Security Documents” means the Guarantee Agreement, the Security Agreement and each other
agreement, instrument or other document executed and delivered pursuant to Section 5.10 or 5.11 to
guarantee or secure any of the Secured Obligations.
“Special Dividend” means a cash dividend paid by the Borrower to Alltel in an amount not to
exceed $2,275,000,000.
“Special Stub Dividend” shall mean dividends declared by Valor prior to the Effective Date and
paid by the Borrower thereafter in an aggregate amount not to exceed $6,000,000.
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“SPV” has the meaning set forth in Section 9.04(e).
“Statutory Reserve Rate” means a fraction (expressed as a decimal carried to the sixth decimal
place), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset or similar requirement percentages
(including any marginal, special, emergency or supplemental reserves or other requirements)
expressed as a decimal established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve, liquid asset or similar requirement.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation,
limited liability company, partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held.
“Subsidiary” means any subsidiary of the Borrower. For purposes of the representations and
warranties made herein on the Effective Date, the term “Subsidiary” includes the Contributed
Subsidiaries and each of Valor and its subsidiaries.
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or former directors,
officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
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“Syndication Agent” means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, in its capacity
as syndication agent.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Tendered Valor Bonds” means the Valor Bonds tendered for repurchase pursuant to a “Change of
Control Offer” in accordance with Section 4.14 of the Valor Indenture.
“Term Commitment” means a Tranche A Commitment, Tranche B Commitment or Tranche C Commitment,
or any combination thereof (as the context may require).
“Term Lender” means a Tranche A Lender, Tranche B Lender or Tranche C Lender.
“Term Loans” means a Tranche A Term Loan, Tranche B Term Loan or Tranche C Term Loan, or any
combination thereof (as the context may require).
“Total Assets” means the total assets of the Borrower and its Subsidiaries on a consolidated
basis, as shown on the most recent balance sheet of the Borrower prepared in conformity with GAAP
but excluding the value of any outstanding Investments made pursuant to Section 6.04(t).
“Tranche A Commitment” means, with respect to each Lender, the commitment, if any, of such
Lender to make a Tranche A Term Loan on the Effective Date, expressed as an amount representing the
maximum aggregate amount of such Tranche A Term Loan, as such commitment may be (a) reduced from
time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s
Tranche A Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its initial Tranche A Commitment, as applicable. The initial
aggregate amount of the Lenders’ Tranche A Commitments is $500,000,000.
“Tranche A Lender” means a Lender with a Tranche A Commitment or, if the Tranche A Commitments
have terminated or expired, a Lender with an outstanding Tranche A Term Loan.
“Tranche A Maturity Date” means July 17, 2011.
“Tranche A Term Loan” means a Loan made pursuant to Section 2.01(a)(i).
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“Tranche B Commitment” means, with respect to each Lender, the commitment, if any, of such
Lender to make a Tranche B Term Loan on the Effective Date, expressed as an amount representing the
maximum aggregate amount of such Tranche B Term Loan, as such commitment may be (a) reduced from
time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s
Tranche B Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its initial Tranche B Commitment, as applicable. The initial
aggregate amount of the Lenders’ Tranche B Commitments is $1,900,000,000.
“Tranche B Lender” means a Lender with a Tranche B Commitment or, if the Tranche B Commitments
have terminated or expired, a Lender with an outstanding Tranche B Term Loan.
“Tranche B Maturity Date” means July 17, 2013.
“Tranche B Term Loan” means a Loan made pursuant to Section 2.01(a)(ii).
“Tranche C Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Tranche C Commitment Termination Date and the date of termination of
the Tranche C Commitments.
“Tranche C Commitment” means, with respect to each Lender, the commitment, if any, of such
Lender to make a Tranche C Term Loan during the Tranche C Availability Period, expressed as an
amount representing the maximum aggregate amount of such Tranche C Term Loan, as such commitment
may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Tranche C Commitment is set forth on Schedule 2.01, or in the Assignment
and Assumption pursuant to which such Lender shall have assumed its initial Tranche C Commitment,
as applicable. The initial aggregate amount of the Lenders’ Tranche C Commitments is $400,000,000.
“Tranche C Commitment Termination Date” means November 17, 2006.
“Tranche C Lender” means a Lender with a Tranche C Commitment or, if the Tranche C Commitments
have terminated or expired, a Lender with an outstanding Tranche C Term Loan.
“Tranche C Maturity Date” means July 17, 2011.
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“Tranche C Term Loan” means a Loan made pursuant to Section 2.01(a)(iii).
“Transactions” means (a) the Preliminary Restructuring, (b) the Contribution (including the
payment of the Special Dividend and the issuance of the 2016 Notes), (c) the execution, delivery
and performance by each Loan Party of the Loan Documents and the funding of the Loans, the use of
proceeds thereof and the issuance of Letters of Credit thereunder, (d) the issuance and sale of the
2013 Notes, (e) the Distribution, (f) the Merger, (g) the Refinancings, (h) the Debt Exchange (if
any) and the resale of the 2016 Notes, and (i) the payment of the fees and expenses incurred in
connection with any of the foregoing.
“Transaction Documents” means (a) the Merger Agreement, the Distribution Agreement, the Voting
Agreement and the other “Transaction Agreements” referred to in the Merger Agreement and the
Distribution Agreement, (b) the New Notes Documents, (c) the Loan Documents, and (d) the indentures
and agreements under which any of the Assumed Bonds were issued and all other instruments,
agreements and other documents evidencing or governing any of the Assumed Bonds or providing for
any Guarantee or other right in respect thereof.
“Transaction Liens” means the Liens on Collateral granted by the Loan Parties under the
Security Documents.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
“United States” means the United States of America.
“Valor” means Valor Communications Group, Inc., a Delaware corporation.
“Valor 2005 Credit Facility” means the Amended and Restated Credit Agreement dated as of
February 14, 2005 among Valor Telecommunications Enterprises, LLC, as borrower, Valor and certain
of its domestic subsidiaries, as guarantors, the lenders party thereto, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, JPMorgan Chase Bank, N.A. (formerly known
as JPMorgan Chase Bank, National Association), and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as Syndication Agents, CIBC World Markets Corp. and Wachovia Bank, N.A., as
Documentation Agents, Banc of America Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Sole and
Exclusive Lead Arrangers, and Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as Sole and Exclusive
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Book Managers, as amended
by Amendment No. 1 dated as of August 9, 2005 and as further amended prior to the Effective Date.
“Valor Bonds” means the 7-3/4% Senior Notes due 2015 issued by Valor Telecommunications
Enterprises, LLC and Valor Telecommunications Enterprises Finance Corp. in an original aggregate
principal amount not to exceed $400,000,000.
“Valor Indenture” means the Indenture dated as of February 14, 2005 under which the Valor
Bonds were issued.
“Voting Agreement” means the Voting Agreement dated as of December 8, 2005 among the Borrower
and certain shareholders of Valor.
“Voting Stock” of any Person as of any date means the Equity Interests in such Person that are
ordinarily entitled to vote in the election of the board of directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment; by
(b) the then outstanding principal amount of such Indebtedness.
“wholly-owned” means, with respect to any subsidiary of any Person (the “parent”) at any date,
that securities or other ownership interests representing 100% of the Equity Interests in such
subsidiary (other than directors’ qualifying shares) are, as of such date, owned, controlled or
held by the parent or one or more wholly-owned subsidiaries of the parent or by the parent and one
or more wholly-owned subsidiaries of the parent.
“Wireline Companies” means the Borrower and the Subsidiaries.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.
Section 1.02.
Classification of Loans and Borrowings.
For purposes of this Agreement, Loans
may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a
“Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may
be classified and
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referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).
Section 1.03.
Terms Generally.
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights and whether real,
personal or mixed and (f) any reference to any Requirement of Law shall, unless otherwise
specified, refer to such Requirement of Law as amended, modified or supplemented from time to time.
Section 1.04.
Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision (including any definition) hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Borrower that the Required
Lenders request an amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. Upon any such request for an amendment, the Borrower,
the Required Lenders and the Administrative Agent agree to consider in good faith any such
amendment in order to amend the provisions of this Agreement so as to reflect equitably such
accounting changes so that the criteria for evaluating Borrower’s financial
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condition shall be the
same after such accounting changes as if such accounting changes had not occurred.
Section 1.05.
Pro Forma Calculations.
With respect to any period (i) during which any
Permitted Acquisition, Permitted Asset Exchange or sale, transfer or other disposition of any
Subsidiary, line of business or division occurs or (ii) as to which fewer than four full Fiscal
Quarters have elapsed since the Effective Date, calculations of the Leverage Ratio and the Interest
Coverage Ratio with respect to such period shall be made on a Pro Forma Basis.
The Credits
Section 2.01.
Loans. (a) Commitments. Subject to the terms and conditions set forth
herein:
(i) each Tranche A Lender agrees to make a Tranche A Term Loan to the Borrower on the
Effective Date in a principal amount not exceeding its Tranche A Commitment;
(ii) each Tranche B Lender agrees to make a Tranche B Term Loan to the Borrower on
the Effective Date in a principal amount not exceeding its Tranche B Commitment;
(iii) each Tranche C Lender agrees to make a Tranche C Term Loan to the Borrower
during the Tranche C Availability Period in a principal amount not exceeding its Tranche C
Commitment; and
(iv) each Revolving Lender agrees to make Revolving Loans to the Borrower from time
to time during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender’s Revolving Credit Exposure exceeding such Lender’s
Revolving Commitment.
(b) Incremental Loan Facility. (i) At any time and from time to time prior to the Tranche B
Maturity Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to
the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each
of the Lenders), request to add one or more additional tranches of loans (“Incremental Loans” and
each such tranche, an “Incremental Facility”), provided that at the time of each such request and
upon the effectiveness of each Incremental Facility Amendment, (A) no Event of Default has occurred
and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma
Basis with the covenants contained in Sections 6.14 and 6.15 recomputed as of the last
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day of the
most-recently ended Fiscal Quarter for which financial statements have been delivered pursuant to
Section 5.01(a) or (b), and (C) the Borrower shall have delivered a certificate of a Financial
Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed
calculations demonstrating compliance with clause (B) above. Notwithstanding anything to the
contrary herein, the aggregate principal amount of all commitments, loans and other extensions of
credit made available under the Incremental Facilities since the Effective Date shall not exceed
$800,000,000. Each Incremental Facility shall be in an amount that is an integral multiple of
$5,000,000 and not less than $50,000,000, provided that an Incremental Facility may be in any
amount less than $50,000,000 if such amount represents all the remaining availability under the
Incremental Facilities pursuant to the immediately preceding sentence.
(ii) The Incremental Loans shall rank pari passu or junior in right of payment in
respect of the Collateral and with the obligations in respect of the Revolving
Commitments, the Tranche A Term Loans, the Tranche B Term Loans and the Tranche C Term
Loans, if any. In addition, (A) any Incremental Facility providing for term loans shall
(1) not have a final maturity date earlier than the Tranche B Maturity Date or a Weighted
Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the
then-remaining Tranche B Term Loans, (2) for purposes of prepayments, be treated
substantially the same as (and in any event no more favorably than) the Tranche B Term
Loans and (3) otherwise have terms that are no more favorable to the lenders providing
such Incremental Facility than the terms applicable to the Tranche B Term Loans, provided
that (x) if the Applicable Rate relating to the loans under any Incremental Facility
exceeds the Applicable Rate relating to the Tranche B Term Loans by more than 0.25%, the
Applicable Rate relating to the Tranche B Term Loans shall be adjusted to be equal to the
Applicable Rate relating to such Incremental Loans and (y) any determination of the
Applicable Rate relating to Incremental Loans or Tranche B Term Loans under the foregoing
clause (x) shall include all upfront or similar fees or original issue discount payable to
the Lenders providing such Loans) and (B) any Incremental Facility providing for revolving
loans shall (1) not have a final maturity date, or a commitment availability period that
ends, earlier than the Revolving Maturity Date and (2) be subject to other terms that are
similar to the terms then available in the bank financing market to companies having a
credit quality similar to the Borrower.
(iii) Each notice from the Borrower pursuant to this Section 2.01(b) shall set forth
the requested amount and proposed terms of the relevant Incremental Facility. Any bank,
financial institution or other Person (whether or not an existing Lender or Affiliate of
an existing Lender) that elects to provide any Incremental Facility (each, an
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“Incremental
Lender”) shall be reasonably satisfactory to the Borrower and (other than in the case of
existing Lenders providing only term loans under such Incremental Facility) the
Administrative Agent and the Syndication Agent; provided that no existing Lender shall be
obligated to provide any Incremental Loans, unless it so agrees. Any Incremental Facility
will be effected pursuant to an amendment (an “Incremental Facility Amendment”) to this
Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, the
Incremental Lenders providing such Incremental Facility (and no other Lenders) and the
Administrative Agent. Upon the effectiveness of any Incremental Facility Amendment, each
Incremental Lender shall become a “Lender” under this Agreement with respect to its
obligations under such Incremental Facility, and the commitments of the Incremental
Lenders in respect of such Incremental Facility shall become “Commitments” hereunder; and
any Incremental Loans under such Incremental Facility shall, when made, constitute “Loans”
under this Agreement. In addition, any Incremental Facility Amendment may, without the
consent of any Lenders other than the Incremental Lenders, effect such amendments to any
Loan Documents as may be necessary or appropriate, in the opinion of the Administrative
Agent, to effect the provisions of this Section 2.01(b) (including to provide for voting
provisions applicable to the Incremental Lenders comparable to the provisions of clause
(B) of the second proviso of Section 9.02(b)). The effectiveness of an Incremental
Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the
Incremental Lenders, be subject to the satisfaction on the date thereof (an “Incremental
Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being
understood that all references to “the date of such Borrowing” in Section 4.02 shall be
deemed to refer to the Incremental Facility Closing Date). The proceeds of Incremental
Loans will be used only for working capital and other general corporate purposes
(including to finance Permitted Acquisitions or Capital Expenditures, in each case to the
extent otherwise permitted hereunder).
Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid or prepaid in respect of Term
Loans may not be reborrowed.
Section 2.02.
Loans and Borrowings.
(a) Each Revolving Loan and Term Loan shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.
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(b) Subject to Section 2.13, (i) each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of
the total Revolving Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(e). Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more than a total of 20
Eurodollar Borrowings outstanding (or, if any Incremental Loans are outstanding, 30).
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect to the applicable Loan would end after the Revolving Maturity Date, Tranche A Maturity
Date, Tranche B Maturity Date or Tranche C Maturity Date, as applicable.
Section 2.03.
Requests for Borrowings.
To request a Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on
the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(e) may be given not
later than 12:00 noon, New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery,
e-mail of a pdf copy or telecopy to the Administrative Agent of a written Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing, Tranche A Term
Borrowing, Tranche B Term Borrowing or Tranche C Term Borrowing;
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(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”;
(vi) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.05; and
(vii) as of such date Sections 4.02(a) and (b) are satisfied.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the relevant Class of the details thereof and of
the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Section 2.04.
Letters of Credit.
