Exhibit 10.1
Execution Copy
$533,333,333
THREE-YEAR REVOLVING CREDIT AGREEMENT
Dated as of
July 22, 2002
among
CENTURYTEL, INC.,
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent,
WACHOVIA BANK, N.A.,
as Syndication Agent,
BANK OF AMERICA, N.A.,
BANK ONE, NA
and
SUNTRUST BANK,
as Co-Documentation Agents
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
WACHOVIA SECURITIES, INC.,
as Co-Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS........................................................1
1.1 Certain Defined Terms..........................................1
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1.2 Accounting Principles.........................................15
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1.3 Other Definitional Provisions.................................15
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SECTION 2 FACILITIES........................................................15
2.1 Commitments...................................................15
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2.2 Procedure for Loan Borrowing..................................16
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2.3 Conversion and Continuation Options...........................16
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2.4 Fees..........................................................17
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2.5 Optional Termination and Reduction of Commitments.............18
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2.6 Limitations on Eurodollar Tranches............................18
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2.7 Interest Rates and Payment Dates..............................18
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2.8 Alternate Rate of Interest for Eurodollar Loans...............19
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2.9 Mandatory and Optional Prepayment of Loans....................19
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2.10 Reserve Requirements; Change in Circumstances.................20
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2.11 Change in Legality............................................21
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2.12 Indemnity.....................................................22
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2.13 Pro Rata Treatment............................................22
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2.14 Sharing of Setoffs............................................22
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2.15 Payments......................................................23
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2.16 Calculation of Eurodollar Rate................................24
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2.17 Computation of Interest and Fees..............................24
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2.18 Booking Loans.................................................24
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2.19 Quotation of Rates............................................24
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2.20 Taxes.........................................................25
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SECTION 3 REPRESENTATIONS AND WARRANTIES....................................26
3.1 Purpose of Credit Facility....................................26
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3.2 Corporate Existence, Good Standing, and Authority.............27
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3.3 Significant Subsidiaries......................................27
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3.4 Financial Statements..........................................27
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3.5 Compliance with Laws, Charter, and Agreements.................27
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3.6 Litigation....................................................28
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3.7 Taxes.........................................................28
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3.8 Environmental Matters.........................................28
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3.9 Employee Benefit Plans........................................28
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3.10 Properties; Liens.............................................28
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3.12 Transactions with Affiliates..................................29
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3.13 Leases........................................................29
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3.14 Labor Matters.................................................29
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3.15 Insurance.....................................................29
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3.16 Solvency......................................................29
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3.17 Business......................................................29
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3.18 General.......................................................30
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SECTION 4 CONDITIONS PRECEDENT..............................................30
4.1 Initial Loan..................................................30
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4.2 Each Loan.....................................................31
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4.3 Materiality of Conditions.....................................31
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4.4 Waiver of Conditions..........................................31
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SECTION 5 AFFIRMATIVE COVENANTS.............................................32
5.1 Use of Proceeds...............................................32
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5.2 Books and Records.............................................32
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5.3 Items to be Furnished.........................................32
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5.4 Inspection....................................................33
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5.5 Taxes.........................................................33
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5.6 Payment of Obligations........................................33
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5.7 Expenses......................................................33
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5.8 Maintenance of Existence, Assets, Business, and Insurance.....34
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5.9 Preservation and Protection of Rights.........................34
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5.10 Environmental Laws............................................34
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5.11 Environmental Indemnification.................................34
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SECTION 6 NEGATIVE COVENANTS................................................35
6.1 Employee Benefit Plans........................................35
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6.2 Liens.........................................................35
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6.3 Restricted Payments...........................................35
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6.4 Mergers and Consolidations....................................35
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6.5 Loans, Advances, and Investments..............................35
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6.6 Transactions with Affiliates..................................36
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6.7 Sale of Assets................................................36
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6.8 Compliance with Laws and Documents............................37
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6.9 New Businesses................................................37
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6.10 Assignment....................................................37
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6.11 Fiscal Year and Accounting Methods............................37
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6.12 Holding Company and Investment Company Status.................37
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6.13 Amendments to Equity Units Documentation......................38
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6.14 Financial Covenants...........................................38
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SECTION 7 DEFAULT...........................................................39
7.1 Payment of Obligation.........................................39
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7.2 Covenants.....................................................39
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7.3 Debtor Relief.................................................39
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7.4 Attachment....................................................39
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7.5 Payment of Judgments..........................................40
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7.6 Default Under Other Agreements................................40
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7.7 Misrepresentation.............................................40
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7.8 Change in Control.............................................40
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7.9 ERISA.........................................................41
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7.10 Validity and Enforceability of Loan Papers....................41
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SECTION 8 RIGHTS AND REMEDIES...............................................41
8.1 Remedies Upon Event of Default................................41
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8.2 Waivers.......................................................42
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8.3 Performance by Administrative Agent...........................42
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8.4 Delegation of Duties and Rights...............................42
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8.5 Lenders Not in Control........................................42
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8.6 Waivers by Lenders............................................42
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8.7 Cumulative Rights.............................................42
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8.8 Application of Proceeds.......................................43
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8.9 Certain Proceedings...........................................43
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8.10 Setoff........................................................43
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SECTION 9 THE AGENTS........................................................43
9.1 Appointment...................................................43
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9.2 Delegation of Duties..........................................44
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9.3 Exculpatory Provisions........................................44
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9.4 Reliance of Administrative Agent..............................44
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9.5 Notice of Default.............................................44
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9.6 Non-Reliance on Agents and Other Lenders......................45
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9.7 Indemnification...............................................45
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9.8 Agent in its Individual Capacity..............................45
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9.9 Successor Administrative Agent................................46
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9.10 Co-Documentation Agents and Syndication Agent.................46
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SECTION 10 MISCELLANEOUS....................................................46
10.1 Changes in GAAP...............................................46
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10.2 Money and Interest............................................47
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10.3 Number and Gender of Words....................................47
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10.4 Headings......................................................47
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10.5 Exhibits......................................................47
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10.6 Notices.......................................................47
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10.7 Exceptions to Covenants.......................................48
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10.8 Survival......................................................48
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10.9 Governing Law.................................................48
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10.10 Submission to Jurisdiction; Waivers...........................48
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10.11 WAIVERS OF JURY TRIAL.........................................49
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10.12 Severability..................................................49
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10.13 Integration...................................................49
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10.14 Amendments, Etc...............................................49
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10.15 Waivers.......................................................50
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10.16 Governmental Regulation.......................................50
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10.17 Multiple Counterparts.........................................50
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10.18 Successors and Assigns; Participations; Assignments...........51
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10.19 Confidentiality...............................................53
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10.20 Conflicts and Ambiguities.....................................54
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10.21 GENERAL INDEMNIFICATION.......................................54
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SCHEDULES
Commitments Schedule 1
Permitted Liens Schedule 2
Transactions with Affiliates Schedule 3.12
Business of Companies Schedule 3.17
EXHIBITS
Revolving Note Exhibit A
Opinion of Borrower's Counsel Exhibit B
Financial Report Certificate Exhibit C
Assignment and Assumption Exhibit D
CREDIT AGREEMENT (this "Agreement"), dated as of July 22, 2002, among
CENTURYTEL, INC., a Louisiana corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), WACHOVIA BANK, N.A., as syndication agent (in such
capacity, the "Syndication Agent"), BANK OF AMERICA, N.A, BANK ONE, NA and
SUNTRUST BANK, as co-documentation agents (in such capacity, the
"Co-Documentation Agents"), and JPMORGAN CHASE BANK, as administrative agent (in
such capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS.
1.1 Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ABR" means, for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by JPMorgan Chase Bank as its prime
rate in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by JPMorgan Chase Bank
in connection with extensions of credit to debtors). Any change in the ABR due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loan" means any Loan the rate of interest applicable to which is based
upon the ABR.
"Acquisitions" means the acquisition by the Borrower or its Subsidiaries of
at least a majority of the capital stock or all or substantially all of the
Property of another Person, division of another Person or other business unit of
another Person, whether or not involving a merger or consolidation of such
Person, provided that such Person or Property is used or useful in the same or a
similar line of business as set forth on Schedule 3.17 hereto (or any reasonable
extensions or expansions thereof).
"Adjusted Consolidated Net Worth" means, as of the date of determination,
Consolidated Net Worth minus (i) deferred assets other than prepaid insurance,
prepaid taxes, prepaid interest, extraordinary retirements, and deferred charges
where such deferred charges are considered by Tribunals when setting rates, (ii)
patents, copyrights, trademarks, trade names, franchises, experimental expense,
goodwill (other than goodwill arising from the purchase of capital stock or
assets of a Person engaged in the business described on Schedule 3.17) and
similar intangible or intellectual property, and (iii) unamortized debt discount
and expense (other than debt discount and expense of the Companies located in
jurisdictions where such items are considered by Tribunals when setting rates).
"Administrative Agent" is defined in the introduction to this Agreement.
"Affiliate" of any Person means any other individual or entity that
directly or indirectly controls, or is controlled by, or is under common control
with, such Person, and, for purposes of this definition only, "control,"
"controlled by," and "under common control with" mean possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person (whether through ownership of Voting Stock, by contract,
or otherwise).
"Agents" means the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents.
"Agreement" means this Three-Year Revolving Credit Agreement, as the same
may be amended, supplemented, modified or restated from time to time.
"Applicable Margin" means, at the time of any determination thereof, for
purposes of all Loans, the margin of interest over the ABR or the Eurodollar
Rate, as the case may be, which is applicable at the time of any determination
of interest rates under this Agreement, which Applicable Margin shall be
adjusted based on the Senior Unsecured Long-Term Debt Rating, as determined as
of the last day of the immediately preceding fiscal quarter of the Borrower, as
follows:
Senior Unsecured Long-Term Eurodollar Loan Margin ABR Loan Margin
Debt Rating
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A- or A3 or better 37.5 basis points 0 basis points
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BBB+ or Baal 62.5 basis points 0 basis points
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BBB or Baa2 75.0 basis points 0 basis points
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BBB- or Baa3 100.0 basis points 0 basis points
Below BBB- or Baa3 150.0 basis points 50.0 basis points
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Until the delivery to the Lenders of the Borrower's audited financial
statements for the 2002 fiscal year, the Senior Unsecured Long-Term Debt
Rating shall be deemed to be no higher than BBB+ and Baa1.
"Approved Fund" is defined in Section 10.18(b)(ii).
"Assignee" is defined in Section 10.18(b)(i).
"Assignment and Assumption" means an Assignment and Assumption,
substantially in the form of Exhibit D.
"Available Commitment" means as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender's Commitment then in effect over (b)
the aggregate principal amount of Loans held by such Lender.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrower" is defined in the introduction to this Agreement.
"Borrowing" means a borrowing consisting of simultaneous Loans from each of
the Lenders distributed ratably among the Lenders in accordance with their
respective Commitments.
"Borrowing Date" means the Business Day upon which the proceeds of any
Borrowing are to be made available to the Borrower.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close, provided, that with respect to notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, such day is
also a day for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents" means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(d).
"CLO" is defined in Section 10.18(b)(ii).
"Closing Date" means July 22, 2002.
"Code" means the Internal Revenue Code of 1986, as amended, together with
rules and regulations promulgated thereunder.
"Co-Documentation Agents" is defined in the introduction to this Agreement.
"Commitment" means, as to any Lender, the obligation of such Lender, if
any, to make Loans in an aggregate principal amount not to exceed the amount set
forth under the heading "Commitment" opposite such Lender's name on Schedule 1
or in the Assignment and Assumption pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Three-Year Commitments is $533,333,333.
"Commitment Fee" is defined in Section 2.4(a).
"Commitment Fee Percentage" is defined in Section 2.4(a).
"Commitment Period" means the period from and including the Closing Date to
the Termination Date.
"Commitment Utilization Percentage" means on any day (a) prior to the
termination of the Total 364-Day Commitments, the percentage equivalent of a
fraction (i) the numerator of which is the Total Used Commitment and (ii) the
denominator of which is the aggregate amount of the Total Revolving Facility
Commitments and (b) thereafter, the percentage equivalent of a fraction (i) the
numerator of which is the Used Three-Year Commitment and (ii) the denominator of
which is the aggregate amount of the Total Three-Year Commitments.
Notwithstanding the foregoing, the Commitment Utilization Percentage shall be
deemed to be 100% if any Loans remain outstanding after the Commitments
hereunder have been terminated.
"Companies" means, collectively, the Borrower and its Subsidiaries and
"Company" means any of the same.
"Conduit Lender" means any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.10, 2.12, 2.20, 5.7 or 10.21 than the designating
Lender would have been entitled to receive in respect of the extensions of
credit made by such Conduit Lender or (b) be deemed to have any Commitment.
"Confidential Information Memorandum" means the Confidential Information
Memorandum dated May 2002 and furnished to certain Lenders.
"Consolidated Net Worth" means, as of the date of determination, the amount
of stated capital plus (or minus, in the case of a deficit) the capital surplus
and earned surplus of the Companies, as calculated in accordance with GAAP (but
treating Minority Interests in Subsidiaries as liabilities and excluding the
contra-equity account resulting from the Borrower's obligations under its
employee stock ownership plan commitments). For purposes of this Agreement,
Consolidated Net Worth shall exclude the effect of FASB Statements No. 101
("Regulated Enterprises-Accounting for the Discontinuation of Application of
FASB Statement No. 71"), 106 ("'Employers' Accounting for Postretirement
Benefits Other than Pensions"), 142 ("Goodwill and Other Intangible Assets") and
144 ("Accounting for the Impairment or Disposal of Long-Lived Assets") of the
Financial Accounting Standards Board.
"Current Date" means any date after June 20, 2002.
"Current Financials" means the consolidated Financial Statements of the
Companies for the fiscal year ended December 31, 2001, and the fiscal quarter
ended March 31, 2002.
