Exhibit 99.5
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 24, 2002
By and Among
D & E COMMUNICATIONS, INC.,
as Borrower,
Each of the
SUBSIDIARY GUARANTORS referred to herein,
and
COBANK, ACB,
as Administrative Agent and a Lender,
and
the other Lenders referred to herein
TABLE OF CONTENTS
SECTION 1 AMOUNTS AND TERMS OF LOANS............................................................................. 2
1.1 Loans.......................................................................................... 2
(A) Term Loan A........................................................................... 2
(B) Revolving Loan........................................................................ 2
(C) Term Loan B........................................................................... 2
(D) Notes................................................................................. 2
(E) Advances.............................................................................. 2
1.2 Interest....................................................................................... 2
(A) Interest Options...................................................................... 2
(B) Applicable Margins.................................................................... 3
(C) Interest Periods...................................................................... 4
(D) Calculation and Payment............................................................... 4
(E) Default Rate of Interest.............................................................. 5
(F) Excess Interest....................................................................... 5
(G) Selection, Conversion or Continuation of Loans; LIBOR and Long-Term
Fixed Rate Availability............................................................... 5
1.3 Notice of Borrowing, Conversion or Continuation of Loans....................................... 5
1.4 Fees and Expenses.............................................................................. 6
(A) Revolving Loan Commitment Fee......................................................... 6
(B) Administrative Agent's Fee............................................................ 6
(C) Certain Other Fees.................................................................... 6
(D) Breakage Fees......................................................................... 6
(E) Expenses and Attorneys Fees........................................................... 6
1.5 Payments....................................................................................... 7
1.6 Repayments and Reduction of Loans and Commitments.............................................. 8
(A) Scheduled Repayments and Reductions of Term Loans and Revolving Loan Commitments...... 8
(B) Reductions Resulting From Mandatory Repayments........................................ 9
(C) Voluntary Reduction of Revolving Loan Commitment...................................... 9
(D) Mandatory Repayments.................................................................. 9
1.7 Voluntary Prepayments and Other Mandatory Repayments........................................... 10
(A) Voluntary Prepayment of Loans......................................................... 10
(B) Repayments from Insurance Proceeds.................................................... 10
(C) Repayments from Equity Issuances...................................................... 10
(D) Repayments from Debt Incurrence....................................................... 10
(E) Repayments from Asset Dispositions.................................................... 10
(F) Repayments from Excess Cash Flow...................................................... 10
1.8 Application of Repayments; Payment of Breakage Fees, Etc....................................... 11
1.9 Loan Accounts.................................................................................. 11
1.10 Changes in LIBOR Rate Availability............................................................. 11
1.11 Capital Adequacy and Other Adjustments......................................................... 12
1.12 Optional Prepayment/Replacement of Lender in Respect of Increased Costs........................ 12
1.13 Taxes.......................................................................................... 13
(A) No Deductions......................................................................... 13
(B) Foreign Lenders....................................................................... 13
1.14 Changes in Tax Laws............................................................................ 14
1.15 Term of This Agreement......................................................................... 14
SECTION 2 AFFIRMATIVE COVENANTS.................................................................................. 15
2.1 Compliance With Laws........................................................................... 15
2.2 Maintenance of Books and Records; Properties; Insurance........................................ 15
2.3 Inspection; Lender Meeting..................................................................... 16
2.4 Legal Existence, Etc........................................................................... 16
2.5 Use of Proceeds................................................................................ 16
2.6 Further Assurances............................................................................. 16
2.7 CoBank Patronage Capital....................................................................... 17
2.8 Creation or Acquisition of Subsidiaries........................................................ 17
2.9 Additional Security............................................................................ 18
2.10 Hedging Agreements............................................................................. 18
2.11 Pledge of Real Property........................................................................ 18
2.12 Joinder of CEI Networks........................................................................ 19
SECTION 3 NEGATIVE COVENANTS..................................................................................... 19
3.1 Indebtedness................................................................................... 19
3.2 Liens and Related Matters...................................................................... 20
(A) No Liens.............................................................................. 20
(B) No Other Negative Pledges............................................................. 20
3.3 Investments.................................................................................... 20
3.4 Contingent Obligations......................................................................... 21
3.5 Restricted Junior Payments..................................................................... 21
3.6 Restriction on Fundamental Changes............................................................. 22
3.7 Disposal of Assets or Subsidiary Stock......................................................... 22
3.8 Transactions with Affiliates................................................................... 22
3.9 Conduct of Business............................................................................ 23
3.10 Fiscal Year.................................................................................... 23
3.11 Management Fees and Compensation............................................................... 23
SECTION 4 FINANCIAL COVENANTS AND REPORTING...................................................................... 23
4.1 Total Leverage Ratio........................................................................... 24
4.2 Indebtedness to Total Capitalization Ratio..................................................... 24
4.3 Debt Service Coverage Ratio.................................................................... 24
4.4 Fixed Charge Coverage Ratio.................................................................... 24
4.5 Maximum Capital Expenditures................................................................... 24
4.6 Financial Statements and Other Reports......................................................... 24
(A) Quarterly Financials.................................................................. 25
(B) Year-End Financials................................................................... 25
(C) Compliance Certificate................................................................ 25
(D) [INTENTIONALLY OMITTED]............................................................... 25
(E) Accountants' Reports.................................................................. 25
(F) Projections........................................................................... 25
(G) SEC Filings and Press Releases........................................................ 25
(H) Events of Default, Etc................................................................ 26
(I) Litigation............................................................................ 26
(J) [INTENTIONALLY OMITTED]............................................................... 26
(K) Regulatory and Other Notices.......................................................... 26
(L) Other Information..................................................................... 26
4.7 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement............. 26
SECTION 5 REPRESENTATIONS AND WARRANTIES......................................................................... 27
5.1 Disclosure..................................................................................... 27
5.2 No Material Adverse Effect..................................................................... 27
5.3 Organization, Powers, Authorization and Good Standing.......................................... 27
(A) Organization and Powers............................................................... 27
(B) Authorization; Binding Obligation..................................................... 28
(C) Qualification......................................................................... 28
5.4 Compliance of Agreement, Loan Documents and Borrowings with Applicable Law..................... 28
5.5 Compliance with Law; Governmental Approvals.................................................... 28
5.6 Tax Returns and Payments....................................................................... 28
5.7 Environmental Matters.......................................................................... 29
5.8 Financial Statements........................................................................... 29
5.9 Intellectual Property.......................................................................... 29
5.10 Litigation, Investigations, Audits, Etc........................................................ 29
5.11 Employee Labor Matters......................................................................... 30
5.12 Employee Benefit Plans......................................................................... 30
5.13 Communications Regulatory Matters.............................................................. 30
5.14 Solvency....................................................................................... 31
5.15 Investment Company Act; Public Utility Holding Act............................................. 31
5.16 Certain Agreements............................................................................. 31
5.17 Subsidiaries................................................................................... 31
5.18 Title to Properties............................................................................ 31
5.19 Perfection and Priority........................................................................ 32
SECTION 6 EVENTS OF DEFAULT AND RIGHTS AND REMEDIES.............................................................. 32
6.1 Event of Default............................................................................... 32
(A) Payment............................................................................... 32
(B) Default in Other Agreements........................................................... 32
(C) Breach of Certain Provisions.......................................................... 32
(D) Breach of Warranty.................................................................... 32
(E) Other Defaults Under Loan Documents................................................... 32
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.................................. 33
(G) Voluntary Bankruptcy; Appointment of Receiver; Etc.................................... 33
(H) Governmental Liens.................................................................... 33
(I) Judgment and Attachments.............................................................. 33
(J) Dissolution........................................................................... 33
(K) Solvency.............................................................................. 34
(L) Injunction............................................................................ 34
(M) ERISA; Pension Plans.................................................................. 34
(N) Environmental Matters................................................................. 34
(O) Invalidity of Loan Documents.......................................................... 34
(P) Licenses and Permits.................................................................. 34
(Q) Change in Control..................................................................... 34
(R) Material Adverse Effect............................................................... 35
(S) Certain Material Contracts............................................................ 35
(T) Hedging Agreement..................................................................... 35
6.2 Suspension of Commitments...................................................................... 35
6.3 Acceleration................................................................................... 35
6.4 Rights of Collection........................................................................... 35
6.5 Consents....................................................................................... 35
6.6 Performance by Administrative Agent............................................................ 36
6.7 Set Off and Sharing of Payments................................................................ 36
6.8 Application of Payments........................................................................ 36
6.9 Adjustments.................................................................................... 37
SECTION 7 CONDITIONS TO LOANS.................................................................................... 37
7.1 Conditions to Initial Loan..................................................................... 37
(A) Executed Loan and Other Documents..................................................... 37
(B) Closing Certificates; Opinions........................................................ 37
(C) Collateral............................................................................ 38
(D) Consents.............................................................................. 39
(E) Financial Matters..................................................................... 39
(F) Miscellaneous......................................................................... 39
7.2 Conditions to All Loans........................................................................ 40
SECTION 8 ASSIGNMENT AND PARTICIPATION........................................................................... 40
8.1 Assignments and Participations in Loans and Notes.............................................. 40
8.2 Administrative Agent........................................................................... 42
(A) Appointment........................................................................... 42
(B) Nature of Duties...................................................................... 42
(C) Rights, Exculpation, Etc.............................................................. 43
(D) Reliance.............................................................................. 44
(E) Indemnification....................................................................... 44
(F) Administrative Agent Individually..................................................... 44
(G) Notice of Default..................................................................... 45
(H) Successor Administrative Agent........................................................ 45
(I) Collateral Matters.................................................................... 46
(J) Agency for Perfection; Enforcement of Security by Administrative Agent................ 47
(K) Dissemination of Information.......................................................... 47
8.3 Amendments, Consents and Waivers for Certain Actions........................................... 47
8.4 Disbursement of Funds.......................................................................... 47
8.5 Disbursements of Advances; Payments............................................................ 48
(A) Pro Rata Treatment; Application....................................................... 48
(B) Availability of Lender's Pro Rata Share............................................... 48
(C) Return of Payments.................................................................... 49
SECTION 9 MISCELLANEOUS.......................................................................................... 49
9.1 Indemnities.................................................................................... 49
9.2 Amendments and Waivers......................................................................... 49
9.3 Notices........................................................................................ 50
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative.......................................... 50
9.5 Marshaling; Payments Set Aside................................................................. 51
9.6 Severability................................................................................... 51
9.7 Lenders' Obligations Several; Independent Nature of Lenders' Rights............................ 51
9.8 Headings....................................................................................... 51
9.9 Governing Law.................................................................................. 51
9.10 Successors and Assigns......................................................................... 51
9.11 No Fiduciary Relationship...................................................................... 51
9.12 Construction................................................................................... 51
9.13 Confidentiality................................................................................ 52
9.14 Consent to Jurisdiction and Service of Process................................................. 52
9.15 Waiver of Jury Trial........................................................................... 53
9.16 Survival of Warranties and Certain Agreements.................................................. 53
9.17 Entire Agreement............................................................................... 53
9.18 Counterparts; Effectiveness.................................................................... 53
9.19 Guaranty of Obligations by Subsidiary Guarantors............................................... 54
(A) The Guaranty.......................................................................... 54
(B) Bankruptcy............................................................................ 56
(C) Nature of Liability................................................................... 56
(D) Independent Obligation................................................................ 56
(E) Authorization......................................................................... 56
(F) Reliance.............................................................................. 57
(G) Waiver................................................................................ 57
(H) Limitation on Enforcement............................................................. 58
(I) Confirmation of Payment............................................................... 58
9.20 Borrower as Agent for Loan Parties............................................................. 58
SECTION 10 DEFINITIONS........................................................................................... 58
10.1 Certain Defined Terms.......................................................................... 58
10.2 Other Definitional Provisions.................................................................. 71
SCHEDULES
Schedule 3.1 Indebtedness
Schedule 3.3 Existing Investments
Schedule 3.4 Contingent Obligations
Schedule 3.8 Transactions with Affiliates
Schedule 5.4 Governmental Approvals
Schedule 5.5 Compliance with Law
Schedule 5.6 Tax Returns and Payments
Schedule 5.7 Environmental Matters
Schedule 5.10 Litigation, Etc.
Schedule 5.11 Employee Labor Matters
Schedule 5.13(A) License Information
Schedule 5.16 Certain Agreements
Schedule 5.17 Subsidiaries
Schedule 5.19 Liens
EXHIBITS
Exhibit 1.3 Form of Notice of Borrowing/Conversion/Continuation
Exhibit 4.7(C) Form of Compliance Certificate
Exhibit 10.1(A) Form of Term Loan A Promissory Note
Exhibit 10.1(B) Form of Revolving Loan Promissory Note
Exhibit 10.1(C) Form of Term Loan B Promissory Note
Exhibit 10.1(D) Form of Joinder Agreement
Exhibit 10.1(E) Form of Lender Addition Agreement
INDEX OF DEFINED TERMS
Defined Term Defined in Section
------------ ------------------
Accounting Changes Section 4.7
Adjustment Date Section 10.1
Administrative Agent Section 10.1
Affected Lender Section 1.12
Affiliate Section 10.1
Agreement Preamble
Annual Operating Cash Flow Section 10.1
Applicable Commitment Fee Percentage Section 10.1
Applicable Law Section 10.1
Asset Disposition Section 10.1
Avoidance Provisions Section 9.19
Bankruptcy Code Section 10.1
Base Rate Section 10.1
Base Rate Loans Section 10.1
Base Rate Margin Section 10.1
Benefitted Lender Section 6.9
Borrower Preamble
Breakage Fee Section 1.4(C)
Business Day Section 10.1
Calculation Period Section 10.1
Cash Balances Section 10.1
Cash Equivalents Section 10.1
Certificate of Exemption Section 1.13(B)
CEI Recitals
CEI Networks Section 2.12
Closing Date Section 10.1
CoBank Preamble
Collateral Section 10.1
Communications Act Section 10.1
Communications System Section 10.1
Compliance Certificate Section 4.6(C)
Contingent Obligation Section 10.1
Debt Service Coverage Ratio Section 10.1
Default Section 10.1
Environmental Laws Section 10.1
Equity Section 10.1
Event of Default Section 6.1
Excess Cash Flow Section 10.1
Facility/Facilities Section 10.1
FCC Section 10.1
Federal Funds Rate Section 10.1
vii
Fee Letter Section 1.4(B)
Fixed Charge Coverage Ratio Section 10.1
Fixed Charges Section 10.1
Foreign Lender Section 1.13(B)
Funding Date Section 7.2
GAAP Section 10.1
Governmental Approvals Section 10.1
Governmental Authority Section 10.1
Hedging Agreement Section 10.1
Indebtedness Section 10.1
Indebtedness to Total Capitalization Ratio Section 10.1
Indemnitees Section 9.1
Intellectual Property Rights Section 5.9
Intercreditor Agreement Section 10.1
Interest Period Section 1.2(C)
Investment Section 10.1
IRC Section 10.1
Lender(s) Section 10.1
Lender Addition Agreement Section 10.1
Letter of Non-Exemption Section 1.13(B)
LIBOR Section 10.1
LIBOR Loans Section 10.1
LIBOR Margin Section 10.1
Licenses Section 10.1
Lien Section 10.1
Loan(s) Section 10.1
Loan Commitment(s) Section 10.1
Loan Documents Section 10.1
Loan Parties Section Preamble
Long-Term Fixed Rate Section 10.1
Long-Term Fixed Rate Loan Section 10.1
Management Equity Interests Section 10.1
Material Adverse Effect Section 10.1
Material Contracts Section 10.1
Maximum Guarantor Liability Section 9.19
Merger Recitals
Merger Agreement Recitals
Net Proceeds Section 10.1
Net Worth Section 10.1
NEWCO Recitals
Note(s) Section 10.1
Notice of Borrowing/Conversion/Continuation Section 1.3
Obligations Section 10.1
Operating Cash Flow Section 10.1
Other Debtor Relief Law Section 9.19
Other Parties Section 9.19
viii
PCS System Section 10.1
Permitted Encumbrances Section 10.1
Person Section 10.1
Prime Rate Section 10.1
Prior Credit Agreement Recitals
Prior Indebtedness Recitals
Pro Rata Share Section 10.1
Projections Section 10.1
PUC Section 10.1
Replacement Lender Section 1.12(A)
Requisite Lenders Section 10.1
Restricted Junior Payment Section 10.1
Revolving Loan(s) Section 10.1
Revolving Loan Commitment Section 10.1
Revolving Loan Expiration Date Section 10.1
Revolving Loan Facility Section 10.1
Revolving Note(s) Section 10.1
SEC Section 4.7(G)
Security Agreement Section 10.1
Security Documents Section 10.1
Security Interest Section 10.1
Statement Section 4.7(B)
Subsidiary Section 10.1
Subsidiary Borrowers Preamble
Subsidiary Guarantors Preamble
Tax Liabilities Section 1.13(A)
Term Loan(s) Section 10.1
Term Loan A Section 10.1
Term Loan B Section 10.1
Term Loan Commitments Section 10.1
Term Loan A Commitment Section 10.1
Term Loan B Commitment Section 10.1
Term Loan A Facility Section 10.1
Term Loan B Facility Section 10.1
Term Loan A Maturity Date Section 10.1
Term Loan B Maturity Date Section 10.1
Term Loan A Note Section 10.1
Term Loan B Note Section 10.1
Total Capitalization Section 10.1
Total Lender Loan Commitment Section 10.1
Total Leverage Ratio Section 10.1
ix
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is
entered into as of May 24, 2002, among D & E COMMUNICATIONS, INC., a
Pennsylvania corporation ("Borrower"), each of the Subsidiaries of Borrower
listed on the signature pages hereto and each additional Subsidiary of Borrower
which hereafter becomes a guarantor of Borrower's Obligations hereunder pursuant
to Section 2.8 (collectively, the "Subsidiary Guarantors" and together with
Borrower, "Loan Parties"), COBANK, ACB (in its individual capacity ("CoBank")),
as a Lender and in its capacity as Administrative Agent, and such other Lenders
as may become a party to this Agreement. Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in Section 10.1
of this Agreement.