(a) General. (i) Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Letters of Credit for its own account (or
for the account of any Wireline Company so long as the Borrower and such Wireline Company are
co-applicants), in a form reasonably acceptable to the Administrative Agent and the Issuing Bank
requested to issue such Letter of Credit, at any time and from time to time during the Revolving
Availability Period. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(ii) Existing Letters of Credit. Upon consummation of the Merger on the Effective
Date and the satisfaction of the conditions in Section 4.02, in each case automatically
and without further action on the part of any Person, (A) each Existing Letter of Credit
will be deemed to be a Letter of Credit issued hereunder for all purposes of the Loan
Documents, and (B) each Revolving Lender that has issued an Existing Letter of Credit
shall be deemed to have granted to each other Revolving Lender, and each other Revolving
Lender shall be deemed to have
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acquired from such issuer, a participation in each Existing
Letter of Credit equal to such other Revolving Lender’s Revolving Percentage of (I) the
aggregate amount available to be drawn under such Existing Letter of Credit and (II) the
aggregate amount of any outstanding LC Reimbursement Obligations in respect thereof. With
respect to each Existing Letter of Credit (x) if, prior to the Effective Date, the
relevant issuer has heretofore sold a participation therein to a Revolving Lender, such
issuer and Revolving Lender agree that such participation shall be automatically canceled
upon consummation of the Merger on the Effective Date, and (y) if, prior to the Effective
Date, the relevant issuer has heretofore sold a participation therein to any bank or
financial institution that is not a Revolving Lender, such issuer shall procure the
termination of such participation on or prior to the Effective Date.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower shall hand deliver, e-mail or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing Bank requested to
issue such Letter of Credit) to such Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank requested to issue such Letter of
Credit, the Borrower also shall submit a letter of credit application on such Issuing Bank’s
standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of
each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$30,000,000 and (ii) the sum of the total Revolving Credit Exposures shall not exceed the total
Revolving Commitments. Promptly upon the issuance of a Letter of Credit (or amendment, renewal,
extension or termination of an outstanding Letter of Credit), the Issuing Bank shall provide notice
of such issuance, amendment, renewal, extension or termination to the Administrative Agent (if
different from the Issuing Bank), who shall in turn promptly provide notice of same to the
Revolving Lenders.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business
on the earlier of (i) the date one year after the date of the
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issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Maturity Date; provided that (x)
any Letter of Credit may provide for the automatic extension or renewal thereof and may be
automatically renewed or extended upon notice delivered by the Borrower in accordance with the
terms thereof for additional periods of a duration requested by the Borrower (which shall in no
event extend beyond the date referred to in clause (ii) above) and (y) with the consent of the
applicable Issuing Bank and the Administrative Agent, Letters of Credit with a term longer than one
year shall be permitted (which shall in no event extend beyond the date referred to in clause (ii)
above).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of the Issuing
Bank thereof or any of the Lenders, such Issuing Bank hereby grants to each Revolving Lender, and
each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender’s Revolving Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the applicable Issuing Bank, such Lender’s Revolving Percentage of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter
of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent
an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 3:00 p.m., New York
City time, on (i) the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt; provided that ,if
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such LC Disbursement is not
less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an ABR Revolving
Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the
Borrower fails to make such payment when due (or if any such reimbursement payment is required to
be refunded to the Borrower for any reason), the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof
and such Lender’s Revolving Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Revolving Percentage of the payment then
due from the Borrower, in the same manner as provided in Section 2.05 with respect to Loans made by
such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank
the amounts so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent
that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made
by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. Except as provided below, the Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by
the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the
Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the
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circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing
Bank from liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that (i) are caused by such Issuing Bank’s
gross negligence or willful misconduct in determining whether drafts and other documents presented
under a Letter of Credit issued by it comply with the terms thereof, or (ii) result from such
Issuing Bank’s willful or grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of such Letter of Credit. The parties hereto expressly agree that, in the
absence of gross negligence or willful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank
thereof may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit, and any such acceptance or refusal shall be
deemed not to constitute gross negligence or willful misconduct.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit issued
by it. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the
Revolving Lenders with respect to any such LC Disbursement in accordance with paragraph (e) of this
Section.
(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the
Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC
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Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the applicable Issuing Bank, except that interest accrued on and after the
date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse such
Issuing Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of an Issuing Bank. Any Issuing Bank may be replaced at any time by written
agreement among the Borrower, the Administrative Agent and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued
for the account of the replaced Issuing Bank pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in its Cash Collateral Account an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause
(h) or (i) of Article 7. Such deposit shall be held by the Collateral Agent as collateral for the
payment and performance of the Secured Obligations. Moneys in such account (including any earnings
on amounts therein) shall be applied by the Collateral Agent to pay LC Reimbursement Obligations as
they become due or, if the maturity of the Loans has been accelerated (but subject to the consent
of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy the Secured Obligations as provided in Section 13 of the Security Agreement. If the
Borrower is required to provide an amount of cash
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collateral hereunder as a result of the
occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned (together with any earnings
thereon) to the Borrower within three Business Days after all Events of Default have been cured or
waived.
Section 2.05.
Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and designated by the Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to Section 2.04(e) to reimburse such Issuing Bank, then to such Lenders and
the applicable Issuing Bank as their interests may appear.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.
Section 2.06.
Interest Elections.
(a) Each Revolving Borrowing and Term Borrowing initially
shall be of the Type specified in the applicable Borrowing Request or designated by Section 2.03
and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request or designated by Section 2.03. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
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Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery, e-mail of a pdf copy or
telecopy to the Administrative Agent of a written Interest Election Request in a form approved by
the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the relevant Class of the details thereof and of such Lender’s portion of
each resulting Borrowing.
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(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred
and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower (or, in the case of an Event of Default of the type described in paragraph (h) or (i)
of Article 7 with respect to the Borrower, automatically), then, so long as an Event of Default has
occurred and is continuing, no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing having an Interest Period longer than one month; provided that, if (x) an
Event of Default of the type described in paragraph (a), (b), (h) or (i) of Article 7 has occurred
and is continuing and (y) other than in the case of an Event of Default of the type described in
paragraph (h) or (i) of Article 7 with respect to the Borrower, the Required Lenders have so
requested, then (i) no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid prior to or at the end of the Interest Period then applicable
thereto, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of such
Interest Period.
Section 2.07.
Termination and Reduction of Commitments. (a) Unless previously terminated,
(i) the Tranche A Commitments and Tranche B Commitments shall terminate on the Effective Date
immediately after the funding and closing hereunder, (ii) the Tranche C Commitments shall terminate
on the Tranche C Commitment Termination Date and (iii) the Revolving Commitments shall terminate on
the Revolving Maturity Date.
(b) The Borrower may at any time, without premium or penalty, terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of any
Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000
and (ii) the Borrower shall not terminate or reduce the Revolving Commitments to the extent, after
giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.10,
the sum of the Revolving Credit Exposures would exceed the total Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered
by the Borrower may state that such notice is conditioned upon the occurrence or non-occurrence of
any event specified therein
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(including the consummation of an acquisition, sale or other similar
transaction, or the receipt of proceeds from the incurrence or issuance of Indebtedness or Equity
Interests or the effectiveness of other credit facilities), in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
Section 2.08.
Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent (i) for the account of each Revolving Lender the then
unpaid principal amount of such Lender’s Revolving Loans on the Revolving Maturity Date and (ii)
for the account of each Term Lender the then unpaid principal amount of such Lender’s Term Loans as
provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be, absent manifest error, prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent; provided that, in order for any such
promissory note to be delivered on the Effective Date, the request therefor shall be delivered no
later than two Business Days prior to the Effective Date. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be
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represented by one or more promissory notes in such form payable to the payee
named therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
Section 2.09. Scheduled Amortization of Term Loans.
(a) Subject to adjustment pursuant to
Section 2.09(e), the Borrower shall repay Tranche A Term Loans on each date set forth below in the
aggregate principal amount equal to the
percentage set forth opposite such date times the initial principal amount of Tranche A Term
Loans:
| Date | Percentage | |||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2007 to but excluding September 30,
2008 |
1.25 | % | ||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2008 to but excluding September 30,
2009 |
2.50 | % | ||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2009 to but excluding September 30,
2010 |
3.75 | % | ||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2010 to but excluding June 30, 2011 |
5.00 | % | ||
Tranche A Maturity Date |
55.00 | % | ||
(b) Subject to adjustment pursuant to Section 2.09(e), the Borrower shall repay Tranche B
Term Loans (i) on the last day of each Fiscal Quarter ending on or after September 30, 2007 and
prior to the Tranche B Maturity Date in an aggregate principal amount equal to 0.25% of the initial
principal amount of Tranche B Term Loans and (ii) on the Tranche B Maturity Date in an aggregate
principal amount equal to the principal amount of Tranche B Term Loans then outstanding.
(c) Subject to adjustment pursuant to Section 2.09(e), the Borrower shall repay Tranche C Term
Loans on each date set forth below in the aggregate principal amount equal to the percentage set
forth opposite such date times the initial principal amount of Tranche C Term Loans:
| Date | Percentage | |||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2007 to but excluding September 30,
2008 |
1.25 | % | ||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2008 to but excluding September 30,
2009 |
2.50 | % | ||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2009 to but excluding September 30,
2010 |
3.75 | % | ||
Last day of each Fiscal Quarter ending during the period from
and including September 30, 2010 to but excluding June 30, 2011 |
5.00 | % | ||
Tranche C Maturity Date |
55.00 | % | ||
(d) To the extent not previously paid, (i) all Tranche A Term Loans shall be due and
payable on the Tranche A Maturity Date, (ii) all Tranche B Term
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Loans shall be due and payable on
the Tranche B Maturity Date and (iii) all Tranche C Term Loans shall be due and payable on the
Tranche C Maturity Date.
(e) Any prepayment of Term Loans of any Class will be applied to reduce the subsequent
scheduled repayments of the Term Loans of such Class to be made pursuant to this Section, in the
case of mandatory prepayments, in direct order of maturity, and in the case of voluntary
prepayments, ratably. If the aggregate amount of the Term Loans of any Class made on the Effective
Date is less than the initial aggregate amount of the Term Commitments of such Class, the scheduled
repayments of the Term Loans of such Class shall be reduced
ratably to an aggregate amount equal to the aggregate amount of such Term Loans actually made.
(f) Before repaying any Term Loans of any Class pursuant to this Section, the Borrower shall
select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not later than 11:00
a.m., New York City time, three Business Days before the scheduled date of such repayment. Each
such repayment of a Borrowing shall be applied ratably to the Loans included in such Borrowing and
shall be accompanied by accrued interest on the amount repaid.
Section 2.10. Optional and Mandatory Prepayment of Loans.
(a) Optional Prepayments. The
Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or
in part without premium or penalty but subject to Section 2.15 and the requirements of this
Section.
(b) Asset Dispositions. Within five Business Days after any Net Proceeds are received by or
on behalf of any Wireline Company in respect of any Asset Disposition, the Borrower shall (subject
to paragraph (h) of this Section) prepay Term Borrowings in an aggregate amount equal to such Net
Proceeds; provided that, if the Borrower shall deliver to the Administrative Agent a certificate of
a Financial Officer to the effect that (i) the Wireline Companies intend to apply the Net Proceeds
from such Asset Disposition (or a portion thereof specified in such certificate), within 365 days
after receipt of such Net Proceeds, to acquire Replacement Assets, (ii) the property acquired in
connection therewith will be included in the Collateral at least to the extent that the property
disposed of was included therein or shall be property of a Collateral Support Party and (iii) no
Event of Default has occurred and is continuing, then no prepayment will be required pursuant to
this subsection in respect of such Net Proceeds (or the portion of such Net Proceeds specified in
such certificate, if applicable) except that, if any such Net Proceeds have not been so applied (or
committed to be applied, except to the extent such Net Proceeds are not so applied within 365 days
after such commitment) by the end of such 365-day period, a prepayment will be
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required at that
time in an amount equal to the amount of such Net Proceeds that have not been so applied or
committed to be so applied.
(c) Casualty Events. Within five Business Days after any Net Proceeds are received by or on
behalf of any Wireline Company in respect of any Casualty Event, the Borrower shall (subject to
paragraph (h) of this Section) prepay Term Borrowings in an aggregate amount equal to such Net
Proceeds; provided that, if the Borrower shall deliver to the Administrative Agent a certificate of
a Financial Officer to the effect that (i) the Wireline Companies intend to apply the Net Proceeds
from such event (or a portion thereof specified in such certificate), within 365 days after receipt
of such Net Proceeds, to repair, restore or replace the property with respect to which such Net
Proceeds were received or to acquire Replacement Assets, and (ii) any property acquired in
connection with such
application (whether as replacement property or Replacement Assets) will be included in the
Collateral at least to the extent that the property to be replaced was included therein or shall be
property of a Collateral Support Party, then no prepayment will be required pursuant to this
subsection in respect of such Net Proceeds (or the portion of such Net Proceeds specified in such
certificate, if applicable) except that, if any such Net Proceeds have not been so applied (or
committed to be applied, except to the extent such Net Proceeds are not so applied within 365 days
after such commitment) by the end of such 365-day period, a prepayment will be required at that
time in an amount equal to the amount of such Net Proceeds that have not been so applied or
committed to be so applied.
(d) Allocation of Prepayments, Right to Decline Tranche B Mandatory Prepayments. Before any
optional or mandatory prepayment of Borrowings hereunder, the Borrower shall select the Borrowing
or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (g) of this Section. In the event of any optional or mandatory prepayment of
Term Borrowings made at a time when Term Borrowings of more than one Class remain outstanding, the
Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment
is allocated among the Term Borrowings of each Class pro rata based on the aggregate principal
amount of outstanding Borrowings of each such Class, provided that any Tranche B Lender may elect,
by notice to the Administrative Agent by telephone (confirmed by telecopy) at least one Business
Day prior to the prepayment date, to decline all or any portion of any prepayment of its Tranche B
Term Loans pursuant to this Section (other than an optional prepayment pursuant to paragraph (a) of
this Section, which may not be declined), in which case the aggregate amount of the prepayment that
would have been applied to prepay Tranche B Term Loans of any such Class but was so declined shall
be applied to prepay Term Borrowings of the other Classes until no Term Borrowings of any other
Class remain outstanding. Any excess Net Proceeds after application to such other Classes shall be
applied to prepay any outstanding Tranche B Term Loans.
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(e) Accrued Interest. Each prepayment of a Borrowing shall be accompanied by accrued interest
to the extent required by Section 2.12.
(f) Notice of Prepayments. The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Revolving Commitments as contemplated by
Section 2.07, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance with Section
2.07; provided further that, the Borrower may deliver a conditional prepayment notice subject to
the proviso in Section 2.07(c). Promptly following receipt of any such notice, the Administrative
Agent shall advise the Lenders of the contents thereof.