"Debt" means (without duplication), for any Person, all obligations,
contingent or otherwise (including, without limitation, contingent obligations
in connection with letters of credit), which in accordance with GAAP should be
classified upon such Person's balance sheet as liabilities, but in any event
including, without limitation, whether or not such obligations in accordance
with GAAP should be classified as liabilities, (a) liabilities secured (or for
which the holder of such Debt has an existing Right, contingent or otherwise, to
be so secured) by any Lien existing on property owned or acquired by such Person
or a Subsidiary thereof (whether or not the liability secured thereby shall have
been assumed), (b) obligations which have been or under GAAP should be
capitalized for financial reporting purposes, (c) all guaranties, endorsements,
and other contingent obligations with respect to Debt of others, including, but
not limited to, any obligations to purchase, sell, or furnish property or
services intended by a Company primarily for the purpose of enabling such other
Person to make payment of any of such Person's Debt, or to otherwise assure the
holder of any of such Debt against loss with respect thereto, and (d)
liabilities under any Swap Agreement.
"Debt Rating" means the public debt rating by S&P and Moody's for that
class of non-credit enhanced, senior unsecured debt with an original term of
longer than one year issued by the Borrower which has the lowest rating of all
classes of non-credit enhanced, senior unsecured debt with an original term of
longer than one year issued by the Borrower.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
"Default" means the occurrence of any event which with the giving of notice
or the passage of time or both would become an Event of Default.
"Dollars" and "$" means dollars in lawful currency of the United States.
"EBITDA" means for any period, consolidated net income of the Companies for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such consolidated net income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with indebtedness (including the Loans), (c) depreciation and
amortization, (d) any extraordinary non-cash expenses or losses and (e) non-cash
expenses or losses which result from the implementation of FASB statement of
Financial Accounting Standards No. 142 ("Goodwill and Other Intangible Assets")
and 144 ("Accounting for the Impairment or Disposal of Long-Lived Assets"), and
minus, (a) to the extent included in the statement of such consolidated net
income for such period, any extraordinary, unusual or non-recurring income or
gains (including, whether or not otherwise includable as a separate item in the
statement of such consolidated net income for such period, gains on the sales of
assets outside of the ordinary course of business) and (b) any cash payments
made during such period in respect of items described in clause (d) or (e) above
subsequent to the fiscal quarter in which the relevant non-cash expenses or
losses were reflected as a charge in the statement of consolidated net income,
all as determined on a consolidated basis.
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part thereof) used or useful in the
same or a similar line of business as set forth on Schedule 3.17 hereto (or any
reasonable extensions or expansions thereof) and (ii) any Acquisition.
"Environmental Law" means any Law that relates to the environment or
handling or control of Hazardous Substances.
"Equity Units" means (i) the $500,000,000 aggregate principal amount of
equity units issued by the Borrower on April 29, 2002 and (ii) any subsequent
offering of equity units issued by the Borrower the structure, terms and
conditions of which are substantially similar to the offering referred to in
clause (i) above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is a member of a group
of which Borrower is a member and which is under common control with Borrower
within the meaning of section 414 of the Code.
"Eurocurrency Reserve Requirements" mean, for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Tribunal having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate screen (or otherwise on such screen),
the "Eurodollar Base Rate" shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.
"Eurodollar Loan" means any Loan the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche" means the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default" means any of the events described in Section 7, provided
there has been satisfied any requirement in connection therewith for the giving
of notice, lapse of time, or happening of any further condition, event, or act.
"Excess Utilization Day" means each day on which the Commitment Utilization
Percentage equals or exceeds 33%.
"Existing Credit Agreements" means (i) that certain $500,000,000 Revolving
Credit Facility Agreement dated as of July 30, 2001, among the Borrower, the
lenders party thereto, Bank of America, N.A., as administrative agent, Citibank,
N.A., as syndication agent and Fleet National Bank, JPMorgan Chase Bank and
SunTrust Bank, as co-documentation agents, as amended, restated, supplemented or
modified from time to time and (ii) that certain $1,600,000,000 Competitive
Advance and Revolving Credit Facility Agreement dated as of August 28, 1997,
among the Borrower, the lenders party thereto, and NationsBank of Texas, N.A.,
as Agent and as Auction Administration Agent, as amended, restated, supplemented
or modified from time to time.
"Federal Funds Effective Rate" means, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by JPMorgan Chase Bank from
three federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, treasurer or
controller of the Borrower.
"Financial Report Certificate" means a certificate substantially in the
form of Exhibit C.
"Financial Statements" means balance sheets, income statements, statements
of stockholders' equity, and statements of cash flow prepared in comparative
form to the corresponding period of the preceding fiscal year.
"Funded Debt" shall mean and include, as of any date as of which the amount
thereof is to be determined, (a) all funded indebtedness of the Companies, (b)
all funded indebtedness of any Subsidiary (other than funded indebtedness of
such Subsidiary owing to the Borrower or another Subsidiary), and (c) all
indebtedness for borrowed money, but excluding (i) indebtedness secured by or
borrowed against the cash surrender value of life insurance policies up to the
amount of such cash surrender value and (ii) an amount equal to 80% of the
outstanding principal amount of indebtedness under the Equity Units.
"Funding Office" means the office of the Administrative Agent specified in
Section 10.6 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and
the Lenders.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable as of the date of
the Financial Statements in question.
"Guaranty" means by any particular Person, all obligations of such Person
guaranteeing or in effect guaranteeing any Debt, dividend or other obligation of
any other Person (the "primary obligor") in any manner whether directly or
indirectly, including, without limitation of the generality of the foregoing,
obligations incurred through an agreement, contingent or otherwise, by such
particular Person (i) to purchase such Debt or obligation or any property or
assets constituting security therefor, (ii) to advance or supply funds (x) for
the purchase or payment of such Debt or obligation or (y) to maintain working
capital or equity capital or otherwise to advance or make available funds for
the purchase or payment of such Debt or obligation, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of such
Debt or obligation of the ability of the primary obligor to make payment of the
Debt or obligation or (iv) otherwise to assure the owner of the Debt or
obligation of the primary obligor against loss in respect thereof.
"Hazardous Substance" means any hazardous or toxic waste, pollutant,
contaminant, or substance.
"Indemnified Parties" is defined in Section 10.21.
"Interest Payment Date" means (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest Period,
(c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period (d)
as to any Loan (other than any Loan that is an ABR Loan), the date of any
repayment or optional prepayment made in respect thereof and (e) as to any Loan,
the date of any mandatory prepayment in respect thereof.
"Interest Period" means, as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., New York City time, on the date
that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would extend
beyond the Termination Date unless the Borrower acknowledges that it will
be responsible for any breakage costs owing under Section 2.12 resulting
from repayment on the Termination Date;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; and
(iv) subject to clause (ii) above, the Borrower shall select Interest
Periods so as not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Laws" means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, or opinions of any
Tribunal.
"Lenders" means those lenders signatory hereto and other financial
institutions which from time to time become party hereto pursuant to the
provisions of this Agreement.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor to have his claim satisfied out of any
property or assets, or the proceeds therefrom, prior to the general creditors of
the owner thereof.
"Litigation" means any action conducted, pending, or threatened by or
before any Tribunal.
"Loan Papers" means (i) this Agreement, certificates delivered pursuant to
this Agreement, and exhibits and schedules hereto, (ii) any notes, security
documents, guaranties, and other agreements in favor of the Agents and the
Lenders, or any or some of them, ever delivered in connection with this
Agreement, and (iii) all renewals, extensions, or restatements of, or amendments
or supplements to, any of the foregoing.
"Loans" is defined in Section 2.1(a).
"Majority Lenders" means at any time the Lenders holding at least 51% of
the then aggregate unpaid principal amount of the Loans or, if no Loans are
outstanding, the Lenders having at least 51% of the Available Commitments.
"Margin Stock" means "margin stock" within the meaning of Regulations T, U,
or X of the Board.
"Material Adverse Effect" means any set of one or more circumstances or
events which, individually or collectively, will result in any of the following:
(a) a material and adverse effect upon the validity or enforceability of any
Loan Paper, (b) a material and adverse effect on the consolidated financial
condition of the Companies represented in the later of the Current Financials or
the most recent audited consolidated Financial Statements, (c) a Default or (d)
the issuance of an accountant's report on the Companies' consolidated Financial
Statements containing an explanatory paragraph about the entity's ability to
continue as a going concern (as defined in accordance with Generally Accepted
Auditing Standards).
"Material Agreement" of any Person means any material written or oral
agreement, contract, commitment, or understanding to which such Person is a
party, by which such Person is directly or indirectly bound, or to which any
assets of such Person may be subject, and which is not cancelable by such Person
upon 30 days or less notice without liability for further payment other than
nominal penalty, and which requires such Person to pay more than 1 percent of
Consolidated Net Worth during any 12-month period.
"Minority Interest" means, with respect to any Subsidiary, an amount
determined by valuing preferred stock held by Persons other than the Borrower
and its wholly-owned Subsidiaries at the voluntary or involuntary liquidating
value of such preferred stock, whichever is greater, and by valuing common stock
or partnership interests held by Persons other than the Borrower and its
wholly-owned Subsidiaries at the book value of capital and surplus applicable
thereto on the books of such Subsidiary adjusted, if necessary, to reflect any
changes from the book value of common stock required by the foregoing method of
valuing Minority Interest attributable to preferred stock.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in sections
3(37) or 4001(a)(3) of ERISA or section 414 of the Code to which any Company or
any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an
obligation to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents proceeds
received by the Company in respect of any disposition of assets as contemplated
by Section 6.7(g), net of (a) direct costs (including, without limitation,
legal, accounting and investment banking fees, and sales commissions), (b) taxes
paid or payable as a result thereof and (c) the amount necessary to retire any
Debt secured by a Permitted Lien on the related Property; it being understood
that "Net Cash Proceeds" shall include, without limitation, any cash or Cash
Equivalents received upon the sale or other disposition of any non-cash
consideration received by any such Company in any disposition of assets.
"Non-Excluded Taxes" is defined in Section 2.20(a).
"Non-U.S. Lender" is defined in Section 2.20(d).
"Note" means a promissory note of the Borrower, in substantially the form
of Exhibit A hereto, with the blanks appropriately completed, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the Loans
made by such Lender to the Borrower, together with all modifications,
extensions, renewals, and rearrangements thereof.
"Obligation" means all present and future indebtedness, obligations, and
liabilities, and all renewals, extensions, and modifications thereof, owed to
the Agents and the Lenders, or any or some of them, by the Borrower, arising
pursuant to any Loan Paper, together with all interest thereon and costs,
expenses, and attorneys' fees incurred in the enforcement or collection thereof.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Paper.
"Participant" is defined in Section 10.18(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"Permitted Liens" means the Liens described on Schedule 2.
"Person" means and includes an individual, partnership, joint venture,
corporation, trust, limited liability company, limited liability partnership, or
other entity, Tribunal, unincorporated organization, or government, or any
department, agency, or political subdivision thereof.
"Plan" means any plan defined in Section 4021(a) of ERISA in respect of
which the Borrower is an "employer" or a "substantial employer" as such terms
are defined in ERISA.
"Pro Forma Balance Sheet" means the unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at December
31, 2001 (including the notes thereto) that was included in the Form 8-K filed
by the Borrower dated April 29, 2002.
"Pro Forma Statement of Operations" means the unaudited pro forma
consolidated statement of operations of the Borrower and its consolidated
Subsidiaries as at December 31, 2001 (including the notes thereto) that was
included in the Form 8-K filed by the Borrower dated April 29, 2002.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Purchaser" is defined in Section 10.18(c).
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Entity (in the case of a transfer by the
Borrower or any of its Subsidiaries) or (b) any other Person (in the case of a
transfer by a Receivables Entity), or may grant a security interest in, any
accounts receivable (whether now existing or arising in the future) of the
Borrower or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, the proceeds of such receivables and other assets which are
customarily transferred, or in respect of which security interests are
customarily granted, in connection with asset securitization involving accounts
receivable.
"Quarterly Payment Date" means (a) the third Business Day following the
last day of each March, June, September and December and (b) the last day of the
Commitment Period.
"Receivables Entity" means a Wholly Owned Subsidiary of the Borrower (to
which the Borrower or any Subsidiary transfers accounts receivable and related
assets pursuant to a Qualified Receivables Transaction) which engages in no
activities other than in connection with the financing of accounts receivable
and whose assets consist solely of receivables and related assets transferred to
such entity in connection with a Qualified Receivables Transaction:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(i) is guaranteed by the Borrower or any Subsidiary (excluding
guarantees of obligations (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitization Undertakings);
(ii) is recourse to or obligates the Borrower or any Subsidiary
in any way other than pursuant to Standard Securitization
Undertakings; or
(iii) subjects any property or asset of the Borrower or any
Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;
(b) with which neither the Borrower nor any Subsidiary has any
material contract, agreement, arrangement or understanding (except in
connection with a Qualified Receivables Transaction) other than on terms no
less favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Borrower,
other than fees payable in the ordinary course of business in connection
with servicing accounts receivable; and
(c) to which neither the Borrower nor any Subsidiary has any
obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results (except
pursuant to Standard Securitization Undertakings).
Any designation by the Borrower of a Wholly Owned Subsidiary as a
Receivables Entity shall be evidenced to the Administrative Agent by delivering
to the Administrative Agent a certificate from a Financial Officer of the
Borrower certifying that such designation complied with the foregoing
conditions.
"Register" is defined in Section 10.18(b)(iv).
"Regulation D" means Regulation D of the Board, as the same is from time to
time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulatory Change" means, with respect to any Lender, (a) any adoption or
change after the date hereof of or in United States federal, state or foreign
Laws (including Regulation D) or guidelines applying to a class of banks
including such Lender, (b) the adoption or making after the date hereof of any
interpretations, directives or requests applying to a class of banks including
such Lender of or under any United States federal, state or foreign Laws or
guidelines (whether or not having the force of law) by any Tribunal, monetary
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or (c) any change in the interpretation or
administration of any United States federal, state or foreign Laws or guidelines
applying to a class of banks including such Lender by any Tribunal, monetary
authority, central bank, or comparable agency charged with the interpretation or
administration thereof.