R E C I T A L S:
WHEREAS, Borrower, Administrative Agent and Lenders have previously
entered into a Credit Agreement, dated as of November 1, 2001 (the "Prior Credit
Agreement") pursuant to which Lenders have extended a term loan facility to
refinance all existing indebtedness of Borrower (the "Prior Indebtedness"), to
provide funds for capital expenditures, general corporate purposes and working
capital needs of Loan Parties and to finance fees and expenses associated with
the closing of the Loans; and
WHEREAS, under the Prior Credit Agreement, Lenders have extended a
revolving credit facility to provide funds for capital expenditures,
acquisitions, general corporate purposes and working capital needs of Borrower
and certain of its Subsidiaries; and
WHEREAS, Borrower has entered into an Amended and Restated Agreement
and Plan of Merger, dated as of January 9, 2002 (the "Merger Agreement"), among
Borrower, D&E Acquisition Corp. ("NEWCO") and Conestoga Enterprises, Inc.
("CEI"), whereby NEWCO, a wholly-owned Subsidiary of Borrower, will merge with
CEI (the "Merger"); and
WHEREAS, in connection with the merger of NEWCO and CEI, Loan Parties,
Administrative Agent and Lenders have agreed to amend and restate the Prior
Credit Agreement as described herein, including, without limitation, to add an
additional term loan facility to be used to finance the merger of NEWCO and CEI,
to increase the revolving loan facility, a part of which may be used to finance
the merger of CEI and NEWCO, and certain other amendments as described herein;
and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
Amended and Restated Credit Agreement/D & E Communications, Inc.
SECTION 1
AMOUNTS AND TERMS OF LOANS
1.1 Loans. Subject to the terms and conditions of this Agreement and in
reliance upon the representations, warranties and covenants of Borrowers
contained herein and in the other Loan Documents:
(A) Term Loan A. Each Lender, severally and not jointly, has
agreed to lend to Borrower, for the benefit of Loan Parties, on the date all
conditions precedent set forth in Subsections 7.1 and 7.2 are satisfied or
waived as provided herein, in a single advance on November 1, 2001 its Pro Rata
Share of the Term Loan A Commitment. Amounts borrowed under this Subsection
1.1(A) that are repaid may not be reborrowed.
(B) Revolving Loan. Each Lender, severally and not jointly,
agrees to lend to Borrower, during the period commencing on the date all
conditions precedent set forth in Subsections 7.1 and 7.2 are satisfied or
waived as provided herein and ending on the Business Day immediately preceding
the Revolving Loan Expiration Date, its Pro Rata Share of each Revolving Loan;
provided that no Lender shall be required at any time to lend more than its
respective Pro Rata Share of the Revolving Loan Commitment. Within the limits of
the Revolving Loan Commitment and this Subsection 1.1(B), amounts borrowed under
this Subsection 1.1(B) may be prepaid and reborrowed at any time prior to the
Revolving Loan Expiration Date.
(C) Term Loan B. Each Lender, severally and not jointly,
agrees to lend to Borrower, in a single advance on the Closing Date, upon
satisfaction or waiver as provided herein of all conditions precedent set forth
in Subsections 7.1 and 7.2, its Pro Rata Share of the Term Loan B; provided that
the aggregate principal amount of the Term Loan B advanced may not exceed the
Term Loan B Commitment. Amounts borrowed under this Subsection 1.1(C) that are
repaid or prepaid may not be reborrowed.
(D) Notes. Borrower shall execute and deliver to each Lender a
Revolving Note, a Term Loan A Note and a Term Loan B Note, each dated the
Closing Date, in the principal amount of such Lender's Pro Rata Share of the
Revolving Loan Commitment, the Term Loan A Commitment and the Term Loan B
Commitment, respectively.
(E) Advances. Loans will be made available by wire transfer of
immediately available funds. Wire transfers will be made to such account or
accounts as may be authorized by Borrower.
1.2 Interest.
(A) Interest Options. From the date each Loan is made, based
upon Borrower's election, at such time and from time to time thereafter (as
provided in Subsection 1.3 and subject to the conditions set forth in such
Subsection and Subsection 1.2 (C)), each Loan shall accrue interest as follows:
2
Amended and Restated Credit Agreement/D & E Communications, Inc.
(1) as a Base Rate Loan, at sum of the Base Rate plus
the Base Rate Margin applicable from time to time as provided in Subsection
1.2(B);
(2) as a LIBOR Loan, for the applicable Interest Period
(as defined in Subsection 1.2 (C)), at the sum of LIBOR plus the LIBOR Margin
applicable on the first day of the applicable Interest Period or as applicable
from time to time as otherwise provided in Subsection 1.2(B); or
(3) with respect to Term Loan A only, as a Long-Term
Fixed Rate Loan, at the Long-Term Fixed Rate.
Except as otherwise provided in Subsection 6.6, interest on all other
Obligations shall accrue at the Base Rate plus three percent (3.00%) per annum.
(B) Applicable Margins. Initially and continuing through the
day immediately preceding the first Adjustment Date occurring after the date
which is six (6) months after the Closing Date, the applicable Base Rate Margin
and LIBOR Margin shall be 2.750% and 3.750% per annum, respectively for the
Revolving Loans and Term Loan B, and 3.000% and 4.000% per annum, respectively
for the Term Loan A. Commencing on such Adjustment Date, the applicable Base
Rate Margin and LIBOR Margin for each Loan shall be for each Calculation Period
the applicable per annum percentage set forth in the pricing table below
opposite the Total Leverage Ratio of Borrower; provided, that effective upon the
occurrence of an Event of Default and until such Event of Default is cured or
waived the applicable Base Rate Margin and LIBOR Margin shall be 2.750% and
3.750% per annum, respectively, for the Revolving Loans and Term Loan B, and
3.000% and 4.000% per annum, respectively, for the Term Loan A.
PRICING TABLE
Revolving Loans and
Term Loan B Term Loan A
------------------- ------------------
Base Rate LIBOR Base Rate LIBOR
Total Leverage Ratio Margin Margin Margin Margin
-------------------- ------ ------ ------ ------
greater than or equal to 4.50:1:00 2.750% 3.750% 3.000% 4.000%
greater than or equal to 4.00:1.00 less than 4.50:1.001 2.500% 3.500% 2.750% 3.750%
greater than or equal to 3.00:1:00 less than 4.00:1.00 2.250% 3.250% 2.500% 3.500%
greater than or equal to 2.00:1:00 less than 3.00:1.00 2.000% 2.750% 2.250% 3.000%
less than 2.00:1.00 1.750% 2.250% 2.000% 2.500%
3
Amended and Restated Credit Agreement/D & E Communications, Inc.
(C) Interest Periods. Each LIBOR Loan may be obtained for a one (1),
two (2), three (3), six (6) or nine (9) month period and each Long-Term Fixed
Rate Loan may be obtained for any period of one (1) year or longer (each such
period being an "Interest Period"). With respect to all LIBOR and Long-Term
Fixed Rate Loans:
(i) the Interest Period will commence on the date that the
LIBOR or Long-Term Fixed Rate Loan is made or the date on which any
portion of the Base Rate Loan is converted into a LIBOR or Long-Term
Fixed Rate Loan, or, in the case of immediately successive Interest
Periods, each successive Interest Period shall commence on the day on
which the immediately preceding Interest Period expires;
(ii) if the Interest Period would otherwise expire on a day
that is not a Business Day, then it will expire on the next Business
Day, provided, that if any Interest Period for a LIBOR Loan would
otherwise expire on a day that is not a Business Day and such day is a
day of a calendar month after which no further Business Day occurs in
such month, such Interest Period shall expire on the Business Day next
preceding such day;
(iii) any Interest Period for a LIBOR Loan 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 last calendar month in such
Interest Period shall end on the last Business Day of the last calendar
month in such Interest Period; and
(iv) no Interest Period shall be selected for any Loan if, in
order to make repayments required pursuant to Subsection 1.6(A),
repayment of all or any portion of such Loan prior to the expiration of
such Interest Period would be necessary.
(D) Calculation and Payment. Interest on all LIBOR or Long-Term Fixed
Rate Loans and all other Obligations and the amount of any fees set forth in
Subsection 1.4 shall be calculated daily on the basis of a three hundred sixty
(360) day year for the actual number of days elapsed. The interest on the Base
Rate Loans shall be calculated daily on the basis of a three hundred sixty-five
or -six (365-6) day year for the actual number of days elapsed. The date of
funding or conversion to a Base Rate Loan and the first day of an Interest
Period with respect to a LIBOR or Long-Term Fixed Rate Loan shall be included in
the calculation of interest. The date of payment of any Loan and the last day of
an Interest Period with respect to a LIBOR or Long-Term Fixed Rate Loan shall be
excluded from the calculation of interest; provided, if a Loan is repaid on the
same day that it is made, one (1) day's interest shall be charged.
Interest accruing on Base Rate Loans and Long-Term Fixed Rate Loans is
payable in arrears on each of the following dates or events: (i) the last day of
each calendar quarter, (ii) the prepayment of such Loan (or portion thereof),
(iii) the last day of each applicable Interest Period for Long-Term Fixed Rate
Loans, and (iv) the Term Loan A Maturity Date, the Term Loan B Maturity Date or
the Revolving Loan Expiration Date, as applicable, whether by acceleration or
otherwise. Interest accruing on each LIBOR or Long-Term Fixed Rate Loan is
payable in arrears on each of the following dates or events: (i) the last day of
each applicable Interest Period, (ii) if the Interest Period is longer than
three (3) months, on each three-month anniversary of the commencement date of
such
4
Amended and Restated Credit Agreement/D & E Communications, Inc.
Interest Period, (iii) the prepayment of such Loan (or portion thereof) and (iv)
the Term Loan A Maturity Date, the Term Loan B Maturity Date or the Revolving
Loan Expiration Date, as applicable, whether by acceleration or otherwise.
(E) Default Rate of Interest. At the election of Administrative Agent
or Requisite Lenders, after the occurrence of an Event of Default and for so
long as it continues, all Loans and other Obligations shall bear interest at
variable rates that are two percent (2.000%) in excess of the sum of the Base
Rate plus the applicable Base Rate Margin (after giving effect to the last
proviso in Subsection 1.2(B)).
(F) Excess Interest. Under no circumstances will the rate of interest
chargeable be in excess of the maximum amount permitted by law. If any such
excess interest is charged and paid in error, then the excess amount will be
promptly refunded.
(G) Selection, Conversion or Continuation of Loans; LIBOR and Long-Term
Fixed Rate Availability. Provided that no Default or Event of Default has
occurred and is then continuing, Borrower shall have the option to (i) select
all or any part of a new borrowing to be a LIBOR Loan or, if the Term Loan, a
Long-Term Fixed Rate Loan, in a principal amount equal to $2,000,000 or any
whole multiple of $500,000 in excess thereof, or a Base Rate Loan in a principal
amount equal to $1,000,000 or any whole multiple of $250,000 in excess thereof,
(ii) convert at any time all or any portion of a Base Rate Loan in a principal
amount equal to $2,000,000 or any whole multiple of $500,000 in excess thereof
into one or more LIBOR or, if the Term Loan, Long-Term Fixed Rate Loans, (iii)
upon the expiration of any Interest Period, convert all or any part of any LIBOR
or Long-Term Fixed Rate Loan into a Base Rate Loan, and (iv) upon the expiration
of its Interest Period, continue any LIBOR or Long-Term Fixed Rate Loan in a
principal amount of $2,000,000 or any whole multiple of $500,000 in excess
thereof into one or more LIBOR or Long-Term Fixed Rate Loans for such new
Interest Period(s) as selected by Borrower, subject to the other provisions
herein. Each LIBOR Loan must be made under either the Term Loan A Facility, Term
Loan B Facility or the Revolving Loan Facility, but may not be made under more
than one concurrently. Each Long-Term Fixed Rate Loan may be made only under the
Term Loan A. During any period in which any Default or Event of Default is
continuing, as the Interest Periods for LIBOR or Long-Term Fixed Rate Loans then
in effect expire, such Loans shall be converted into Base Rate Loans and the
LIBOR and Long-Term Fixed Rate options will not be available to Borrower until
all Events of Default are cured or waived. Notwithstanding the foregoing, there
may be no more than a total of eight (8) Loans outstanding under the Facilities
at any one time (including, as a single Loan, all amounts under a single
Facility accruing interest at the Base Rate).
1.3 Notice of Borrowing, Conversion or Continuation of Loans. Whenever
Borrower desires to request a Loan pursuant to Subsection 1.1 or to convert or
continue Loans pursuant to Subsection 1.2(G), Borrower shall give Administrative
Agent irrevocable prior written notice in the form attached hereto as Exhibit
1.3 (a "Notice of Borrowing/Conversion/Continuation"), (i) if requesting a
borrowing of, conversion to or continuation of a Base Rate Loan (or any portion
thereof), not later than 11:00 a.m. (Denver, Colorado time), two (2) Business
Days before the proposed borrowing, conversion or continuation is to be
effective or (ii), if requesting a borrowing of, a conversion to or a
continuation of a LIBOR or Long-Term Fixed Rate Loan, not later than 11:00 a.m.
(Denver time), three (3) Business Days before the proposed borrowing, conversion
or
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Amended and Restated Credit Agreement/D & E Communications, Inc.
continuation is to be effective. Each Notice of
Borrowing/Conversion/Continuation shall specify (a) the Loan (or portion
thereof) to be converted or continued and, with respect to any LIBOR or
Long-Term Fixed Rate Loan to be converted or continued, the last day of the
current Interest Period therefor, (b) the effective date of such borrowing,
conversion or continuation (which shall be a Business Day), (c) the principal
amount of such Loan to be borrowed, converted or continued, (d) the Interest
Period to be applicable to any new LIBOR or Long-Term Fixed Rate Loan, and (e)
the Facility under which such borrowing, conversion or continuation is to be
made. In the event Borrower fails to elect a LIBOR or Long-Term Fixed Rate Loan
upon any advance hereunder or upon the termination of any Interest Period,
Borrower shall be deemed to have elected to have the amount of such advance
constitute a Base Rate Loan.
1.4 Fees and Expenses.
(A) Revolving Loan Commitment Fee. From the Closing Date, Borrower
shall pay Administrative Agent, for the benefit of all Lenders (based upon their
respective Pro Rata Shares of the Revolving Loan Commitment), an annual fee in
an amount equal to (i) the Revolving Loan Commitment less the average daily
outstanding balance of Revolving Loans during the preceding calendar quarter
multiplied by (ii) the Applicable Commitment Fee Percentage. Such fee is to be
paid quarterly in arrears on the last day of each calendar quarter for such
calendar quarter (or portion thereof), with the final such payment due on the
Revolving Loan Expiration Date.
(B) Administrative Agent's Fee. Borrower shall pay to the
Administrative Agent, for its own account, the annual fee described in that
certain letter, dated April 8, 2002, between CoBank and Borrower (the "Fee
Letter"), on the terms, in the amount and at the times set forth therein.
(C) Certain Other Fees. Borrower has paid the fees specified in that
certain letter, dated September 7, 2001 in connection with the Prior Credit
Agreement, and shall pay the fees specified in the Fee Letter, on the terms, in
the amounts and at the times set forth therein.
(D) Breakage Fees. Upon any repayment or payment of a LIBOR Loan or
Long-Term Fixed Rate Loan on any day that is not the last day of the Interest
Period applicable thereto (regardless of the source of such repayment or
prepayment and whether voluntary, mandatory, by acceleration or otherwise),
Borrower shall pay Administrative Agent, for the benefit of all affected
Lenders, an amount (the "Breakage Fee") equal to (i) in connection with any
repayment or payment of a LIBOR Loan, the present value of any losses, expenses
and liabilities (including any loss (including interest paid) sustained by each
such affected Lender in connection with the re-employment of such funds) that
any such affected Lender may sustain as a result of the payment of such Loan on
such day (the "Loss Amount") and (ii) in connection with any Long-Term Fixed
Rate Loan, the Loss Amount plus one-half of one percent (0.5%) of the amount
repaid.
(E) Expenses and Attorneys Fees. Loan Parties agree to pay promptly all
reasonable fees, costs and expenses (including those of attorneys) incurred by
Administrative Agent in connection with (i) any matters contemplated by or
arising out of the Loan Documents, and (ii) the continued administration of the
Loan Documents, including any such fees, costs and expenses incurred in
perfecting, maintaining, determining the priority of and releasing any security,
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Amended and Restated Credit Agreement/D & E Communications, Inc.
in connection with any amendments, modifications and waivers and any tax payable
in connection with any Loan Documents. In addition to fees due under Subsection
1.4(B), Loan Parties shall also reimburse on demand Administrative Agent and
Lenders for their respective out-of-pocket expenses (including reasonable
attorneys' fees and expenses and syndication costs and expenses) incurred in
connection with the transactions contemplated herein. Loan Parties agree to pay
promptly all reasonable fees, costs and expenses incurred by Administrative
Agent and Lenders in connection with any action to enforce any Loan Document or
to collect any payments due from Loan Parties. All fees, costs and expenses for
which Loan Parties are responsible under this Subsection 1.4(D) shall be deemed
part of the Obligations when incurred, payable upon demand and in accordance
with the second paragraph of Subsection 1.5 and secured by the Collateral.
1.5 Payments. All payments by any Loan Party of the Obligations shall
be made in same day funds and delivered to Administrative Agent, for the benefit
of Administrative Agent and Lenders, as applicable, by wire transfer to the
following account or such other place as Administrative Agent may from time to
time designate:
CoBank, ACB
Greenwood Village, Colorado
ABA Number ▇▇▇▇-▇▇▇▇-▇
Reference: CoBank for the benefit of D & E Communications, Inc.
Loan Parties shall receive credit on the day of receipt for funds received by
Administrative Agent by 11:00 a.m. (Denver time) on any Business Day. Funds
received on any Business Day after such time shall be deemed to have been paid
on the next Business Day. Whenever any payment to be made hereunder shall be
stated to be due on a day that is not a Business Day, the payment shall be due
on the next succeeding Business Day and such extension of time shall be included
in the computation of the amount of interest and fees due hereunder.
Borrower hereby authorizes Lenders to make (but Lenders shall not be
obligated to make) a Base Rate Loan under the Revolving Loan Facility, on the
basis of their respective Pro Rata Shares of the Revolving Loan Facility, for
the payment of interest, commitment fees and Breakage Fees. Prior to an Event of
Default, other fees, costs and expenses (including those of attorneys)
reimbursable pursuant to Subsections 1.4(A), 1.4(B) and 1.4(D) or elsewhere in
any Loan Document may be debited as a Base Rate Loan under the Revolving Loan
Facility after fifteen (15) days notice. After the occurrence of an Event of
Default, any such other fees, costs and expenses may be debited as a Base Rate
Loan under the Revolving Loan Facility without notice.