(g) Partial Prepayments. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section
2.02, except as needed to apply fully the required amount of a mandatory prepayment or to allocate
an optional prepayment of Term Loans as required by paragraph (d) of this Section. Each prepayment
of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
(h) Deferral of Prepayments. The Borrower may defer any mandatory prepayment otherwise
required under paragraph (b) or (c) above until the aggregate amount of Net Proceeds otherwise
required to be applied to prepay Borrowings pursuant to paragraphs (b) and (c) above (whether
resulting from one or more Asset Dispositions or Casualty Events, but after giving effect to any
applications of proceeds permitted under such paragraphs) equals or exceeds $30,000,000, at which
time the entire unutilized amount of such Net Proceeds (not only the amount in excess of
$30,000,000) will be applied as provided in paragraphs (b) and (c) above, as applicable.
Section 2.11.
Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Revolving Lender and each Tranche C Lender (in each case, other than a Defaulting
Lender) a commitment fee, which shall accrue at the Commitment Fee Rate on the average daily unused
amount of the Revolving Commitment of such Revolving Lender and the Tranche C
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Commitment of such
Tranche C Lender during the period from and including the Effective Date to but excluding the date
on which such Commitment terminates. Accrued commitment fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on which the
Commitments of the relevant Class terminate, commencing on the first such date to occur after the
date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender (other than a Defaulting Lender) a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurodollar Revolving Loans on the average daily amount of
such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but excluding the later
of the date on which such Lender’s Revolving Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to each
Issuing Bank a fronting fee, which shall accrue at the rate of 0.25% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) with respect to each Letter of Credit issued by such Issuing Bank during the period
from and including the Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure with respect to
Letters of Credit issued by such Issuing Bank, as well as such Issuing Bank’s standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and including the last
day of March, June, September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Revolving Commitments
terminate and any such fees accruing after the date on which the Revolving Commitments terminate
shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own account and the
account of the Collateral Agent, fees payable in the amounts and at the times separately agreed
upon between the Borrower such Agents.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to each Issuing
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Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
Section 2.12. Interest.
(a) The Loans comprising each ABR Borrowing of each Class shall
bear interest at the Alternate Base Rate plus the Applicable Rate for such Class.
(b) The Loans comprising each Eurodollar Borrowing of each Class shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate
for such Class.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder or under any other Loan Document is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in the case of any
principal of any Loan or any LC Disbursements, 2% plus the rate otherwise applicable to such Loan
or LC Disbursement as provided in the preceding paragraphs of this Section
or (ii) in the case of any other overdue amount, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an
ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.
Section 2.13.
Alternate Rate of Interest.
If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:
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(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.
Section 2.14. Increased Costs.
(a) Except with respect to Taxes, which shall be governed by
Section 2.16, if any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or
any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or
Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by,
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such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s
policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank
or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 Business Days after receipt
thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand
such compensation; provided that the Borrower shall not be required to compensate a Lender or an
Issuing
Bank pursuant to this Section for any increased costs or reductions incurred more than 180
days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or
Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect thereof.
Section 2.15. Break Funding Payments.
In the event of (a) the payment by or on behalf of the
Borrower of any principal of any Eurodollar Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including as
a result of an Event of Default), (c) the failure by the Borrower to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(f) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section
2.18 or Section 9.02(c), then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would
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have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the eurodollar market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
Section 2.16. Taxes.
(a) Except as required by applicable law, any and all payments by or
with respect to any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) any Agent, Lender or Issuing
Bank (as the case may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) To the extent not paid by the Borrower pursuant to Section 2.16(a), the Borrower shall
indemnify each Agent, each Lender and each Issuing Bank, within 10 Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by such Agent,
such Lender or such Issuing Bank, as the case may be, on or with respect to any payment by or with
respect to any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A copy of a receipt or any other document evidencing payment that is
reasonably acceptable to Borrower as to the amount of such payment or liability delivered to the
Borrower by, an Agent, a Lender or an Issuing Bank, or by the Administrative Agent on its own
behalf or on behalf of an Agent, a Lender or an Issuing Bank, shall be conclusive absent manifest
error.
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(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) (i) Each Recipient that is a U.S. person as defined in Section 7701(a)(30) of the Code
shall deliver to the Borrower and the Administrative Agent, and if applicable, the assigning Lender
(or, in the case of a Participant, to the Lender from which the related participation shall have
been purchased) on or before the date on which it becomes a party to this Agreement (or, in the
case of (i) a Participant, on or before the date on which such Participant purchases the related
participation and (ii) an assignee, on or before the effective date of such assignment), two duly
completed and signed copies of Internal Revenue Service Form W-9. Each Recipient that is not a
U.S. person as defined in Section 7701(a)(30) of the Code (a “Foreign Recipient”) shall, to the
extent it is legally able to do so, deliver to the Borrower and the Administrative Agent, and if
applicable, the assigning Lender (or, in the case of a Participant, to the Lender from which the
related participation shall have been purchased) on or before the date on which it becomes a party
to this Agreement (or, in the case of (x) a Participant, on or before the date on which such
Participant purchases the related participation and (y) an assignee, on or before the effective
date of such assignment) either:
(A) two copies of a duly completed and signed Internal Revenue Service Form
W-8ECI, Form W-8BEN (with respect to eligibility for benefits under any income
tax treaty) or Form W-8IMY or successor and related applicable forms, as the
case may be, certifying to such Foreign Recipient’s entitlement as of such date
to an exemption from or reduction of United States withholding tax with respect
to payments to be made under this Agreement, or
(B) in the case of a Foreign Recipient that is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code and that does not comply with the
requirements of clause (A) hereof, (x) a statement in form and content
reasonably acceptable to the Administrative Agent and the Borrower to the effect
that such Foreign Recipient is eligible for a complete exemption from
withholding of U.S. Taxes under Code section 871(h) or 881(c) (a “Foreign
Recipient Complete Exemption Certificate”), and (y) two duly completed and
signed copies of Internal Revenue Service Form W-8BEN or any successor and
related applicable form.
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Further, each Foreign Recipient agrees, (i) to the extent it is not precluded from doing so by a
Change in Law and otherwise legally able to do so, to deliver to the Borrower and the
Administrative Agent, and if applicable, the assigning Lender (or, in the case of a Participant, to
the Lender from which the related participation shall have been purchased), from time to time, two
copies of a duly completed and signed applicable Form W-8 or successor and related applicable forms
or certificates, on or before the date that any such form or certificate, as the case may be,
expires or becomes obsolete or invalid in accordance with applicable U.S. laws and regulations,
(ii) in the case of a Foreign Recipient that delivers a Foreign Recipient Complete Exemption
Certificate, to deliver to the Borrower and the Administrative Agent, and if applicable, the
assigning Lender (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased), such statement on an annual basis reasonably promptly
after the anniversary of the date on which such Foreign Recipient became a party to this Agreement
(or, in the case of a Participant, the date on which the Participant purchased the related
participation), and (iii) to notify promptly the Borrower and the Administrative Agent (or, in the
case of a Participant, the Lender from which the related participation shall have been purchased)
if it is no longer able to deliver, or if it is required to withdraw or cancel, any form or
certificate previously delivered by it pursuant to this Section 2.16(e).
(ii) In addition, but without duplication of the covenant as to United States
withholding tax contained in Section 2.16(e)(i), any Recipient that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction(s) in
which the Borrower is organized, or any treaty to which any such jurisdiction is a party,
with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably requested
by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.
(f) If any Agent, Lender or Issuing Bank determines, in its discretion exercised in good
faith, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.16, it shall pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section
2.16 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Agent, Lender or Issuing Bank and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); provided that the Borrower,
upon the request of such Agent, Lender or Issuing Bank, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Agent, Lender or Issuing Bank in the event such
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Agent, Lender or Issuing Bank is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the any Agent, Lender or Issuing Bank to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person.
Section 2.17.
Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower
shall make each payment required to be made by it hereunder (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) no later than 2:00 pm, New York City time, on the date when due, in immediately
available funds, without set off or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent to the applicable account designated to the Borrower, except
payments to be made directly to an Issuing Bank as expressly provided herein and except that
payments pursuant to Section 2.14, 2.15 or 2.16 and Section 9.03 shall be made directly to the
Persons entitled thereto and payments made pursuant to other Loan Documents shall be made to the
Persons specified therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder (after giving effect to all applicable grace periods and/or cure periods, if any),
such funds shall be applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of interest and fees then
due to such parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or participations in
LC Disbursements resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
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greater proportion
shall purchase (for cash at face value) participations in the Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC Disbursements; provided that
(i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC Disbursements
to any assignee or participant, other than to any Wireline Company or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of any of the Lenders
or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to such Lenders or Issuing Bank, as the case may
be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of
the Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(d) or (e), 2.05(a) or (b), 2.17(d) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations
under such Sections until all such unsatisfied obligations are fully paid.
Section 2.18.
Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for
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the account of any Lender pursuant to Section 2.16, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and out-of-pocket expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If (i) any Lender requests compensation under Section 2.14, or the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or (ii) any Lender defaults in its obligation to fund Loans hereunder
(any Lender described in this clause (ii), a “Defaulting Lender”), then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the prior written
consent of the Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing
Banks), which consents shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and funded participations in
LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts), (iii) the Borrower, the Defaulting Lender
(if any) or such assignee shall have paid to the Administrative Agent the processing and
recordation fee
specified in Section 9.04(b) and (iv) in the case of any such assignment resulting from a
claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and
delegation cease to apply.
The Borrower represents and warrants to the Lender Parties that:
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Section 3.01.
Organization; Powers.
Each of the Wireline Companies is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required by applicable law.
Section 3.02.
Authorization; Enforceability.
The Transactions to be entered into by each
Wireline Company are within its corporate (or other organizational) powers and have been duly
authorized by all necessary corporate (or other organizational) action with respect to such
Wireline Company and, if required, stockholder action by the holders of such Wireline Company’s
Equity Interests. This Agreement has been duly executed and delivered by the Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed
and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of the
Borrower or such Loan Party, as the case may be, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
Section 3.03.
Governmental Approvals; No Conflicts.
The Transactions (a) do not require any
material Governmental Authorization, except (i) such as have been or prior to or concurrently with
the consummation of the Transactions will be obtained or made and are or prior to or concurrently
with the consummation of the Transactions will be in full force and effect, (ii) notices required
to be filed with the FCC or any applicable PUC after the consummation of the Transactions and (iii)
filings necessary to perfect the Transaction Liens, (b) will not violate (1) any applicable law or
regulation applicable to any Wireline Company, (2) the charter, by-laws or other organizational
documents of any Wireline Company or (3) any material Governmental Authorization in any material
respect, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon any Wireline Company or any of its assets, or give
rise to a right thereunder to require any payment to be made by any Wireline Company or give rise
to a right of, or result in, termination, cancellation or acceleration of any obligation
thereunder, except to the extent the holders of the Valor Bonds may require the repurchase thereof
as a result of the “Change of Control” of Valor resulting from the Merger, and (d) will not result
in the creation or imposition of any Lien (other than the Transaction Liens) on any asset of any
Wireline Company, except, with respect to clauses (b)(1), (c) and (d), to the extent any of the
foregoing could not reasonably be expected to have a Material Adverse Effect.
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Section 3.04. Financial Condition; No Material Adverse Change.
(a) (i) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (A) as of and for each of the Fiscal Years ended December 31,
2003, December 31, 2004 and December 31, 2005, reported on by PricewaterhouseCoopers LLP,
independent public accountants, and (B) as of and for the Fiscal Quarter and the portion of the
Fiscal Year ended March 31, 2006, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (B) above.
(ii) Valor has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (A) as of and for each of the
Fiscal Years ended December 31, 2003, December 31, 2004 and December 31, 2005, reported on
by Deloitte & Touche LLP, independent public accountants, and (B) as of and for the Fiscal
Quarter and the portion of the Fiscal Year ended March 31, 2006, certified by its chief
financial officer. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of Valor and its
consolidated subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (B) above.
(b) The Borrower has heretofore furnished to the Lenders pro forma consolidated financial
statements of the Borrower as of March 31, 2006 prepared on a Pro Forma Basis (the “Pro Forma
Financial Statements”). The Pro Forma Financial Statements (i) have been prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements included in the
Information Memorandum (which assumptions were at the time of the preparation of the Pro Forma
Financial Statements believed by the Borrower to be reasonable), (ii) accurately reflect all
adjustments reasonably believed by the Borrower to be necessary to give effect to the Transactions
and (iii) present fairly,
in all material respects, the pro forma financial position of the Borrower as of March 31,
2006 as if the Transactions had occurred on such date.
(c) Since, in the case of any determination to be made prior to the Merger, September 30,
2005, and, in the case of any other determination, December 31, 2005, there has been no state of
facts, change, development, event, effect, condition or occurrence that, individually or in the
aggregate, has had a Material Adverse Effect.
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Section 3.05. Properties.
(a) Each of the Wireline Companies has good title to, or valid
leasehold interests in, all its real and personal property material to its business, except for
Liens permitted under Section 6.02, and minor defects in title that do not interfere with its
ability to conduct its business as currently conducted and except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
(b) Each of the Wireline Companies owns, or has the right to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business, and the use thereof
by the Wireline Companies does not infringe upon the rights of any other Person, except for any
such failure to own or have license or such infringements that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the correct address of each material real property having a Fair
Market Value (as reasonably determined by a Financial Officer in good faith) exceeding $10,000,000
that is owned by any Wireline Company as of the Effective Date after giving effect to the
Transactions.
Section 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting any Wireline Company that (i) could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect,
or (ii) involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any other Wireline Company (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received written notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.
Section 3.07. Compliance with Laws and Agreements.
Each of the Wireline Companies is in
compliance with (a) all laws, regulations and Governmental Authorizations, in each case applicable
to it or its property, (b) each of the Transaction Documents and (c) all indentures, agreements and
other instruments binding upon it or its property, except, in each case, where the failure
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to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
Section 3.08. Investment and Holding Company Status.
No Wireline Company is required to be
regulated as an “investment company” as defined in, or subject to regulation under, the Investment
Company Act of 1940.
Section 3.09. Taxes.
Each of the Wireline Companies has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the applicable Wireline Company has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect. As of the Effective Date, the Tax Sharing Agreement (as
defined in the Merger Agreement) is the only agreement among the Loan Parties regarding tax
sharing, tax reimbursement or tax indemnification.
Section 3.10.
ERISA.
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse Effect.
Section 3.11. Disclosure.
As of the Effective Date, the Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which any Wireline
Company is subject, and all other matters known to it, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports, financial statements, certificates or other information
concerning any of the Wireline Companies (other than the projections, budgets or other estimates,
or information of a general economic or industry nature concerning the Wireline Companies)
furnished by or on behalf of any Loan Party to any Lender Party in connection with the negotiation
of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished), when taken as a whole, contains as of the date
furnished any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
materially misleading; provided
that, with respect to projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed by it to be reasonable at
the time they were made; it being understood that projections by their nature are uncertain and no
assurance is being given that the results reflected in such projected financial information will be
achieved.
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Section 3.12.
Subsidiaries.
Schedule 3.12 sets forth the name of, and the ownership interest
of the Borrower in, each of its Subsidiaries and identifies each Subsidiary that is a Guarantor, in
each case as of the Effective Date. All the Subsidiaries are, and will at all times be, fully
consolidated in the Borrower’s consolidated financial statements to the extent required by GAAP.