"Restricted Payment" means
(a) the declaration or payment of dividends by the Borrower, or
distribution (in cash, property, obligations or other securities or any
combination thereof) on account of any shares of any class of capital stock
of the Borrower, or
(b) other payments or distributions by the Borrower whether by
reduction of capital or otherwise on account of any shares of any class of
capital stock of the Borrower, or
(c) the setting apart of money for a sinking or other analogous fund
by the Borrower for the purchase, redemption, retirement or other
acquisition of any shares of any class of capital stock of the Borrower, or
any warrant, option or other right to acquire any capital stock of the
Borrower;
but in each case in (a), (b) and (c) above, excluding dividends or other
distributions payable solely in common stock of the Borrower.
"Revolving Percentage" means, as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the Total Three-Year
Commitments or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding.
"Rights" means rights, remedies, powers, and privileges.
"S&P" means Standard and Poor's Ratings Services, Inc., a division of The
McGraw Hill Companies, Inc.
"Senior Unsecured Long-Term Debt Rating" means, as of any date, the Debt
Rating that has been most recently announced by S&P and Moody's. In connection
with any determination of the Senior Unsecured Long-Term Debt Rating pursuant to
the immediately preceding sentence:
(i) for purposes of determining the Applicable Margin or the
Commitment Fee Percentage, (a) if only one of S&P and Moody's shall have in
effect a public debt rating, the Applicable Margin and the Commitment Fee
Percentage (as set forth in Section 2.4(a)) shall be determined by
reference to the available rating; (b) if the ratings established by S&P
and Moody's shall fall within different levels, the Applicable Margin and
the Commitment Fee Percentage shall be based upon the higher rating, except
that if the difference is two or more levels, the Applicable Margin and the
Commitment Fee Percentage shall be based on the rating that is one level
below the higher rating; (c) if any rating established by S&P or Moody's
shall be changed, such change shall be effective as of the date on which
such change is first announced publicly by the rating agency making such
change; (d) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the public debt rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent rating by
S&P or Moody's, as the case may be; (e) if neither S&P nor Moody's shall
have in effect a public debt rating but at least one of S&P and Moody's has
in effect a rating for any class of senior secured debt with an original
term of longer than one year issued by the Borrower, the Applicable Margin
and Commitment Fee Percentage shall be determined by reference to a rating
that is one level lower than the rating that has been most recently
announced by S&P and Moody's for such class of debt; and (f) if neither S&P
nor Moody's shall have in effect either a public debt rating or a rating
for any class of senior secured debt with an original term of longer than
one year issued by the Borrower, the Applicable Margin and Commitment Fee
Percentage shall be set in accordance with the lowest level rating and
highest percentage rate set forth in the respective tables relating to
"Applicable Margin" and "Commitment Fee Percentage", as the case may be;
and
(ii) for purposes of Section 6.7(g), (a) if only one of S&P and
Moody's shall have in effect a public debt rating, the Senior Unsecured
Long-Term Debt Rating shall be determined by reference to the available
rating; (b) if the ratings established by S&P and Moody's shall fall within
different levels, the Senior Unsecured Long-Term Debt Rating shall be based
upon the lower rating; (c) if any rating established by S&P or Moody's
shall be changed, such change shall be effective as of the date on which
such change is first announced publicly by the rating agency making such
change; (d) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the public debt rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent rating by
S&P or Moody's, as the case may be; (e) if neither S&P nor Moody's shall
have in effect a public debt rating but at least one of S&P and Moody's has
in effect a rating for any class of senior secured debt with an original
term of longer than one year issued by the Borrower, the Senior Unsecured
Long-Term Debt Rating shall be deemed to be the rating that is one level
lower than the rating that has been most recently announced by S&P and
Moody's for such class of debt; and (f) if neither S&P nor Moody's shall
have in effect either a public debt rating or a rating for any class of
senior secured debt with an original term of longer than one year issued by
the Borrower, the Debt Rating by S&P shall be deemed to be less than BBB+
and the Debt Rating by Moody's shall be deemed to be less than Baa2.
"Significant Subsidiary" means a Subsidiary of the Borrower (i) the
assets of which equal or exceed 5% of all assets of the Borrower and its
Subsidiaries as shown on a consolidated balance sheet of the Borrower and its
Subsidiaries, (ii) the operating revenue of which, for the most recently ended
period of twelve consecutive months, equals or exceeds 5% of the operating
revenues of the Borrower and its Subsidiaries for such period, or (iii) the net
income of which, for the most recently ended period of twelve consecutive
months, equals or exceeds 5% of the net income of the Borrower and its
Subsidiaries for such period.
"Solvent" means, as to any Person at the time of determination, that (a)
the aggregate fair value of such Person's assets exceeds the present value of
its liabilities (whether contingent, subordinated, unmatured, unliquidated, or
otherwise), and (b) such Person has sufficient cash flow to enable it to pay its
Debts as they mature.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary which
are reasonably customary in securitization of accounts receivables transactions
(it being understood that in no event shall Standard Securitization Undertakings
include any Guaranty in respect of principal or interest on the financing for
any Qualified Receivables Transaction).
"Subsidiary" means any Person with respect to which Borrower or any one or
more Subsidiaries owns directly or indirectly 50% or more of the issued and
outstanding voting stock (or equivalent interests).
"Swap Agreement" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions.
"Syndication Agent" is defined in the introduction to this Agreement.
"Taxes" means all taxes, assessments, fees, or other charges at any time
imposed by any Laws or Tribunal.
"Termination Date" means July 22, 2005, subject, however, to termination in
whole of the Total Three-Year Commitments pursuant to Section 2.5.
"364-Day Revolving Credit Facility" means the 364-Day Credit Agreement,
dated as of July 22, 2002, among CenturyTel, Inc., as borrower, the lenders from
time to time party thereto, Wachovia Bank, N.A., as syndication agent, Bank of
America, N.A., Bank One, NA, and SunTrust Bank, as co-documentation agents, and
JPMorgan Chase Bank, as administrative agent, and any comparable refinancing,
restructuring, extension or replacement thereof.
"Total Revolving Facility Commitments" means the sum of (i) the Total
Three-Year Commitments and (ii) the Total 364-Day Commitments.
"Total 364-Day Commitments" is defined in the 364-Day Revolving Credit
Facility.
"Total Three-Year Commitments" means, at any time, the aggregate amount of
the Commitments then in effect.
"Total Used Commitment" means the sum of (i) the Used Three-Year Commitment
and (ii) the Used 364-Day Commitment.
"Transaction" is the collective reference to the Verizon Acquisition and
the refinancing of the Existing Credit Agreements.
"Tribunal" means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision, agency, department,
commission, board, bureau, or instrumentality.
"Type" shall mean any type of Loan (i.e., an ABR Loan or Eurodollar Loan).
"United States" and "U.S." each means United States of America.
"Used 364-Day Commitment" is defined in the 364-Day Revolving Credit
Facility.
"Used Three-Year Commitment" means the aggregate outstanding principal
amount of Loans.
"Utilization Fee" is defined in Section 2.4(b).
"Verizon Acquisition" means the acquisition by the Borrower or its
subsidiaries of approximately 675,000 access lines located in Alabama and
Missouri from Verizon Communications Inc. for a purchase price of approximately
$2,159,000,000.
"Voting Stock" shall mean securities (as such term is defined in Section
2(1) of the Securities Act of 1933, as amended) of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
"Wholly Owned Subsidiary" means, as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
1.2 Accounting Principles.
All accounting and financial terms used in the Loan Papers and the
compliance with each financial covenant therein shall be determined in
accordance with GAAP as in effect on the date of this Agreement, and all
accounting principles shall be applied on a consistent basis so that the
accounting principles in a current period are comparable in all material
respects to those applied in the consolidated Financial Statements for the
Companies for the twelve months ended December 31, 2001.
1.3 Other Definitional Provisions.
As used herein and in the other Loan Papers, (i) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (ii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iii) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, capital stock, securities, revenues, accounts, leasehold
interests and contract rights, and (iv) references to agreements or other
contractual obligations shall, unless otherwise specified, be deemed to refer to
such agreements or contractual obligations as amended, supplemented, restated or
otherwise modified from time to time.
SECTION 2
FACILITIES.
2.1 Commitments.
Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans ("Loans") to the Borrower from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding which does not exceed the amount of such Lender's Commitment.
During the Commitment Period, the Borrower may use the Commitments by borrowing,
repaying the Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof. The Loans may from time to time be Eurodollar
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.3.
2.2 Procedure for Loan Borrowing.
The Borrower may borrow under the Commitments during the Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) on the requested Borrowing Date, in the case of ABR Loans), specifying (i)
the amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date
and (iii) in the case of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor.
Any Loans made on the Closing Date shall initially be ABR Loans unless the
Borrower has provided the notice for Eurodollar Loans set forth in clause (a)
above and has entered into a pre-funding indemnity agreement with respect to
such borrowing of Eurodollar Loans on the Closing Date in form and substance
reasonably satisfactory to the Administrative Agent. Each borrowing under the
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent wiring the money in
accordance with instructions from the Borrower with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.3 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Administrative Agent prior irrevocable
notice of such election no later than 11:00 A.M., New York City time, on
the proposed conversion date, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert
ABR Loans to Eurodollar Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York City
time, on the third Business Day preceding the proposed conversion date
(which notice shall specify the length of the initial Interest Period
therefor), provided that no ABR Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Lenders have determined in its or
their sole discretion not to permit such conversions. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower
giving irrevocable notice to the Administrative Agent, in accordance with
the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan may be continued as such when
any Event of Default has occurred and is continuing and the Administrative
Agent has or the Majority Lenders have determined in its or their sole
discretion not to permit such continuations, and provided, further, that if
the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to ABR Loans
on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
2.4 Fees.
(a) Commitment Fees. The Borrower agrees to pay to each Lender,
through the Administrative Agent, on each Quarterly Payment Date and on the
Termination Date, in immediately available funds, a commitment fee (a
"Commitment Fee") calculated on the unused Commitment by multiplying the
applicable percentage (the "Commitment Fee Percentage") set forth below by
the average daily unused portion of the Commitment of such Lender, as
applicable, during the preceding quarter (or shorter period commencing with
the date hereof and/or ending with the Termination Date):
Senior Unsecured Long-Term Commitment Fee Percentage
Debt Rating
-----------------------------------------------------------------
A- or A3 or better .125 percent per annum
-----------------------------------------------------------------
BBB+ or Baa1 .150 percent per annum
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BBB or Baa2 .175 percent per annum
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BBB- or Baa3 .200 percent per annum
-----------------------------------------------------------------
Below BBB- or Baa3 .300 percent per annum
=================================================================
Until the delivery to the Lenders of the Borrower's audited financial
statements for the 2002 fiscal year, the Senior Unsecured Long-Term
Debt Rating shall be deemed to be no higher than BBB+ and Baa1.
(b) Utilization Fees. The Borrower agrees to pay to each Lender,
through the Administrative Agent, on each Quarterly Payment Date and on the
Termination Date, in immediately available funds, a utilization fee (a
"Utilization Fee") equal to (i) 12.5 basis points (.125%) per annum for
each day on which the Commitment Utilization Percentage is less than 67%,
but greater than or equal to 33% and (ii) 25 basis points (.25%) per annum
for each day on which the Commitment Utilization Percentage equals or
exceeds 67%, which fee shall accrue on the daily amount of the Used
Commitment of such Lender for each Excess Utilization Day during the period
from and including the Closing Date to but excluding the date on which such
Lender's Commitment terminates; provided that, if such Lender continues to
have any outstanding Loans after its Commitment terminates, then such
utilization fee shall continue to accrue on the daily aggregate principal
amount of such Lender's Loans for each Excess Utilization Day from and
including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any outstanding Loans.
(c) Other Fees. The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates previously agreed to
in writing by the Borrower and the Administrative Agent.
2.5 Optional Termination and Reduction of Commitments.
(a) Subject to Section 2.9(b), the Borrower may permanently
terminate, or from time to time in part permanently reduce, the Total
Three-Year Commitments upon at least three Business Days prior written
notice to the Administrative Agent (who shall promptly forward a copy
thereof to each Lender and which notice may be revocable; provided, that
(i) such notice is only revocable during the three Business Day period
beginning on the date that such notice is given to the Administrative Agent
and ending on the stated date of such Commitment reduction and (ii) the
Borrower shall indemnify the Lenders pursuant to Section 2.12 as a result
of the Borrower's revocation of such notice). Such notice shall specify the
date and the amount of the termination or reduction of the Total Three-Year
Commitments. Each such partial reduction of the Total Three-Year
Commitments shall be in a minimum aggregate principal amount of $5,000,000
and in an integral multiple of $1,000,000.
(b) On the Termination Date, the Total Three-Year Commitments shall
be zero.
(c) Each reduction in the Total Three-Year Commitment pursuant to
this paragraph shall be made ratably among the Lenders in accordance with
their respective Commitments.
(d) Simultaneously with any termination or reduction of the
Commitments pursuant to this paragraph, the Borrower shall pay to the
Administrative Agent for the accounts of the Lenders the Commitment
Fees on the amount of the Total Three-Year Commitments, so terminated
or reduced, accrued through the date of such termination or reduction.
2.6 Limitations on Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions and continuations of Eurodollar Loans and all selections
of Interest Periods shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.7 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), all outstanding Loans shall bear interest at a rate per annum
equal to the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans
plus 2%, in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (as well after
as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.8 Alternate Rate of Interest for Eurodollar Loans.