To the extent any Loan Party makes a payment or payments to
Administrative Agent for the ratable benefit of Lenders or for the benefit of
Administrative Agent in its individual capacity, which payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or proceeds had not been received by
Administrative Agent.
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Amended and Restated Credit Agreement/D & E Communications, Inc.
1.6 Repayments and Reduction of Loans and Commitments.
(A) Scheduled Repayments and Reductions of Term Loans and
Revolving Loan Commitments.
(1) Term Loan A. Commencing on September 30, 2004,
Borrower shall repay the aggregate outstanding principal balance of the Term
Loan A on the last day of each calendar quarter occurring during each period set
forth below in the amount set forth opposite such period:
Quarterly Payment
Period Amount
------ ------
September 30, 2004 through and including $1,250,000
December 31, 2007
March 31, 2008 through and including December $1,875,000
31, 2009
March 31, 2010 through and including December $2,500,000
31, 2010
March 31, 2011 $3,750,000
June 30, 2011 $3,750,000, or such lesser amount, if any as
may be required to repay the aggregate
outstanding principal balance of the Term Loan
Facility
(2) Revolving Loan Commitment. The Revolving Loan
Commitment shall be permanently reduced on the last day of each calendar quarter
occurring during each period set forth below in the amount set forth opposite
such period (which reductions shall be in addition to those provided for in
Subsection 1.6(B) and, to the extent set forth therein, Subsection 1.6(C)):
Quarterly Reduction
Period Amount
------ ------
September 30, 2004 through and including $1,875,000
December 31, 2005
March 31, 2006 through and including December $2,812,500
31, 2008
March 31, 2009 through and including December $3,750,000
31, 2010
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Amended and Restated Credit Agreement/D & E Communications, Inc.
(3) Term Loan B. Commencing on September 30, 2004,
Borrower shall repay the aggregate outstanding principal balance of the Term
Loan B on each fiscal quarter end occurring during the periods set forth below
in the amount set opposite such periods:
Dates of Repayment Quarterly Repayment Amount
------------------ --------------------------
September 30, 2004, through and including $3,125,000
December 31, 2005
March 31, 2006, through and including $4,687,500
December 31, 2008
March 31, 2009, through and including $6,250,000
December 31, 2010
(B) Reductions Resulting From Mandatory Repayments. The
Revolving Loan Commitment shall be permanently reduced to the extent and in the
amount that Borrower is required, pursuant to Section 1.8, to apply mandatory
repayments to be made pursuant to Subsection 1.7(B), (C), (D), (E) or (F) to the
Revolving Loan Facility (whether or not any Revolving Loans are then outstanding
and available to be repaid). All reductions provided for in this Subsection
1.6(B) shall be in addition to (and shall not serve to reduce the amount or date
of) the scheduled reductions provided for in Section 1.6(A) and the voluntary
reductions provided for in Subsection 1.6(C) and, accordingly, may result in the
termination of the Revolving Loan Commitment prior to the date set forth in
clause (iii) of the definition of Revolving Loan Expiration Date.
(C) Voluntary Reduction of Revolving Loan Commitment. Borrower
shall have the right, upon at least three Business Days' notice to
Administrative Agent, to permanently reduce the then unused portion of the
Revolving Loan Commitment. Each reduction shall be in a minimum amount of at
least $2,000,000, or any whole multiple of $1,000,000 in excess thereof, and
shall be applied as to each Lender based upon its Pro Rata Share.
Notwithstanding the foregoing, no reduction shall be permitted if, after giving
effect thereto and to any prepayment made in connection therewith, the aggregate
principal balance of Revolving Loans then outstanding would exceed the Revolving
Loan Commitment as so reduced.
(D) Mandatory Repayments. On the date of each Revolving Loan
Commitment reduction provided for in this Subsection 1.6, Borrower shall repay
Revolving Loans in an amount at least sufficient to reduce the aggregate
principal balance of Revolving Loans then outstanding to the amount of the
Revolving Loan Commitment as so reduced. If at any time the aggregate
outstanding amount of Revolving Loans exceeds the Revolving Loan Commitment,
Borrower shall repay Revolving Loans in an amount at least sufficient to reduce
the aggregate principal balance of Revolving Loans then outstanding to the
amount of the Revolving Loan Commitment, and until such repayment is made,
Lenders shall not be obligated to make Loans. Any repayments pursuant to this
Subsection 1.6(D) shall be applied in accordance with Subsection 1.8, and shall
be accompanied by accrued interest on the amount repaid and any amount required
pursuant to Subsection 1.4(C).
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Amended and Restated Credit Agreement/D & E Communications, Inc.
1.7 Voluntary Prepayments and Other Mandatory Repayments.
(A) Voluntary Prepayment of Loans. Subject to the provisions
of Section 1.8, at any time, with one day's notice, Borrower may prepay any Base
Rate Loan, in whole or in part, without penalty. Subject to the provisions of
Section 1.8, payment of the Breakage Fee pursuant to Subsection 1.4(C) and the
notice requirement in the following sentence, at any time Borrower may prepay
any LIBOR Loan or Long-Term Fixed Rate Loan, in whole or in part. Notice of any
prepayment of a LIBOR Loan or Long-Term Fixed Rate Loan shall be given not later
than 11:00 a.m. (Denver time) on the third Business Day preceding the date of
prepayment. All prepayment notices shall be irrevocable. All prepayments shall
be accompanied by accrued interest on the amount prepaid and any amount required
pursuant to Subsection 1.4(C).
(B) Repayments from Insurance Proceeds. Borrower shall repay
the Loans in an amount equal to all Net Proceeds received by any Loan Party
which are insurance proceeds from any Asset Disposition to the extent that such
proceeds are not reinvested in equipment or other assets that are used or useful
in the business of Loan Parties, within 180 days of receipt by such Loan Party
of such proceeds. All such repayment shall be applied in accordance with
Subsection 1.8.
(C) Repayments from Equity Issuances. Immediately upon receipt
of proceeds from the issuance of any ownership interests in Borrower or any
rights to purchase any such interest (other than from the issuance of Management
Equity Interests), Borrowers shall repay the Loans in an amount equal to one
hundred percent (100%) of the amount of (i) such proceeds minus (ii) all fees,
costs and expenses actually incurred in connection with such equity issuance;
provided, however, that the repayment percentage set forth above shall be
reduced to fifty percent (50%) whenever the current Total Leverage Ratio of
Borrower is less than or equal to 3:00:1.00. All such repayments shall be
applied in accordance with Subsection 1.8.
(D) Repayments from Debt Incurrence. Immediately upon receipt
of proceeds from the incurrence of any additional Indebtedness, other than the
Indebtedness permitted under Subsection 3.1, Borrower shall repay the Loans in
an amount equal to one hundred percent (100%) of the amount of (i) such proceeds
received by any Loan Party minus (ii) all fees, costs and expenses actually
incurred in connection with such debt incurrence; provided, however, that the
repayment percentage set forth above shall be reduced to fifty percent (50%)
whenever the current Total Leverage Ratio of Borrower is less than or equal to
3:00:1.00. All such repayments shall be applied in accordance with Subsection
1.8.
(E) Repayments from Asset Dispositions. Immediately upon
receipt by any Loan Party of Net Proceeds, other than insurance proceeds, from
any Asset Disposition, Borrower shall repay the Loans in an amount equal to such
Net Proceeds; provided, however, that Borrower shall not be required to repay
Loans from Asset Dispositions to the extent such Asset Dispositions are
permitted pursuant to Subsections 3.7(i) through (v), or from Asset Dispositions
pursuant to Subsection 3.7(vi), the Net Proceeds of which are reinvested by
Borrower within one hundred eighty (180) days of receipt in assets used and
useful in the business of Loan Parties. All such repayments shall be applied in
accordance with Subsection 1.8.
(F) Repayments from Excess Cash Flow. If on any fiscal quarter
end the Total Leverage Ratio of Borrower exceeds 3.00:1.00, within forty-five
(45) days after the end of such
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Amended and Restated Credit Agreement/D & E Communications, Inc.
fiscal quarter, Borrower shall repay the Loans in an amount equal to
seventy-five percent (75%) of the Excess Cash Flow for such fiscal quarter. For
the purposes of this Subsection 1.7(F), Excess Cash Flow shall be calculated on
a consolidated basis for Borrower and its Subsidiaries. All such repayments
shall be applied in accordance with Subsection 1.8.
1.8 Application of Repayments; Payment of Breakage Fees, Etc. All
repayments made pursuant to Subsections 1.7(A) through (E) shall be applied pro
rata among Loans outstanding under the Revolving Loan Facility and Loans
outstanding under the Term Loan A Facility and the Term Loan B Facility. All
repayments made pursuant to Subsection 1.7(F) shall be applied first to
Revolving Loans outstanding, and thereafter, pro rata to all outstanding Term
Loans. All repayments made pursuant to Subsections 1.6 and 1.7 shall first be
applied to such of the applicable type of Loans as Borrower shall direct in
writing and, in the absence of such direction, shall first be applied to a Base
Rate Loan and then to such LIBOR or Long-Term Fixed Rate Loans as Borrowers and
Administrative Agent shall agree. All repayments required or permitted hereunder
shall be accompanied by payment of all applicable Breakage Fees and accrued
interest on the amount repaid. All repayments applied to Loans outstanding under
the Term Loan A Facility or the Term Loan B Facility shall be applied to
principal installments in the inverse order of maturity.
1.9 Loan Accounts. Administrative Agent will maintain loan account
records for (i) all Loans, interest charges and payments thereof, (ii) the
charging and payment of all fees, costs and expenses and (iii) all other debits
and credits pursuant to this Agreement. Absent manifest error, the balance in
the loan accounts shall be presumptive evidence of the amounts due and owing to
Lenders, provided that any failure by Administrative Agent to maintain such
records shall not limit or affect Borrower's obligation to pay. During the
continuance of an Event of Default, Borrower irrevocably waive the right to
direct the application of any and all payments and Borrower hereby irrevocably
agrees that Administrative Agent shall have the continuing exclusive right to
apply and reapply payments to any amounts due hereunder in any manner it deems
appropriate.
1.10 Changes in LIBOR Rate Availability. If with respect to any
proposed Interest Period, Administrative Agent or any Lender (after consultation
with Administrative Agent) determines that deposits in dollars (in the
applicable amount) are not being offered to each Lender in the relevant market
for such Interest Period, Administrative Agent shall forthwith give notice
thereof to Borrower and Lenders, whereupon and until Administrative Agent
notifies Borrower that the circumstances giving rise to such situation no longer
exist, the obligations of any affected Lender to make its portion of such type
of LIBOR Loan shall be suspended.
If the introduction of, or any change in, any Applicable Law or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, shall make it unlawful or
impossible for one or more Lenders to honor its obligations hereunder to make or
maintain any LIBOR Loan, such Lender shall promptly give notice thereof to
Administrative Agent, and Administrative Agent shall promptly give notice
thereof to Borrower and all other Lenders. Thereafter, until Administrative
Agent notifies Borrower that such circumstances no longer exist, (i) the
obligations of the affected Lenders to make LIBOR Loans and the right of
Borrower to convert any Loan or continue any Loan as a LIBOR
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Amended and Restated Credit Agreement/D & E Communications, Inc.
Loan shall be suspended with respect to the affected Lenders and (ii) if any
Lender may not lawfully continue to maintain a LIBOR Loan to the end of the then
current Interest Period applicable thereto, the portion of such Loan held by the
affected Lender shall immediately be converted to the Base Rate Loan.
1.11 Capital Adequacy and Other Adjustments.
(A) If the introduction of or the interpretation of any law,
rule, or regulation would increase the reserve requirement or otherwise increase
the cost to any Lender of making or maintaining a LIBOR Loan, then
Administrative Agent, on behalf of all affected Lenders, shall submit a
certificate to Borrower setting forth the amount and demonstrating the
calculation of such increased cost. Borrower shall pay the amount of such
increased cost to Administrative Agent for the benefit of the affected Lenders
within fifteen (15) days after receipt of such certificate. Such certificate
shall, absent manifest error, be final, conclusive and binding for all purposes.
There is no limitation on the number of times such a certificate may be
submitted.
(B) In the event that any Lender shall have determined that
the adoption after the date hereof of any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital
adequacy, reserve requirements or similar requirements or compliance by any
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy, reserve requirements or similar requirements
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) from any central bank or governmental agency or
body having jurisdiction does or shall have the effect of increasing the amount
of capital, reserves or other funds required to be maintained by such Lender or
any corporation controlling such Lender and thereby reducing the rate of return
on such Lender's or such corporation's capital as a consequence of its
obligations hereunder, then Borrower shall from time to time within fifteen (15)
days after notice to Borrower, and demand from such Lender (together with the
certificate referred to in the next sentence and with a copy to Administrative
Agent) pay to Administrative Agent, for the account of such Lender, additional
amounts sufficient to compensate such Lender for such reduction. A certificate
as to the amount of such cost and showing the basis of the computation of such
cost submitted by such Lender to Borrower and Administrative Agent shall, absent
manifest error, be final, conclusive and binding for all purposes. There is no
limitation on the number of times such a certificate may be submitted.
1.12 Optional Prepayment/Replacement of Lender in Respect of Increased
Costs. Within fifteen (15) days after receipt by Borrower of written notice and
demand from any Lender (an "Affected Lender") for payment of additional costs as
provided in Subsection 1.11 and 1.14, Borrower may, at its option, notify
Administrative Agent and such Affected Lender of its intention to do one of the
following:
(A) Borrower may obtain, at Borrower's expense, a replacement
Lender ("Replacement Lender") for such Affected Lender, which Replacement Lender
shall be reasonably satisfactory to Administrative Agent. In the event Borrower
obtains a Replacement Lender within ninety (90) days following notice of its
intention to do so, the Affected Lender shall sell and assign its Loans and its
obligations under the Loan Commitments to such Replacement Lender, provided that
Borrower has reimbursed such Affected Lender for its increased costs for which
it is entitled to
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Amended and Restated Credit Agreement/D & E Communications, Inc.
reimbursement under this Agreement through the date of such sale and assignment;
or
(B) Borrower may prepay in full all outstanding Obligations
owed to such Affected Lender and terminate such Affected Lender's Pro Rata Share
of the Loan Commitments, in which case the Loan Commitments will be permanently
reduced by the amount of such Pro Rata Share. Borrower shall, within ninety (90)
days following notice of its intention to do so, prepay in full all outstanding
Obligations owed to such Affected Lender (including all applicable Breakage Fees
and such Affected Lender's increased costs for which it is entitled to
reimbursement under this Agreement through the date of such prepayment), and
terminate such Affected Lender's obligations under the Loan Commitments. Any
such prepayment pursuant to this Subsection 1.12(B) shall be applied in
accordance with Subsection 1.8 and shall be accompanied by payment of all
applicable Breakage Fees and accrued interest on the amount repaid.
1.13 Taxes.
(A) No Deductions. Any and all payments or reimbursements made
hereunder or under the Notes shall be made free and clear of, and without
deduction for, any and all taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto (all such taxes, levies,
imposts, deductions, charges or withholdings and all liabilities with respect
thereto excluding, however, all taxes imposed on income or net income and all
liabilities with respect thereto, herein "Tax Liabilities"), excluding, however,
taxes imposed on the income or net income of a Lender or Administrative Agent
and all liabilities with respect thereto. If Borrower shall be required by law
to deduct any such Tax Liabilities from or in respect of any sum payable
hereunder to any Lender or Administrative Agent, then, except as provided in
Subsection 1.13(B), the sum payable hereunder shall be increased as may be
necessary so that, after making all required deductions, such Lender or
Administrative Agent receives an amount equal to the sum it would have received
had no such deductions been made.
(B) Foreign Lenders. Each Lender organized under the laws of a
jurisdiction outside the United States (a "Foreign Lender") as to which payments
to be made under this Agreement or under the Notes are exempt from United States
withholding tax or are subject to United States withholding tax at a reduced
rate under an applicable statute or tax treaty shall provide to Borrower and
Administrative Agent (1) a properly completed and executed Internal Revenue
Service Form W-8 BEN or other applicable form, certificate or document
prescribed by the Internal Revenue Service of the United States certifying as to
such Foreign Lender's entitlement to such exemption or reduced rate of
withholding with respect to payments to be made to such Foreign Lender under
this Agreement and under the Notes or Form W-8 ECI or other applicable form,
certificate or document presented by the Internal Revenue Service of the United
States certifying that payments made to such Foreign Lender are not subject to
withholding because they are effectively connected with the conduct of a trade
or business in the United States (each a "Certificate of Exemption") or (2) a
letter from any such Foreign Lender stating that it is not entitled to any such
exemption or reduced rate of withholding (a "Letter of Non-Exemption"). Prior to
becoming a Lender under this Agreement and within fifteen (15) days after a
reasonable written request of Borrower, or Administrative Agent from time to
time thereafter, each Foreign Lender that becomes a Lender under this Agreement
shall provide a Certificate of Exemption or a Letter of Non-Exemption to
Borrower and Administrative Agent.
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Amended and Restated Credit Agreement/D & E Communications, Inc.
If a Foreign Lender is entitled to an exemption with respect
to payments to be made to such Foreign Lender under this Agreement (or to a
reduced rate of withholding) and does not provide a Certificate of Exemption to
Borrower and Administrative Agent within the time periods set forth in the
preceding paragraph, Borrower shall withhold taxes from payments to such Foreign
Lender at the applicable statutory rates and Borrower shall not be required to
pay any additional amounts as a result of such withholding, provided that all
such withholding shall cease or be reduced, as appropriate, upon delivery by
such Foreign Lender of a Certificate of Exemption to Borrower and Administrative
Agent.