Section 3.13. Insurance.
Schedule 3.13 sets forth a description of all material insurance
maintained by or on behalf of the Wireline Companies as of the Effective Date. As of the Effective
Date, all premiums in respect of such insurance have been paid to the extent then due.
Section 3.14.
Labor Matters.
As of the Effective Date, there are no strikes, lockouts or
slowdowns against any Wireline Company pending or, to the knowledge of the Borrower, threatened.
The hours worked by and payments made to employees of the Wireline Companies have not violated the
Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with
such matters, except where it would not reasonably be expected to have a Material Adverse Effect.
As of the Effective Date, there is no organizing activity involving the Borrower or any Subsidiary
pending or, to the knowledge of the Borrower or any Subsidiary, threatened by any labor union or
group of employees, except those that, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. As of the Effective Date, there are no representation proceedings pending
or, to the knowledge of the Borrower or any Subsidiary, threatened with the National Mediation
Board, and no labor organization or group of employees of the Borrower or any Subsidiary has made a
pending demand for recognition, except those that, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. There are no material complaints or charges against
the Borrower or any Subsidiary pending or, to the knowledge of the Borrower or any Subsidiary,
threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in
connection with, or otherwise relating to the employment or termination of employment by the
Borrower or any Subsidiary of any individual, except those that, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement by which any Wireline Company is bound.
Section 3.15. Solvency.
On the Effective Date, immediately after the Transactions to occur
on the Effective Date are consummated and after giving effect to the application of the proceeds of
each Loan to be made on the Effective Date, (a) the fair value of the assets of each Loan Party, at
a fair valuation, will
exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Loan Party will exceed the amount that will be required to
pay the probable liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other
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liabilities become absolute and matured; (c) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) no Loan Party will have unreasonably small
capital with which to conduct the business in which it is engaged as such business is now conducted
and proposed to be conducted after the Effective Date.
Section 3.16.
Licenses; Franchises.
(a) Each of the Wireline Companies holds, or on the
Effective Date will hold, all Regulatory Authorizations and all other material Governmental
Authorizations (including but not limited to franchises, ordinances and other agreements granting
access to public rights of way, issued or granted to any Wireline Company by a state or federal
agency or commission or other federal, state or local or foreign regulatory bodies regulating
competition and telecommunications businesses) (collectively, the “Wireline Licenses”) that are
required for the conduct of its business as presently conducted and as proposed to be conducted,
except to the extent the failure to hold any Wireline Licenses would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(b) Each Wireline License is, or on the Effective Date will be, valid and in full force and
effect and has not been, or will not have been, suspended, revoked, cancelled or adversely
modified, except to the extent any failure to be in full force and effect or any suspension,
revocation, cancellation or modification has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. No Wireline License is subject to (i)
any conditions or requirements that have not been imposed generally upon licenses in the same
service, unless such conditions or requirements would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, or (ii) any pending regulatory
proceeding (other than those affecting the wireline industry generally) or judicial review before a
Governmental Authority, unless such pending regulatory proceedings or judicial review would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The
Borrower does not have knowledge of any event, condition or circumstance that would preclude any
Wireline License from being renewed in the ordinary course (to the extent that such Wireline
License is renewable by its terms), except where the failure to be renewed has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The licensee of each Wireline License is (or on the Effective Date will be) in compliance
with each Wireline License and has (or on the Effective Date will have) fulfilled and performed, or
will fulfill or perform, all of its material obligations with respect thereto, including with
respect to the filing of all reports, notifications and applications required by the Communications
Act or the
rules, regulations, policies, instructions and orders of the FCC or any PUC, and the payment
of all regulatory fees and contributions, except (i) for exemptions,
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waivers or similar concessions
or allowances and (ii) where such failure to be in compliance or to fulfill or perform its
obligations or pay such fees or contributions has not had and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(d) A Wireline Company owns, or on the Effective Date will own, all of the Equity Interests
in, and Controls, or on the Effective Date will Control, all of the voting power and
decision-making authority of, each licensee of the Wireline Licenses, except where the failure to
own such Equity Interests or Control such voting power and decision-making authority of such
licensees would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 3.17.
OFAC.
Neither the Borrower nor any Subsidiary is (a) named on the list of
Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the
Treasury’s Office of Foreign Assets Control or (b)(i) an agency of the government of a country,
(ii) an organization controlled by a country or (iii) a Person resident in a country, in each case
that is subject to a sanctions program identified on the list maintained by the U.S. Department of
the Treasury’s Office of Foreign Assets Control, as such program may be applicable to such agency,
organization or Person, and the proceeds from the Loans will not be used to fund any operations in,
finance any investments or activities in, or make any payments to, any such country or Person.
Section 4.01. Effective Date.
The obligations of the Lenders to make Loans and of the
Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
reasonably satisfactory to the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders and dated the
Effective Date) of each of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the Borrower, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., General Counsel of Valor, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Loan Parties, and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, special regulatory counsel for the Loan Parties, substantially in the
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forms of Exhibits ▇-▇, ▇-▇, ▇-▇ and B-4, respectively, and covering such other corporate,
Collateral, regulatory (including with respect to Governmental Authorizations) and other matters
relating to the Wireline Companies, the Loan Documents or the Transactions as the Required Lenders
or the Lead Arrangers shall reasonably request. The Borrower hereby requests each such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of each Loan Party, the authorization of the Transactions and any other legal
matters relating to the Wireline Companies, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other amounts due and payable by
any Loan Party to any of the Lender Parties on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed
or paid by any Loan Party under the Loan Documents, and the Borrower, Alltel, Valor and their
respective subsidiaries shall have complied with their obligations under the Commitment Letter and
the Fee Letters.
(f) The Collateral and Guarantee Requirement shall have been satisfied and the Collateral
Agent shall have received a completed Perfection Certificate dated the Effective Date and signed by
a Financial Officer or other executive officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Collateral Support Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent
that the Liens indicated by such financing statements (or similar documents) are permitted by
Section 6.02 or have been (or concurrently with the closing of the Transactions will be) released.
The Lenders shall be reasonably satisfied with the terms of any intercreditor arrangements with
other lienholders.
(g) The Administrative Agent shall have received reasonably satisfactory evidence that all
insurance required by Section 5.06 is (or concurrently with the closing of the Transactions will
be) in effect.
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(h) The final terms and conditions of each aspect of the Transactions, including, without
limitation, all tax aspects thereof, shall be (i) substantially as described in the Information
Memorandum and otherwise consistent in all material respects with the description thereof received
by the Lenders in writing prior to the date hereof and (ii) otherwise reasonably satisfactory to
the Required Lenders. The Lenders shall have received copies of the Transaction Documents,
certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with
the terms and conditions thereof; it being understood that the execution copies of the Merger
Agreement and the Distribution Agreement, as attached to the Registration Statement as Annexes A
and B, respectively, are
acceptable to the Lenders. The Transaction Documents shall not have been altered, amended or
otherwise changed or supplemented or any condition therein waived, in each case in a manner that is
materially adverse to the interests of the Lenders, without the prior written consent of the
Required Lenders. The Preliminary Restructuring and the Contribution shall have been consummated,
and the Lenders shall be satisfied that the Distribution, the Merger and the Refinancings (other
than of the Refinancing of the Tendered Valor Bonds and including the release of the Guarantees of
and Liens securing, and the termination of all commitments under, the Valor 2005 Credit Facility on
terms and pursuant to documentation satisfactory to the Administrative Agent and except that the
Existing Letters of Credit shall remain outstanding) will be consummated substantially
contemporaneously with the initial funding hereunder, in each case substantially in accordance with
the terms of the applicable Transaction Documents and applicable material law and regulatory
approvals (including all material Regulatory Authorizations).
(i) The Administrative Agent shall have received a certificate, dated the Effective Date,
signed by the President, a Vice President or the General Counsel of the Borrower, either attaching
copies of, or describing, all material Governmental Authorizations (including Regulatory
Authorizations and the expiration, without imposition of material conditions, of all applicable
waiting periods in connection with the Transactions) required in connection with the execution,
delivery and performance by each Loan Party, and the validity against each Loan Party of, the Loan
Documents and the other Transaction Documents to which it is a party (including with respect to the
pledges of Equity Interests in the Subsidiaries pursuant to the Security Agreement), and such
consents, licenses and approvals shall be in full force and effect.
(j) The Lead Arrangers shall have received a certificate of a Financial Officer certifying
that the Leverage Ratio as of the Effective Date, determined on a Pro Forma Basis, is not greater
than 3.50 to 1.0 (and containing reasonably detailed calculations thereof).
(k) The Lenders shall have received (i) audited (for the 2003, 2004 and 2005 fiscal years) and
unaudited quarterly (for each Fiscal Quarter ended
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thereafter) consolidated financial statements of
each of the Borrower and Valor and the Pro Forma Financial Statements, in each case meeting the
requirements of Regulations S-X and S-K for a Form S-1 registration statement under the Securities
Act, and (ii) a business plan of the Wireline Companies including projections on an annual basis
for the period from the Effective Date through December 31, 2012, in each case under this paragraph
(j) which are not inconsistent in a manner adverse to the Lenders with the Information and
projections provided to the Lead Arrangers and the Lead Lenders prior to the date of the Commitment
Letter.
(l) The Administrative Agent shall have received a solvency certificate, in form and substance
reasonably satisfactory to the Administrative Agent, from the chief financial officer of the
Borrower, with respect to the solvency of each of the Borrower, individually, and the Loan Parties,
taken as a whole, after giving effect to the Transactions.
(m) Since September 30, 2005, there shall not have been any state of facts, change,
development, event, effect, condition or occurrence that, individually or in the aggregate, has had
a Material Adverse Effect.
Section 4.02 . Each Credit Event.
The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Banks to issue, renew or extend any Letter of Credit,
is subject to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set forth in the Loan Documents that
are qualified by materiality shall be true and correct, and the representations that are not so
qualified shall be true and correct in all material respects, in each case, on and as of the date
of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable (other than with respect to any representation and warranty that expressly
relates to an earlier date, in which case such representation and warranty shall be true and
correct in all material respects as of such earlier date).
(b) At the time of and immediately after giving effect to such Borrowing or the issuance,
renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, renewal or extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
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Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
Section 5.01. Financial Statements; Ratings Change and Other Information.
The Borrower will
furnish to the Administrative Agent on behalf of each Lender (and the Administrative Agent will
make available to each Lender):
(a) as soon as available and in no event later than 90 days after the end of each Fiscal Year,
its audited consolidated balance sheet and related statements of operations, stockholders’ equity
and cash flows as of the end of and for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous Fiscal Year, all reported on by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing (without a “going concern” or
like qualification or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) as soon as available and in no event later than 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year, its consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and
the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the
end of) the previous Fiscal Year, all certified by a Financial Officer as presenting fairly in all
material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance
with Sections 6.13 (including specifying the amount, if any, of Capital Expenditures financed with
Available Equity Proceeds or Reinvestment Funds), 6.14 and 6.15, (iii) to the extent that any such
change in GAAP has an impact on such financial statements,
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stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited financial statements referred to
in Section 3.04, and, if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate and (iv) certifying as to the amounts of
Available Cash, Available Distributable Cash, Available Equity Proceeds of the date of such
certificate and setting forth reasonably detailed calculations thereof;
(d) within 60 days after the beginning of each Fiscal Year, a detailed consolidated budget for
such Fiscal Year (including a projected consolidated balance sheet and related statements of
projected operations and cash flows as of the end of and for such Fiscal Year and setting forth the
assumptions used in preparing such budget) and, promptly when available, any significant revisions
of such budget approved by the board of directors of the Borrower;
(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by any Wireline Company with the SEC or with
any national securities exchange, or distributed by the Borrower to its shareholders generally, as
the case may be; and
(f) promptly following any reasonable written request by Administrative Agent therefor, (i)
copies of all material reports and written information to and from (A) the FCC or any PUC with
jurisdiction over the property or business of any Wireline Company or (B) the United States
Environmental Protection Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor or other agencies or authorities
concerning environmental, health or safety matters or (ii) such other information regarding the
operations, business affairs and financial condition of any Wireline Company, or compliance with
the terms of any Loan Document, as the Administrative Agent or any Lender (through the
Administrative Agent) may reasonably request.
(g) Any financial statement or other materials required to be delivered pursuant to this
Section 5.01 shall be deemed to have been delivered on the date on which such information is posted
on the Borrower’s website on the Internet or by the Administrative Agent on an IntraLinks or
similar site to which Lenders have been granted access or shall be available on the SEC’s website
on the Internet at ▇▇▇.▇▇▇.▇▇▇; provided that (i) the Borrower shall give notice of any such
posting to the Administrative Agent (who shall then give notice of any such posting to the
Lenders), and (ii) the Borrower shall deliver paper copies of any such documents to the
Administrative Agent if the Administrative Agent requests the Borrower to deliver such paper
copies. Notwithstanding anything contained herein, in every instance the Borrower shall be
required to provide paper copies of any certificate required by Section 5.01(c) to the
Administrative Agent. Except
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for such certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents. Furthermore, if any financial statement or other
materials required to be delivered under this Agreement shall be required to be delivered on any
date that is not a Business Day, such information may be delivered to the Administrative Agent on the next
succeeding Business Day after such date.
Section 5.02. Notices of Material Events.
The Borrower will furnish to the Administrative
Agent (and the Administrative Agent will make available to each Lender) prompt written notice of a
Responsible Officer obtaining Knowledge of any of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting any Wireline Company or any Affiliate thereof that
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in a Material Adverse Effect;
(d) (i) the occurrence of, or receipt of a written notice of any claim with respect to, any
Environmental Liability that could reasonably be expected to result in a Material Adverse Effect,
or (ii) receipt of a written notice of non-compliance with any Environmental Law or permit, license
or other approval required under any Environmental Law to the extent such non-compliance could
reasonably be expected to result in a Material Adverse Effect; and
(e) (i) non-compliance with any Regulatory Authorization, to the extent such non-compliance
could reasonably be expected to have a Material Adverse Effect, or (ii) receipt of any written
notice from any Governmental Authority in relation to the continuation, validity, renewal or
conditions attaching to any Regulatory Authorization which could reasonably be expected to have a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.
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Section 5.03. Information Regarding Collateral.
(a) The Borrower will furnish to the
Collateral Agent prompt written notice of any change in (i) any Loan Party’s legal name,
jurisdiction of organization, chief executive office or principal place of business, (ii) any Loan
Party’s identity or form of organization or (iii) any Loan Party’s federal Taxpayer Identification
Number. No later than 10 Business Days after any change referred to in the preceding sentence, the
Borrower shall confirm to the Collateral Agent (and, as and when available,
provide any information reasonably requested by the Collateral Agent) that all filings have
been made under the Uniform Commercial Code (or that the Borrower has provided to the Collateral
Agent all information required or reasonably requested by the Collateral Agent in order for it to
make such filings), and all other actions have been taken, that are required so that such change
will not at any time adversely affect the validity, perfection or priority of any Transaction Lien
on any of the Collateral.