In the event, and on each occasion, that on the day two Business Days prior
to the commencement of any Interest Period for a Eurodollar Loan, the
Administrative Agent shall have determined that dollar deposits in the amount of
the requested principal amount of such Eurodollar Loan are not generally
available in the London interbank market, or that dollar deposits are not
generally available in the London interbank market for the requested Interest
Period, or that the rate at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining such Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Eurodollar Rate, the Administrative
Agent shall, as soon as practicable thereafter, give telecopy notice of such
determination, stating the specific reasons therefor, to the Borrower and the
Lenders. In the event of any such determination, any request by the Borrower for
a Eurodollar Loan shall, until the circumstances giving rise to such notice no
longer exist, be deemed to be a request for an ABR Loan. Each determination by
the Administrative Agent hereunder shall be conclusive absent manifest error.
2.9 Mandatory and Optional Prepayment of Loans.
(a) Prior to the Termination Date, the Borrower shall have the right
at any time to prepay any Borrowing, in whole or in part, subject to the
requirements of Section 2.12 and Section 2.13 but otherwise without premium
or penalty, but prepayment of Eurodollar Loans shall require at least three
Business Days prior written notice to the Administrative Agent; provided,
however, that each such partial prepayment shall be in an integral multiple
of $1,000,000 and in a minimum aggregate principal amount of $2,000,000.
Each notice of prepayment shall specify the prepayment date and the
aggregate principal amount of each Borrowing to be prepaid and may be
revocable; provided, that (i) such notice is only revocable during the
three Business Day period beginning on the date that such notice is given
to the Administrative Agent and ending on the stated date of such
prepayment and (ii) the Borrower shall indemnify the Lenders pursuant to
Section 2.12 as a result of the Borrower's revocation of such notice.
(b) On the date of any termination or reduction of the Total
Three-Year Commitments pursuant to Section 2.5(a), the Borrower shall pay
or prepay so much of the Loans as shall be necessary in order that the
aggregate principal amount of the Loans outstanding will not exceed the
Total Three-Year Commitments following such termination or reduction.
Subject to the foregoing and the requirements of Section 2.5, any such
payment or prepayment shall be applied to such Borrowing or Borrowings as
the Borrower shall select. All prepayments under this paragraph shall be
subject to Section 2.12 and Section 2.13.
(c) All Loans, together with accrued and unpaid interest thereon,
shall be due and payable in full on the Termination Date.
(d) All prepayments of Loans (other than optional prepayments of ABR
Loans) under this Section 2.9 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of prepayment.
2.10 Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any Regulatory Change (i) shall change the basis of taxation
of payments to any Lender of the principal of or interest on any Eurodollar
Loan made by such Lender or any other fees or amounts payable hereunder
(other than (x) Taxes imposed on or measured by the capital, receipts or
franchises of such Lender or the overall gross or net income of such Lender
by the jurisdiction in which such Lender has its principal office or by any
political subdivision or taxing authority therein (or any Tax which is
enacted or adopted by such jurisdiction, political subdivision, or taxing
authority as a direct substitute for any such Taxes) or (y) any Tax,
assessment, or other governmental charge that would not have been imposed
but for the failure of any Lender to comply with any certification,
information, documentation, or other reporting requirement), (ii) shall
impose, modify, or deem applicable any reserve, special deposit, or similar
requirement with respect to any Eurodollar Loan, against assets of,
deposits with or for the account of, or credit extended by, such Lender
under this Agreement, or (iii) with respect to any Eurodollar Loan, shall
impose on such Lender or the London interbank market any other condition
affecting this Agreement or any Eurodollar Loan made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such
Lender of maintaining its Commitment or of making or maintaining any
Eurodollar Loan or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest, or otherwise) in
respect thereof by an amount deemed in good faith by such Lender to be
material, then the Borrower shall pay to the Administrative Agent for the
account of such Lender such additional amount or amounts as will compensate
such Lender for such increase or reduction to such Lender, to the extent
such amounts have not been included in the calculation of the Eurodollar
Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any
Regulatory Change regarding capital adequacy or compliance by any Lender
(or its parent or any lending office of such Lender) with any request or
directive regarding capital adequacy (whether or not having the force of
Law) of any Tribunal, monetary authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's (or its parent's) capital as a consequence of its obligations
hereunder to a level below that which such Lender (or its parent) could
have achieved but for such Regulatory Change, or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by
an amount deemed in good faith by such Lender to be material, then from
time to time, the Borrower shall pay to the Administrative Agent for the
account of such Lender such additional amount or amounts as will compensate
such Lender for such reduction upon demand by such Lender (through the
Administrative Agent).
(c) A certificate of a Lender setting forth in reasonable detail (i)
the Regulatory Change or other event giving rise to such costs, (ii) such
amount or amounts as shall be necessary to compensate such Lender as
specified in paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (a)(i), shall be
delivered to the Borrower (with a copy to the Administrative Agent)
promptly after such Lender determines it is entitled to compensation under
this Section 2.10, and shall be conclusive and binding absent manifest
error. The Borrower shall pay to the Administrative Agent for the account
of such Lender the amount shown as due on any such certificate within 15
days after its receipt of the same. In preparing such certificate, such
Lender may employ such assumptions and allocations of costs and expenses as
it shall in good ▇▇▇▇▇ ▇▇▇▇ reasonable and may use any reasonable averaging
and attribution method.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any Interest Period shall not
constitute a waiver of such Lender's rights to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to such Interest Period or any other
Interest Period. The protection of this Section 2.10 shall be available to
each Lender regardless of any possible contention of invalidity or
inapplicability of the law, regulation, or condition which shall have been
imposed.
(e) In the event any Lender shall seek compensation pursuant to this
Section 2.10, the Borrower may, provided no Event of Default has occurred
and is continuing, give notice to such Lender (with copies to the Agents)
that it wishes to seek one or more Persons (other than the Borrower or an
Affiliate of the Borrower) to assume the Commitment of such Lender and to
purchase its outstanding Loans and Notes (if any). Each Lender requesting
compensation pursuant to this Section 2.10 agrees to sell its Commitment,
Loans, Notes, and interest in this Agreement and the other Loan Papers to
any such Person for an amount equal to the sum of the outstanding unpaid
principal of and accrued interest on such Loans and Notes plus all other
fees and amounts (including, without limitation, any compensation claimed
by such Lender under this Section 2.10 and as to which such Lender has
delivered the certificate required by Section 2.10(c) on or before the date
such Commitment, Loans, and Notes are purchased) due such Lender hereunder
calculated, in each case, to the date such Commitment, Loans, Notes (if
any), and interest are purchased, whereupon such Lender shall have no
further Commitment or other obligation to the Borrower hereunder or under
any other Loan Paper.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 2.10, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
lending office so as to eliminate or reduce any such additional payment
which may thereafter accrue if such change, in the judgment of such Lender,
is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations of the
Borrower hereunder, the obligations of the Borrower under this Section 2.10
shall survive for one year after the termination of this Agreement and/or
the payment or assignment of any of the Loans or Notes.
2.11 Change in Legality.
(a) Notwithstanding anything to the contrary herein contained, if any
Regulatory Change shall make it unlawful for any Lender to make or maintain
any Eurodollar Loan or to give effect to its obligations as contemplated
hereby, then, by written notice to the Borrower and to the Administrative
Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon the Borrower shall be prohibited from
requesting Eurodollar Loans from such Lender hereunder unless such
declaration is subsequently withdrawn; and
(ii) if such unlawfulness shall be effective prior to the end of
any Interest Period of an outstanding Eurodollar Loan, require that
all outstanding Eurodollar Loans with such Interest Periods made by it
be converted to ABR Loans, in which event (A) all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in paragraph (b) below and
(B) all payments and prepayments of principal which would otherwise
have been applied to repay the converted Eurodollar Loans shall
instead be applied to repay the ABR Loans resulting from the
conversion of such Eurodollar Loans.
(b) For purposes of this Section 2.11, a notice to the Borrower (with
a copy to the Administrative Agent) by any Lender pursuant to paragraph (a)
above shall be effective on the date of receipt thereof by the Borrower.
2.12 Indemnity.
The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance
with the provisions of this Agreement or (c) the making of a prepayment of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.13 Pro Rata Treatment.
Unless otherwise specifically provided herein, each payment or prepayment
of principal and each payment of interest with respect to a Borrowing shall be
made pro rata among the Lenders in accordance with the respective principal
amounts of the Loans extended by each Lender, if any, with respect to such
Borrowing, and conversions of Loans to Loans of another Type and continuations
of Loans that are Eurodollar Loans from one Interest Period, shall be made pro
rata among the Lenders in accordance with their respective Commitments.
2.14 Sharing of Setoffs.
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff, or counterclaim against the Borrower, including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable Debtor Relief Law or
otherwise, obtain payment (voluntary or involuntary) in respect of the Note held
by it (other than pursuant to Section 2.10 or Section 2.12) as a result of which
the unpaid principal portion of the Note held by it shall be proportionately
less than the unpaid principal portion of the Note held by any other Lender, it
shall be deemed to have simultaneously purchased from such other Lender a
participation in the Note held by such other Lender, so that the aggregate
unpaid principal amount of the Note and participations in Notes held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Notes then outstanding as the principal amount of the Note held by it
prior to such exercise of banker's lien, setoff, or counterclaim was to the
principal amount of all Notes outstanding prior to such exercise of banker's
lien, setoff, or counterclaim; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.14 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Note deemed to have been so purchased may,
upon the existence of an Event of Default, exercise any and all rights of
banker's lien, setoff, or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender as fully as if such Lender had made a Loan
directly to the Borrower in the amount of such participation.
2.15 Payments.
(a) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without setoff or counterclaim and shall be made prior to
1:00 P.M., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding
Office, in Dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders promptly upon receipt
in like funds as received. If any payment hereunder (other than payments on
the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event
such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon, at a rate equal to the greater
of (i) the Federal Funds Effective Rate and (ii) a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts
owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days after
such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable
to ABR Loans, on demand, from the Borrower.
(c) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by
the Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower
is making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the
Lenders their respective pro rata shares of a corresponding amount. If such
payment is not made to the Administrative Agent by the Borrower within
three Business Days after such due date, the Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which
was made available pursuant to the preceding sentence, such amount with
interest thereon at the rate per annum equal to the daily average Federal
Funds Effective Rate. Nothing herein shall be deemed to limit the rights of
the Administrative Agent or any Lender against the Borrower.
2.16 Calculation of Eurodollar Rate.
The provisions of this Agreement relating to calculation of the
Eurodollar Rate are included only for the purpose of determining the rate of
interest or other amounts to be paid hereunder that are based upon such rate, it
being understood that each Lender shall be entitled to fund and maintain its
funding of all or any part of a Eurodollar Loan as it sees fit. All such
determinations hereunder, however, shall be made as if each Lender had actually
funded and maintained funding of each Eurodollar Loan through the purchase in
the London interbank market of one or more eurodollar deposits, in an amount
equal to the principal amount of such Loan and having a maturity corresponding
to the Interest Period for such Loan.
2.17 Computation of Interest and Fees.
(a) Interest and fees payable pursuant hereto shall be calculated on
the basis of a 360-day year for the actual days elapsed, except that, with
respect to (i) ABR Loans the rate of interest on which is calculated on the
basis of the Prime Rate and (ii) Commitment Fees payable pursuant to
Section 2.4(a), such calculations shall be made on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and
the relevant Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and
the relevant Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.7(a).
2.18 Booking Loans.
Any Lender may make, carry, or transfer Loans at, to, or for the account
of any of its branch offices.
2.19 Quotation of Rates.
It is hereby acknowledged that the Borrower may call the Administrative
Agent on or before the date on which notice of a Borrowing is to be delivered by
the Borrower in order to receive an indication of the rate or rates then in
effect, but that such projection shall not be binding upon the Administrative
Agent or any Lender nor affect the rate of interest which thereafter is actually
in effect when the election is made.
2.20 Taxes
(a) All payments made by the Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Tribunal,
excluding net income taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Tribunal imposing such tax or any
political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Paper). If
any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") or Other Taxes are
required to be withheld from any amounts payable to the Administrative
Agent or any Lender hereunder, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to
the Administrative Agent or such Lender (after payment of all Non-Excluded
Taxes and Other Taxes) interest or any such other amounts payable hereunder
at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are
United States withholding taxes imposed on amounts payable to such Lender
at the time such Lender becomes a party to this Agreement, except to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to
such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Tribunal in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower
fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to
the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Code with respect to payments of "portfolio interest", a statement
substantially in the form of Exhibit H and a Form W-8BEN, or any subsequent
versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Papers. Such forms shall
be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of any Participant, on or before
the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender
shall not be required to deliver any form pursuant to this paragraph that
such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law or reasonably requested by the Borrower, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender's judgment such completion,
execution or submission would not materially prejudice the legal position
of such Lender.
(f) If the Administrative Agent or any Lender determines, in its sole
discretion, that it has received a refund of any Non-Excluded Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.20, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.20 with respect to the Non-Excluded Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent or such Lender and without interest (other than
any interest paid by the relevant Tribunal with respect to such refund);
provided, that the Borrower, upon the request of the Administrative Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus
any penalties, interest or other charges imposed by the relevant Tribunal)
to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Tribunal.
This paragraph shall not be construed to require the Administrative Agent
or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any
other Person.
(g) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION 3
REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agents and the Lenders as
follows:
3.1 Purpose of Credit Facility.
The Borrower will use Loan proceeds only to finance a portion of the
Transaction and for the working capital needs and general corporate purposes
(including Acquisitions and capital expenditures) of the Companies. The proceeds
loaned hereunder will not be used directly or indirectly for the purpose of
purchasing or carrying, or for the purpose of extending credit to others for the
purpose of purchasing or carrying, any Margin Stock, or to repay any Debt which
was created for such purposes.