1.14 Changes in Tax Laws. In the event that, subsequent to the Closing
Date, (i) any changes in any existing law, regulation, treaty or directive or in
the interpretation or application thereof, (ii) any new law, regulation, treaty
or directive enacted or any interpretation or application thereof, or (iii)
compliance by Administrative Agent or any Lender with any request or directive
(whether or not having the force of law) from any Governmental Authority:
(i) does or shall subject Administrative Agent or any Lender
to any tax of any kind whatsoever with respect to this Agreement, the
other Loan Documents or any Loans made hereunder, or change the basis
of taxation of payments to Administrative Agent or such Lender of
principal, fees, interest or any other amount payable hereunder (except
for taxes imposed on income or net income and all liabilities with
respect thereto, or franchise taxes imposed in lieu of such income
taxes and all liabilities with respect thereto, imposed generally by
federal, state, local or foreign taxing authorities with respect to
interest or commitment or other fees payable hereunder or changes in
the rate of tax on the overall net income of Administrative Agent or
such Lender); or
(ii) does or shall impose on Administrative Agent or any
Lender any other condition or increased cost in connection with the
transactions contemplated hereby or participations herein; and the
result of any of the foregoing is to increase the cost to any
Administrative Agent or any such Lender of making or continuing any
Loan, or to reduce any amount receivable hereunder, then, in any such
case, Borrower shall promptly pay to Administrative Agent or such
Lender, upon its demand, any additional amounts necessary to compensate
Administrative Agent or such Lender, on an after-tax basis, for such
additional cost or reduced amount receivable, as determined by
Administrative Agent or such Lender with respect to this Agreement or
the other Loan Documents. If Administrative Agent or such Lender
becomes entitled to claim any additional amounts pursuant to this
Subsection 1.14, it shall promptly notify Borrower of the event by
reason of which Administrative Agent or such Lender has become so
entitled. A certificate as to any additional amounts payable pursuant
to the foregoing sentence submitted by Administrative Agent or such
Lender to Borrower and Administrative Agent shall, absent manifest
error, be final, conclusive and binding for all purposes. There is no
limitation on the number of times such a certificate may be submitted.
1.15 Term of This Agreement. All of the Obligations shall become due
and payable as otherwise set forth herein, but in any event, all of the
remaining Obligations shall become due and payable on the date set forth in
clause (ii) of the Term Loan A Maturity Date. This Agreement shall
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Amended and Restated Credit Agreement/D & E Communications, Inc.
remain in effect through and including, and shall terminate immediately after,
the date on which all Obligations shall have been indefeasibly and irrevocably
paid and satisfied in full.
SECTION 2
AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees that so long as this Agreement is
in effect and until payment in full of all Obligations, unless Requisite Lenders
shall otherwise give their prior written consent, such Loan Party shall and
shall cause its Subsidiaries to, perform and comply with all covenants in this
Section 2.
2.1 Compliance With Laws. Each Loan Party will (i) comply with and will
cause its Subsidiaries to comply with the requirements of all Applicable Laws
(including laws, rules, regulations and orders relating to taxes, employer and
employee contributions, securities, employee retirement and welfare benefits,
environmental protection matters and employee health and safety) as now in
effect and which may be imposed in the future in all jurisdictions in which such
Loan Party or any of its Subsidiaries is now or hereafter doing business, other
than those laws, rules, regulations and orders the noncompliance with which
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect and (ii) obtain and maintain and will cause
its Subsidiaries to obtain and maintain all licenses, qualifications and permits
(including the Licenses) now held or hereafter required to be held by such Loan
Party or any of its Subsidiaries, the loss, suspension or revocation of which or
which the failure to obtain or renew could reasonably be expected to have a
Material Adverse Effect. This Subsection 2.1 shall not preclude any Loan Party
or any of its Subsidiaries from contesting any taxes or other payments, if they
are being diligently contested in good faith and if adequate reserves therefor
are maintained in conformity with GAAP.
2.2 Maintenance of Books and Records; Properties; Insurance. Each Loan
Party will and will cause its Subsidiaries to keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP
consistently applied, reflecting all financial transactions. Each Loan Party
will and will cause its Subsidiaries to maintain or cause to be maintained in
good repair, working order and condition all material properties used in the
business of such Loan Party and its Subsidiaries, and will make or cause to be
made all appropriate repairs, renewals and replacements thereof. Each Loan Party
will and will cause its Subsidiaries to maintain or cause to be maintained, with
financially sound and reputable insurers, public liability, property loss and
damage and business interruption insurance with respect to its business and
properties and the business and properties of its Subsidiaries against loss and
damage of the kinds and in amounts, with such deductibles and otherwise on such
terms and conditions, as customarily carried or maintained by corporations of
established reputation engaged in the communications industry in amounts, with
such deductibles, and otherwise on such terms and conditions as shall be
reasonably acceptable to Administrative Agent and will deliver evidence thereof
to Administrative Agent. If any part of the Collateral lies within a "special
flood hazard area" as defined and specified by the Federal Emergency Management
Agency (or other appropriate Governmental Authority) pursuant to the Flood
Disaster Protection Act of 1973, as amended (the "FDPA"), and Administrative
Agent or any Lender determines that flood insurance coverage is required to be
obtained for such Collateral in order for Administrative Agent or such Lender to
comply with the FDPA, such Loan Party shall
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Amended and Restated Credit Agreement/D & E Communications, Inc.
obtain and maintain such flood insurance policies as Administrative Agent or
such Lender reasonably requests so that Administrative Agent or such Lender
shall be deemed in compliance with the FDPA and shall deliver evidence thereof
to Administrative Agent or such Lender. Such policies of flood insurance shall
be in form satisfactory to Administrative Agent or such Lender and shall be in
an amount of at least the lesser of the value of such Collateral constituting
buildings, structures or personal property located within the "special flood
hazard area" or the maximum limit of coverage available under Applicable Law.
Each Loan Party will cause Administrative Agent, for the benefit of itself and
Lenders, pursuant to endorsements and assignments in form and substance
reasonably satisfactory to Administrative Agent, to be named, (i) as a lender
loss payee in the case of casualty insurance, (ii) as an additional insured in
the case of all liability insurance, (iii) as assignee in the case of all
business interruption insurance, (iv) as a lender loss payee in the case of any
life insurance maintained on the life of any employee or owner of such Loan
Party, and (v) as an additional insured in the case of all flood insurance. All
insurance policies required hereunder shall (i) include effective waivers by the
insurer of subrogation, (ii) provide that all insurance proceeds in excess of
$250,000 shall be adjusted with and paid to Administrative Agent and (iii) be
non-cancelable and not subject to material change as to Administrative Agent
except upon thirty (30) days prior written notice given by the insurer to
Administrative Agent.
2.3 Inspection; Lender Meeting.Each Loan Party will and will cause its
Subsidiaries to permit any authorized representatives of any Lender (i) to visit
and inspect any of the properties of such Loan Party and its Subsidiaries,
including its financial and accounting records, and to make copies and take
extracts therefrom, and (ii) to discuss its affairs, finances and business with
its officers, employees and certified public accountants, at such reasonable
times during normal business hours and as often as may be reasonably requested.
Without in any way limiting the foregoing, each Loan Party will and will cause
its Subsidiaries to participate and will cause its key management personnel to
participate in a meeting with Administrative Agent and Lenders at least once
during each year, which meeting shall be held at such time and such place as may
be reasonably requested by Administrative Agent and consented to by Borrower,
which consent shall not be unreasonably withheld. Loan Parties, their
Subsidiaries, Administrative Agent and Lenders shall be responsible for the
payment of their respective expenses in connection with any such meeting.
2.4 Legal Existence, Etc. Each Loan Party will and will cause its
Subsidiaries to at all times preserve and keep in full force and effect its or
their legal existence and good standing and all rights and franchises material
to its or their business.
2.5 Use of Proceeds.Each Loan Party will use the proceeds of the Loans
solely for the purposes described in the recital paragraphs to this Agreement.
No part of any Loan will be used to purchase any margin securities or otherwise
in violation of the regulations of the Federal Reserve System.
2.6 Further Assurances.Each Loan Party will, from time to time, do,
execute and deliver all such additional and further acts, documents and
instruments as Administrative Agent or any Lender reasonably requests to
consummate the transactions contemplated hereby and to vest completely in and
assure Administrative Agent and Lenders of their respective rights under this
Agreement and the other Loan Documents.
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Amended and Restated Credit Agreement/D & E Communications, Inc.
2.7 CoBank Patronage Capital. So long as CoBank is a Lender hereunder,
Borrower will acquire non-voting participation certificates in CoBank in such
amounts and at such times as CoBank may require in accordance with CoBank's
Bylaws and Capital Plan (as each may be amended from time to time), except that
the maximum amount of participation certificates that Borrower may be required
to purchase in CoBank in connection with the Loans may not exceed the maximum
amount permitted by the Bylaws at the time this Agreement is entered into. The
rights and obligations of the parties with respect to such participation
certificates and any distributions made on account thereof or on account of
Borrower's patronage with CoBank shall be governed by CoBank's Bylaws. Borrower
hereby consents and agree that the amount of any distributions with respect to
its patronage with CoBank that are made in qualified written notices of
allocation (as defined in 26 U.S.C. Section 1388) and that are received by
Borrower from CoBank, will be taken into account by Borrower at the stated
dollar amounts whether the distribution is evidenced by a participation
certificate or other form of written notice that such distribution has been made
and recorded in the name of Borrower, on the records of CoBank. CoBank's Pro
Rata Share of the Loans and other Obligations due to CoBank shall be secured by
a statutory first lien on all equity which Borrower may now own or hereafter
acquire in CoBank. Such equity shall not, however, constitute security for the
Obligations due to any other Lender. CoBank shall not be obligated to set off or
otherwise apply such equities to Borrower's obligations to CoBank.
2.8 Creation or Acquisition of Subsidiaries. Subject to the provisions
of Subsection 3.3, each Loan Party may from time to time create new wholly-owned
Subsidiaries only, and such wholly-owned Subsidiaries of such Loan Party may
create or acquire new wholly-owned Subsidiaries only, provided that:
(A) Within twenty (20) Business Days after the creation or
direct or indirect acquisition by the Loan Party thereof, each such new
Subsidiary will execute and deliver to the Administrative Agent (i) a Joinder
Agreement, pursuant to which such new Subsidiary shall become a party hereto and
shall guarantee the payment in full of the Obligations of Borrower under this
Agreement and the other Loan Documents and (ii) a joinder to the Security
Agreement, substantially in the form attached thereto, pursuant to which such
new Subsidiary shall become a party thereto and shall grant to the
Administrative Agent a Lien upon and security interest in its Collateral, to the
extent provided in the Security Documents, for its obligations under the Loan
Documents;
(B) Within twenty (20) Business Days after the creation or
acquisition of any new Subsidiary, all the capital stock of or other equity
interest in such new Subsidiary will be pledged to the Administrative Agent as
follows: (i) if any Loan Party directly owns any of the capital stock of or
other equity interest in such new Subsidiary, such Loan Party will execute and
deliver to the Administrative Agent an amendment or supplement to the Pledge
Agreement pursuant to which all such capital stock or other equity interest
shall be pledged to the Administrative Agent, together with the certificates
evidencing such capital stock and undated stock powers duly executed in blank;
and (ii) if any of the capital stock of or other equity interest in such new
Subsidiary is owned by another Subsidiary of a Loan Party, to the extent not
already covered by the Pledge Agreement, such other Subsidiary will execute and
deliver to the Administrative Agent an appropriate joinder, amendment or
supplement to the Pledge Agreement, pursuant to which all of the capital stock
of or other equity interest in such new Subsidiary owned by such other
Subsidiary shall be pledged to the Administrative Agent, together with the
certificates evidencing such capital stock and undated stock
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Amended and Restated Credit Agreement/D & E Communications, Inc.
powers duly executed in blank;
(C) As promptly as reasonably possible, each Loan Party and
its Subsidiaries will deliver any such other documents, certificates and
opinions, in form and substance reasonably satisfactory to the Administrative
Agent, as the Administrative Agent may reasonably request in connection
therewith and will take such other action as the Administrative Agent may
reasonably request to create in favor of the Administrative Agent a perfected
security interest on a first priority basis in the Collateral being pledged
pursuant to the documents described above.
2.9 Additional Security.
(A) Each Loan Party will, and will cause each of its
Subsidiaries to, grant to the Administrative Agent from time to time security
interests, and other Liens in and upon such real property with a value in excess
of $3,000,000 and such personal property of such Loan Party or such Subsidiary
as are not covered by the Security Documents executed and delivered on the
Closing Date or pursuant to Section 2.8 and as may be reasonably requested from
time to time by the Requisite Lenders. Such security interests and Liens shall
be granted pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and shall constitute valid and
perfected security interests and Liens, subject to no Liens, other than
Permitted Encumbrances.
(B) If subsequent to the Closing Date, any Loan Party or any
of its Subsidiaries shall acquire any additional Intellectual Property Rights,
securities, instruments, chattel paper, real property with a value in excess of
$3,000,000 or other personal property required to be pledged to the
Administrative Agent as Collateral hereunder or under any of the Security
Documents, such Loan Party shall promptly (and in any event within ten (10)
Business Days) after such Loan Party or such Subsidiary acquires same, notify
the Administrative Agent of same. Each Loan Party shall, and shall cause each of
its Subsidiaries to, take such action at its own expense requested by the
Administrative Agent to ensure that the Administrative Agent has a first
priority perfected Lien to secure the Obligations in all real property with a
value in excess of $3,000,000 and all personal property of such Loan Party and
its Subsidiaries, subject only to Permitted Encumbrances.
2.10 Hedging Agreements. Within six (6) months after the Closing Date,
Borrower will, with respect to an aggregate amount equal to at least fifty
percent (50%) of the principal amount of Loans outstanding hereunder and
Indebtedness permitted under Subsection 3.1(F), enter into, and thereafter
maintain, one or more Hedging Agreements with counter parties reasonably
acceptable to Administrative Agent providing for interest rate protection with a
weighted average term for all such Hedging Agreements of no less than
twenty-four (24) months, all on terms and conditions reasonably satisfactory to
Administrative Agent.
2.11 Pledge of Real Property. Within ninety (90) days of the Closing
Date, Borrower will, and will cause each Subsidiary Guarantor, to make, execute,
deliver and file of record Mortgages and assignments of leases, rents and
profits, and any such other instruments and filings, as may be reasonably
requested by the Administrative Agent, all in form and substance reasonably
satisfactory to the Administrative Agent, sufficient to create a valid and
perfected first priority Lien on all real property and interests in real
property of Borrower and the Subsidiary Guarantors with a value in excess of
$3,000,000, subject only to Permitted Encumbrances. In connection with such
Lien,
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Amended and Restated Credit Agreement/D & E Communications, Inc.
Borrower will deliver or cause to be delivered such opinions of counsel and
title insurance policies as the Administrative Agent shall reasonably request.
2.12 Joinder of CEI Networks. Within sixty (60) days after the Closing
Date, CEI Networks, Inc. ("CEI Networks") will execute and deliver to the
Administrative Agent (i) a Joinder Agreement, pursuant to which CEI Networks
shall become a party hereto and shall guarantee the payment in full of the
Obligations of Borrower under this Agreement and the other Loan Documents and
(ii) a joinder to the Security Agreement, substantially in the form attached
thereto, pursuant to which CEI Networks shall become a party thereto and shall
grant to the Administrative Agent a Lien upon and security interest in its
Collateral, to the extent provided in the Security Documents, for its
obligations under the Loan Documents.
SECTION 3
NEGATIVE COVENANTS
Each Loan Party covenants and agrees that so long as this Agreement is
in effect and until payment in full of all Obligations, unless Requisite Lenders
shall otherwise give their prior written consent, such Loan Party shall perform
and comply with, and shall cause its Subsidiaries to perform and comply with,
all covenants in this Section 3.
3.1 Indebtedness. Each Loan Party will not and will not permit its
Subsidiaries directly or indirectly to create, incur, assume, guaranty or
otherwise become or remain liable with respect to any Indebtedness other than:
(A) the Obligations;
(B) Indebtedness incurred in connection with a Hedging
Agreement with a Lender or an Affiliate of a Lender;
(C) Contingent Obligations permitted by Section 3.4;
(D) Indebtedness under purchase money security agreements
and capital leases or other unsecured Indebtedness in
an amount not to exceed $5,000,000 in the aggregate
at any one time;
(E) Indebtedness which is expressly subordinate in right
of payment to the Obligations hereunder on terms and
conditions satisfactory to Requisite Lenders in their
sole discretion; and
(F) Indebtedness of CEI to CoBank, under that certain
Master Loan Agreement, dated as of April 28, 2000,
between CEI and CoBank in a principal amount not to
exceed $35,000,000;
(G) Indebtedness set forth on Schedule 3.1 attached
hereto; and
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Amended and Restated Credit Agreement/D&E Communications, Inc.
provided, that none of the Indebtedness permitted to be incurred by this Section
shall restrict, limit or otherwise encumber (by covenant or otherwise) the
ability of any Subsidiary of any Loan Party to make any payment to such Loan
Party (in the form of dividends, intercompany advances or otherwise) for the
purpose of enabling such Loan Party to pay the Obligations.
3.2 Liens and Related Matters.
(A) No Liens. Each Loan Party will not and will not
permit its Subsidiaries directly or indirectly to create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including
any document or instrument with respect to goods or accounts receivable) of such
Loan Party or its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, except Permitted Encumbrances and the Liens set
forth on Schedule 5.19.
(B) No Other Negative Pledges. Each Loan Party will not
and will not permit its Subsidiaries directly or indirectly to enter into or
assume any agreement (other than the Loan Documents and the documents related to
the Indebtedness permitted under Subsection 3.1(F) above) prohibiting the
creation or assumption of any Lien upon its or their properties or assets,
whether now owned or hereafter acquired or which has any covenant more
restrictive than any in Sections 2, 3 or 4 except:
(i) any Indebtedness secured by purchase money Liens
to the extent permitted by Subsection 3.1 and solely to the extent such
agreement is limited to the property covered by such Liens;
(ii) customary non-assignment clauses in agreements
or in the Licenses;
(iii) contracts for the sale of property or assets;
and
(iv) restrictions imposed by law.
3.3 Investments. Each Loan Party will not and will not permit its
Subsidiaries directly or indirectly to make or own any Investment in any Person
except:
(A) Such Loan Party and its Subsidiaries may make and own
Investments in Cash Equivalents; provided that neither such Loan Party nor any
of its Subsidiaries shall incur any obligation to any Person which could subject
such Cash Equivalents (other than deposit accounts in which no more than $20,000
is held overnight) to set off rights;
(B) obligations of or equities in CoBank, as set forth in
Subsection 2.7;
(C) loans or advances to directors, officers and
employees of any Loan Party made in the ordinary course of business that do not
in the aggregate exceed $1,000,000 at any time outstanding for all Loan Parties;
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Amended and Restated Credit Agreement/D&E Communications, Inc.