(a) Each year, at the time annual financial statements with respect to the preceding Fiscal
Year are delivered pursuant to Section 5.01(a), the Borrower will deliver to the Administrative
Agent a certificate of a Financial Officer and its chief legal officer (i) setting forth, with
respect to each Loan Party, the information required pursuant to Parts A-1 and A-2 of the
Perfection Certificate or confirming that there has been no change in such information since the
date of the Perfection Certificate delivered on the Effective Date (or the effective date of such
Loan Party’s Security Agreement Supplement) or the date of the most recent certificate delivered
pursuant to this subsection and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations, containing a description
of the Collateral have been filed of record in each appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and perfect the
Transaction Liens for a period of at least 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within such period).
Section 5.04. Existence; Conduct of Business.
The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done all things reasonably necessary to preserve, renew and keep
in full force and effect (i) its legal existence and (ii) the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of
its business, except, in the case of clause (ii), where the failure to do so could not reasonably
be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03 or any disposition
of assets permitted under Section 6.05.
Section 5.05. Payment of Obligations.
The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations other than Indebtedness, including
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Tax liabilities, that, if
not paid, could reasonably be expected to result in a Material Adverse Effect before the same shall
become delinquent or in default, except where (a) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (b) the applicable Wireline Company has set aside on its
books adequate reserves with respect thereto in accordance with GAAP, and (c) such contest
effectively suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation.
Section 5.06. Maintenance of Properties; Insurance; Casualty and Condemnation.
(a) Except
as otherwise permitted in Section 6.05, the Borrower will, and will cause each of its Subsidiaries
to, keep and maintain all property used in the conduct of its business in good working order and
condition, ordinary wear and tear (and damage caused by casualty) excepted, except where the
failure to take such actions could not reasonably be expected to result in a Material Adverse
Effect.
(b) The Borrower will, and will cause each of its Subsidiaries to, maintain, with financially
sound and reputable insurance companies insurance in such amounts and against such risks as may be
required by law or as the Borrower reasonably and in its good faith business judgment believes are
customarily maintained by companies of established repute engaged in the same or similar businesses
operating in the same or similar locations. Fire and extended coverage policies maintained with
respect to any Collateral shall be endorsed or otherwise amended to include a lenders’ loss payable
clause in favor of the Collateral Agent and providing for losses thereunder to be payable to the
Collateral Agent or its designee as additional loss payee as its interests may appear. Commercial
general liability policies shall be endorsed to name the Collateral Agent as an additional insured.
Each such policy referred to in this paragraph (b) also shall provide that it shall not be
canceled, modified with respect to endorsements or loss payable provisions or not renewed (x) by
reason of nonpayment of premium except upon at least 10 days’ prior written notice thereof by the
insurer to the Collateral Agent (giving the Collateral Agent the right to cure defaults in the
payment of premiums) or (y) for any other reason except upon at least 30 days’ prior written notice
thereof by the insurer to the Collateral Agent. The Borrower shall deliver to the Collateral
Agent, prior to the cancellation or nonrenewal, or modification of any endorsement or loss payable
provisions of any such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Collateral Agent) together with
evidence reasonably satisfactory to the Collateral Agent of payment of the premium therefor to the
extent then due.
(c) The Borrower will furnish to the Administrative Agent, the Collateral Agent and the
Lenders prompt written notice of any Casualty Event.
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Section 5.07. Books and Records; Inspection Rights.
The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which full, true and correct
entries are made of all material dealings and transactions in relation to its business and
activities in accordance with GAAP. The Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender, upon reasonable
prior notice, to visit and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers and, with the
opportunity for the Borrower to be
present, its independent accountants, all at such reasonable times and as often as reasonably
requested; provided that (x), unless an Event of Default has occurred and is continuing, the
Borrower shall not be required by this Agreement to pay for more than one visit per year by the
Administrative Agent and (y) the Lenders shall coordinate any visits through the Administrative
Agent.
Section 5.08. Compliance with Laws.
The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to so comply could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.09. Use of Proceeds and Letters of Credit.
The proceeds of the Tranche A Term
Loans and Tranche B Term Loans will be used only to finance the Special Dividend, to refinance the
Indebtedness described in clauses (a) through (g) of the definition of “Refinancings” and to pay
fees and expenses in connection with the Transactions. The proceeds of the Tranche C Term Loans
will be used only to repurchase Tendered Valor Bonds, to pay accrued and unpaid interest, premiums
and other amounts constituting the “Change of Control Payment” in accordance with Section 4.14 of
the Valor Indenture and to pay any fees and expenses in connection therewith. The proceeds of the
Revolving Loans will be used only to pay fees and expenses in connection with the Transactions, for
Permitted Acquisitions and for working capital and other general corporate purposes of the Wireline
Companies. The proceeds of any Incremental Loan Facility will be used only as provided in Section
2.01(b) and in the Incremental Facility Amendment. No part of the proceeds of any Loan or Letters
of Credit will be used, whether directly or indirectly, to purchase or carry margin stock or to
extend credit to others for the purpose of purchasing or carrying margin stock or for any other
purpose, in each case that entails a violation of any of the Regulations of the Board, including
Regulations T, U and X. Letters of Credit will be issued only to support general corporate
obligations of the Wireline Companies.
Section 5.10. Additional Subsidiaries.
If any additional Subsidiary, other than an
Insignificant Subsidiary, is formed or acquired after the Effective Date, the Borrower will, within
ten Business Days after such Subsidiary is formed or
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acquired, notify the Administrative Agent and
the Collateral Agent thereof and cause the Collateral and Guarantee Requirement to be satisfied
with respect to any Equity Interest in such Subsidiary held by a Loan Party and any Indebtedness of
such Subsidiary owed to a Loan Party. If at any time any Subsidiary that is not then a Loan Party,
other than an Insignificant Subsidiary or any Subsidiary listed on Schedule 5.10, (x) is a
wholly-owned Domestic Subsidiary and is permitted by applicable law or regulation (without the need
to obtain any Governmental Authorization) to Guarantee the Facility Obligations or (y) Guarantees
any Loan Party’s obligations in respect of any New Notes, any Assumed Bonds or any other
Indebtedness (other than Indebtedness created under the Loan Documents), the Borrower shall
promptly cause (A) such Subsidiary to Guarantee the Facility Obligations pursuant to the Guarantee
Agreement (in the case of any Subsidiary described in clause (y), on terms no less favorable to the
Lenders than those applicable under such Guarantee of other Indebtedness) and (B) the other
provisions of the Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary, whereupon such Subsidiary will become a “Guarantor” and “Lien Grantor” for purposes of
the Loan Documents. The Borrower will not, and will not permit any of its Subsidiaries to, form or
acquire any Subsidiary (other than Insignificant Subsidiaries) after the Effective Date unless all
of the Equity Interests in such Subsidiary shall be directly held by a Loan Party.
Section 5.11. Further Assurances.
(a) Each Loan Party will execute and deliver any and all
further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings and other
documents), that may be required under any applicable law, or that the Collateral Agent or the
Required Lenders may reasonably request, to cause the Collateral and Guarantee Requirement to be
and remain satisfied, all at the Borrower’s expense. The Borrower will provide to the Collateral
Agent, from time to time upon any reasonable request from the Collateral Agent, evidence reasonably
satisfactory to the Collateral Agent as to the perfection and priority of the Liens intended to be
created by the Security Documents.
(b) If any material assets (other than any real property or improvements thereto or any
interest therein) are acquired by any Loan Party after the Effective Date (other than assets
constituting Collateral that become subject to Transaction Liens upon acquisition thereof), the
Borrower will notify the Collateral Agent and the Lenders thereof, and, if requested by the
Collateral Agent or the Required Lenders, will cause such assets to be subjected to a Transaction
Lien securing the Secured Obligations and will take, or cause the relevant Guarantor to take, such
actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect
or record such Transaction Lien, in each case to the extent contemplated by the Security Documents,
including actions described in Section 5.11(a), all at the Borrower’s expense.
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Section 5.12.
Valor Bond Offer to Repurchase.
As promptly as practicable, and in any event
within 30 days after the Effective Date, the Borrower will, or will cause one or more of its
Subsidiaries to, offer to repurchase the Valor Bonds in accordance with Section 4.14 of the Valor
Indenture.
Section 5.13. Rated Credit Facilities.
The Borrower will use commercially reasonable
efforts to cause the Facilities to be continuously rated by S&P and ▇▇▇▇▇’▇.
Section 5.14. Windstream Communications.
The Borrower will cause, and will cause its
Subsidiaries to cause, Windstream Communications, Inc. (formerly Alltel Holding Corporate Services,
Inc.) not to (a) engage to any material extent in any business or activity, other than (i) the
ownership of Wireline Licenses and other assets owned (or similar to those owned), and the business
or other activities engaged in, by it on the Effective Date, (ii) the maintenance of its corporate
existence, (iii) the making of Restricted Payments to the extent permitted by Section 6.08, and
(iv) activities incidental to (including with respect to legal, tax and accounting matters), or
otherwise required to comply with applicable law in connection with, any of the foregoing
activities; and (b) create, incur, assume or permit to exist (i) any Indebtedness of the type
described in clause (a) of the definition thereof, unless owed to a Loan Party, (ii) other
Indebtedness unless consistent with past practice, in each case regardless of whether such
Indebtedness would otherwise be permitted under Section 6.01, or (iii) any other liabilities, other
than liabilities (but not any Indebtedness) (A) existing (or similar to those existing) on the
Effective Date or (B) associated with the activities permitted under subclauses (i) through (iv) of
clause (a) above.
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
Section 6.01. Indebtedness; Certain Equity Securities.
(a) The Borrower will not, and will
not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness of the Loan Parties in respect of the New Notes and the Assumed
Valor Bonds;
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(iii) Indebtedness of AC Holdings and any of its subsidiaries that are Loan Parties
in respect of the AC Holdings Bonds; and Indebtedness of Alltel Georgia in respect of the
Alltel ▇▇▇▇▇▇▇ ▇▇▇▇▇;
(iv) Indebtedness (other than Indebtedness permitted under clause (ii) or (iii) of
this paragraph (a)) existing on the date hereof and set forth in Schedule 6.01;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary; provided that (A) any such Indebtedness of any
Subsidiary that is not a Collateral Support Party to any Collateral Support Party shall be
subject to Section 6.04, (B) except to the extent any Regulatory Authorization would be
required therefor and has not been obtained, any such Indebtedness of any Loan Party to
any Subsidiary that is not a Guarantor shall be subordinated to the Facility Obligations
on terms reasonably satisfactory to the Administrative Agent, and (C) any such
Indebtedness owed to any Loan Party and evidenced by a promissory note shall be pledged
pursuant to clause (b) of the definition of “Collateral and Guarantee Requirement”;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any
Subsidiary of Indebtedness of the Borrower or any other Subsidiary (other than
Indebtedness permitted solely pursuant to clauses (a)(iii) (except for Guarantees of the
AC Holdings Bonds by any of its subsidiaries that is a Loan Party to the extent required
under the AC Holdings Indenture as in effect on the date hereof), (a)(iv), (a)(viii) or
(a)(xviii) or any combination thereof); provided that (A) Guarantees by any Collateral
Support Party of Indebtedness of any Subsidiary that is not a Collateral Support Party
shall be subject to Section 6.04, (B) Guarantees permitted under this clause (vi) shall be
subordinated to the Secured Obligations of the applicable Subsidiary if and to the same
extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the
Secured Obligations and (C) no Indebtedness shall be Guaranteed by any Subsidiary unless
such Subsidiary is a Loan Party that has Guaranteed the Secured Obligations pursuant to
the Guarantee Agreement;
(vii) Indebtedness of any Wireline Company incurred to finance the acquisition,
construction, restoration or improvement of any fixed or capital assets, including Capital
Lease Obligations (whether through the direct acquisition of such assets or the
acquisition of Equity Interests in a Person holding only such fixed or capital assets) and
any Indebtedness assumed by any Wireline Company in connection with the acquisition of any
such assets or secured by a Lien on any such assets prior to the acquisition thereof;
provided that (A) such Indebtedness is incurred (or if assumed, was incurred) prior to or
within 150 days after such acquisition
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or the completion of such construction, restoration
or improvement and (B) the aggregate principal amount of Indebtedness permitted by this
clause (vii) shall not exceed $250,000,000 at any time outstanding;
(viii) Indebtedness of any Person that becomes a Subsidiary after the Effective Date;
provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary
and is not created in contemplation of or in connection with such Person becoming a
Subsidiary and (B) the Borrower is in compliance on a Pro Forma Basis after giving effect to such
Indebtedness with the covenants contained in Sections 6.14 and 6.15 recomputed as of the
last day of the most-recently ended Fiscal Quarter prior to the time at which such Person
becomes a Subsidiary;
(ix) Indebtedness of any Wireline Company constituting reimbursement obligations with
respect to letters of credit in respect of workers’ compensation claims or self-insurance
obligations;
(x) Indebtedness of any Wireline Company constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business; provided that,
upon the drawing of such letters of credit or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or incurrence;
(xi) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds,
bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar
obligations (other than in respect of Indebtedness for borrowed money);
(xii) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xiii) Indebtedness of any Wireline Company arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided, however, that such
Indebtedness is extinguished within five Business Days of its incurrence;
(xiv) Indebtedness of any Wireline Company arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or Guarantees or
letters of credit, surety bonds or performance bonds securing any obligations of any
Wireline Company pursuant to any such agreements, in any case incurred in connection with
the disposition of any business, assets or any Subsidiary (other than Guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such business, assets
or Subsidiary for the purpose of financing such acquisition), so long as the principal
amount of such Indebtedness
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does not exceed the gross proceeds actually received by the
Wireline Companies in connection with such disposition;
(xv) any Earn-out Obligation or obligation in respect of any purchase price
adjustment, except to the extent that the contingent consideration relating thereto is not
paid within 15 Business Days after the contingency relating thereto is resolved;
(xvi) Permitted Refinancing Indebtedness of any Wireline Company incurred in exchange
for, or the net proceeds of which are used to refund, refinance or replace Indebtedness
(other than Indebtedness of the Borrower to any Subsidiary or of any Subsidiary to the
Borrower or any other Subsidiary) that was permitted to be incurred under clause (i),
(ii), (iii), (iv), (vii) or (viii) or this clause (xvi) of this paragraph;
(xvii) Indebtedness incurred in connection with the financing of insurance premiums
in the ordinary course of business;
(xviii) other Indebtedness of any Wireline Company in an aggregate principal amount
not exceeding $150,000,000 at any time outstanding; provided that (A) no Event of Default
has occurred and is continuing or would result therefrom and (B) the Borrower is in
compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness
with the covenants contained in Sections 6.14 and 6.15 recomputed as of the last day of
the most-recently ended Fiscal Quarter prior to the issuance of such Indebtedness; and
(xix) Permitted Additional Debt; provided that (A) no Event of Default has occurred
and is continuing or would result therefrom and (B) the Borrower is in compliance on a Pro
Forma Basis after giving effect to the incurrence of such Indebtedness with the covenants
contained in Sections 6.14 and 6.15 recomputed as of the last day of the most-recently
ended Fiscal Quarter prior to the issuance of such Indebtedness.