3.2 Corporate Existence, Good Standing, and Authority.
Each Company is, to the best of the Borrower's knowledge, duly organized,
validly existing, and in good standing under the Laws of its state of
incorporation (such jurisdictions being identified on Exhibit 21 of Borrower's
most recent annual report filed with the Securities and Exchange Commission on
Form 10-K). Except where failure would not reasonably be expected to have a
Material Adverse Effect, each Company (a) is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where the
nature and extent of its business and properties require the same, and (b)
possesses all requisite authority, power, licenses, permits, and franchises to
conduct its business as is now being, or is contemplated herein to be,
conducted. The Borrower possesses all requisite authority, power, licenses,
permits, and franchises to execute, deliver, and comply with the terms of the
Loan Papers, all which have been duly authorized and approved by all necessary
corporate action and, except where failure would not reasonably be expected to
have a Material Adverse Effect, for which no approval or consent of any Person
or Tribunal is required which has not been obtained and no filing or other
notification to any Person or Tribunal is required which has not been properly
completed.
3.3 Significant Subsidiaries.
Exhibit 21 of the Borrower's most recent annual report filed with the
Securities and Exchange Commission on Form 10-K sets forth, in all material
respects, all existing Significant Subsidiaries of the Borrower and correctly
lists, as to each Significant Subsidiary, (a) its name and (b) its jurisdiction
of incorporation. The shares of capital stock of each Significant Subsidiary
owned by the Borrower (either directly or indirectly through another Subsidiary)
as set forth on Exhibit 21 of Borrower's most recent annual report filed with
the Securities and Exchange Commission on Form 10-K are the duly authorized,
validly issued, fully paid, and nonassessable shares of such Significant
Subsidiary and are owned by the Borrower free and clear of all Liens except
Permitted Liens.
3.4 Financial Statements.
(a) The Current Financials were prepared in accordance with GAAP and
present fairly the consolidated financial condition and the results of
operations of the Companies as of, and for the periods ended, the dates
thereof. There were no material (to the Companies taken as a whole)
liabilities, direct or indirect, fixed or contingent, of any Company as of
the date of the Current Financials which are not reflected therein. No
Company has incurred any material (to the Companies taken as a whole)
liability, direct or indirect, fixed or contingent, between the dates of
the Current Financials and the date hereof, except in the ordinary course
of business, such as in connection with acquisitions and financing
activities.
(b) Since December 31, 2001, there has been no development or event
that has had or could reasonably be expected to have a Material Adverse
Effect.
3.5 Compliance with Laws, Charter, and Agreements.
No Company is, nor will the execution, delivery, performance, or observance
of the Loan Papers cause any Company to be, in violation of any Laws or any
Material Agreements to which it is a party, other than such violations which
would not reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary is, nor will the execution, delivery, performance,
or observance of the Loan Papers cause the Borrower or any Subsidiary to be, in
violation of its bylaws or charter.
3.6 Litigation.
Except as described in the Form 10-Q filed by the Borrower for the
quarterly period ended March 31, 2002 and the Form 8-K filed by the Borrower on
April 29, 2002 with the Securities and Exchange Commission and to the knowledge
of the Borrower, no Company is aware of any "Material" Litigation, and there are
no Material outstanding or unpaid judgments against any Company. Material for
purpose of this Section 3.6 in relation to Litigation would include any actions
or proceedings pending or threatened against any Company before any court or
Tribunal as to which there is a reasonable possibility of an adverse
determination seeking damages, net of insurance proceeds to the Company, in
excess of $10,000,000 in any case or 1% of Consolidated Net Worth in the
aggregate, or which might result in any Material Adverse Effect.
3.7 Taxes.
All Tax returns of each Company required to be filed have been filed (or
extensions have been granted) except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, and all Taxes imposed
upon each Company which are shown to be due and payable thereon have been paid
other than Taxes for which the criteria for Permitted Liens have been satisfied
and Taxes being contested in good faith by proper proceedings and with respect
to which such Company shall have, to the extent required by GAAP, set aside on
its books adequate reserves.
3.8 Environmental Matters.
No Company's ownership of its assets violates any applicable Environmental
Law, other than such violations which would not reasonably be expected to have a
Material Adverse Effect. To the Borrower's knowledge, no investigation or review
is pending or threatened by any Tribunal with respect to any alleged violation
of any Environmental Law in connection with any Company's assets which could
result in a Material Adverse Effect. None of any Company's assets have been used
by such Company or, to the Borrower's knowledge, any other Person as a dump site
for any Hazardous Substance except where such use would not reasonably be
expected to have a Material Adverse Effect.
3.9 Employee Benefit Plans.
(a) No employee benefit plan as defined in the Code and Title IV of
ERISA of any Company has incurred an accumulated funding deficiency in an
amount sufficient to have a Material Adverse Effect, (b) no Company has
incurred liability to the PBGC in connection with any such plan where such
liability could reasonably be expected to have a Material Adverse Effect,
(c) no Company has withdrawn in whole or in part from participation in a
Multiemployer Plan where the withdrawal could reasonably be expected to
have a Material Adverse Effect, and (d) to the best of the Borrower's
knowledge, no "prohibited transaction" (as defined in section 406 of ERISA
or section 4975 of the Code) or "reportable event" (as defined in section
4043 of ERISA) has occurred which could reasonably be expected to have a
Material Adverse Effect.
3.10 Properties; Liens.
Each Company has good and marketable (except for Permitted Liens) title to
all its property reflected on the Current Financials as being owned (except for
dispositions of property in the ordinary course of business between the date or
dates thereof and the date hereof). Except for Permitted Liens, there is no Lien
on any property of any Company, and the execution, delivery, performance, or
observance of the Loan Papers will not require or result in the creation of any
Lien other than Permitted Liens.
3.11 Holding Company and Investment Company Status.
The Borrower is not (a) a "holding company," a "subsidiary company" of a
"holding company," an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, (b) a "public utility"
within the meaning of the Federal Power Act, as amended, (c) an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(d) an "investment adviser" within the meaning of the Investment Advisers Act of
1940, as amended, or (e) directly subject to the jurisdiction of the Federal
Communications Commission or any public service commission.
3.12 Transactions with Affiliates.
Except as disclosed on Schedule 3.12, no Company is a party to a material
transaction with any of its Affiliates other than transactions in the ordinary
course of business and upon fair and reasonable terms not materially less
favorable than such Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate and other than
transactions between or among entities each of which is either the Borrower or a
Wholly Owned Subsidiary. For purposes of this Section 3.12, such transactions
are "material" if they, individually or in the aggregate, require any Company to
pay more than 1 percent of Consolidated Net Worth over the course of such
transactions.
3.13 Leases.
All material leases under which any Company is lessee or tenant are in full
force and effect, and no default or potential default exists thereunder which
could result in a Material Adverse Effect.
3.14 Labor Matters.
There are no actual or, to the Borrower's knowledge, threatened strikes,
labor disputes, slow downs, walkouts, or other concerted interruptions of
operations by any Company's employees, the effect of which would have a Material
Adverse Effect.
3.15 Insurance.
Each Company maintains with financially sound insurance companies or
associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates) insurance concerning its properties and businesses against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary in the case of same or similar
businesses; provided, however, a program of self-insurance in such amounts and
against such risks as are prudent and which is consistent with accepted business
practice shall constitute compliance with this Section 3.15.
3.16 Solvency.
The Companies are, and after giving effect to the transactions contemplated
under the Loan Papers will be, Solvent.
3.17 Business.
The business of the Borrower, as presently conducted and as proposed to be
conducted, is set forth on Schedule 3.17.
3.18 General.
All writings exhibited or delivered to the Agents by or on behalf of any
Company are and will be genuine and in all material respects what they purport
and appear to be.
SECTION 4
CONDITIONS PRECEDENT.
4.1 Initial Loan.
No Lender will be obligated to fund the initial Loan unless the
Administrative Agent has received all of the following in form and substance
satisfactory to the Administrative Agent and its special counsel:
(a) Loan Papers. This Agreement and the Current Financials.
(b) Secretary's Certificates. A certificate dated as of the date
hereof, executed and delivered by the Borrower, certifying that (i)
attached is a true, correct, and complete copy of (A) the Borrower's
charter, certified by the appropriate state official and dated a Current
Date, (B) the Borrower's bylaws, and (C) resolutions of the Borrower's
board of directors authorizing the execution and delivery of each Loan
Paper to which the Borrower is a party and (ii) the officers whose specimen
signatures appear on such certificate hold the corporate office indicated
and are authorized to sign agreements, documents, and instruments on behalf
of the Borrower.
(c) Good Standing, Existence, and Authority. Certificates (dated a
Current Date) relating to the Borrower's existence, good standing, and
authority to transact business issued by appropriate state officials.
(d) Opinions of Borrower's Counsel. The favorable opinions, dated the
Closing Date and substantially in the form of Exhibit B of:
(i) Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇,
L.L.P., special counsel to the Borrower; and
(ii) ▇▇▇▇▇▇ ▇▇▇▇, Vice President and Assistant General Counsel
of the Borrower.
(e) Officer's Certificate. A certificate, dated the Closing Date
and signed by the President, a Vice President or a Financial Officer of
the Borrower, confirming compliance, as of the Closing Date, with the
conditions set forth in paragraphs (a) and (b) of Section 4.2.
(f) Fees and Expenses. Payment from the Borrower of all fees then
due the Agents or the Lenders pursuant to this Agreement or any other
agreement.
(g) Existing Credit Agreements. The commitments under the Existing
Credit Agreements shall have been terminated and all amounts owing
thereunder shall have been paid.
(h) Financial Statements. The Lenders shall have received (i)
audited consolidated financial statements of the Borrower for the 1999,
2000 and 2001 fiscal years and (ii) unaudited interim consolidated
financial statements of the Borrower for each fiscal quarter ended after
the date of the latest applicable financial statements delivered pursuant
to clause (i) of this paragraph as to which such financial statements are
available, and such financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the Borrower, as reflected in the
financial statements or projections contained in the Confidential
Information Memorandum.
(i) Pro Forma Balance Sheet; Pro Forma Statement of Operations. The
Lenders shall have received (i) the Pro Forma Balance Sheet and (ii) the
Pro Forma Statement of Operations, each consistent in all material respects
with the forecasts previously provided to the Lenders.
(j) Projections. The Lenders shall have received from the Borrower
financial projections for the fiscal years 2002 through 2004 in form and
substance reasonably satisfactory to the Lenders.
(k) Verizon Acquisition Documentation. No changes shall have been
made to the Verizon Acquisition documentation which are materially adverse
to the Lenders.
(l) Other. Such other agreements, documents, instruments, opinions,
certificates, and evidences as the Administrative Agent may reasonably
request.
4.2 Each Loan.
In addition, the Lenders will not be obligated to fund any Loan unless at
the time of such funding (a) the representations and warranties made in the Loan
Papers (other than pursuant to Section 3.4(b), which representation shall only
be made as of the date of the initial extension of credit) are true and correct
in all material respects (except to the extent that the representations and
warranties speak to a specific date), (b) no Default or Event of Default shall
have occurred and shall be continuing, (c) the funding of such Loan is permitted
by Law, and (d) if requested by the Administrative Agent or the Majority
Lenders, the Borrower shall have delivered to the Administrative Agent evidence
substantiating any of the matters contained in this Agreement which are
necessary to enable the Borrower to qualify for such Loan.
Each Borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 4.2 shall have been satisfied.
4.3 Materiality of Conditions.
Each condition precedent herein is material to the transactions
contemplated herein, and time is of the essence in respect of each thereof.
4.4 Waiver of Conditions.
Subject to the provisions of Section 10.14, the Majority Lenders may elect
to fund any Loan without all conditions being satisfied, but this shall not be
deemed to be a waiver of the requirement that each such condition precedent be
satisfied as a prerequisite for any subsequent Loan, unless the Majority Lenders
(or, if required by Section 10.14, all Lenders) specifically waive each such
item in writing.
SECTION 5
AFFIRMATIVE COVENANTS.
So long as the Lenders are committed to make Loans under this Agreement and
thereafter until the Obligation is paid and performed in full, the Borrower
covenants and agrees with the Agents and the Lenders as follows:
5.1 Use of Proceeds.
Proceeds of Loans advanced hereunder shall be used only as represented
herein.
5.2 Books and Records.
Each Company shall maintain, in accordance with GAAP, proper and complete
books, records, and accounts which are necessary to prepare the financial
statements required to be delivered hereunder.
5.3 Items to be Furnished.
The Borrower shall cause the following to be furnished to the
Administrative Agent and each Lender:
(a) Promptly after preparation, and no later than 120 days after the
last day of each fiscal year of the Borrower, Financial Statements showing
the consolidated financial condition and results of operations of the
Companies as of, and for the year ended on, such last day, accompanied by
(i) the opinion of KPMG LLP (or another firm of nationally-recognized
independent certified public accountants reasonably acceptable to Majority
Lenders), based on an audit using generally accepted auditing standards,
that such Financial Statements were prepared in accordance with GAAP and
present fairly the consolidated financial condition and results of
operations of the Companies (and such accountants shall indicate in a
letter to the Administrative Agent, that during their audit no Default or
Event of Default not already reported was discovered or, if such Default or
Event of Default was discovered, the nature and period of existence
thereof) and (ii) a Financial Report Certificate with respect to such
Financial Statements.
(b) Promptly after preparation, and no later than 60 days after the
last day of each of the first three quarters of each fiscal year of the
Borrower, (i) Financial Statements showing the consolidated financial
condition and results of operations of the Companies as of, and for the
period from the beginning of the current fiscal year to, such last day, and
(ii) a Financial Report Certificate with respect to such Financial
Statements.
(c) Promptly after preparation (and no later than the later of 15 days
(a) after such filing is due or (b) after timely filing, if filed with the
Securities and Exchange Commission), true copies of all regular and
periodic reports, statements, documents, plans, and other written
communications furnished by or on behalf of any Company to stockholders or
to the Securities and Exchange Commission. However, only registration
statements covering more than 2 percent of the Borrower's outstanding
shares of common stock shall be required to be furnished unless
specifically requested by the Administrative Agent.
(d) Promptly upon receipt thereof, copies of any notices received from
any Tribunal (including, without limitation, state regulatory agencies)
relating to the possible violation or violation of any Law which might have
a Material Adverse Effect.