(D) current assets arising from the sale of goods and
services in the ordinary course of business of such Loan Party and its
Subsidiaries;
(E) Investments made after the Closing Date in
Communications Systems in an aggregate amount at any time not in excess of
$5,000,000 (excluding any Investments pursuant to Subsection 3.3(G) hereof);
(F) existing Investments, as set forth on Schedule 3.3
attached hereto; and
(G) Investments consisting of intercompany loans and
advances or the making of capital contributions or the purchase of capital stock
or other equity interest (a) by any Loan Party or its Subsidiaries to or in any
other wholly-owned Subsidiary that is (or immediately after giving effect to
such Investment will be) a "Loan Party" hereunder, provided that such Loan Party
complies with the provisions of Section 2.8 and (b) by any Subsidiary of a Loan
Party to or in any other Loan Party;
3.4 Contingent Obligations.Each Loan Party will not and will not
permit its Subsidiaries directly or indirectly to create or become or be liable
with respect to any Contingent Obligation except those:
(A) Contingent Obligations in favor of Administrative
Agent for the benefit of Administrative Agent and Lenders;
(B) resulting from endorsement of negotiable instruments
for collection in the ordinary course of business;
(C) arising with respect to customary indemnification
obligations incurred in connection with permitted Asset Dispositions;
(D) incurred in the ordinary course of business with
respect to surety and appeal bonds, performance and return-of-money bonds and
other similar obligations not exceeding at any time outstanding $2,500,000 in
aggregate liability;
(E) Contingent Obligations with respect to Indebtedness
permitted pursuant to Section 3.1; and
(F) Contingent Obligations entered into and existing on
November 1, 2001 as set forth on Schedule 3.4.
3.5 Restricted Junior Payments. Each Loan Party will not and will
not permit its Subsidiaries to directly or indirectly declare, order, pay, make
or set apart any sum for any Restricted Junior Payment; provided, however, that
(A) in any fiscal year, so long as no Default or Event of
Default exists before such Restricted Junior Payment or would result after
giving effect to the payment of such Restricted Junior Payment, Borrower may
provide, make, declare, or pay, directly or indirectly, any dividend or
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Amended and Restated Credit Agreement/D&E Communications, Inc.
other distribution of assets to its shareholders during such fiscal year in an
aggregate amount not to exceed $8,750,000; and
(B) any Subsidiary may pay dividends or make
distributions to any Loan Party or any wholly-owned Subsidiary of a Loan Party.
3.6 Restriction on Fundamental Changes. Each Loan Party will not
and will not permit its Subsidiaries directly or indirectly to: (i) amend,
modify or change any provision of its articles or certificate of incorporation
or organization, as applicable, its bylaws, operating agreement or partnership
agreement, as applicable or the terms of any class or series of its capital
stock or equity, other than in a manner that could not reasonably be expected to
adversely affect the Lenders, (ii) enter into any transaction of merger or
consolidation, except any Subsidiary of such Loan Party may be merged with or
into any Loan Party or any wholly-owned Subsidiary of any Loan Party, provided
that a Loan Party or such wholly-owned Subsidiary of any Loan Party is the
surviving entity; or (iii) liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution).
3.7 Disposal of Assets or Subsidiary Stock. Each Loan Party will
not and will not permit its Subsidiaries directly or indirectly to: convey,
sell, lease, sublease, transfer or otherwise dispose of, or grant any Person an
option to acquire, in one transaction or a series of transactions, any of its
property, business or assets, or the capital stock of or other equity interests
in any Subsidiary whether now owned or hereafter acquired, except for (i) bona
fide sales of inventory to customers for fair value in the ordinary course of
business and dispositions of obsolete equipment not used or useful in the
business, (ii) fair market value sales of Cash Equivalents, (iii) the transfer,
sale, lease, assignment or other disposition of assets to a Loan Party or any
wholly-owned Subsidiary of a Loan Party, (iv) the sale or discount without
recourse of accounts receivable arising in the ordinary course of business in
connection with the compromise or collection thereof, (v) sales of the
Investments listed on Schedule 3.3, and (vi) all other dispositions of assets if
all of the following conditions are met: (a) the aggregate market value of
assets sold in any one transaction or series of related transaction for any
calendar year does not exceed $1,000,000 for Loan Parties and their
Subsidiaries; (b) the consideration received is at least equal to the fair
market value of such assets; (c) the sole consideration received is cash; (d)
after giving effect to the sale or other disposition of such assets, Borrower,
on a consolidated basis with its Subsidiaries, is in compliance on a pro forma
basis with the covenants set forth in Section 4 recomputed for the most recently
ended month for which information is available; and (e) no Default or Event of
Default then exists or shall result from such sale or other disposition.
3.8 Transactions with Affiliates. Each Loan Party will not and
will not permit its Subsidiaries directly or indirectly to enter into or permit
to exist any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate, other than a Loan
Party, or with any director, officer or employee of a Loan Party or any
Affiliate, except (i) as set forth on Schedule 3.8; (ii) transactions in the
ordinary course of and pursuant to the reasonable requirements of the business
of such Loan Party or such Subsidiary and upon fair and reasonable terms which
are fully disclosed to Lenders and are no less favorable to such Loan Party or
such Subsidiary than would be obtained in a comparable arm's length transaction
with a Person that is not an Affiliate; (iii) payment of compensation to
directors, officers and employees in the ordinary course of business for
services actually rendered in their capacities as directors, officers and
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Amended and Restated Credit Agreement/D&E Communications, Inc.
employees, provided such compensation is reasonable and comparable with
compensation paid by companies of like nature and similarly situated; or (iv)
purchases of up to 30,000 shares annually of Borrower's capital stock pursuant
to the Voting Trust Agreement, among the Shareholders of Denver & Ephrata
Telephone & Telegraph Co, as amended. Notwithstanding the foregoing, upon the
election of Administrative Agent or Requisite Lenders no payments may be made
with respect to any items set forth in clauses (ii) and (iv) of the preceding
sentence upon the occurrence and during the continuation of an Event of Default.
3.9 Conduct of Business. Each Loan Party will not and will not
permit its Subsidiaries directly or indirectly to engage in any business other
than businesses of owning, investing in, constructing, managing and operating
Communications Systems, renting space in buildings owned by Borrower on November
1, 2001 and owning and operating its existing flower shop.
3.10 Fiscal Year. Each Loan Party will not and will not permit its
Subsidiaries to change its or their fiscal year from a fiscal year ending on
December 31 of each year.
3.11 Management Fees and Compensation. Each Loan Party will not and
will not permit its Subsidiaries directly or indirectly to pay any management or
other similar fees to any Person, other than reasonable and customary
professional services fees to accountants, attorneys, engineers, architects and
financial consultants in the ordinary course of business.
SECTION 4
FINANCIAL COVENANTS AND REPORTING
Borrower covenants and agrees that so long as this Agreement is in
effect and until payment in full of all Obligations, unless Requisite Lenders
shall otherwise give their prior written consent, Borrower shall perform and
comply with, and shall cause its Subsidiaries to perform and comply with, all
covenants in this Section 4. For purposes of this Section 4, all covenants shall
be calculated quarterly on a consolidated basis for Borrower and its
Subsidiaries. The balance sheet information and results of operations of CEI and
its Subsidiaries and the amount of the Term Loan B and the Revolving Loans made
on or after the Closing Date shall not be included in the calculations necessary
to determine compliance with the covenants set forth in Subsections 4.1 through
4.3 hereunder on June 30, 2002. For purposes of calculating the Total Leverage
Ratio and Debt Service Coverage Ratio on each of September 30, 2002, December
31, 2002 and March 31, 2003, all calculations of such ratios which otherwise
would be based on results for the then most recently completed four (4) fiscal
quarters shall, for each such fiscal quarter end, be based on results for the
number of complete fiscal quarters occurring since June 30, 2002, and, for
September 30, 2002, multiplied by four (4), for December 31, 2002, multiplied by
two (2) and, for March 31, 2003, multiplied by 1.33.
4.1 Total Leverage Ratio. Commencing on the Closing Date, Borrower
shall achieve at each fiscal quarter end occurring during the periods set forth
below, a Total Leverage Ratio less than or equal to the ratio set forth opposite
such period:
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Period Ratio
------ -----
Closing Date through March 30, 2003 5.25:1.00
March 31, 2003 through December 30, 2003 5.00:1.00
December 31, 2003 through December 30, 2004 4.00:1.00
December 31, 2004 through December 30, 2005 3.50:1.00
December 31, 2005 and thereafter 3.00:1.00
4.2 Indebtedness to Total Capitalization Ratio. Commencing on the
Closing Date, Borrower shall achieve at each fiscal quarter end occurring
hereafter, an Indebtedness to Total Capitalization Ratio less than 0.60:1.00.
4.3 Debt Service Coverage Ratio. Commencing on the Closing Date,
Borrower shall achieve at each fiscal quarter end occurring hereafter, a Debt
Service Coverage Ratio greater than or equal to 1.75:1.00.
4.4 Fixed Charge Coverage Ratio. Commencing on December 31, 2003
and at each fiscal quarter end occurring thereafter, Borrower shall achieve a
Fixed Charge Coverage Ratio greater than 1.05:1.00.
4.5 Maximum Capital Expenditures. Commencing on June 30, 2002,
Loan Parties will not make capital expenditures for the periods set forth below
in a cumulative amount that exceeds the amount set forth below opposite such
periods:
Maximum Cumulative
Capital Expenditures During Such
Period Period
------ --------------------------------
June 30, 2002 through September 30, 2002 $12,000,000
June 30, 2002 through December 31, 2002 $22,000,000
June 30, 2002 through March 31, 2003 $32,000,000
June 30, 2002 through June 30, 2003 $40,000,000
September 30, 2002 through September 30, 2003 $40,000,000
4.6 Financial Statements and Other Reports. Borrower will and will
cause its Subsidiaries to maintain a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP (it being understood that
quarterly financial statements are not required to have footnote disclosures).
Borrower will deliver each of the financial statements and other reports
described below to Administrative Agent (and each Lender in the case of the
financial statements and other reports described in Subsections 4.6(A), (B),
(C), (D), (E), (F), (G) and (H)).
(A) Quarterly Financials. As soon as available and in any
event within forty-five (45) days after the end of each of the first three
fiscal quarters, Borrower will deliver consolidated balance sheets of Borrower
and its Subsidiaries, as at the end of such fiscal quarter, and the related
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Amended and Restated Credit Agreement/D&E Communications, Inc.
consolidated statements of income, stockholders' equity and cash flow for such
fiscal quarter and for the period from the beginning of the then current fiscal
year of Borrower to the end of such quarter.
(B) Year-End Financials. As soon as available and in any
event within ninety (90) days after the end of each fiscal year of Borrower,
Borrower will deliver (i) consolidated balance sheets of Borrower and its
Subsidiaries, as at the end of such year, and the related consolidated
statements of income, stockholders' equity and cash flow for such fiscal year
and (ii) a report with respect to the financial statements from a firm of
certified public accountants selected by Borrower and reasonably acceptable to
Administrative Agent, which report shall be prepared in accordance with
Statement of Auditing Standards No. 58 (the "Statement"), as amended, entitled
"Reports on Audited Financial Statements" and such report shall be "Unqualified"
(as such term is defined in such Statement).
(C) Compliance Certificate. Together with each delivery
of financial statements of Borrower and its Subsidiaries pursuant to Subsections
4.6(A) and 4.6(B), Borrower will deliver a fully and properly completed
compliance certificate in substantially the same form as Exhibit 4.6(C) (each, a
"Compliance Certificate") signed by the chief executive officer or chief
financial officer of Borrower.
(D) [INTENTIONALLY OMITTED]
(E) Accountants' Reports. Promptly upon receipt thereof,
Borrower will deliver copies of all significant reports submitted by Borrower's
firm of certified public accountants in connection with each annual, interim or
special audit or review of any type of the financial statements or related
internal control systems of Borrower made by such accountants, including any
comment letter submitted by such accountants to management in connection with
their services.
(F) Projections. As soon as available and in any event
not less than forty-five (45) days after the beginning of each of Borrower's
fiscal years, Borrower will deliver Projections of Borrower and its Subsidiaries
for the next succeeding fiscal year, quarter by quarter. Together with each
delivery of consolidated and consolidating financial statements of Borrower and
its Subsidiaries pursuant to Subsections 4.6(A) and 4.6(B), Borrower will
deliver a schedule comparing the actual performance of Borrower's and its
Subsidiaries for such fiscal quarter and for the portion of the fiscal year then
ended against the Projections for the then-current fiscal year delivered
pursuant to this Subsection 4.6(F).
(G) SEC Filings and Press Releases. Promptly upon their
becoming available, Loan Parties will deliver copies of (i) all financial
statements, reports, notices and proxy statements sent or made available by Loan
Parties or their Subsidiaries to their security holders, (ii) all regular and
periodic reports and all registration statements and prospectuses, if any, filed
by Loan Parties or any of their Subsidiaries with any securities exchange or
with the Securities and Exchange Commission (the "SEC") or any governmental or
private regulatory authority, and (iii) all press releases and other statements
made available by Loan Parties or any of their Subsidiaries to the public
concerning developments in the business of any such Person.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
(H) Events of Default, Etc. Promptly upon any officer of
any Loan Party obtaining knowledge of any of the following events or conditions,
such Loan Party shall deliver copies of all notices given or received by such
Loan Party or any of its Subsidiaries with respect to any such event or
condition and a certificate of Borrower's chief executive officer specifying the
nature and period of existence of such event or condition and what action such
Loan Party has taken, is taking and proposes to take with respect thereto: (i)
any condition or event that constitutes an Event of Default or Default; (ii) any
notice that any Person has given to such Loan Party or any of its Subsidiaries
or any other action taken with respect to a claimed default or event or
condition of the type referred to in Subsection 6.1(B); or (iii) any event or
condition that could reasonably be expected to have a Material Adverse Effect.
(I) Litigation. Promptly upon any officer of any Loan
Party obtaining knowledge of (i) the institution of any action, suit,
proceeding, governmental investigation or arbitration against or affecting such
Loan Party or any of its Subsidiaries not previously disclosed by such Loan
Party to Administrative Agent or (ii) any material development in any action,
suit, proceeding, governmental investigation or arbitration at any time pending
against or affecting such Loan Party or any of its Subsidiaries which, in each
case, could reasonably be expected to have a Material Adverse Effect, such
Borrower will give notice thereof to Administrative Agent and provide such other
information as may be reasonably available to such Loan Party to enable
Administrative Agent and its counsel to evaluate such matter.
(J) [INTENTIONALLY OMITTED]
(K) Regulatory and Other Notices. Within fifteen (15)
days after filing, receipt or becoming aware thereof, copies of any filings or
communications sent to or notices and other communications received by any Loan
Party or any of its Subsidiaries from any Governmental Authority, including the
FCC, any applicable PUC and the SEC, relating to any noncompliance by such Loan
Party or any of its Subsidiaries with any law or with respect to any matter or
proceeding the effect of which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to result in a material
adverse amendment, change or termination of any License.
(L) Other Information. With reasonable promptness, Loan
Parties will deliver such other information and data with respect to Loan
Parties or any of their Subsidiaries as from time to time may be reasonably
requested by Administrative Agent.
4.7 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement. For purposes of this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to such
terms in conformity with GAAP. Except as otherwise expressly provided, financial
statements and other information furnished to Administrative Agent or the
Lenders pursuant to this Agreement shall be prepared in accordance with GAAP as
in effect at the time of such preparation. No "Accounting Changes" (as defined
below) shall affect financial covenants, standards or terms in this Agreement;
provided that Borrower shall prepare footnotes to each Compliance Certificate
and the financial statements required to be delivered hereunder that show the
differences between the financial statements delivered (which reflect such
Accounting
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Changes) and the basis for calculating financial covenant compliance (without
reflecting such Accounting Changes). "Accounting Changes" means: (i) changes in
accounting principles required by GAAP after the Closing Date and implemented by
Loan Parties; (ii) changes in accounting principles recommended by Loan Parties'
certified public accountant and implemented by Loan Parties; and (iii) changes
in the method of determining carrying value of Loan Parties' or any of their
Subsidiaries' assets, liabilities or equity accounts. All such adjustments
resulting from expenditures made subsequent to the Closing Date (including, but
not limited to, capitalization of costs and expenses or payment of pre-Closing
Date liabilities) shall be treated as expenses in the period the expenditures
are made.
SECTION 5
REPRESENTATIONS AND WARRANTIES
In order to induce Administrative Agent and Lenders to enter into this
Agreement and to make Loans, each Loan Party represents and warrants to
Administrative Agent and each Lender on the Closing Date and on the date of each
request for a Loan that the following statements are true, correct and complete:
5.1 Disclosure. No information furnished by or on behalf of such
Loan Party or any of its Subsidiaries contained in this Agreement, the financial
statements referred to in Subsection 5.8 or any other document, certificate,
opinion or written statement furnished to any Administrative Agent or any Lender
for use in connection with the Loan Documents or the transactions contemplated
thereunder contains any untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Such Loan Party is not aware of any facts which it has
not disclosed in writing to the Administrative Agent having a Material Adverse
Effect, or insofar as such Loan Party can now foresee, that could reasonably be
expected to have a Material Adverse Effect.
5.2 No Material Adverse Effect. Since December 31, 2001, there has
been no event or change in facts or circumstance affecting Loan Parties or any
of their Subsidiaries which individually or in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect and that have not been
disclosed herein or in the attached Schedules.
5.3 Organization, Powers, Authorization and Good Standing.
(A) Organization and Powers. Each Loan Party and each of
its Subsidiaries is a limited liability company, corporation or partnership duly
organized, validly existing and in good standing under the laws of its
jurisdiction or incorporation. Each Loan Party and each of its Subsidiaries has
all requisite legal power and authority to own and operate its properties, to
carry on its business as now conducted and proposed to be conducted, to enter
into each Loan Document to which it is a party and to carry out its respective
obligations with respect thereto.
(B) Authorization; Binding Obligation. Each Loan Party
and each of its Subsidiaries has taken all necessary corporate and other action
to authorize the execution, delivery
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Amended and Restated Credit Agreement/D&E Communications, Inc.
and performance of this Agreement and each of the other Loan Documents to which
it is a party. This Agreement is, and the other Loan Documents when executed and
delivered will be, the legally valid and binding obligations of the applicable
parties thereto (other than Administrative Agent and the Lenders), each
enforceable against each of such parties, as applicable, in accordance with
their respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debt or
relief laws from time to time in effect which affect the enforcement of
creditors' rights in general and general principles of equity.
(C) Qualification. Each Loan Party and each of its
Subsidiaries is duly qualified and authorized to do business and in good
standing in each jurisdiction where the nature of its business and operations
requires such qualification and authorization, except where the failure to be so
qualified, authorized and in good standing could not reasonably be expected to
have a Material Adverse Effect.