(b) If any Indebtedness is incurred pursuant to clause (viii), (xviii), or (xix) of paragraph
(a) of this Section in an aggregate principal amount exceeding $250,000,000, the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer to such effect, together
with all relevant financial information reasonably requested by the Administrative Agent, including
reasonably detailed calculations demonstrating compliance with such covenants (which calculations
shall, if made as of the last day of any Fiscal Quarter for which the Borrower has not delivered to
the Administrative Agent the financial statements and certificate of a Financial Officer required
to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a
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reasonably detailed calculation of Consolidated Adjusted EBITDA and Consolidated Cash Interest
Expense for the relevant period).
(c) No Subsidiary will issue any Preferred Stock.
Section 6.02. Liens.
The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired
by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Transaction Liens;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of any Wireline Company existing on the date hereof and
set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other property or
asset of any Wireline Company and (ii) such Lien shall secure only those obligations which it
secures on the date hereof, and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof (plus the amount of any capitalized interest thereon and
any premiums and fees and expenses);
(d) any Lien existing on any property or asset prior to the acquisition thereof by any
Wireline Company or existing on any property or asset of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is
not created in contemplation of or in connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of
any Wireline Company and (iii) such Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the outstanding principal amount
thereof (plus the amount of any capitalized interest thereon and any premiums and fees and
expenses);
(e) Liens on fixed or capital assets acquired, constructed, restored or improved by any
Wireline Company (including any such assets made the subject of a Capital Lease Obligation);
provided that (i) such Liens secure Indebtedness permitted by clause (vii) of Section 6.01(a), (ii)
such Liens and the Indebtedness secured thereby are incurred prior to or within 150 days after such
acquisition or the completion of such construction, restoration or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such Liens shall not apply to any other property or
assets of any Wireline Company;
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(f) Liens in favor of collecting or payor banks having a right of setoff, revocation, refund
or chargeback with respect to money or instruments of any Wireline Company on deposit with or in
possession of such bank arising in the ordinary course of business;
(g) Liens in favor of the Borrower or any Guarantor;
(h) Liens on cash or Cash Equivalents securing (a) obligations of any Wireline Company under
Swap Agreements permitted under Section 6.07, or (b) letters of credit that support such
obligations under such Swap Agreements; provided that the aggregate principal amount secured by all
such Liens shall not at any time exceed $35,000,000;
(i) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods, in each case entered into in the ordinary course of business;
(j) Liens securing Permitted Refinancing Indebtedness (except as provided in clause (e) of the
definition thereof); provided that such Liens do not extend to any property or assets other than
the property or assets that secure the Indebtedness being refinanced;
(k) Liens (i) attaching to advances to a seller of any property to be acquired, (ii)
consisting of an agreement to dispose of property and (iii) on ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits in
connection with Investments permitted under Section 6.04;
(l) Liens on insurance policies and the proceeds thereof granted in the ordinary course to
secure the financing of insurance premiums with respect thereto;
(m) Liens by virtue of statute in favor of any Lender in respect of the Investment of the Loan
Parties in non-voting participation certificates of such Lender permitted pursuant to clause (s) of
Section 6.04; and
(n) Liens not otherwise permitted by this Section to the extent that the aggregate outstanding
principal amount of the obligations secured thereby (determined as of the date such Lien is
incurred) does not exceed $100,000,000 at any time outstanding.
Section 6.03. Fundamental Changes.
(a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or liquidate or dissolve, except that (i) the Borrower may merge with
and into Valor in connection with the Merger and (ii) if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing, (A) any
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Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any
Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary
and (if any party to such merger is a Guarantor) is (or upon consummation of such merger becomes in
accordance with the terms of this Agreement) a Guarantor and (C) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger involving a Person that is not a
wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than Permitted Businesses.
Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will
not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger) any
Equity Interest in or evidences of Indebtedness or other securities (including any option, warrant
or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances
to, guarantee any obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) all or substantially all of the assets of, or assets constituting a division, unit or
line of business of, any other Person (each of the foregoing, an “Investment”), except:
(a) Investments in connection with the Transactions;
(b) Cash Equivalents;
(c) Investments existing on the date hereof and listed on Schedule 6.04;
(d) Investments by the Borrower, Valor and their subsidiaries in Equity Interests in their
respective subsidiaries; provided that (i) any such Equity Interest held by a Loan Party shall be
pledged pursuant to the Security Agreement as required to satisfy clause (b) of the definition of
“Collateral and Guarantee Requirement”, and (ii) the aggregate amount of such Investments by
Collateral Support Parties in Equity Interests in Subsidiaries that are not Collateral Support
Parties made after the Effective Date in reliance on this clause (d) shall not exceed (together
with (x) any loans and advances by Collateral Support Parties to Subsidiaries that are not
Collateral Support Parties made in reliance on clause (e) below and (y) any Guarantees by
Collateral Support Parties of Indebtedness or other obligations of Subsidiaries that are not
Collateral Support Parties made in reliance on clause (f) below) $75,000,000 (in each case
determined at the time made and without regard to any subsequent write-downs or write-offs);
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(e) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary; provided that the amount of such loans and advances made in
reliance on this clause (e) after the Effective Date by Collateral Support Parties to Subsidiaries
that are not Collateral Support Parties shall be subject to the limitation set forth in clause (ii) of the
proviso in clause (d) above;
(f) (x) Guarantees constituting Indebtedness permitted by Section 6.01 and (y) guarantees
provided in the ordinary course of business of obligations of any Wireline Company (other than
Indebtedness) under operating leases and similar contracts; provided that (i) any Person providing
any such Guarantee of Indebtedness shall have complied with Section 5.10 with respect thereto, and
(ii) the aggregate principal amount of Indebtedness and other obligations of Subsidiaries that are
not Collateral Support Parties that is Guaranteed by Collateral Support Parties shall be subject to
the limitation set forth in clause (ii) of the proviso in clause (d) above;
(g) any Investment acquired by any Wireline Company (i) in exchange for any other Investment
or accounts receivable held by such Wireline Company in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or
accounts receivable or (ii) as a result of a foreclosure by any Wireline Company with respect to
any secured Investment or other transfer of title with respect to any secured Investment in
default;
(h) Investments consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or purchases of contract rights or licenses or leases of intellectual property, in each
case in the ordinary course of business;
(i) Investments that constitute Permitted Asset Exchanges and Permitted Acquisitions
(including any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits required in connection with any Permitted Acquisition);
(j) loans or advances to employees of any Wireline Company not exceeding $5,000,000 in the
aggregate outstanding at any time;
(k) commission, payroll, travel and similar advances to officers and employees to cover
matters that are expected at the time of such advances ultimately to be treated as expenses of the
Wireline Companies in accordance with GAAP;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant
to joint marketing arrangements with other Persons;
(m) Investments in the form of Swap Agreements permitted by Section 6.07;
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(n) Investments of any Person existing at the time such Person becomes a Subsidiary or
consolidates or merges with the Borrower or any Subsidiary
(including in connection with a Permitted Acquisition) so long as such Investments were not
made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(o) Investments resulting from pledges or deposits described in clause (b) or (c) of the
definition of “Permitted Encumbrance”;
(p) Investments received in connection with the disposition of any asset permitted by Section
6.05;
(q) advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Borrower or any of its Subsidiaries and endorsements for collection or deposit arising
in the ordinary course of business;
(r) Investments arising from any transaction permitted by Section 6.08;
(s) Investments existing on the date hereof in non-voting participation certificates of any
Lender and additional Investments made after the Closing Date in any such non-voting participation
certificates (including accruals on such certificates made by such Lender in accordance with its
bylaws and capital plan); and
(t) so long as no Event of Default of the type described in paragraph (a), (b), (h) or (i) of
Article 7 has occurred and is continuing or would result therefrom, additional Investments in any
Person (provided that any such Person is either (i) not an Affiliate of the Borrower or (ii) is an
Affiliate of the Borrower (A) solely because the Borrower, directly or indirectly, owns Equity
Interests in, or controls, such Person or (B) engaged in bona fide business operations and is an
Affiliate solely because it is under common control with the Borrower) having an aggregate Fair
Market Value (measured on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments made pursuant to this
clause (t) since the Effective Date and then outstanding not to exceed the sum (calculated as of
the date of such Investment was made after giving effect to all other applications of Available
Distributable Cash or Available Equity Proceeds on such date) of (i) Available Distributable Cash
plus (ii) Available Equity Proceeds plus (iii) the greater of (x) $150,000,000 and (y) 2% of Total
Assets plus (iv) the aggregate amount of cash equal to the net reduction in Investments made
pursuant to this clause (t) in any Person since the Effective Date resulting from repayments of
loans or advances, or other transfers of assets, in each case to the Borrower or any Subsidiary or
from the net proceeds received in cash, from the sale of any such
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Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Adjusted
Net Income); provided that any Investment made pursuant to this clause (t) in any Person that is not a Wireline Company
at the time such Investment is made may, if such Person thereafter becomes a Wireline Company, from
and after such date be deemed to have been made pursuant to clause (d), (e) or (f)(ii), as
applicable, and not pursuant to this clause (t).
Section 6.05. Asset Sales.
The Borrower will not, and will not permit any of its
Subsidiaries to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) any property, including any Equity Interest owned by it (in each case, whether now
owned or hereafter acquired), nor will any Subsidiary issue any additional Equity Interest in such
Subsidiary (other than issuing directors’ qualifying shares and other than issuing Equity Interests
to the Borrower or another Subsidiary in compliance with Section 6.04(d)), except:
(a) the transfer to Alltel or any of its subsidiaries of any “AT Co. Assets” (as defined in
the Distribution Agreement) in connection with the Preliminary Restructuring;
(b) sales, transfers, leases or other dispositions of (i) inventory, (ii) obsolete, worn-out,
used, no longer useful or surplus property or equipment and (iii) Cash Equivalents, in the case of
each of clauses (i) , (ii) and (iii), in the ordinary course of business;
(c) sales, transfers, leases and other dispositions (including issuance of Equity Interests)
to a Wireline Company; provided that any such sales, transfers or dispositions involving a
Subsidiary that is not a Collateral Support Party shall comply with Section 6.09;
(d) leases or subleases of property, and licenses or sublicenses of intellectual property, in
each case entered into in the ordinary course of business and to the extent that any of the
foregoing does not materially interfere with the business of any Wireline Company;
(e) dispositions or write-downs of accounts receivable in connection with the compromise,
settlement or collection thereof in the ordinary course of business or bankruptcy or similar
proceedings;
(f) any Restricted Payment permitted under Section 6.08;
(g) Permitted Asset Exchanges;
(h) sales of assets in connection with any Sale and Leaseback Transaction permitted under
Section 6.06;
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(i) dispositions of property constituting Investments permitted under Section 6.04(g);
(j) dispositions of assets consisting of transactions permitted under Section 6.03;
(k) sales, transfers, leases and other dispositions of property to the extent that such
property consists of an Investment permitted by Section 6.04(p);
(l) dispositions resulting from any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any property or asset of the
Borrower or any Subsidiary; and
(m) sales, transfers, leases and other dispositions of assets (except Equity Interests in a
Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not permitted by any
other clause of this Section; provided that the aggregate Fair Market Value of all assets sold,
transferred or otherwise disposed of in reliance on this clause (m) shall not at any time exceed
the greater of $750,000,000 and 10% of Total Assets (with the Fair Market Value of each item of
non-cash consideration being measured at the time received and without giving effect to any
subsequent changes in value);
provided that any sales, transfers, leases and other dispositions permitted by clauses (g), (h),
(k) or (m) of this Section shall be (x) made for Fair Market Value and (y) in the case of sales,
transfers, leases and other dispositions permitted by clauses (h) or (m) of this Section shall be
made for at least 75% Cash Consideration.
Section 6.06. Sale and Leaseback Transactions.
Except for the transactions identified on
Schedule 6.06, the Borrower will not, and will not permit any of its Subsidiaries to, enter into
any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred (any such transaction, a “Sale and
Leaseback Transaction”), unless:
(a) the applicable Wireline Company could have (a) incurred Indebtedness in an amount equal to
the Attributable Debt relating to such Sale and Leaseback Transaction pursuant to Section 6.01 and
(b) incurred a Lien to secure such Indebtedness pursuant to Section 6.02 in which case such
Indebtedness and Liens shall be deemed to have been so incurred;
(b) the gross cash proceeds of that Sale and Leaseback Transaction are at least equal to the
Fair Market Value of the property that is the subject of that Sale and Leaseback Transaction; and
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(c) the transfer of assets in that Sale and Leaseback Transaction is permitted by, and the
Borrower applies the proceeds of such transaction in compliance with, Section 2.10.
Section 6.07. Swap Agreements.
The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which any Wireline Company has actual exposure in the conduct of its business or
the management of its liabilities (other than those in respect of Equity Interests or Restricted
Indebtedness of a Wireline Company), and (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any interest-bearing liability or Investment of
any Wireline Company.
Section 6.08. Restricted Payments; Certain Payments of Debt.
(a) The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests
payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity
Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of any Wireline Company held by any current or former employee,
consultant or director of any Wireline Company pursuant to the terms of any employee
equity subscription agreement, stock option agreement or similar agreement; provided that
the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity
Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being
carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the
Effective Date as a contribution to its common equity capital or from the issue
or sale of Equity Interests (other than Disqualified Stock) of the Borrower to
any current or former employee, consultant or director of any Wireline Company;
provided that the amount of any such net cash proceeds that are
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used to permit a repurchase, redemption or other acquisition under this subclause (B)
will be excluded from clause (a) of the definition of “Available Equity
Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a
contribution to the common equity of the Borrower or a substantially concurrent sale
(other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified
Stock) of the Borrower; provided that the amount of any such net cash proceeds that are
utilized for any such payment will be excluded for the purposes of calculating Available
Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is
continuing or would result therefrom, the declaration and payment of dividends or
distributions to holders of any class or series of Disqualified Stock of the Borrower
issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options
or warrants the issuance of which is not prohibited by this Agreement to the extent that
such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and
is continuing or would result therefrom, the repurchase of Equity Interests of the
Borrower constituting fractional shares in an aggregate amount since the Effective Date
not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to
exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made
after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is
continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and
may declare and pay regular quarterly dividends on, its common stock in accordance with
its dividend policy in effect from time to time (which may be changed at any time by the
Borrower’s Board of Directors) in an aggregate amount which does not exceed the sum
(calculated as of the date of such dividend payment after giving effect to all other
applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available
Distributable Cash plus (B) Available Equity Proceeds;
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(xii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiii) the Borrower may pay any dividend within 90 days after the date of declaration
thereof, if the Borrower would have been permitted to make such payment under this Section
6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to
pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities
or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or
any payment or other distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination
of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap
Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of interest and fees and the payment
of expenses and, in the case of the Alltel ▇▇▇▇▇▇▇ ▇▇▇▇▇ only, mandatory payments of
principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and
when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend
Suspension Period or Event of Default has occurred and is continuing at the time of such
payment or would result therefrom and (B) the aggregate amount of such payments does not
exceed the sum (calculated as of the date of such payment after giving effect to all other
applications of Available Distributable Cash or Available Equity Proceeds on such date) of
(A) Available Distributable Cash plus (B) Available Equity Proceeds; and
(iii) refinancings of Restricted Indebtedness to the extent permitted by Section
6.01.