(e) Notice, promptly after the Borrower knows or has reason to know
of, (i) the existence of any material Litigation as defined in Section 3.6,
(ii) any material change in any material fact or circumstance represented
or warranted in any Loan Paper, or (iii) a Default or Event of Default,
specifying the nature thereof and what action the Borrower or any other
Company has taken, is taking, or proposes to take with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know
of, a Subsidiary Encumbrance, as defined in Section 6.14(c).
(g) Within 10 days after execution thereof, copies of any supplements,
modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent's or any Lender's
reasonable request, such information (not otherwise required to be
furnished under the Loan Papers) respecting the business affairs, assets,
and liabilities of any Company, and any opinions, certifications, and
documents, in addition to those mentioned herein.
5.4 Inspection.
The Borrower shall allow the Administrative Agent and each Lender, when the
Administrative Agent or such Lender reasonably deems necessary, at such Lender's
own expense if no Default then exists, to inspect any of its properties, to
review reports, files, and other records and to make and take away copies
thereof, to conduct tests or investigations, and to discuss any of its affairs,
conditions, and finances with any director, officer, or employee of such Company
from time to time, upon reasonable notice during reasonable business hours, or
otherwise when reasonably considered necessary.
5.5 Taxes.
Each Company shall promptly pay when due any Taxes, except those which if
unpaid would not cause a Material Adverse Effect, Taxes for which the criteria
for Permitted Liens have been satisfied and Taxes being contested in good faith
by proper proceedings and with respect to which such Company shall have, to the
extent required by GAAP, set aside on its books adequate reserves. No Company
shall use any proceeds of Loans to pay the wages of employees unless a timely
payment to or deposit with the United States of America of all amounts of Tax
required to be deducted and withheld with respect to such wages is also made.
5.6 Payment of Obligations.
Each Company shall promptly pay (or renew and extend) all of its material
obligations as the same become due except those being contested in good faith by
proper proceedings and with respect to which such Company shall have, to the
extent required by GAAP, set aside on its books adequate reserves, but no
Company will make any voluntary prepayment of the principal of any Debt other
than the Obligation, whether subordinate to the Obligation or not, if a Default
or Event of Default exists under any Loan Paper.
5.7 Expenses.
The Borrower shall promptly pay (a) all reasonable and necessary
out-of-pocket costs, fees, and expenses paid or incurred by the Administrative
Agent incident to any Loan Paper (including, but not limited to, the reasonable
fees and expenses of counsel to the Administrative Agent in connection with the
negotiation, preparation, delivery, and execution of the Loan Papers and any
related amendment, waiver, or consent); and (b) all out-of-pocket costs, fees
and expenses paid or incurred by the Administrative Agent and any of the Lenders
in connection with the enforcement of the obligations of any Company or the
exercise of any Rights (including, but not limited to, reasonable attorneys'
fees and court costs), all of which shall be a part of the Obligation. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
5.8 Maintenance of Existence, Assets, Business, and Insurance.
Except as permitted by Section 6.4, each Company shall at all times (a)
maintain its corporate existence and authority to transact business and good
standing in its jurisdiction of incorporation or organization and all other
jurisdictions where the failure to so maintain could reasonably be expected to
have a Material Adverse Effect, (b) maintain all licenses, permits, and
franchises necessary for its business, where the failure to so maintain could
reasonably be expected to have a Material Adverse Effect, (c) keep all of its
assets which are necessary to its business in good working order and condition
(ordinary wear and tear excepted), and make all necessary repairs and
replacements thereto, and (d) maintain either (i) insurance with such insurers,
in such amounts, and covering such risks, as shall be ordinary and customary in
the industry or (ii) a comparable self-insurance program.
5.9 Preservation and Protection of Rights.
Each Company shall perform such acts and duly authorize, execute,
acknowledge, deliver, file, and record any additional agreements, documents,
instruments, and certificates as the Administrative Agent may reasonably deem
necessary or appropriate in order to preserve and protect the Rights of the
Agents or the Lenders under any Loan Paper.
5.10 Environmental Laws.
Each Company shall conduct its business so as to comply with all applicable
Environmental Laws and shall promptly take corrective action to remedy any
non-compliance with any Environmental Law, except where failure to so comply or
take such action would not reasonably be expected to have a Material Adverse
Effect. Each Company shall maintain a system which, in its reasonable business
judgment, will assure its continued compliance with Environmental Laws in all
material respects.
5.11 Environmental Indemnification.
The Borrower shall indemnify, protect, and hold each Indemnified Party
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, proceedings, costs, expenses
(including, without limitation, all reasonable attorneys' fees and legal
expenses whether or not suit is brought), and disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against such Indemnified Parties, with respect to or as a direct or indirect
result of the violation by any Company of any Environmental Law; or with respect
to or as a direct or indirect result of any Company's generation, manufacture,
production, storage, release, threatened release, discharge, disposal or
presence in connection with its properties of a Hazardous Substance including,
without limitation, (a) all damages of any such use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal, or
presence, or (b) the costs of any required or necessary environmental
investigation, monitoring, repair, cleanup, or detoxification and the
preparation and implementation of any closure, remedial, or other plans. The
provisions of and undertakings and indemnification set forth in this paragraph
shall survive the satisfaction and payment of the Obligation and termination of
this Agreement for a period of time set forth in the statute of limitations in
any applicable Environmental Law.
SECTION 6
NEGATIVE COVENANTS.
So long as the Lenders are committed to make Loans under this Agreement and
thereafter until the Obligation is paid and performed in full, the Borrower
covenants and agrees with the Agents and the Lenders as follows:
6.1 Employee Benefit Plans.
No Company will, directly or indirectly, if it would have a Material
Adverse Effect, (a) engage in any "prohibited transaction" (as defined in
section 406 of ERISA or section 4975 of the Code), (b) permit the funding
requirements under ERISA with respect to any employee benefit plan established
or maintained by any Company to ever be less than the minimum required by ERISA,
(c) permit any employee benefit plan established or maintained by any Company to
ever be subject to involuntary termination proceedings, or (d) fully or
partially withdraw from any Multiemployer Plan.
6.2 Liens.
No Company will create, incur, or suffer or permit to be created or
incurred or to exist any Lien (other than Permitted Liens) upon any of its
assets unless the Obligations then outstanding shall be secured by such Lien
equally and ratably with any and all obligations and indebtedness secured by
such Lien.
6.3 Restricted Payments.
The Borrower will not directly or indirectly make or declare any Restricted
Payment, unless no Default or Event of Default has occurred and is continuing or
would result from such Restricted Payment.
6.4 Mergers and Consolidations.
No Company will merge or consolidate with any Person other than (a) any
merger or consolidation whereby the Borrower (or another Company, if the
Borrower is not a party thereto) is the surviving corporation, (b) any merger of
any Subsidiary into another Company and (c) any merger of a Subsidiary into
another Person (other than the Borrower) if after such merger the surviving
entity becomes a Subsidiary; provided, that in any such case, immediately after
such merger or consolidation there shall not exist any Default or Event of
Default.
6.5 Loans, Advances, and Investments.
Except as permitted by Section 6.4(b), no Company will make any loan,
advance, extension of credit, or capital contribution to, make any investment
in, or purchase or commit to purchase any stock or other securities or evidences
of Debt of, or interests in, any other Person, other than (a) the Verizon
Acquisition, (b) Acquisitions, (c) expense accounts for and other loans and
advances to directors, officers, and employees of such Company in the ordinary
course of business not to exceed $1,000,000 in the aggregate outstanding at any
time; (d) investments in (or secured by) obligations of the United States of
America and agencies thereof and obligations guaranteed by the United States of
America maturing within one year from the date of acquisition; (e) certificates
of deposit issued by any of the Lenders; (f) certificates of deposit which are
fully insured by the Federal Deposit Insurance Corporation or are issued by
commercial banks organized under the Laws of the United States of America or any
state thereof and having combined capital, surplus, and undivided profits of not
less than $100,000,000 (as shown on such Person's most recently published
statement of condition), and which certificates of deposit have one of the two
highest ratings from ▇▇▇▇▇'▇ or S&P, unless Borrower has a written commitment to
borrow funds from such commercial bank; (g) commercial paper rated A-1 by
▇▇▇▇▇'▇ or P-1 by S&P; (h) investments having one of the two highest ratings
from ▇▇▇▇▇'▇ or S&P; (i) extensions of credit in connection with trade
receivables and overpayments of trade payables, in each case resulting from
transactions in the ordinary course of business; (j) loans from any Company to
any other Company, investments by any Company in any other Company, capital
contributions by any Company to any other Company, and Guaranties by any Company
of the Debt of any other Company; (k) investments in the cash surrender value of
life insurance policies issued by Persons with a financial rating from A.M. Best
Company (as reported in Best's Insurance Reports) of at least "A+"; provided,
however, that if such Person's financial rating is downgraded to less than "A+",
then within 90 days following such downgrading, either (i) such cash value life
insurance policies will be transferred to another insurance company with a
financial rating of at least "A+", (ii) such cash value insurance policies will
be collapsed and the cash value thereof will be collected by the investing
Company, or (iii) such investment will become an investment subject to the
limitations of subparagraph (o) of this Section 6.5; (l) investments in the
capital stock or securities of or loans to or Guaranties of the Debt of any
Person engaged in business comparable to the general business of any Company (x)
in which a Company possesses (or will possess, after such investment) an equity
ownership interest in such Person or (y) secured by the borrower's interest in
such business; (m) in the ordinary course of business, investments in the
capital stock of the Rural Telephone Bank, National Bank for Cooperatives, or
the National Rural Utilities Cooperative Finance Corporation, or any other
lender from whom the investing Company is intending to borrow money which
requires such Company to make an equity investment in such lender in order to so
borrow; (n) Guaranties of the Debt of the Borrower's Employee Stock Ownership
Plan; and (o) other loans, advances, Guaranties, and investments which never
exceed in the aggregate at any time 25% of Adjusted Consolidated Net Worth
(valued on the basis of original cost, plus subsequent cash and stock additions,
less any write-down in value).
6.6 Transactions with Affiliates.
No Company will enter into any material transaction with any of its
Affiliates, other than (a) transactions between or among entities each of which
is either the Borrower or a Wholly Owned Subsidiary, (b) in the case of a
transaction between the Borrower and a Subsidiary that is owned by the Borrower
or between Subsidiaries one or both of which is not directly or indirectly
wholly-owned by the Borrower, if the Borrower has determined that such
transaction is in the best interests of the Borrower, and (c) in the case of any
other transaction between a Company and a Person that is not a Company,
transactions in the ordinary course of business and upon fair and reasonable
terms not materially less favorable than such Company could obtain or could
become entitled to in an arm's-length transaction with a Person that was not its
Affiliate. For purposes of this Section 6.6, such transactions are "material" if
they, individually or in the aggregate, require any Company to pay more than 1
percent of Consolidated Net Worth over the course of such transactions.
6.7 Sale of Assets.
No Company will sell, lease, or otherwise dispose of all or any substantial
part of its assets other than (a) sales of inventory in the ordinary course of
business, (b) sales of equipment for a fair and adequate consideration, provided
that if any such equipment is sold, and a replacement is necessary for the
proper operation of the business of such Company, such Company will replace such
equipment with adequate equipment, (c) the exchange of assets (other than
equipment) for similar assets of equal or greater value, (d) the sale, discount,
or transfer of delinquent notes or accounts receivable in the ordinary course of
business for purposes of collection, (e) sales of accounts receivable and
related assets or an interest therein of the type specified in the definition of
"Qualified Receivables Transaction" made in connection with a Qualified
Receivables Transaction (provided, that if at any time the aggregate principal
amount of all Qualified Receivables Transactions exceeds $150,000,000, the
Borrower shall permanently reduce the Total Three-Year Commitments and the Total
364-Day Commitments by the amount of such excess on a pro rata basis), (f) the
sale of the stock of CenturyTel Wireless Inc. and (g) other dispositions of
assets (other than accounts receivable and related assets), provided that (i)
the Companies shall, within the period of 180 days following the consummation of
each such transaction, apply (or cause to be applied) an amount equal to the Net
Cash Proceeds of such disposition of assets to either (x) make Eligible
Reinvestments or (y) permanently reduce the Total Three-Year Commitments and the
Total 364-Day Commitments on a pro rata basis and (ii) notwithstanding the
foregoing provisions of clause (g) above, at any time that the Senior Unsecured
Long-Term Debt Rating shall be lower than the Senior Unsecured Long-Term Debt
Rating in effect as of the Closing Date (it being understood that the Debt
Rating by S&P as of the Closing Date is BBB+ and the Debt Rating by ▇▇▇▇▇'▇ as
of the Closing Date is Baa2), the net book value of all assets disposed of
pursuant to clause (g) above (net of acquisitions of similar assets) in all such
transactions during any period of 12 consecutive months (commencing with the
first date as of which such lower Senior Unsecured Long-Term Debt Rating shall
have become effective) shall not exceed an amount equal to 10% of Consolidated
Net Worth as set forth in the most recent Financial Statements delivered
pursuant to Section 5.3 of this Agreement.
6.8 Compliance with Laws and Documents.
No Company will violate the provisions of any Laws or any Material
Agreement if such violation alone, or when aggregated with all other such
violations, could reasonably be expected to have a Material Adverse Effect. No
Company will violate the provisions of its charter or bylaws or modify, repeal,
replace, or amend any provision of its charter or bylaws if such action could
reasonably be expected to have a Material Adverse Effect. The Borrower will
provide to the Administrative Agent a copy of each document that materially
modifies, repeals, replaces, or amends the charter or bylaws of the Borrower.
6.9 New Businesses.
No Company will engage in any material business other than the businesses
in which it is presently engaged or businesses related thereto, as described on
Schedule 3.17.
6.10 Assignment.
The Borrower will not assign or transfer any of its Rights, duties, or
obligations under any of the Loan Papers.