5.4 Compliance of Agreement, Loan Documents and Borrowings with
Applicable Law. The execution, delivery and performance by each Loan Party and
its Subsidiaries of the Loan Documents to which each is a party, the borrowings
hereunder and the transactions contemplated hereby and thereby do not and will
not, by the passage of time, the giving of notice or otherwise, (i) except as
set forth on Schedule 5.4 hereto, require any Governmental Approval or violate
any Applicable Law relating to Loan Parties or any of their Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of such Loan Party or
any of its Subsidiaries or any Material Contract to which such Person is a party
or by which any of its properties may be bound or any Governmental Approval
relating to such Person or (iii) result in or require the creation or imposition
of any Lien upon or with respect to any property now owned or hereafter acquired
by such Person.
5.5 Compliance with Law; Governmental Approvals. Except as set
forth on Schedule 5.5, Schedule 5.6 and Schedule 5.7 hereto, each Loan Party and
each of its Subsidiaries (i) has all material Governmental Approvals, including
the Licenses, required by any Applicable Law for it to conduct its business and
(ii) is in material compliance with each Governmental Approval, including the
Licenses, applicable to it and in compliance with all other Applicable Laws
relating to it or any of its respective properties the violation of which could
reasonably be expected to have a Material Adverse Effect. Each such Governmental
Approval is in full force and effect, is final and not subject to review on
appeal and is not the subject of any pending or threatened attack by direct or
collateral proceeding.
5.6 Tax Returns and Payments. Each Loan Party and each of its
Subsidiaries has duly filed or caused to be filed, except as set forth on
Schedule 5.6, all federal, state, local and other tax returns required by
Applicable Law to be filed and has paid, or made adequate provision for the
payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable, except where the payment of such tax is being
diligently contested in good faith and adequate reserves therefor have been
established in compliance with GAAP. The charges, accruals and reserves on the
books of each Loan Party and its Subsidiaries in respect of federal, state,
local and other taxes for all fiscal years and portions thereof are in the
judgment of such Loan Party adequate, and neither such Loan
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Party nor any of its Subsidiaries anticipates any additional material taxes or
assessments for any of such years.
5.7 Environmental Matters.Except as set forth on Schedule 5.7
hereto, each Loan Party and each of its Subsidiaries is in compliance in all
material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the properties or operations of such Loan Party
or its Subsidiaries, which interfere in any material respect with the continued
operation of such properties or impair in any material respect the fair saleable
value thereof or with such operations, except for any such violations or
contamination as could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
5.8 Financial Statements. All financial statements concerning Loan
Parties and their Subsidiaries which have been or will hereafter be furnished to
Administrative Agent or any Lender pursuant to this Agreement have been or will
be prepared in accordance with GAAP consistently applied (except as disclosed
therein) and do or will present in all material respects fairly the financial
condition of the Persons covered thereby as of the date thereof and the results
of their operations for the periods covered thereby and do and will disclose all
material liabilities and Contingent Obligations of Loan Parties or their
Subsidiaries as at the dates thereof, except that any unaudited financial
statements are or shall be subject to changes resulting from normal year end
adjustments and items that are or will be disclosed in footnotes to the audited
statements. Neither Loan Parties nor any of their Subsidiaries has, after giving
effect to the initial Loans hereunder, any Indebtedness for borrowed money or
Contingent Obligations other than (i) the Loans, (ii) the Indebtedness permitted
under Subsection 3.1, and (iii) the Contingent Obligations permitted under
Subsection 3.4.
5.9 Intellectual Property. Each Loan Party and each of its
Subsidiaries owns, or possesses through valid licensing arrangements, the right
to use all patents, copyrights, trademarks, trade names, service marks,
technology know-how and processes used in or necessary for the conduct of its
business as currently or anticipated to be conducted (collectively, the
"Intellectual Property Rights") without infringing upon any validly asserted
rights of others, except for any Intellectual Property Rights the absence of
which could not reasonably be expected to have a Material Adverse Effect. No
event has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such rights. Neither any Loan Party
nor any of its Subsidiaries has been threatened with any litigation regarding
Intellectual Property Rights that would present a material impediment to the
business of any such Person.
5.10 Litigation, Investigations, Audits, Etc. Except as set forth
on Schedule 5.10, there is no action, suit, proceeding or investigation pending
against, or, to the knowledge of any Loan Party, threatened against or in any
other manner relating adversely to, Loan Parties or any of their Subsidiaries or
any of their respective properties, including the Licenses, in any court or
before any arbitrator of any kind or before or by any Governmental Authority
(including the FCC). None of the actions, suits, proceedings or investigations
disclosed on Schedule 5.10 (i) calls into question the validity of this
Agreement or any other Loan Document, or (ii) individually or collectively
involves the possibility of any judgment or liability not fully covered by
insurance which, if determined adversely to any Loan Party or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse Effect.
Neither any Loan Party nor any of its Subsidiaries is the subject of any review
or audit by the Internal Revenue Service or any investigation by any
Governmental Authority
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Amended and Restated Credit Agreement/D&E Communications, Inc.
concerning the violation or possible violation of any law, except as set forth
on Schedule 5.6 and Schedule 5.7 hereto.
5.11 Employee Labor Matters. Except as set forth on Schedule 5.11,
(i) neither any Loan Party, any of its Subsidiaries nor any of their respective
employees is subject to any collective bargaining agreement, (ii) no petition
for certification or union election is pending with respect to the employees of
any such Person and no union or collective bargaining unit has sought such
certification or recognition with respect to the employees of any such Person
and (iii) there are no strikes, slowdowns, work stoppages or controversies
pending or, to the best knowledge of any Loan Party after due inquiry,
threatened between any such Person and its respective employees, other than
employee grievances arising in the ordinary course of business which could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect, except as set forth on Schedule 5.10 hereto.
5.12 Employee Benefit Plans. Each Loan Party and each of its
Subsidiaries is in compliance in all material respects with the applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended
(ERISA), and the regulations and published interpretations thereunder, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
5.13 Communications Regulatory Matters.
(A) Schedule 5.13(A) sets forth a true and complete list
of the following information for each License issued to each Loan Party or its
Subsidiaries: the name of the licensee, the type of service, the expiration date
and the geographic area covered by such License.
(B) The Licenses are valid and in full force and effect
without conditions except for such conditions as are generally applicable to
holders of such Licenses. No event has occurred and is continuing which could
reasonably be expected to (i) result in the imposition of a forfeiture or the
revocation, termination or adverse modification of any such License or (ii)
materially and adversely affect any rights of any Loan Party or its Subsidiaries
or any other holder thereunder. Each Loan Party has no reason to believe and has
no knowledge that any License will not be renewed in the ordinary course.
Neither any Loan Party nor any of its Subsidiaries is a party to any
investigation, notice of violation, order or complaint issued by or before the
FCC, and there are no proceedings pending by or before the FCC which could in
any manner threaten or adversely affect the validity of any License.
(C) All of the material properties, equipment and systems
owned, leased or managed by any Loan Party or its Subsidiaries are, and (to the
best knowledge of such Loan Party) all such property, equipment and systems to
be acquired or added in connection with any contemplated system expansion or
construction will be, in good repair, working order and condition (reasonable
wear and tear excepted) and are and will be in material compliance with all
terms and conditions of the Licenses and all standards or rules imposed by any
Governmental Authority or as imposed under any agreements with telephone
companies and customers.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
(D) Each Loan Party and each of its Subsidiaries has paid
all franchise, license or other fees and charges which have become due pursuant
to any Governmental Approval, including the Licenses, in respect of its business
and has made appropriate provision to the extent required by GAAP for any such
fees and charges which have accrued.
5.14 Solvency. Each Loan Party and each of its Subsidiaries: (i)
owns and will own assets the present fair saleable value of which are (a)
greater than the total amount of liabilities (including contingent liabilities)
of such Loan Party or its Subsidiaries and (b) greater than the amount that will
be required to pay the probable liabilities of its then existing debts and
liabilities as they become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to such Loan Party
or such Subsidiary; (ii) has capital that is not unreasonably small in relation
to its business as presently conducted or after giving effect to any
contemplated transaction; and (iii) does not intend to incur and does not
believe that it will incur debts and liabilities beyond its ability to pay such
debts and liabilities as they become due.
5.15 Investment Company Act; Public Utility Holding Act. Neither
any Loan Party nor any of its Subsidiaries is an "investment company" as that
term is defined in, or is otherwise subject to regulation under, the Investment
Company Act of 1940, as amended. Neither any Loan Party nor any of its
Subsidiaries is a "holding company" as that term is defined in, or is otherwise
subject to regulation under, the Public Utility Holding Company Act of 1935, as
amended.
5.16 Certain Agreements. Schedule 5.16 sets forth a complete and
accurate list of all loan agreements, indentures, guarantees, capital leases and
other similar credit or reimbursement agreements of each Loan Party and each of
its Subsidiaries in effect immediately prior to the Closing Date and relating to
Indebtedness of any Loan Party in excess of $100,000. Each Loan Party and its
Subsidiaries have performed all of their respective obligations under such
agreements and, to the best knowledge of such Loan Party, each other party
thereto is in compliance with each such agreement.
5.17 Subsidiaries. Loan Parties have no Subsidiaries other than as
set forth on Schedule 5.17. Each Loan Party is the registered and beneficial
owner of the specified percentage of the shares of issued and outstanding
capital stock or other equity interests of each of its Subsidiaries as set forth
on Schedule 5.17, which stock and other equity interests are owned free and
clear of all liens, warrants, options, rights to purchase, rights of first
refusal and other interests of any person. The stock or other equity interests
of each such Subsidiary has been duly authorized and validly issued and is fully
paid and non-assessable.
5.18 Title to Properties. Each Borrower and each of its
Subsidiaries has such title or leasehold interest in and to the real property
owned or leased by it as is necessary or desirable to the conduct of its
business and valid and legal title or leasehold interest in and to all of its
personal property, including those reflected on the balance sheets of Borrower
delivered pursuant to Subsection 5.8.
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5.19 Perfection and Priority. The Security Interest is a valid and
perfected first priority lien, security title or security interest in the
Collateral in favor of Administrative Agent, for the benefit of itself and
Lenders, securing, in accordance with the terms of the Security Documents, the
Obligations, and the Collateral is subject to no Lien other than as permitted
pursuant to Subsection 3.2 or as set forth on Schedule 5.19. The Security
Interest is enforceable as security for the Obligations in accordance with its
terms.
SECTION 6
EVENTS OF DEFAULT AND RIGHTS AND REMEDIES
6.1 Event of Default. "Event of Default" shall mean the occurrence
or existence of any one or more of the following:
(A) Payment. Failure to repay any outstanding principal
amount of the Loans at the time required pursuant to this Agreement, or failure
to pay, within five (5) days after the due date, any interest on any Loan or any
other amount due under this Agreement or any of the other Loan Documents; or
(B) Default in Other Agreements. (i) Failure of any Loan
Party or any of its Subsidiaries to pay when due or within any applicable grace
period any principal or interest on Indebtedness (other than the Loans) or any
Contingent Obligation or (ii) any other breach or default of any Loan Party or
any of its Subsidiaries with respect to any Indebtedness (other than the Loans)
or any Contingent Obligation, if the effect of such failure to pay, breach or
default is to cause or to permit the holder or holders then to cause such
Indebtedness or Contingent Obligation having an aggregate principal amount for
Loan Parties and their Subsidiaries in excess of $500,000 to become or be
declared due prior to its stated maturity; or
(C) Breach of Certain Provisions. Failure of any Loan
Party or any of its Subsidiaries to perform or comply with any term or condition
contained in that portion of Subsection 2.2 relating to such Loan Party's or any
of its Subsidiaries' obligation to maintain insurance, Subsection 2.4, Section 3
or Section 4 (excluding Section 4.6 (except for the first sentence thereof and
Subsection 4.6(H)); or
(D) Breach of Warranty. Any representation, warranty,
certification or other statement made by any Loan Party or any of its
Subsidiaries in any Loan Document or in any statement or certificate at any time
given by such Loan Party or any of its Subsidiaries in writing pursuant to or in
connection with any of the Loan Documents is false in any material respect on
the date made or deemed made; or
(E) Other Defaults Under Loan Documents. Any Loan Party
or any of its Subsidiaries, or any other party (other than a Lender) breaches or
defaults in the performance of or compliance with any term contained in this
Agreement or the other Loan Documents and such default is not remedied or waived
within thirty (30) days after receipt by such Loan Party, any such Subsidiary,
or such other party of notice from Administrative Agent or Requisite Lenders of
such
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Amended and Restated Credit Agreement/D&E Communications, Inc.
default (other than occurrences described in other provisions of this Subsection
6.1 for which a different grace or cure period is specified or which constitute
immediate Events of Default); or
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) A court enters a decree or order for relief with respect to any Loan Party
or any of its Subsidiaries in an involuntary case under the Bankruptcy Code,
which decree or order is not stayed or other similar relief is not granted under
any applicable federal or state law within sixty (60) days; or (ii) the
continuance of any of the following events for sixty (60) days unless dismissed,
bonded or discharged: (a) an involuntary case is commenced against any Loan
Party or any of its Subsidiaries, under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect; or (b) a decree or order of a
court for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over any Loan Party or any of
its Subsidiaries, or over all or a substantial part of its property, is entered;
or (c) an interim receiver, trustee or other custodian is appointed without the
consent of any Loan Party or any of its Subsidiaries, for all or a substantial
part of the property of such Loan Party or any of its Subsidiaries; or
(G) Voluntary Bankruptcy; Appointment of Receiver; Etc.
Any Loan Party or any of its Subsidiaries (i) commences a voluntary case under
the Bankruptcy Code, files a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up or composition
for adjustment of debts of such Loan Party or any of its Subsidiaries, or
consents to, or fails to contest in a timely and appropriate manner, the entry
of an order for relief in an involuntary case, the conversion of an involuntary
case to a voluntary case under any such law, or the appointment of or taking
possession by a receiver, trustee or other custodian of all or a substantial
part of the property of such Loan Party or any of its Subsidiaries; or (ii)
makes any assignment for the benefit of creditors; or (iii) the Board of
Directors of any Loan Party or any of its Subsidiaries adopts any resolution or
otherwise authorizes action to approve any of the actions referred to in this
Subsection 6.1(G); or
(H) Governmental Liens. Any Lien, levy or assessment
(other than Permitted Encumbrances) is filed or recorded with respect to or
otherwise imposed upon all or any material part of the Collateral or the other
assets of any Loan Party or any of its Subsidiaries by the United States or any
department or instrumentality thereof or by any state, county, municipality or
other Governmental Authority, in each case; or
(I) Judgment and Attachments. Any money judgment, writ or
warrant of attachment or similar process (other than those described in
Subsection 6.1(H)) involving an amount in any individual case or in the
aggregate for Loan Parties and their Subsidiaries at any time in excess of
$500,000 (in either case not adequately covered by insurance as to which the
insurance company has acknowledged coverage) is entered or filed against any
Loan Party or any of its Subsidiaries or any of their respective assets and
remains undischarged, unvacated, unbonded or unstayed for a period of thirty
(30) days or in any event later than five (5) Business Days prior to the date of
any proposed sale thereunder; or
(J) Dissolution. Any order, judgment or decree is entered
against any Loan Party or any of its Subsidiaries decreeing the dissolution or
split up of such Loan Party or any of its
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Subsidiaries and such order remains undischarged or unstayed for a period in
excess of fifteen (15) days, in each case; or
(K) Solvency. Any Loan Party or any of its Subsidiaries
ceases to be solvent or such Loan Party or any of its Subsidiaries admits in
writing its present or prospective inability to pay its debts as they become
due; or
(L) Injunction. Any Loan Party or any of its Subsidiaries
is enjoined, restrained or in any way prevented by the order of any court or any
Governmental Authority from conducting all or any material part of its business
and such order continues for more than sixty (60) days, in each case, except
where such Subsidiary is not material to the operations of Borrower on a
consolidated basis; or
(M) ERISA; Pension Plans. (i) Any Loan Party or any of
its Subsidiaries fails to make full payment when due of all amounts which, under
the provisions of any employee benefit plans or any applicable provisions of the
IRC, any such Person is required to pay as contributions thereto and such
failure results in or could reasonably be expected to have a Material Adverse
Effect; or (ii) an accumulated funding deficiency occurs or exists, whether or
not waived, with respect to any such employee benefit plans; or (iii) any
employee benefit plan of any Loan Parties or any of its Subsidiaries loses its
status as a qualified plan under the IRC and such loss results in or could
reasonably be expected to have a Material Adverse Effect; or
(N) Environmental Matters. Any Loan Party or any of its
Subsidiaries fails to: (i) obtain or maintain any operating licenses or permits
required by environmental authorities; (ii) begin, continue or complete any
remediation activities as required by any environmental authorities; (iii) store
or dispose of any hazardous materials in accordance with applicable
environmental laws and regulations; or (iv) comply with any other environmental
laws, if in any such case such failure could reasonably be expected to have a
Material Adverse Effect; or
(O) Invalidity of Loan Documents. Any of the Loan
Documents for any reason, other than a partial or full release in accordance
with the terms thereof, ceases to be in full force and effect or is declared to
be null and void, or any Loan Party or any of its Subsidiaries denies that it
has any further liability under any Loan Documents to which it is party, or
gives notice to such effect; or
(P) Licenses and Permits. (i) The loss, suspension or
revocation of, or failure to renew, any license or permit now held or hereafter
acquired by any Loan Party or any of its Subsidiaries, if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a Material
Adverse Effect; or (ii) one or more of the Licenses shall be terminated,
revoked, substantially adversely modified or fail to be renewed at its stated
expiration, if such termination, revocation, modification or non-renewal could
reasonably be expected to have a Material Adverse Effect; or
(Q) Change in Control. Any person acquires or
beneficially owns, directly or indirectly, and controls at least 35% of the
voting equity in Borrower; or
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Amended and Restated Credit Agreement/D&E Communications, Inc.
(R) Material Adverse Effect. Any event not referred to
elsewhere in this Subsection 6.1 shall occur which results in a Material Adverse
Effect; or
(S) Certain Material Contracts. Any material breach or
default or any termination (other than on the stated or optional expiration date
of such contract in accordance with its terms shall have occurred under any of
the Material Contracts by any of the parties thereto (other than a Loan Party)),
unless, but only as long as, the existence of any such default is being
contested by such Loan Party or such Subsidiary in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of such Borrower or such Subsidiary to the extent required by GAAP; or
(T) Hedging Agreement. Any termination payment shall be
due by any Borrower under any Hedging Agreement and such amount is not paid
within thirty (30) Business Days of the due date thereof.