Section 6.09. Transactions with Affiliates.
Except as set forth on Schedule 6.09, the
Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets
from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not less favorable to such
Wireline Company than could reasonably be expected to be obtained in an arm’s-length transaction with a
Person that is not an Affiliate of the Wireline Companies, (b) transactions between or among the
Collateral Support Parties or any Person that
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will become a Collateral Support Party in connection
therewith, except to the extent that any payments thereunder made by any Wireline Company to such
Person are substantially concurrently paid by such Person to any other Affiliate of any Wireline
Company and are not otherwise permitted under this Section 6.09, (c) any Restricted Payment
permitted by Section 6.08, (d) mergers or consolidations between Subsidiaries or between the
Borrower and any Subsidiary permitted under Section 6.03, and (e) intercompany Investments, loans,
advances and Guarantees permitted under Section 6.04.
Section 6.10. Restrictive Agreements.
The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any consensual
agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of any Wireline Company to create, incur or permit to exist any Lien upon any of its
property or assets in favor of the Secured Parties (or an agent or trustee on their behalf) or to
transfer any of its properties or assets to any other Wireline Company, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to any other Wireline Company or to Guarantee Indebtedness of
any other Wireline Company; provided that:
(i) the foregoing shall not apply to restrictions and conditions imposed by law or
regulation or by any Loan Document or other Transaction Document,
(ii) the foregoing shall not apply to restrictions and conditions existing on the
date hereof identified on Schedule 6.10 (but shall apply to any extension or renewal of,
or any amendment or modification expanding the scope of, any such restriction or
condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary or any assets pending such
sale, provided that such restrictions and conditions apply only to the Subsidiary or
assets that is or are to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets securing such
Indebtedness,
(v) clause (a) of the foregoing shall not apply to restrictions imposed by customary
provisions in leases and other contracts restricting the assignment thereof,
(vi) the foregoing shall not apply to restrictions or conditions applicable to any
Person or the property or assets of a Person acquired by
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the Borrower or any of its
Subsidiaries existing at the time of such acquisition and not incurred in connection with
or in contemplation of such acquisition, which restriction or condition is not applicable
to any Person or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements or refinancings
thereof, provided that the restrictions and conditions in any such amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, than those in effect on the date
of the acquisition; and
(vii) the foregoing restrictions shall not apply to restrictions or conditions (A) on
cash or other deposits or net worth imposed by customers or required by insurance, surety
or bonding companies, in each case, under contracts entered into in the ordinary course of
business, (B) existing under, by reason of or with respect to provisions with respect to
the disposition or distribution of assets or property, in each case contained in joint
venture agreements, limited liability company agreements and other similar agreements and
which the Borrower’s board of directors determines will not adversely affect the
Borrower’s ability to make payments of principal or interest payments on the Loans, or (C)
existing under, by reason of or with respect to Indebtedness incurred to refinance any
Indebtedness, in each case as permitted under Section 6.01; provided that the restrictions
contained in the agreements governing the Indebtedness incurred to refinance Indebtedness
are no more restrictive, taken as a whole, than those contained in the agreements
governing the Indebtedness being refinanced.
Section 6.11. Amendment of Material Documents.
The Borrower will not, and will not permit
any of its Subsidiaries to, amend, modify or waive any of its rights under (a) any Transaction
Document (other than the Loan Documents), (b) its certificate of incorporation, by-laws or other
organizational documents or (c) any instruments, agreements or other documents in respect of
Permitted Additional Debt, in each case in a manner materially adverse to the Lenders.
Section 6.12. Change in Fiscal Year.
The Borrower will not, and will not permit any of its
Subsidiaries to, change its fiscal year or change its method of determining fiscal quarters.
Section 6.13. Capital Expenditures.
(a) The Borrower will not permit the aggregate amount
of Capital Expenditures (excluding any Capital Expenditures to the extent funded with Available
Equity Proceeds or Reinvestment Funds) made in any Fiscal Year referred to below to exceed the sum
of:
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(i) $480,000,000 (in the case of the Fiscal Year ending December 31, 2006) or
$450,000,000 (in the case of each Fiscal Year ending thereafter); plus
(ii) for each Fiscal Year ending after December 31, 2006, the amount (if any) by
which (x) the amount of Capital Expenditures for the immediately preceding Fiscal Year
specified pursuant to clause (i) above (without including any carryover amount from any
prior Fiscal Year) exceeded (y) the amount of Capital Expenditures actually made during
such immediately preceding Fiscal Year.
(b) If any personal property acquired or constructed by any Loan Party after the date hereof
is not subject to a Transaction Lien, the Borrower will, to the extent otherwise required hereunder
or under the Security Agreement, cause such Security Documents to be executed and delivered as may
be necessary, or as the Administrative Agent may request, to subject such property to a Transaction
Lien.
Section 6.14. Interest Coverage Ratio.
The Borrower will not permit the Interest Coverage
Ratio to be less than 2.75 to 1.0 on the last day of any Fiscal Quarter.
Section 6.15. Leverage Ratio.
The Borrower will not permit the Leverage Ratio to exceed
4.50 to 1.0 on the last day of any Fiscal Quarter.
If any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any LC Reimbursement
Obligation when and as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under any Loan Document,
when and as the same shall become due and payable, and such failure shall continue unremedied for a
period of five Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any Wireline Company
in or in connection with any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other document furnished pursuant
to or in
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connection with any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a), 5.04 (with respect to the Borrower’s existence) or 5.09 or in Article
6;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30 days after receipt of
notice thereof from the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) any Wireline Company shall fail to make any payment of principal, interest or premium in
respect of any Material Indebtedness, when and as the same shall become due and payable (with all
applicable grace periods having expired);
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with all applicable grace periods having
expired and all applicable notices having been given) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity (except to the extent the holders of the Valor Bonds may require the
repurchase thereof as a result of the “Change of Control” of Valor resulting from the Merger);
provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result
of the voluntary sale or transfer or other disposition of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary (other than an Insignificant Subsidiary) or their respective debts, or of a substantial
part of their respective assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary (other than an Insignificant Subsidiary) or for a substantial part of their respective
assets, and, in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be entered;
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(i) the Borrower or any Subsidiary (other than an Insignificant Subsidiary) shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary (other than an Insignificant
Subsidiary) or for a substantial part of their respective assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Subsidiary (other than an Insignificant Subsidiary) shall become
unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of
$75,000,000 (except to the extent any applicable third party insurer has acknowledged liability
therefor) shall be rendered against any Wireline Company or any combination thereof and the same
shall remain undischarged for a period of 60 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of any Wireline Company to enforce any such judgment;
(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any Regulatory Authorization shall expire or terminate or be revoked or otherwise lost, or
the Borrower shall fail to be in compliance with Section 10.2 of the Merger Agreement, which in any
case could reasonably be expected to have a Material Adverse Effect;
(o) any Lien purported to be created under any Security Document shall cease to be, or shall
be asserted by any Loan Party not to be, a valid and, except to the extent otherwise permitted by
the Security Agreement, perfected Lien on any
Collateral, with the priority required by the applicable Security Document, except (i)
Collateral having a Fair Market Value not exceeding $10,000,000 in the aggregate, (ii) as a result
of a sale or other disposition of the applicable Collateral in a transaction permitted under the
Loan Documents, (iii) as a result of such
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Loan Party’s being released from its obligations under
and pursuant to the Security Agreement or (iv) as a result of the Collateral Agent’s failure to
maintain possession of any stock certificates, promissory notes or other documents delivered to it
under the Security Agreement; or
(p) any Guarantor’s Facility Guarantee shall at any time fail to constitute a valid and
binding agreement of such Guarantor (other than in accordance with its terms) or any Wireline
Company shall so assert in writing; or
(q) the Guarantees of the Facility Obligations by any Loan Party, other than an Insignificant
Subsidiary, pursuant to the Guarantee Agreement shall cease to be in full force and effect (in each
case, other than in accordance with the terms of the Loan Documents);
then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.
Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the
Administrative Agent and the Collateral Agent as its agent and authorizes (i) the Collateral Agent
to sign and deliver the Security Documents and
(ii) each such Agent to take such actions on its behalf and to exercise such powers as are
delegated to such Agent by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.
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Any bank serving as an Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of
business with any Wireline Company or Affiliate thereof as if it were not an Agent.
No Agent shall have any duties or obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby that such Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to
disclose, and shall not be liable for the failure to disclose, any information relating to any
Wireline Company that is communicated to or obtained by the bank serving as an Agent or any of its
Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be deemed to have
knowledge of any Default unless and until written notice thereof is given to such Agent by the
Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.
Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with
legal counsel (who may be counsel for any Wireline Company), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
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Any Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by such Agent. Any Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of any Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the Facilities as well as activities as an Agent.
Subject to the appointment and acceptance of a successor Administrative Agent or Collateral
Agent, as the case may be, as provided in this paragraph, each of the Administrative Agent and/or
the Collateral Agent may resign at any time by notifying the Lenders, the Issuing Banks and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent
of the Borrower (which may not be unreasonably withheld), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent
may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or
Collateral Agent, as the case may be, which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent
or Collateral Agent, as the case may be, hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder and under the other
Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed in writing between the Borrower and such
successor. After any Agent’s resignation hereunder, the provisions of this Article and Section
9.03 shall continue in effect for the benefit of such retiring Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as an Agent.
Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon
any Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender or any of their Related Parties and based on
such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.
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Section 9.01. Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Mail Stop ▇▇▇▇-▇▇-▇▇-▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of Treasurer (Telecopy No. 501-748-6392);
(ii) if to the Administrative Agent or the Collateral Agent, to JPMorgan Chase Bank,
N.A., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇ (Telecopy
No.: 713-750-2358) (email: ▇▇▇▇▇▇▇.▇.▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇), with copies to JPMorgan Chase
Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. 212-270-5127) (email: ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇),
and JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. 212-270-4164) (email:
▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇);
(iii) if to an Issuing Bank, to it at the address provided to the Borrower for
notices to such Issuing Bank in such capacity; and
(iv) if to any Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Notices and other communications to the Lenders and the Issuing Bank hereunder may also be
delivered or furnished by electronic communications (including e-mail and Internet or intranet
website) pursuant to procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices to any Lender or the Issuing Bank pursuant to Article 2 if such Lender
or Issuing Bank, as applicable, has notified the Administrative Agent that is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent, the
Collateral Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance
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with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
Section 9.02. Waivers; Amendments.
(a) No failure or delay by any Lender Party in
exercising any right or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Lender Parties
under the Loan Documents are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of any Loan Document or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether any Lender Party may have had notice or knowledge of
such Default at the time. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.01(b) with respect to any Incremental Facility Amendment,
no Loan Document or any provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent (or, in the case of any Security Document, the Collateral
Agent) with the consent of the Required Lenders; provided that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii) reduce or forgive the
principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon (other than
any waiver of default interest payable pursuant to Section 2.12(c)), or reduce or forgive any fees
payable hereunder, without the written consent of each Lender Party directly affected thereby,
(iii) postpone the scheduled date of repayment of the principal amount of any Loan pursuant to
Section 2.08 or 2.09 or the applicable Incremental Facility Amendment or the required date of
reimbursement of any LC Disbursement, or any interest (other than any waiver of default interest)
or any fees payable hereunder, or reduce (other than any waiver
of default interest) the amount of, waive or excuse any such repayment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of each Lender directly
affected thereby, (iv) change the rights of the Tranche B Lenders to decline mandatory prepayments
as provided in Section 2.10, without the written consent of Lenders holding a majority of the
outstanding Tranche B Loans, (v) change Section 2.17(b) or (c), the penultimate sentence of Section
2.10(g), or the last sentence of Section 2.07(c), in each case in a manner
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that would alter the pro
rata sharing of payments or reduction of Commitments required thereby, without the written consent
of each Lender adversely affected thereby (it being understood that an amendment shall not be
deemed to change such provisions in such manner to the extent it effects an increase in the
commitment of any Lender(s) or in the aggregate amount of the commitments of any class), (vi)
change any of the provisions of this Section or reduce the percentage set forth in the definition
of “Required Lenders” (or the definition of “Required Revolving Lenders” or “Required Tranche C
Lenders”) or any other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder or make
any determination or grant any consent thereunder, without the written consent of each Lender, or
each Lender of such Class, as the case may be (it being understood that an amendment shall not be
deemed to change such provisions to the extent it effects an increase in the commitment of any
Lender(s) or in the aggregate amount of the commitments of any class), (vii) release any material
Guarantor from its Facility Guarantee (except as expressly provided in the Guarantee Agreement), or
limit its liability in respect of its Facility Guarantee, without the written consent of each
Lender, (viii) release all or substantially all of the Collateral from the Transaction Liens,
without the written consent of each Lender, (ix) waive any condition set forth in Section 4.02
(including by amending or waiving any provision of Article 3, 5, 6 or 7 if the effect of such
amendment or waiver would be to waive any such condition) for purposes of any Revolving Borrowing
or Tranche C Borrowing without the written consent of the Required Revolving Lenders or the
Required Tranche C Lenders, as the case may be, (x) change any provision of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments due to Lenders holding
Loans of any Class differently than those holding Loans of any other Class, without the written
consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class, (xi) modify the protections afforded to an SPV pursuant to the
provisions of Section 9.04(e) without the prior written consent of such SPV or (xii) amend the
definition of “Interest Period” so as to permit any Interest Period of greater than 6 months
without the consent of all Lenders participating in the applicable Borrowing, without the written
consent of each such Lender; provided further that (A) no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or any
Issuing Bank under the Loan Documents without the prior written consent of such Agent or such
Issuing Bank, as the case may be, (B) any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of one Class of Lenders (but not of any
other Class of Lenders) may be effected by an agreement or agreements in writing entered into by
the Borrower and the requisite percentage in interest of the affected Class of Lenders that would
be required to consent thereto under this Section if such Class of Lenders were the only Class of
Lenders hereunder at the time and (C) any waiver, amendment or modification of the Commitment
Letter or either Fee Letter may be effected by an
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agreement or agreements in writing entered into
only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent hereunder (as
provided in the definitions of “Required Lenders”, “Required Revolving Lenders” and “Required
Tranche C Lenders”), except that the Commitment of such Lender may not be increased or extended
without its consent.