6.11 Fiscal Year and Accounting Methods.
The Borrower will not change its fiscal year or accounting methods (other
than immaterial changes and changes required by changes in GAAP) without the
prior written consent of the Administrative Agent (which shall not be
unreasonably withheld).
6.12 Holding Company and Investment Company Status.
The Borrower will not conduct its business in such a way that it will
become (a) a "holding company," a "subsidiary company" of a "holding company,"
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, (b) a "public utility" within the meaning of
the Federal Power Act, as amended, (c) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or (d) an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended.
6.13 Amendments to Equity Units Documentation.
The Borrower will not amend, supplement or otherwise modify the terms and
conditions of the documentation relating to the Equity Units except for any such
amendment, supplement or modification that is not materially adverse to the
interests of the Lenders.
6.14 Financial Covenants.
(a) As calculated at the end of each fiscal quarter of the Borrower
(but computed with respect to EBITDA for the four fiscal quarters ending on
the last day of such fiscal quarter), the Borrower shall not permit the
ratio of Funded Debt of the Companies to EBITDA of the Companies to exceed
4.00 to 1.0.
(b) As calculated at the end of each fiscal quarter of the Borrower
(but computed with respect to EBITDA for the four fiscal quarters ending on
the last day of such fiscal quarter), the Borrower shall not permit the
ratio of Funded Debt of its Subsidiaries to EBITDA of the Companies to
exceed 1.50 to 1.0.
(c) As calculated at the end of each fiscal quarter of the Borrower
(but computed for the four fiscal quarters ending on the last day of such
fiscal quarter), the Borrower shall not permit the ratio of EBITDA of the
Companies to the sum of (i) consolidated interest expense of the Companies
and (ii) dividends declared or paid by any Company (other than to another
Company) on its preferred capital stock (but if such dividends are declared
and paid during such four-quarter period, the amount shall not be counted
twice) to be less than 1.50 to 1.0.
For purposes of this Section 6.14(c), EBITDA and interest expense of
any Subsidiary which is subject to any Subsidiary Encumbrance, shall be
reduced to the extent such Subsidiary is restricted by the Subsidiary
Encumbrance. As used in this Section 6.14(c), "Subsidiary Encumbrance"
shall mean, so long as a default has occurred and is continuing under the
agreement creating such encumbrance or restriction, any encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends or make
any other distributions on its capital stock or any other interest or
participation in its profits owned by the Borrower or any Subsidiary of the
Borrower, or pay any Debt owed to the Borrower or a Subsidiary of the
Borrower, (ii) make loans or advances to, or grant liens in favor of, the
Borrower or any of the Borrower's Subsidiaries or (iii) transfer any of its
properties or assets to the Borrower, except for such encumbrances or
restrictions (A) existing on the date of this Agreement, (B) arising in
connection with loans made to any Company by the Rural Electrification
Administration, the Rural Utilities Service, the Rural Telephone Bank, or
similar lenders such as the Rural Telephone Finance Cooperative, or (C) now
existing or hereafter arising under or by reason of either (x) applicable
Law or (y) this Agreement and the other Loan Papers.
(d) If at any time after the date of this Agreement the Borrower
enters into any financing arrangement with a third party which requires the
Borrower or the Companies as a whole to maintain a specified minimum net
worth, then such minimum net worth requirement or covenant shall be
incorporated herein by reference and made a part of this Agreement for all
purposes as of the date such financing arrangement is entered into by the
Borrower.
Further, for purposes of this Section 6.14 Funded Debt shall include any
Company's Guaranty of Funded Debt of any Person other than another Company or
the Borrower's Employee Stock Ownership Plan. For the first four quarters
following any Acquisition, calculations under this Section 6.14 shall be made on
a pro forma basis as if the properties acquired in connection with such
Acquisition were properties of the Companies during the period of calculation.
SECTION 7
DEFAULT.
The term "Event of Default" means the occurrence and continuance of any one
or more of the following events (including the passage of time, if any,
specified therefor) (provided that, if any such event occurs and the Lenders or
Majority Lenders, as required by the provisions of Section 10.14, subsequently
agree in writing that they will not exercise any remedies hereunder as a result
thereof, the occurrence and continuance of such event shall no longer be deemed
an Event of Default hereunder insofar as the state of facts giving rise to such
event is concerned):
7.1 Payment of Obligation.
The failure or refusal of the Borrower to pay any portion of the
Obligation, as the same become due in accordance with the terms of the Loan
Papers and, in the case of an interest payment, such failure or refusal
continues for a period of 5 Business Days (no grace period being given for
failure or refusal to make a principal payment). Notwithstanding the foregoing,
the Borrower's failure to pay, if caused solely by a wire transfer malfunction
or similar problem outside the Borrower's control, shall not be deemed an Event
of Default so long as such failure to pay is promptly corrected.
7.2 Covenants.
(a) The failure or refusal of the Borrower (and, if applicable, any
other Company) to punctually and properly perform, observe, and comply with
any covenant, agreement, or condition contained in Section 5.3(e)(iii) or
Section 6.
(b) The failure or refusal of the Borrower (and, if applicable, any
other Company) to punctually and properly perform, observe, and comply with
any covenant, agreement, or condition contained in any of the Loan Papers
to which such Company is a party, other than covenants to pay the
Obligation and the covenants listed in clause (a) preceding, and such
failure or refusal continues for 10 days after notice from the
Administrative Agent to the Borrower.
7.3 Debtor Relief.
The Companies shall not be Solvent, or any Company (a) fails to pay its
Debts generally as they become due, (b) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Relief Law, or (c) becomes a party to or
is made the subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or otherwise adversely
affect the Rights of the Agents or the Lenders granted in the Loan Papers
(unless, in the event such proceeding is involuntary, the petition instituting
same is dismissed within 60 days after its filing).
7.4 Attachment.
The failure of any Company to have discharged within 60 days after
commencement any attachment, sequestration, or similar proceeding which,
individually or together with all such other proceedings then pending, affects
assets of such Company having a value (individually or collectively) of 1
percent of Consolidated Net Worth or more.
7.5 Payment of Judgments.
Any Company fails to pay any judgments or orders for the payment of money
in excess of 1 percent of Consolidated Net Worth (individually or collectively)
rendered against it or any of its assets and either (a) any enforcement
proceedings shall have been commenced by any creditor upon any such judgment or
order or (b) a stay of enforcement of any such judgment or order, by reason of
pending appeal or otherwise, shall not be in effect prior to the time its assets
may be lawfully sold to satisfy such judgment.
7.6 Default Under Other Agreements.
A default exists under any Material Agreement to which any Company is a
party, the effect of which is to cause, or which permits the holder thereof (or
a trustee or representative of such holder) to cause, unpaid consideration of at
least 2% of Consolidated Net Worth (individually or in the aggregate) to become
due prior to the stated maturity or prior to the regularly scheduled dates of
payment.
7.7 Misrepresentation.
The Administrative Agent or any Lender discovers that any statement,
representation, or warranty in the Loan Papers, any Financial Statement of the
Borrower, or any writing ever delivered to the Administrative Agent or any
Lender pursuant to the Loan Papers is false, misleading, or erroneous when made,
deemed made or delivered in any material respect.
7.8 Change in Control.
A Change of Control shall occur. For the purpose of this Section, a "Change
of Control" shall be deemed to have occurred if:
(a) a third person, including a "group" as defined in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
but excluding any employee benefit plan or plans of the Borrower and its
Subsidiaries and Affiliates, becomes the beneficial owner, directly or
indirectly, of thirty percent (30%) or more of the combined voting power of
the Borrower's outstanding voting securities ordinarily having the right to
vote for the election of directors of the Borrower; or
(b) the individuals who, as of March 31, 2002 constituted the Board of
Directors of the Borrower (the "Board" generally and as of March 31, 2002
the "Incumbent Board") cease for any reason to constitute at least
two-thirds (2/3) of the Board, or in the case of a merger or consolidation
of the Borrower, do not constitute or cease to constitute at least
two-thirds (2/3) of the board of directors of the surviving company (or in
a case where the surviving corporation is controlled, directly or
indirectly, by another corporation or entity do not constitute or cease to
constitute at least two-thirds (2/3) of the board of such controlling
corporation or do not have or cease to have at least two-thirds (2/3)
voting seats on any body comparable to a board of directors of such
controlling entity or, if there is no body comparable to a board of
directors, at least two-thirds (2/3) voting control of such controlling
entity), provided that any person becoming a director (or, in the case of a
controlling non-corporate entity, obtaining a position comparable to a
director or obtaining a voting interest in such entity) subsequent to March
31, 2002, whose election, or nomination for election, was approved by a
vote of the persons comprising at least two-thirds (2/3) of the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board.
7.9 ERISA.
Any one of the following shall have occurred: (a) any "Reportable Event" as
such term is defined in ERISA under any Plan, (b) the appointment by an
appropriate Tribunal of a trustee to administer any Plan, (c) the termination of
any Plan within the meaning of Title IV of ERISA, or (d) any material
accumulated funding deficiency within the meaning of ERISA exists under any
Plan, and any of (a), (b), (c) or (d) results in a Material Adverse Effect.
7.10 Validity and Enforceability of Loan Papers.
Any Loan Paper shall, at any time after its execution and delivery and for
any reason, cease to be in full force and effect in any material respect or be
declared to be null and void or the validity or enforceability thereof be
contested by any Company party thereto or any Company shall deny that it has any
liability or obligations under any Loan Paper to which it is a party.
SECTION 8
RIGHTS AND REMEDIES.
8.1 Remedies Upon Event of Default.
(a) Should an Event of Default occur and be continuing under Section
7.3, the commitment of the Lenders to make Loans shall automatically
terminate and the entire unpaid balance of the Obligation shall
automatically become due and payable without any action of any kind
whatsoever.
(b) Should any other Event of Default occur and be continuing, subject
to any agreement among the Lenders, the Administrative Agent may (and shall
upon the request of the Majority Lenders), at its (or the Majority
Lenders') election, do any one or more of the following: (i) If the
maturity of the Obligation has not already been accelerated under Section
8.1(a), declare the entire unpaid balance of the Obligation, or any part
thereof, immediately due and payable, whereupon it shall be due and payable
(and notice of such declaration shall promptly be given thereafter by the
Administrative Agent to the Borrower); (ii) terminate commitments to make
Loans hereunder; (iii) reduce any claim to judgment; (iv) exercise (or
request each Lender to exercise) the Rights of offset or banker's Lien
against the interest of the Borrower in and to every account and other
property of the Borrower which are in the possession of any Lender to the
extent of the full amount of the Obligation; and (v) exercise any and all
other legal or equitable Rights afforded by the Loan Papers, the Laws of
the State of New York or any other jurisdiction as the Administrative Agent
shall deem appropriate, or otherwise, including, but not limited to, the
Right to bring suit or other proceedings before any Tribunal either for
specific performance of any covenant or condition contained in any of the
Loan Papers or in aid of the exercise of any Right granted to the Lenders
in any of the Loan Papers.
8.2 Waivers.
The Borrower hereby waives presentment and demand for payment, protest,
notice of intention to accelerate, notice of acceleration, and notice of protest
and nonpayment, and agrees that its liability with respect to the Obligation, or
any part thereof, shall not be affected by any renewal or extension in the time
of payment of the Obligation, by any indulgence, or by any release or change in
any security for the payment of the Obligation.
8.3 Performance by Administrative Agent.
If any covenant, duty, or agreement of any Company is not performed in
accordance with the terms of the Loan Papers, the Administrative Agent may, at
its option (but subject to the approval of the Majority Lenders), perform or
attempt to perform such covenant, duty, or agreement on behalf of such Company.
In such event, any amount expended by the Administrative Agent in such
performance or attempted performance shall be reasonable, payable by the
Borrower to the Administrative Agent on demand, shall become part of the
Obligation, and shall bear interest at the Default Rate from the date of such
expenditure by the Administrative Agent until paid. Notwithstanding the
foregoing, it is expressly understood that the Administrative Agent does not
assume and shall never have, except by its express written consent, any
liability or responsibility for the performance of any covenant, duty, or
agreement of any Company.
8.4 Delegation of Duties and Rights.
The Administrative Agent and the Lenders may perform any of their duties or
exercise any of their Rights under the Loan Papers by or through the
Administrative Agent and their and the Administrative Agent's officers,
directors, employees, attorneys, agents, or other representatives.
8.5 Lenders Not in Control.
None of the covenants or other provisions contained in this Agreement or in
any other Loan Paper shall, or shall be deemed to, give the Agents or the
Lenders the Right to exercise control over the assets (including, without
limitation, real property), affairs, or management of any Company, the power of
the Agents and the Lenders being limited to the Right to exercise the remedies
provided in this Section 8.
8.6 Waivers by Lenders.
The acceptance by the Agents or the Lenders at any time and from time to
time of partial payment on the Obligation shall not be deemed to be a waiver of
any Event of Default then existing. No waiver by the Agents, the Majority
Lenders, or all of the Lenders of any Event of Default shall be deemed to be a
waiver of any other then-existing or subsequent Event of Default. No delay or
omission by the Agents, the Majority Lenders, or all of the Lenders in
exercising any Right under the Loan Papers shall impair such Right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
8.7 Cumulative Rights.
All Rights available to the Agents and the Lenders under the Loan
Papers are cumulative of and in addition to all other Rights granted to the
Agents and the Lenders at law or in equity, whether or not the Obligation is due
and payable and whether or not the Agents or the Lenders have instituted any
suit for collection, foreclosure, or other action in connection with the Loan
Papers.
8.8 Application of Proceeds.
Any and all proceeds ever received by the Agents or the Lenders from the
exercise of any Rights pertaining to the Obligation shall be applied to the
Obligations in the order and manner set forth in Section 2.15.