6.2 Suspension of Commitments. Upon the occurrence of any Default
or Event of Default, Administrative Agent and each Lender, without notice or
demand, may immediately cease making additional Loans and cause its obligation
to lend its Pro Rata Share of each Loan Commitment to be suspended; provided
that, in the case of a Default, if the subject condition or event is waived,
cured or removed by Requisite Lenders within any applicable grace or cure
period, any suspended portion of the Loan Commitments shall be reinstated.
6.3 Acceleration. Upon the occurrence of any Event of Default
described in the foregoing Subsections 6.1(F) or 6.1(G), the unpaid principal
amount of and accrued interest and fees on the Loans and all other Obligations
hereunder shall automatically become immediately due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other requirements of any kind, all of which are hereby
expressly waived by Loan Parties, and the obligations of Administrative Agent
and Lenders to make Loans shall thereupon terminate. Upon the occurrence and
during the continuance of any other Event of Default, Administrative Agent may,
and upon written demand by Requisite Lenders shall, by written notice to
Borrower declare all or any portion of the Loans and all or some of the other
Obligations hereunder to be, and the same shall forthwith become, immediately
due and payable together with accrued interest thereon, and upon such
acceleration the obligations of Administrative Agent and Lenders to make Loans
shall thereupon terminate.
6.4 Rights of Collection. Upon the occurrence of any Event of
Default and at any time thereafter and unless and until such Event of Default is
waived by Requisite Lenders, Administrative Agent may exercise on behalf of
Lenders all of their other rights and remedies under this Agreement, the other
Loan Documents and Applicable Law, in order to satisfy all of Loan Parties'
Obligations.
6.5 Consents. Loan Parties acknowledge that certain transactions
contemplated by this Agreement and the other Loan Documents and certain actions
which may be taken by Administrative Agent or Lenders in the exercise of their
respective rights under this Agreement and the other Loan Documents may require
the consent of a Governmental Authority. If counsel to Administrative Agent
reasonably determines that the consent of a Governmental Authority is required
in connection with the execution, delivery and performance of any of the
aforesaid Loan
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Documents or any Loan Documents delivered to Administrative Agent or Lenders in
connection therewith or as a result of any action which may be taken pursuant
thereto, then Loan Parties, at Loan Parties' sole cost and expense, agrees to
use its reasonable efforts, and to cause their Subsidiaries to use their
reasonable efforts, to secure such consent and to cooperate with Administrative
Agent and Lenders in any action commenced by Administrative Agent or any Lender
to secure such consent.
6.6 Performance by Administrative Agent. If any Loan Party shall
fail to perform any covenant, duty or agreement contained in any of the Loan
Documents, Administrative Agent may perform or attempt to perform such covenant,
duty or agreement on behalf of such Loan Party after the expiration of any cure
or grace periods set forth herein, subject to Applicable Law. In such event,
such Loan Parties shall, at the request of Administrative Agent, promptly pay
any amount reasonably expended by Administrative Agent in such performance or
attempted performance to Administrative Agent, together with interest thereon at
the highest rate of interest in effect upon the occurrence of an Event of
Default as specified in Subsection 1.2(E) from the date of such expenditure
until paid. Notwithstanding the foregoing, it is expressly agreed that
Administrative Agent shall not have any liability or responsibility for the
performance of any obligation of any Loan Party under this Agreement or any
other Loan Document.
6.7 Set Off and Sharing of Payments. In addition to any rights now
or hereafter granted under applicable law and not by way of limitation of any
such rights, during the continuance of any Event of Default, each Lender is
hereby authorized by Loan Parties at any time or from time to time, with
reasonably prompt subsequent notice to Borrower (any prior or contemporaneous
notice being hereby expressly waived) to set off and to appropriate and to apply
any and all (A) balances held by such Lender at any of its offices for the
account of Loan Parties or any of their Subsidiaries (regardless of whether such
balances are then due to Loan Parties or any of their Subsidiaries), and (B)
except as provided in Subsection 8.2(J), other property at any time held or
owing by such Lender to or for the credit or for the account of Loan Parties or
any of their Subsidiaries, against and on account of any of the Obligations;
provided, that no Lender shall exercise any such right without the prior written
consent of Administrative Agent. Any Lender exercising a right to set off shall,
to the extent the amount of any such set off exceeds its Pro Rata Share of the
amount set off, purchase for cash (and the other Lenders shall sell) interests
in each such other Lender's Pro Rata Share of the Obligations as would be
necessary to cause such Lender to share such excess with each other Lender in
accordance with their respective Pro Rata Shares. Loan Parties agree, to the
fullest extent permitted by law, that any Lender may exercise its right to set
off with respect to amounts in excess of its Pro Rata Share of the Obligations
and upon doing so shall deliver such excess to Administrative Agent for the
benefit of all Lenders in accordance with their Pro Rata Shares; provided, that
CoBank may exercise its rights against any equity of CoBank held by Borrowers
without complying with this sentence.
6.8 Application of Payments. Subsequent to the acceleration of the
Loans pursuant to Subsection 6.3, all payments received by the Lenders on the
Obligations and on the proceeds from the enforcement of the Obligations shall be
distributed pro rata among the Loans and shall be further applied among
Administrative Agent and the Lenders as follows: First, to all Administrative
Agent's fees and expenses then due and payable, then to all other expenses then
due and payable by Loan Parties hereunder, then to all indemnitee obligations
then due and payable by Loan Parties
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Amended and Restated Credit Agreement/D&E Communications, Inc.
hereunder, then to all commitment and other fees and commissions then due and
payable by any Loan Party, then to accrued and unpaid interest on the Loans (pro
rata in accordance with all such amounts due on the Loans), and then to the
principal amount of the Loans (pro rata among all Loans), in that order.
6.9 Adjustments. If any Lender (a "Benefitted Lender") shall at
any time receive any payment of all or part of its Loans, or interest thereon in
a greater proportion than any such payment received by any other Lender, if any,
in respect of such other Lender's Loans, or interest thereon, such Benefitted
Lender shall, to the extent permitted by Applicable Law, purchase for cash from
the other Lenders such portion of each such other Lender's Loans as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits ratably with each Lender; provided, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned
to the extent of such recovery, but without interest. Loan Parties agree that
each Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including rights of set-off) with respect to such portion as
fully as if such Lender were the direct holder of such portion. This Subsection
6.9 shall not apply to any action taken by CoBank with respect to equity in it
held by Borrower.
SECTION 7
CONDITIONS TO LOANS
The obligations of Lenders to make Loans are subject to satisfaction of
all of the applicable conditions set forth below.
7.1 Conditions to Initial Loan. The obligations of Lenders to
enter into this Agreement and to make the initial Loan on or after the Closing
Date are, in addition to the conditions precedent specified in Subsection 7.2,
subject to the satisfaction of each of the following conditions:
(A) Executed Loan and Other Documents. (i) This
Agreement, (ii) the Notes, (iii) the Security Agreement and (iv) all other
documents and instruments contemplated by such agreements, shall have been duly
authorized and executed by Loan Parties, or other Person, as applicable, in form
and substance satisfactory to Administrative Agent, and Loan Parties, or such
other Person, as applicable, shall have delivered original counterparts thereof
to Administrative Agent.
(B) Closing Certificates; Opinions.
(1) Officer's Certificate. Administrative Agent
shall have received a certificate from the chief executive officer or chief
financial officer of Borrower, in form and substance reasonably satisfactory to
Administrative Agent, to the effect that all representations and warranties of
Loan Parties contained in this Agreement and the other Loan Documents are true,
correct and complete; that neither any Loan Party nor any of its Subsidiaries is
in violation of any of the covenants contained in this Agreement and the other
Loan Documents; that, after giving effect to
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Amended and Restated Credit Agreement/D&E Communications, Inc.
the transactions contemplated by this Agreement, no Default or Event of Default
has occurred and is continuing; that each Loan Party has satisfied each of the
closing conditions to be satisfied hereby; and that each Loan Party has filed
all required tax returns and owes no delinquent taxes, except where the payment
of such tax is being diligently contested in good faith and adequate reserves
therefor have been established in compliance with GAAP.
(2) Certificate of Secretary of Loan Parties.
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of each Loan Party certifying that attached thereto is a
true and complete copy of the articles of incorporation or organization of such
Loan Party, and all amendments thereto, certified as of a recent date by the
Secretary of State of the state of incorporation or organization; that attached
thereto is a true and complete copy of the bylaws, operating agreement or other
governing agreement of such Loan Party as in effect on the date of such
certification; that attached thereto is a true and complete copy of resolution
or consent of the governing body of such Loan Party, authorizing the borrowings
contemplated hereunder and the execution, delivery and performance of this
Agreement and the other Loan Documents; and as to the incumbency and genuineness
of the signature of each officer of such Loan Party executing Loan Documents.
(3) Certificates of Good Standing.
Administrative Agent shall have received certificates as of a recent date of the
good standing of each Loan Party under the laws of its jurisdiction of
organization and such other jurisdictions as are requested by Administrative
Agent.
(4) Opinions of Counsel. Administrative Agent
shall have received favorable opinions of counsel to Loan Parties addressed to
Administrative Agent and Lenders with respect to Loan Parties, the Loan
Documents, regulatory matters (including, without limitation, the Licenses) and
perfection of the Security Interest, reasonably satisfactory in form and
substance to Administrative Agent.
(5) Lien Searches. Loan Parties shall have
delivered to Administrative Agent the results of a Lien search of all filings
made against any Loan Party or any of its Subsidiaries, under the Uniform
Commercial Code as in effect in any jurisdiction in which any of its assets are
located, indicating among other things that Loan Parties' assets are free and
clear of any Lien, except for Permitted Encumbrances.
(C) Collateral.
(1) Filings and Recordings. All filings and
recordings (including, without limitation, all fixture filings) that are
necessary to perfect the Security Interest in the Collateral described in the
Security Documents shall have been delivered by the Loan Parties to the
Administrative Agent for filing in all appropriate locations and Administrative
Agent shall have received evidence satisfactory to Administrative Agent that,
upon such filings, such Security Interest will constitute a valid and perfected
first priority Lien therein (other than Permitted Encumbrances and the Liens set
forth on Schedule 5.19).
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Amended and Restated Credit Agreement/D&E Communications, Inc.
(2) Insurance. Administrative Agent shall have
received certificates of insurance in the form required under Subsection 2.2 and
the Security Documents and otherwise in form and substance reasonably
satisfactory to Agents.
(D) Consents.
(1) Governmental and Third Party Approvals.
Borrowers shall have delivered or otherwise made reasonably available to
Administrative Agent all necessary approvals, authorizations and consents, if
any, of all Persons, Governmental Authorities, including the FCC and all
applicable PUCs and courts having jurisdiction with respect to the execution and
delivery of this Agreement and the other Loan Documents, the merger of NEWCO and
CEI, and all such approvals shall be in form and substance satisfactory to
Administrative Agent.
(2) Permits and Licenses. Administrative Agent
shall have received copies of all material permits and licenses it has
requested, including the Licenses, required under Applicable Laws for the
conduct of each Loan Party's or any of its Subsidiaries' businesses.
(3) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before, nor any adverse ruling received from, any Governmental
Authority to enjoin, restrain or prohibit, or to obtain substantial damages in
respect of, or which is related to or arises out of this Agreement or the other
Loan Documents or the consummation of the transactions contemplated hereby or
thereby, or which, as determined by Administrative Agent in its reasonable
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(E) Financial Matters.
(1) Financial Statements. Administrative Agent
and each Lender shall have received recent annual and interim financial
statements and other financial information with respect to Borrower and its
Subsidiaries prepared in accordance with GAAP.
(2) Fees, Expenses, Taxes, Etc. There shall have
been paid by Borrower to Administrative Agent, for the benefit of Administrative
Agent and Lenders, as applicable, the fees set forth or referenced in Subsection
1.4 and any other accrued and unpaid fees or commissions due hereunder
(including legal fees and expenses), and to any other Person such amount as may
be due thereto in connection with the transactions contemplated hereby.
(F) Miscellaneous. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be reasonably satisfactory in form and substance to
Administrative Agent. Administrative Agent shall have received copies of all
other instruments and other evidence as Administrative Agent may reasonably
request, in form and substance reasonably satisfactory to Administrative Agent,
with respect to the transactions contemplated by this Agreement and the taking
of all actions in connection therewith.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
7.2 Conditions to All Loans. The several obligations of Lenders to
make Loans, including the initial Loan on or after the Closing Date, on any date
(each such date a "Funding Date") are subject to the further conditions
precedent set forth below.
(A) Administrative Agent shall have received, in
accordance with the provisions of Subsection 1.3, a notice requesting an advance
of a Loan.
(B) The representations and warranties contained in
Section 5 of this Agreement and elsewhere herein and in the Loan Documents shall
be (and each request by Borrower for a Loan shall constitute a representation
and warranty by Loan Parties that such representations and warranties are) true,
correct and complete in all material respects on and as of such Funding Date to
the same extent as though made on and as of that date, except for any
representation or warranty limited by its terms to a specific date and taking
into account any amendments to the Schedules or Exhibits as a result of any
disclosures made in writing by Loan Parties to Administrative Agent after the
Closing Date and approved by Requisite Lenders in writing;
(C) No event shall have occurred and be continuing or
would result from the consummation of the borrowing contemplated that would
constitute an Event of Default or a Default.
(D) No order, judgment or decree of any court, arbitrator
or Governmental Authority shall purport to enjoin or restrain any Lender from
making any Loan.
(E) Since December 31, 2001, there shall not have
occurred any event or condition that has had or could reasonably be expected to
have a Material Adverse Effect.
(F) All Loan Documents shall be in full force and effect.
(G) Loan Parties shall have delivered to Administrative
Agent such other documents, certificates and opinions as Administrative Agent
reasonably request.
SECTION 8
ASSIGNMENT AND PARTICIPATION
8.1 Assignments and Participations in Loans and Notes. Each Lender
(including CoBank) may assign, subject to the terms of a Lender Addition
Agreement, its rights and delegate its obligations under this Agreement to one
or more Persons; provided that, (a) such Lender shall first obtain the written
consent of Administrative Agent and, if no Default or Event of Default shall
have occurred and be continuing, Borrower, which consents shall not be
unreasonably withheld or delayed; (b) the Pro Rata Share of a Loan Commitment
being assigned shall in no event be less than the lesser of (i) $5,000,000
(which may be aggregated where several Lenders are simultaneously assigning to
the same Person) and (ii) the entire amount of the Pro Rata Share of such Loan
Commitment of the assigning Lender; (c) such assignee shall execute a joinder to
the Intercreditor Agreement and (d) upon the consummation of each such
assignment the assigning Lender shall pay Administrative Agent a non-refundable
administrative fee of $2,000; provided, that in connection with an assignment
from a Lender to an Affiliate of such Lender or to another Lender, written
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Amended and Restated Credit Agreement/D&E Communications, Inc.
consent of Borrower shall not be required and no administrative fee shall be
payable and assignments by CoBank to institutions chartered under the Farm
Credit System shall not require written consent of Borrower. From and after the
effective date specified in a duly executed, delivered and accepted Lender
Addition Agreement, which effective date shall be at least five (5) Business
Days after the execution thereof (unless Administrative Agent shall otherwise
agree), (A) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Lender Addition Agreement, shall have the rights and obligations of the
assigning Lender hereunder with respect thereto and (B) the assigning Lender
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Lender Addition Agreement, relinquish its rights (other than
rights under the provisions of this Agreement and the other Loan Documents
relating to indemnification or payment of fees, costs and expenses, to the
extent such rights relate to the time prior to the effective date of such Lender
Addition Agreement) and be released from its obligations under this Agreement
other than obligations to the extent relating to the time prior to the effective
date of such Lender Addition Agreement (and, in the case of a Lender Addition
Agreement covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto). The terms and provisions of each Lender Addition Agreement shall,
upon the effectiveness thereof be incorporated into and made a part of this
Agreement, and the covenants, agreements and obligations of each Lender set
forth therein shall be deemed made to and for the benefit of Administrative
Agent and the other parties hereto as if set forth at length herein. Upon its
receipt of a duly completed Lender Addition Agreement executed by an assigning
Lender and an assignee, and Borrower (if required), together with any Note
subject to such assignment and the processing fee referred to above,
Administrative Agent will accept such Lender Addition Agreement and give notice
thereof to Borrower and the other Lenders. In the event of an assignment
pursuant to this Subsection 8.1, Borrower shall, upon surrender of the assigning
Lender's Note, issue a new Note to reflect the interests of the assigning Lender
and the Person to which interests are to be assigned.
Each Lender (including Administrative Agent) may sell participations in
all or any part of its Pro Rata Share of each Loan Commitment to one or more
Persons; provided that such Lender shall first obtain the prior written consent
of Administrative Agent; and provided, further, that such Lender's obligations
under this Agreement shall remain unchanged; Loan Parties, 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; all amounts payable by Loan Parties hereunder shall be determined as
if that Lender had not sold such participation; and the holder of any such
participation shall not be entitled to require such Lender to take or omit to
take any action hereunder except action directly affecting (i) any reduction,
modification or forgiveness in the principal amount, interest rate or fees
payable with respect to any Loan; (ii) any extension of the Revolving Loan
Expiration Date, the Term Loan A Maturity Date or the Term Loan B Maturity Date,
or any change of any date fixed for any payment of any of the Obligations; and
(iii) any consent to the assignment, delegation or other transfer by any Loan
Party or any of its Subsidiaries of any of its rights and obligations under any
Loan Document. Loan Parties hereby acknowledge and agree that any participation
will give rise to a direct obligation of Loan Parties to the participant, and
that any participant that is a member of the Farm Credit System shall for
purposes of Subsections 1.11, 1.13, 1.14, and 9.1 be considered to be a "Lender"
and all participants shall for purposes of Section 6.7 be considered to be a
"Lender."
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Except as otherwise provided in this Subsection 8.1, no Lender shall,
as between Borrower and such Lender, be relieved of any of its obligations
hereunder as a result of any sale, assignment, transfer or negotiation of, or
granting of a participation in, all or any part of the Loans, the Notes or other
Obligations owed to such Lender. Each Lender may furnish any information
concerning Loan Parties and their Subsidiaries in the possession of that Lender
from time to time to assignees and participants (including prospective assignees
and participants), subject to the provisions of Subsection 9.13.