(c) In connection with any proposed amendment, modification, waiver or termination (a
“Proposed Change”) requiring the consent of all Lenders or all affected Lenders, if the consent of
the Required Lenders (and/or, to the extent so required, the consent of the Required Revolving
Lenders and/or the Required Tranche C Lenders) to such Proposed Change is obtained, but the consent
to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender
whose consent is not obtained as described in paragraph (b) of this Section being referred to as a
“Non-Consenting Lender”), then, so long as the Lender that is acting as Administrative Agent is not
a Non-Consenting Lender, the Borrower may, at its sole expense and effort, upon notice to such
Non-Consenting Lender and the Administrative Agent, require each of the Non-Consenting Lenders to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (a) the Borrower shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Commitment is being assigned, the Issuing Bank), which
consent(s) shall not unreasonably be withheld or delayed, (b) each Non-Consenting Lender shall have
received payment of an amount equal to the outstanding principal of its Loans and participations in
LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (c) the Borrower or such assignee
shall have paid to the Administrative Agent the processing and recordation fee specified in Section
9.04(b).
(d) Further, notwithstanding anything to the contrary contained in this Section, if within
thirty (30) days following the Effective Date, the Administrative Agent and the Borrower shall have
jointly identified an obvious error or any error
or omission of a technical or immaterial nature, in each case, in any provision of the Loan
Documents, then the Administrative Agent (acting in its sole discretion) and the Borrower shall be
permitted to amend such provision and such amendment shall become effective without any further
action or consent of any other party to any Loan Document if the same is not objected to in writing
by the Required Lenders within five Business Days following receipt of notice thereof.
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Section 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all
reasonable out of pocket expenses incurred by the Administrative Agent, the Collateral Agent, the
Lead Arrangers and their Affiliates, including the reasonable fees, charges and disbursements of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York and regulatory counsel,
respectively, for the Administrative Agent, the Collateral Agent and the Lead Arrangers, in
connection with the syndication of the Facilities and the preparation of the Loan Documents
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out of pocket expenses incurred by the Administrative Agent, the Collateral Agent, the
Lead Arrangers and their Affiliates, including the reasonable fees, charges and disbursements of
any counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers in connection
with the administration of the Loan Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (iii) all reasonable out-of-pocket expenses incurred by the Issuing Banks in
connection with the issuance, amendment, renewal or extension of any Letter of Credit by it or any
demand for payment thereunder and (iv) all out-of-pocket expenses incurred by any Lender Party,
including the fees, charges and disbursements of any counsel for any Lender Party, in connection
with the enforcement or protection of its rights in connection with the Loan Documents, including
its rights under this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify each of the Lender Parties, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”), against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee, but excluding
Taxes, which are governed by Section 2.16, incurred by or asserted against any Indemnitee arising
out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or
any other agreement or instrument contemplated hereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property currently or formerly
owned or operated by any Wireline Company, or any Environmental Liability related in any way to any
of the Wireline Companies, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on
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contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from (A) the bad faith, gross negligence or willful
misconduct of such Indemnitee, (B) any claims of such Indemnitee against any other Indemnitee
and/or (C) the breach by such Indemnitee of its obligations hereunder or under any other Loan
Document.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to any
Agent or any Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to such Agent or Issuing Bank, as the case may be, such Lender’s pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is sought based on the
aggregate amount of (x) in the case of a payment owed to an Agent, the Revolving Commitments and
outstanding Term Loans and (y) in the case of a payment owed to an Issuing Bank, the Revolving
Commitments) of such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the applicable Agent or Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than ten Business Days after
written demand therefor.
Section 9.04. Successors and Assigns.
(a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of an Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the other Agents and the Related Parties of each of the
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Agents, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent of:
(A) the Borrower, provided that (x) no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if an Event of Default has occurred and is continuing, any other
assignee and (y) such consent may not be unreasonably withheld or delayed;
(B) the Administrative Agent, provided that, in the case of an assignment
of any Term Loan or Term Commitment, (x) no consent of the Administrative Agent
shall be required for such assignment to a Lender, an Affiliate of a Lender or
an Approved Fund and (y) such consent may not be unreasonably withheld or
delayed; and
(C) the Issuing Bank, provided that no consent of the Issuing Bank shall be
required for an assignment of all or any portion of a Term Loan or Term
Commitment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount of
the assigning Lender’s Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 or, in the case of a Term Loan, $1,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent provided that no such
consent of the Borrower shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement, provided that this clause shall not be construed to prohibit the
assignment of a
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proportionate part of all the assigning Lender’s rights and
obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500; provided that assignments made pursuant to
Section 2.18(b) shall not require the signature of the assigning Lender to
become effective; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more Credit Contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower, the other
Loan Parties and their Related Parties or their respective subsidiaries) will be
made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and
state securities laws.
For the purposes of this Section 9.04(b), the term “Approved Fund” and “CLO” has the following
meaning:
“Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a fund that invests
in bank loans and similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
“CLO” means an entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such
Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of
this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
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party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15,
2.16 and 9.03 and to any fees payable hereunder that have accrued for such Lender’s
account but have not yet been paid). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). Absent manifest
error, the entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Banks and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Banks and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the assignee shall have failed
to make any payment required to be made by it pursuant to Section 2.04(d) or (e), 2.05(b),
2.17(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued interest
thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register
as provided in this paragraph.
(vi) The words “execution”, “signed”, “signature” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect, validity
or enforceability as a
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manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act or any other
similar state laws based on the Uniform Electronic Transactions Act.
(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent or any
Issuing Bank, sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the Borrower and the other
Lenders Parties shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce the Loan Documents and to approve any amendment, modification or waiver of any
provision of the Loan Documents; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.17(c) as though it
were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section
2.14 or 2.16 than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A Participant that is
a Foreign Recipient shall not be entitled to the benefits of Section 2.16 unless the
Participant complies with Section 2.16(e).
(d) Any Lender may, without the consent of the Borrower or the Administrative Agent, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including without limitation any pledge or assignment to
secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge or assignment of a
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security interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle organized and administered by such Granting
Lender (an “SPV”), identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPV to make
any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof and (iii) the SPV shall provide the documentation described in Section 2.16(e) and
shall not be entitled to receive any greater payment under Section 2.14 or 2.16 than the Granting
Lender would be entitled to receive thereunder. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPV, such party will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any State thereof; provided that
each Lender designating any SPV hereby agrees to indemnify and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such SPV during such period of forbearance. In addition, notwithstanding
anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but
without the prior written consent of, the Borrower and the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and Administrative Agent)
providing liquidity or credit support to or for the account of such SPV to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPV.
Section 9.05. Survival.
All covenants, agreements, representations and warranties made by
the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to the
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Loan Documents shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of the Loan Documents and the
making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that any Lender Party may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article 8
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
Section 9.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
Section 9.07. Severability.
Any provision of any Loan Document held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.08. Right of Setoff.
If an Event of Default shall have occurred and be
continuing, each Lender, any Issuing Bank and each of their respective Affiliates is hereby
authorized (but only with the consent of the Required Lenders, unless an Event of Default of the
type described in paragraph (a), (b), (h) or (i) of Article 7 shall have occurred and be continuing
or the maturity of the
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Loans shall have been accelerated pursuant to Article 7) at any time and
from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, but excluding (i) trust
accounts for the benefit of third parties that have been certified as such by a Financial Officer
to the Administrative Agent and the Lender or Issuing Bank that is the depositary bank and (ii)
unless the maturity of the Loans shall have been accelerated pursuant to Article 7, up to an
aggregate amount of $60,000,000 held in payroll accounts of the Loan Parties that have been
certified as such by a Financial Officer to the Administrative Agent and the Lender or Issuing Bank
that is the depositary bank) at any time held and other obligations at any time owing by such
Lender, such Issuing Bank or such Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender or Issuing Bank, irrespective of whether or not such Lender or
Issuing Bank shall have made any demand under this Agreement and although such obligations may be
unmatured or are owed to a branch or office of such Lender or Issuing Bank different from the
branch or office holding such deposit or obligated on such obligation. The rights of each Lender
and Issuing Bank and their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender or Issuing Bank and their
respective Affiliates may have.
Section 9.09.
Governing Law; Jurisdiction; Consent to Service of Process.
(a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in any Loan Document shall affect
any right that any Lender Party may otherwise have to bring any action or proceeding relating to
any Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising
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out of or relating to any Loan Document in any
court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in any Loan Document will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
Section 9.10. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 9.11. Headings.
Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.12. Confidentiality.
(a) Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same
as those of this Section, to (A) any assignee or pledgee under Section 9.04(d) of or
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Participant in, or any prospective assignee or pledgee under Section 9.04(d) of or Participant in, any of its
rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (vii)
with the consent of the Borrower or (viii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source
other than the Borrower (other than a source actually known by such disclosing Person to be bound
by confidentiality provisions comparable to those set forth in this Section 9.12). For the
purposes of this Section, “Information” means all information received from the Borrower relating
to the Borrower or its business, other than any such information that is available to any Agent,
Issuing Bank or Lender on a non-confidential basis prior to disclosure by the Borrower (other than
from a source actually known by such party to be bound by confidentiality obligations). Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE LOAN PARTIES
AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED
COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER,
THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
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Section 9.13. USA PATRIOT ACT.
Each Lender that is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby
notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Lender to identify the Borrower
in accordance with the Act.
Section 9.14. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan or participation in any LC Disbursement,
together with all fees, charges and other amounts that are treated as interest on such Loan or LC
Disbursement or participation therein under applicable law (collectively the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan or LC Disbursement or participation therein in
accordance with applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in respect of such Loan or
LC Disbursement or participation therein but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender in respect of other
Loans or LC Disbursement or participation therein or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal
Funds Effective Rate to the date of repayment, shall have been received by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
| ALLTEL HOLDING CORP. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | |||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | ||||||
| Title: Senior Vice President — Treasurer | ||||||
| JPMORGAN CHASE BANK, N.A., | ||||||
| as Administrative Agent, Collateral Agent, an Issuing Bank and a Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| REVOLVING LENDERS | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
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| REVOLVING LENDERS | ||||||
| WACHOVIA BANK, N.A. | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Title: Director | ||||||
| REVOLVING LENDERS | ||||||
| CITICORP NORTH AMERICA, INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
| REVOLVING LENDERS | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Senior Vice President | ||||||
| REVOLVING LENDERS | ||||||
| GENERAL ELECTRIC CAPITAL CORPORATION, |
||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: As Duly Authorized Signatory | ||||||
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| REVOLVING LENDERS | ||||||
| BARCLAYS BANK PLC | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| Title: Associate Director | ||||||
| REVOLVING LENDERS | ||||||
| CoBANK, ACB | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| Title: Assistant Corporate Secretary | ||||||
| REVOLVING
LENDERS, Sumitomo Mitsui Banking Corporation |
||||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||||
| Title: Joint General Manager | ||||||
| REVOLVING LENDERS | ||||||
| Sun Trust Bank | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
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| REVOLVING LENDERS | ||||||
| COÖPERATIEVE CENTRALE | ||||||
| RAIFFEISEN-BOERENLEEN BANK | ||||||
| B.A., “RABOBANK INTERNATIONAL”, | ||||||
| NEW YORK BRANCH, as Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Executive Director | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Executive Director | ||||||
| REVOLVING LENDERS | ||||||
| ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
| REVOLVING LENDERS | ||||||
| FORTIS CAPITAL CORP | ||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra | |||||
| Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra | ||||||
| Title: Senior Vice President | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| REVOLVING LENDERS | ||||||
| Union Bank of California, N. A. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇ | ||||||
| Title: Vice President | ||||||
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| REVOLVING LENDERS | ||||||
| COMMERZBANK AG, NEW YORK | ||||||
| AND GRAND CAYMAN BRANCHES | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| Title: Assistant Treasurer | ||||||
| TRANCHE A LENDERS | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| TRANCHE A LENDERS | ||||||
| WACHOVIA BANK, N.A. | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Title: Director | ||||||
| TRANCHE A LENDERS | ||||||
| CITICORP NORTH AMERICA, INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
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| TRANCHE A LENDERS | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Senior Vice President | ||||||
| TRANCHE A LENDERS | ||||||
| GENERAL ELECTRIC CAPITAL CORPORATION, |
||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: As Duly Authorized Signatory | ||||||
| TRANCHE A LENDERS | ||||||
| BARCLAYS BANK PLC | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| Title: Associate Director | ||||||
| CoBANK, ACB | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| Title: Assistant Corporate Secretary | ||||||
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| TRANCHE A. LENDERS Sumitomo Mitsui Banking Corporation |
||||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
| Title: Joint General Manager | ||||||
| TRANCHE A LENDERS | ||||||
| SunTrust Bank | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
| TRANCHE A LENDERS | ||||||
| COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEN BANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as Lender |
||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Executive Director | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Executive Director | ||||||
| TRANCHE A LENDERS | ||||||
| ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
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| TRANCHE A LENDERS | ||||||
| FORTIS CAPITAL CORP | ||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra | |||||
| Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra | ||||||
| Title: Senior Vice President | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| TRANCHE A LENDERS Union Bank of California, N.A. |
||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| TRANCHE A LENDERS | ||||||
| COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| Title: Assistant Treasurer | ||||||
| TRANCHE B LENDERS | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Authorized Signatory | ||||||
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| TRANCHE B
LENDERS GENERAL ELECTRIC CAPITAL CORPORATION, |
||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: As Duly Authorized Signatory | ||||||
| CoBANK, ACB | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| Title: Assistant Corporate Secretary | ||||||
| TRANCHE B LENDERS Sumitomo Mitsui Banking Corporation |
||||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||||
| Title: Joint General Manager | ||||||
| TRANCHE B LENDERS | ||||||
| Sun Trust Bank | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
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| TRANCHE B LENDERS | |||||||
| COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEN BANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, as Lender |
|||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Title: Executive Director | |||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: Executive Director | |||||||
| TRANCHE B LENDERS | |||||||
| ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P. | |||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Title: Managing Director | |||||||
| REVOLVING LENDERS | |||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. | |||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
| Title: Managing Director | |||||||
| TRANCHE B LENDERS | |||||||
| COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES |
|||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: Vice President | |||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||||
| Title: Assistant Treasurer | |||||||
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| TRANCHE B LENDERS | ||||||
| ING Capital LLC | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
| TRANCHE B LENDERS | ||||||
| NATIONAL CITY BANK | ||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| TRANCHE B
LENDERS Metropolitan Life Insurance Company |
||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Director | ||||||
| TRANCHE B LENDERS | ||||||
| MetLife Bank, National Association | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| Title: Assistant Vice President | ||||||
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Table of Contents
| TRANCHE B LENDERS | ||||||
| UBS AG, Stamford Branch | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | ||||||
| Title: Associate Director Banking Products Services, US |
||||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Associate Director Banking Products Services, US |
||||||
| TRANCHE C
LENDERS ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp. |
||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Vice President | ||||||
| TRANCHE C LENDERS | ||||||
| WACHOVIA BANK, N.A. | ||||||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Director | ||||||
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Table of Contents
| TRANCHE C LENDERS | ||||||
| CITICORP NORTH AMERICA, INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Managing Director | ||||||
| TRANCHE C LENDERS | ||||||
| BANK OF AMERICA, N.A | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Senior Vice President | ||||||
| TRANCHE C LENDERS | ||||||
| BARCLAYS BANK PLC | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| Title: Associate Director | ||||||
139