8.9 Certain Proceedings.
The Borrower will promptly execute and deliver or cause the execution and
delivery of, all applications, certificates, instruments, registration
statements, and all other documents and papers the Agents or the Lenders may
reasonably request in connection with the obtaining of any consent, approval,
registration, qualification, permit, license, or authorization of any other
Tribunal or other Person necessary or appropriate for the effective exercise of
any Rights under the Loan Papers. Because the Borrower agrees that the Agents'
and the Lenders' remedies at Law for failure of the Borrower to comply with the
provisions of this paragraph would be inadequate and that such failure would not
be adequately compensable in damages, the Borrower agrees that the covenants of
this paragraph may be specifically enforced.
8.10 Setoff.
If an Event of Default shall have occurred and is continuing, each
Lender is hereby authorized at any time and from time to time, without prior
notice to the Borrower (any such notice being hereby expressly waived by the
Borrower), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and any other indebtedness at
any time owing by such Lender to or for the credit or the account of the
Borrower against any portion of the Obligation owing to such Lender,
irrespective of whether or not all of the Obligation, or any part thereof, shall
be then due. Each Lender agrees promptly to notify the Borrower (with a copy to
the Administrative Agent) after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights and remedies of each Lender hereunder are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
SECTION 9
THE AGENTS.
9.1 Appointment.
Each Lender hereby irrevocably designates and appoints the Administrative
Agent as the agent of such Lender under this Agreement and the other Loan
Papers, and each such Lender irrevocably authorizes the Administrative Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Papers and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
this Agreement and the other Loan Papers, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Paper or otherwise exist against the Administrative
Agent.
9.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this Agreement
and the other Loan Papers by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
9.3 Exculpatory Provisions.
Neither any Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Paper (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Loan Party or any officer thereof contained in this Agreement or any
other Loan Paper or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Paper or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Paper or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Paper, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance of Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Paper unless it shall first
receive such advice or concurrence of the Majority Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Papers in accordance with a request of the Majority Lenders (or, if so specified
by this Agreement, all Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default unless the Administrative
Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Majority Lenders (or, if so specified by this Agreement, all Lenders);
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Agents and Other Lenders.
Each Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Papers, and
to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Revolving Percentages
in effect on the date on which indemnification is sought under this Section (or,
if indemnification is sought after the date upon which the Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with such Revolving Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Papers or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's fraud,
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
9.8 Agent in its Individual Capacity.
Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as though such
Agent were not an Agent. With respect to its Loans made or renewed by it, each
Agent shall have the same rights and powers under this Agreement and the other
Loan Papers as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
9.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 10 days'
notice to the Lenders and the Borrower. If the Administrative Agent shall resign
as Administrative Agent under this Agreement and the other Loan Papers, then the
Majority Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall (unless an Event of Default under Section
7.1 or Section 7.3 with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Majority Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Papers.
9.10 Co-Documentation Agents and Syndication Agent.
Neither the Co-Documentation Agents nor the Syndication Agent shall have
any duties or responsibilities hereunder in its capacity as such.
SECTION 10
MISCELLANEOUS.
10.1 Changes in GAAP.
All accounting and financial terms used in any of the Loan Papers and the
compliance with each covenant contained in the Loan Papers which relates to
financial matters shall be determined in accordance with GAAP, except to the
extent that a deviation therefrom is expressly stated in such Loan Papers.
Should a change in GAAP require a change in any method of accounting or should
any voluntary change in the accounting methods be permitted pursuant to Section
6.11, then such change shall not result in an Event of Default if, at the time
of such change, such Event of Default had not occurred and was not then
continuing, based upon the former methods of accounting used by or on behalf of
the Borrower; provided that, after any such change in accounting methods, the
Financial Statements required to be delivered shall either be (a) supplemented
with financial information prepared in comparative form, in compliance with the
former methods of accounting used prior to such change, as well as with the new
method or methods of accounting and, for the purpose of determining whether an
Event of Default has occurred, Lenders shall look solely to that portion of such
supplemental information that complies with the former methods of accounting, or
(b) supplemented with financial information prepared in compliance with such new
method or methods of accounting but accompanied by such information, in form and
detail satisfactory to Lenders, that will allow Lenders to readily determine the
effect of such changes in accounting methods on such Financial Statements, and,
for the purpose of determining whether an Event of Default has occurred, Lenders
shall look solely to such supplemental information as adjusted to reflect
compliance with such former method or methods of accounting.
10.2 Money and Interest.
Unless stipulated otherwise (a) all references in any of the Loan Papers to
"dollars," "money," "payments," or other similar financial or monetary terms are
references to currency of the United States of America and (b) all references to
interest are to simple and not compound interest.
10.3 Number and Gender of Words.
Whenever in any Loan Paper the singular number is used, the same shall
include the plural where appropriate, and vice versa; and words of any gender in
any Loan Paper shall include each other gender where appropriate. The words
"herein," "hereof," and "hereunder," and other words of similar import refer to
the relevant Loan Paper as a whole and not to any particular part or subdivision
thereof.
10.4 Headings.
The headings, captions, and arrangements used in any of the Loan Papers
are, unless specified otherwise, for convenience only and shall not be deemed to
limit, amplify, or modify the terms of the Loan Papers, nor affect the meaning
thereof.
10.5 Exhibits.
If any Exhibit, which is to be executed and delivered, contains blanks,
the same shall be completed correctly and in accordance with the terms and
provisions contained and as contemplated herein prior to, at the time of, or
after the execution and delivery thereof.
10.6 Notices.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent
in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
Borrower: CenturyTel, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. and D. ▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: CenturyTel, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Administrative Agent: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders shall not be effective until
received.
Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Section 2 unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
10.7 Exceptions to Covenants.
The Borrower shall not take any action or fail to take any action which is
permitted as an exception to any of the covenants contained in any of the Loan
Papers if such action or omission would result in the breach of any other
covenant contained in any of the Loan Papers.
10.8 Survival.
All covenants, agreements, undertakings, representations, and warranties
made in any of the Loan Papers (a) shall survive all closings under the Loan
Papers, (b) except as otherwise indicated, shall not be affected by any
investigation made by any party, and (c) unless otherwise provided herein shall
terminate upon the later of the termination of this Agreement and the payment in
full of the Obligation.
10.9 Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
10.10 Submission to Jurisdiction; Waivers.
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Papers to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower, as the case may be at its address set forth in Section 10.6 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.11 WAIVERS OF JURY TRIAL.
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN PAPER AND FOR ANY COUNTERCLAIM
THEREIN.
10.12 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 Integration.
This Agreement and the other Loan Papers represent the entire agreement of
the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Papers.
10.14 Amendments, Etc.
Neither this Agreement, any other Loan Paper, nor any terms hereof or
thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.14. The Majority Lenders and the Borrower may, or,
with the written consent of the Majority Lenders, the Administrative Agent and
the Borrower may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Papers for the purpose
of adding any provisions to this Agreement or the other Loan Papers or changing
in any manner the rights of the Lenders or of the Borrower hereunder or
thereunder or (b) waive, on such terms and conditions as the Majority Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Papers or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i) forgive
or reduce the principal amount or extend the final scheduled date of maturity of
any Loan, reduce the stated rate of any interest, margin or fee payable
hereunder (except (x) in connection with the waiver of applicability of any
post-default increase in interest rates (which waiver shall be effective with
the consent of the Majority Lenders) and (y) that any amendment or modification
of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Lender's Commitment, in each case
without the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 10.14
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Majority Lenders or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Papers, in each case without the written consent of
all Lenders; or (iv) amend, modify or waive any provision of Section 9 without
the written consent of the Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other Loan Papers, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or amended
and restated) with the written consent of the Majority Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
to share ratably in the benefits of this Agreement and the other Loan Papers
with the aggregate principal amount of the Loans then outstanding and the
accrued interest and fees in respect thereof and (b) to include appropriately
the Lenders holding such credit facilities in any determination of the Majority
Lenders.
10.15 Waivers.
No course of dealing nor any failure or delay by the Administrative Agent,
any Lender, or any of their respective officers, directors, employees, agents,
representatives, or attorneys with respect to exercising any Right of the
Lenders hereunder shall operate as a waiver thereof. A waiver must be in writing
and signed by the Lenders (or the Majority Lenders to the extent permitted
hereunder) to be effective, and such waiver will be effective only in the
specific instance and for the specific purpose for which it is given.
10.16 Governmental Regulation.
Anything contained in this Agreement to the contrary notwithstanding, the
Lenders shall not be obligated to extend credit to the Borrower in violation of
any Law.
10.17 Multiple Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.
10.18 Successors and Assigns; Participations; Assignments.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall
be required for an assignment to a Lender, an affiliate of a Lender,
an Approved Fund (as defined below) or, if an Event of Default has
occurred and is continuing, any other Person; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to an
Assignee that is a Lender immediately prior to giving effect to such
assignment, except in the case of an assignment of a Commitment to an
Assignee that does not already have a 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
Commitments, the amount of the Commitments of the assigning
Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that (1) no
such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing and (2) such amounts
shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of
$3,500;
(C) the Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an administrative
questionnaire; and
(D) in the case of an assignment to a CLO (as defined
below), unless such assignment (or an assignment to a CLO
managed by the same manager or an Affiliate of such manager)
shall have been approved by the Borrower (the Borrower
agreeing that such approval, if requested, will not be
unreasonably withheld or delayed) the assigning Lender shall
retain the sole right to approve any amendment, modification
or waiver of any provision of this Agreement and the other
Loan Papers, provided that the Assignment and Assumption
between such Lender and such CLO may provide that such Lender
will not, without the consent of such CLO, agree to any
amendment, modification or waiver that (1) requires the
consent of each Lender directly affected thereby pursuant to
the proviso to the second sentence of Section 10.14 and (2)
directly affects such CLO.
For the purposes of this Section 10.18, the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by
an affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary
course of its business and is administered or managed by a Lender or an
affiliate of such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.10, 2.12, 2.20
and 10.21). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.18 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph
(c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Lender and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c)(i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver that (1) requires the
consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of Section 10.14 and (2) directly affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.10, 2.12 and 2.20 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 8.10 as though it were a Lender,
provided such Participant shall be subject to Section 2.14 as though it
were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.10 or 2.20 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to
a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Borrower or the Administrative Agent and without
regard to the limitations set forth in Section 10.18(b). Each of the
Borrower, each Lender and the Administrative Agent hereby confirms that it
will not institute against a Conduit Lender or join any other Person in
instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit
Lender; provided, however, that each Lender designating any Conduit Lender
hereby agrees to indemnify, save and hold harmless each other party hereto
for any loss, cost, damage or expense arising out of its inability to
institute such a proceeding against such Conduit Lender during such period
of forbearance.
10.19 Confidentiality.
Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by the Borrower pursuant
to this Agreement; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate thereof, (b) subject to
an agreement to comply with the provisions of this Section, to any actual or
prospective transferee or any direct or indirect counterparty to any Swap
Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, (d) upon the request or demand of
any Tribunal, (e) in response to any order of any court or other Tribunal or as
may otherwise be required pursuant to any Laws, (f) if requested or required to
do so in connection with any litigation or similar proceeding, (g) that has been
publicly disclosed, (h) to the National Association of Insurance Commissioners
or any similar organization or any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in connection
with the exercise of any remedy hereunder or under any other Loan Paper;
provided, that in all disclosures pursuant to clauses (a) through (c) above, the
disclosing party puts in place reasonable procedures to maintain the
confidentiality of the information disclosed.
10.20 Conflicts and Ambiguities.
Any conflict or ambiguity between the terms and provisions herein and terms
and provisions in any other Loan Paper shall be controlled by the terms and
provisions herein.
10.21 GENERAL INDEMNIFICATION.
THE BORROWER SHALL INDEMNIFY, PROTECT, AND HOLD THE AGENTS AND THE LENDERS
AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS
(COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND
LEGAL EXPENSES WHETHER OR NOT SUIT IS BROUGHT AND SETTLEMENT COSTS), AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR
ARISING OUT OF THE LOAN PAPERS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN
(COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), TO THE EXTENT THAT ANY OF THE
INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR INDIRECTLY, FROM ANY CLAIM MADE OR
ACTION, SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF ANY PERSON OTHER THAN
THE INDEMNIFIED PARTIES; PROVIDED, HOWEVER, THAT ALTHOUGH EACH INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO BE INDEMNIFIED FROM ITS OWN ORDINARY NEGLIGENCE, NO
INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN
FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. THE PROVISIONS OF AND
UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH SHALL SURVIVE THE
SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF THIS AGREEMENT FOR
THE PERIOD OF TIME SET FORTH IN ANY APPLICABLE STATUTE OF LIMITATIONS.
[Remainder of page left intentionally blank. Signature pages follow.]
EXECUTED as of the day and year first mentioned.
CENTURYTEL, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-------------------------------
Title: Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK,
as the Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
WACHOVIA BANK, N.A.,
as Syndication Agent and a Lender
By: /s/ C. Brand ▇▇▇▇▇▇▇
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Name: C Brand Hosford
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Title: Vice President
BANK OF AMERICA, N.A.,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Principal
BANK ONE, NA,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
SUNTRUST BANK,
as Co-Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
BANK HAPOALIM B.M.
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇
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Title: FVP & BRANCH MANAGER
THE BANK OF NOVA SCOTIA
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: AUTHORIZED SIGNATORY
Bank of Tokyo-Mitsubishi Trust Company
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(Name of Lender)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
Bayerische Hypo-und Vereinsbank, NY Branch AG
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(Name of Lender)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Associate Director
CIBC INC.
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(Name of Lender)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: CIBC World Markets Corp. as Agent
CoBank, ACB
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
Hibernia National Bank
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(Name of Lender)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
Mizuho Corporate Bank, Ltd.
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Vice President
National Australia Bank Limited
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Head of TMT - Americas
The Norinchukin Bank
New York Branch
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
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Title: General Manager
Progressive Bank
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(Name of Lender)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
REGIONS BANK
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(Name of Lender)
By: /s/ C. ▇▇▇ ▇▇▇▇▇▇
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Name: C. ▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President
UNION BANK OF CALIFORNIA, N.A.
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Assistant Vice President
US BANK, NATIONAL ASSOCIATION
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(Name of Lender)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President