Nothing in this Agreement shall be construed to prohibit any Lender
from pledging or assigning all or any portion of its rights and interest
hereunder or under any Note as collateral security for any loan or financing or
in connection with any securitization or other similar transaction or to any
Federal Reserve Bank as security for borrowings therefrom; provided, that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder.
Notwithstanding anything contained in this Agreement to the contrary,
so long as Requisite Lenders shall remain capable of making LIBOR Loans, no
Person shall become a "Lender" hereunder unless such Person shall also be
capable of making LIBOR Loans.
CoBank reserves the right to assign or sell participations in all or
any part of its Pro Rata Share of each Loan Commitment on a non-patronage basis.
8.2 Administrative Agent.
(A) Appointment. Each Lender hereby irrevocably appoints
and authorizes CoBank, as Administrative Agent to act as Administrative Agent
hereunder and under any other Loan Document with such powers as are specifically
delegated to Administrative Agent by the terms of this Agreement and any other
Loan Document, together with such other powers as are reasonably incidental
thereto. Administrative Agent is authorized and empowered to amend, modify or
waive any provisions of this Agreement or the other Loan Documents on behalf of
Lenders subject to the requirement that the consent of certain Lenders be
obtained in certain instances as provided in Subsections 8.3 and 9.2. CoBank
hereby agrees to act as Administrative Agent on the express conditions contained
in this Subsection 8.2. The provisions of this Subsection 8.2 are solely for the
benefit of Administrative Agent and Lenders, and Loan Parties shall have no
right as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, Administrative Agent
shall act solely as agent of Lenders and does not assume and shall not be deemed
to have assumed any obligation toward or relationship of agency or trust with or
for Loan Parties. Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through Administrative Agent or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any Administrative Agent or attorneys-in-fact that it selects with reasonable
care.
(B) Nature of Duties. The duties of Administrative Agent
shall be mechanical and administrative in nature. Administrative Agent shall not
have by reason of this Agreement a fiduciary relationship in respect of any
Lender. Nothing in this Agreement or any of the Loan Documents, express or
implied, is intended to or shall be construed to impose upon Administrative
Agent any obligations in respect of this Agreement or any of the Loan Documents
except as
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Amended and Restated Credit Agreement/D&E Communications, Inc.
expressly set forth herein or therein. Each Lender expressly acknowledges that
neither Administrative Agent, nor any of its respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representation
or warranty to it and that no act by Administrative Agent now or hereafter
taken, including any review of the affairs of Loan Parties, shall be deemed to
constitute any representation or warranty by Administrative Agent to any Lender.
Each Lender represents to Administrative Agent that (i) it has, independently
and without reliance upon Administrative 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, prospects, operations,
properties, financial and other condition and creditworthiness of Loan Parties
and made its own decision to enter into this Agreement and extend credit to
Borrower hereunder, and (ii) it will, independently and without reliance upon
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action
hereunder and under the other Loan Documents and to make such investigation as
it deems necessary to inform itself as to the business, prospects, operations,
properties, financial and other condition and creditworthiness of Loan Parties.
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information with respect thereto (other than as expressly required herein). If
Administrative Agent seeks the consent or approval of any Lenders to the taking
or refraining from taking of any action hereunder, then Administrative Agent
shall send notice thereof to each Lender. Administrative Agent shall promptly
notify each Lender any time that Requisite Lenders have instructed
Administrative Agent to act or refrain from acting pursuant hereto.
(C) Rights, Exculpation, Etc. Neither Administrative
Agent nor any of its officers, directors, employees, agents or attorneys-in-fact
shall be liable to any Lender for any action taken or omitted by them hereunder
or under any of the Loan Documents, or in connection herewith or therewith,
except that each such entity shall be liable with respect to its own gross
negligence or willful misconduct. Administrative Agent shall not be liable for
any apportionment or distribution of payments made by it in good faith and if
any such apportionment or distribution is subsequently determined to have been
made in error the sole recourse of any Lender to whom payment was due but not
made, shall be to recover from other Lenders any payment in excess of the amount
to which they are determined to be entitled (and such other Lenders hereby agree
to return to such Lender any such erroneous payments received by them). In
performing its functions and duties hereunder, Administrative Agent shall
exercise the same care which it would in dealing with loans for its own account,
but Administrative Agent shall not be responsible to any Lender for any
recitals, statements, representations or warranties herein or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any of the Loan Documents or the transactions
contemplated thereby, or for the financial condition of Loan Parties.
Administrative Agent may at any time request instructions from Lenders with
respect to any actions or approvals which by the terms of this Agreement or of
any of the Loan Documents Administrative Agent is permitted or required to take
or to grant, and if such instructions are promptly requested, Administrative
Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents (i) if such action or omission would, in the reasonable
opinion of Administrative Agent, violate any Applicable Law or any provision of
this agreement or any other Loan Document, or (ii) until it shall have received
such instructions from
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Requisite Lenders or all of the Lenders, as applicable. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against
Administrative Agent as a result of Administrative Agent acting or refraining
from acting under this Agreement, the Notes, or any of the other Loan Documents
in accordance with the instructions of Requisite Lenders.
(D) Reliance. Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any written or oral notices,
statements, certificates, orders or other documents or any telephone message or
other communication (including any writing, telex, telecopy or telegram)
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the Loan Documents and its duties hereunder or
thereunder, upon advice of counsel selected by it in connection with the
preparation, negotiation, execution, delivery, administration, amendment,
modification, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents.
(E) Indemnification. Lenders will reimburse and indemnify
agents and its officers, directors, employees, agents, attorneys-in-fact and
Affiliates, on demand for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, attorneys' fees and expenses), advances or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by, or asserted against
Administrative Agent (i) in any way relating to or arising out of this Agreement
or any of the Loan Documents or any action taken or omitted by Administrative
Agent under this Agreement or any of the Loan Documents, and (ii) in connection
with the preparation, negotiation, execution, delivery, administration,
amendment, modification, waiver or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents in
proportion to each Lender's Pro Rata Share; provided, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, advances or disbursements
resulting from Administrative Agent's gross negligence or willful misconduct. If
any indemnity furnished to Administrative Agent for any purpose shall, in the
opinion of Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The obligations of Lenders under this Subsection 8.2(E) shall survive
the payment in full of the Obligations and the termination of this Agreement.
(F) Administrative Agent Individually. With respect to
its obligations under the Loan Commitments, the Loans made by it, and the Notes
issued to it, Administrative Agent shall have and may exercise the same rights
and powers hereunder and is subject to the same obligations and liabilities as
and to the extent set forth herein for any other Lender. The terms "Lenders" or
"Requisite Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include Administrative Agent in its individual capacity as
a Lender or one of the Requisite Lenders. Administrative Agent may lend money
to, and generally engage in any kind of banking, trust or other business with,
any Loan Party or any of their Subsidiaries as if it were not acting as an
Administrative Agent pursuant hereto.
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(G) Notice of Default. Administrative Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of Loan Parties or any of their
Subsidiaries, or the existence or possible existence of any Default or Event of
Default. Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default unless Administrative Agent
shall have received written notice from Borrower or a Lender 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 Administrative Agent receives
such a notice, Administrative Agent will give notice thereof to Lenders as soon
as reasonably practicable; provided, that if any such notice has also been
furnished to Lenders, Administrative Agent shall have no obligation to notify
Lenders with respect thereto. Administrative Agent shall (subject to this
Subsection 8.2) take such action with respect to such Default or Event of
Default as shall reasonably be directed by the Requisite Lenders; provided,
further, that, unless and until Administrative Agent shall have received such
directions, 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 and in the best interests of
Lenders.
(H) Successor Administrative Agent.
(1) Resignation. Administrative Agent may resign
from the performance of all its agency functions and duties hereunder at any
time by giving at least thirty (30) Business Days' prior written notice to
Borrower and Lenders. Such resignation shall take effect upon the acceptance by
a successor Administrative Agent of appointment pursuant to clause (2) below or
as otherwise provided below.
(2) Appointment of Successor. Upon any such
notice of resignation pursuant to clause (1) above, Requisite Lenders shall,
upon receipt, if no Event of Default or Default shall have occurred and be
continuing, of Borrower's prior consent which shall not be unreasonably
withheld, appoint a successor Administrative Agent from among Lenders. If a
successor Administrative Agent shall not have been so appointed within the
thirty (30) Business Day period, referred to in clause (1) above, the retiring
Administrative Agent, upon notice to Borrower, shall then appoint a successor
Administrative Agent from among Lenders who shall serve as Administrative Agent
until such time, if any, as Requisite Lenders, upon receipt of Borrower's prior
written consent which shall not be unreasonably withheld, appoint a successor
Administrative Agent as provided above.
(3) Successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent under the Loan Documents
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under the Loan
Document. After any retiring Administrative Agent's resignation as
Administrative Agent under the Loan Documents, the provisions of this Subsection
8.2 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under the Loan Documents.
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(I) Collateral Matters.
(1) Release of Collateral. Lenders hereby
irrevocably authorize Administrative Agent, at its option and in its discretion,
to release any Lien granted to or held by Administrative Agent upon any property
covered by the Security Documents (i) upon termination of the Loan Commitments
and payment and satisfaction of all Obligations (other than contingent
indemnification or expense reimbursement Obligations not then due and payable);
(ii) constituting property being sold or disposed of if Borrower certifies to
Administrative Agent that the sale or disposition is made in compliance with the
provisions of this Agreement (and Administrative Agent may rely in good faith
conclusively on any such certificate, without further inquiry); or (iii)
constituting property leased to any Loan Party under a lease which has expired
or been terminated in a transaction permitted under this Agreement or is about
to expire and which has not been, and is not intended by such Loan Party to be,
renewed or extended. In addition, Administrative Agent, with the consent of
Requisite Lenders, may release or compromise any Collateral and the proceeds
thereof; provided that in any fiscal year, the consent of all Lenders shall be
required for any release or compromise of Collateral or the proceeds thereof if
(a) such Collateral constitutes a License material to the operation of the Loan
Parties' business or (b) the net book value of such Collateral and proceeds,
together with the net book value of all other Collateral and proceeds released
in such fiscal year, exceeds ten percent (10%) of the net book value of all
assets of Loan Parties as of the last day of the preceding fiscal year, as
determined by Administrative Agent.
(2) Confirmation of Authority; Execution of
Releases. Without in any manner limiting Administrative Agent's authority to act
without any specific or further authorization or consent by Lenders (as set
forth in Subsection 8.2(I)(1), each Lender agrees to confirm in writing, upon
request by Administrative Agent or Borrower, the authority to release any
property covered by the Security Documents conferred upon Administrative Agent
under clauses (i) through (iii) of the first sentence of Subsection 8.2(I)(1).
Upon receipt by Administrative Agent of confirmation from Requisite Lenders, if
any, of its authority to release or compromise any particular item or types of
property covered by the Security Documents under clauses (i) through (iii) of
the first sentence of Subsection 8.2(I)(1), and upon at least ten (10) Business
Days prior written request by Borrower, Administrative Agent shall (and is
hereby irrevocably authorized by Lenders to) execute such documents as may be
necessary to evidence the release or compromise of the Liens granted to
Administrative Agent, for the benefit of itself and Lenders, upon such
Collateral under clauses (i) through (iii) of the first sentence of Subsection
8.2(I)(1), provided that (i) Administrative Agent shall not be required to
execute any such document on terms which, in Administrative Agent's opinion,
would expose Administrative Agent to liability or create any obligation or
entail any consequence other than the release or compromise of such Liens
without recourse or warranty, and (ii) such release or compromise shall not in
any manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of Loan Parties, in respect of), all interests retained by Borrowers
in the Collateral, including the proceeds of any sale or other disposition of
Collateral, all of which shall continue to constitute part of the property
covered by the Security Documents.
(3) Absence of Duty. Administrative Agent shall
not have any obligation whatsoever to any Lender or any other Person to assure
that the property covered by the Security Documents exists or is owned by Loan
Parties or is cared for, protected or insured or has been
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Amended and Restated Credit Agreement/D&E Communications, Inc.
encumbered or that the Liens granted to Administrative Agent have been properly
or sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to
Administrative Agent in this Agreement or in any other Loan Document, it being
understood and agreed that in respect of the property covered by the Security
Documents or any act, omission or event related thereto, Administrative Agent
may act in any manner it may deem appropriate, in its discretion, given
Administrative Agent's own interest in property covered by the Security
Documents as one of the Lenders and that Administrative Agent shall have no duty
or liability whatsoever to any of the other Lenders, provided that
Administrative Agent shall exercise the same care which it would in dealing with
loans for its own account.
(J) Agency for Perfection; Enforcement of Security by
Administrative Agent. Administrative Agent and each Lender hereby appoint each
other Lender as agent for the purpose of perfecting Administrative Agent's
security interest in assets which, in accordance with Article 9 of the Uniform
Commercial Code in any applicable jurisdiction, can be perfected only by
possession. Should any Lender (other than Administrative Agent) obtain
possession of any such Collateral, such Lender shall notify Administrative Agent
thereof, and, promptly upon Administrative Agent's request therefor, shall
deliver such Collateral to Administrative Agent or in accordance with
Administrative Agent's instructions. Each Lender agrees that it will not have
any right individually to enforce or to seek to enforce any Security Document or
to realize upon any collateral security for the Loans, it being understood and
agreed that such rights and remedies may be exercised only by Administrative
Agent (subject to the regulatory restrictions of the nature described in Section
6 of the Security Agreement).
(K) Dissemination of Information. Administrative Agent
will use its best efforts to provide Lenders with any information received by
Administrative Agent from Loan Parties which is required to be provided to a
Lender hereunder, provided that Administrative Agent shall not be liable to
Lenders for any failure to do so, except to the extent that such failure is
attributable to Administrative Agent's gross negligence or willful misconduct.
8.3 Amendments, Consents and Waivers for Certain Actions.
(A) Except as otherwise provided in this Agreement
(including this Subsection 8.3 and Subsection 9.2), any Lender Addition
Agreement or any other Loan Document, the consent of Requisite Lenders and
Borrower will be required to amend, modify, terminate, or waive any provision of
this Agreement or any of the other Loan Documents.
(B) In the event Administrative Agent requests the
consent of a Lender and does not receive a written consent or denial thereof
within ten (10) Business Days after such Lender's receipt of such request, then
such Lender will be deemed to have denied the giving of such consent.
8.4 Disbursement of Funds. Administrative Agent shall advise each
Lender by telephone or telecopy of the amount of such Lender's Pro Rata Share of
any Loan requested by Borrower no later than 11:00 a.m. (Denver time) on the
Funding Date applicable thereto, and each such Lender shall pay Administrative
Agent such Lender's Pro Rata Share of such requested Loan, in same day
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Amended and Restated Credit Agreement/D&E Communications, Inc.
funds, by wire transfer to Administrative Agent's account by no later than 1:00
p.m. (Denver time) on such Funding Date. If any Lender fails to pay the amount
of its Pro Rata Share forthwith upon Administrative Agent's demand,
Administrative Agent shall promptly notify Borrower, and Administrative Agent
shall disburse to Borrower, by wire transfer of immediately available funds,
that portion of such Loan as to which Administrative Agent has received funds.
In such event, Administrative Agent may, on behalf of any Lender not timely
paying Administrative Agent, disburse funds to Borrower for Loans requested,
subject to the provisions of Subsection 8.5(B). Each such Lender shall reimburse
Administrative Agent on demand for all funds disbursed on its behalf by
Administrative Agent. Nothing in this Subsection 8.4 or elsewhere in this
Agreement or the other Loan Documents, including the provisions of Subsection
8.5, shall be deemed to require Administrative Agent to advance funds on behalf
of any Lender or to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice any rights that Administrative Agent or
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
8.5 Disbursements of Advances; Payments.
(A) Pro Rata Treatment; Application. Upon receipt by
Administrative Agent of each payment from Borrower hereunder, other than as
described in the succeeding sentence, Administrative Agent shall promptly (but
in no event later than 11:00 a.m. (Denver time) on the next succeeding Business
Day) wire transfer in immediately available funds to each Lender's account its
Pro Rata Share of such payment in accordance with such Lender's Pro Rata Share.
Each payment to Administrative Agent of its fees shall be made in like manner,
but for the account of Administrative Agent.
(B) Availability of Lender's Pro Rata Share.
(1) Unless Administrative Agent has been
notified by a Lender prior to a Funding Date of such Lender's intention not to
fund its Pro Rata Share of the Loan amount requested by Borrower, Administrative
Agent may assume that such Lender will make such amount available to
Administrative Agent on the Funding Date. If such amount is not, in fact, made
available to Administrative Agent by such Lender when due, and Administrative
Agent disburses funds to Borrower, on behalf of such Lender, Administrative
Agent will be entitled to recover such amount on demand from Borrower, without
set-off, counterclaim or deduction of any kind, with interest thereon at the
rate per annum then applicable to such Loan.
(2) Nothing contained in this Subsection 8.5(B)
will be deemed to relieve a Lender of its obligation to fulfill its commitments
or to prejudice any rights Administrative Agent or Borrower may have against
such Lender as a result of any default by such Lender under this Agreement.
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(C) Return of Payments.
(1) If Administrative Agent pays an amount to a
Lender under this Agreement in the belief or expectation that a related payment
has been or will be received by Administrative Agent from Borrower and such
related payment is not received by Administrative Agent, then Administrative
Agent will be entitled to recover such amount from such Lender without set-off,
counterclaim or deduction of any kind.
(2) If Administrative Agent determines at any
time that any amount received by Administrative Agent under this Agreement must
be returned to Borrower or paid to any other Person pursuant to any solvency law
or otherwise, then, notwithstanding any other term or condition of this
Agreement, Administrative Agent will not be required to distribute any portion
thereof to any Lender. In addition, each Lender will repay to Administrative
Agent on demand any portion of such amount that Administrative Agent has
distributed to such Lender, together with interest at such rate, if any, as
Administrative Agent is required to pay to Borrower or such other Person,
without set-off, counterclaim or deduction of any kind.
SECTION 9
MISCELLANEOUS
9.1 Indemnities. Loan Parties agree to indemnify, pay, and hold
Administrative Agent and each Lender and their respective officers, directors,
employees, Administrative Agent, and attorneys (the "Indemnitees") harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits and claims of any kind or nature whatsoever that may
be imposed on, incurred by, or asserted against the Indemnitee as a result of
its being a party to this Agreement; provided, that Loan Parties shall have no
obligation to an Indemnitee hereunder with respect to liabilities arising from
the gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction. This Subsection 9.1 and all indemnification
provisions contained within any other Loan Document shall survive the
termination of this Agreement.
9.2 Amendments and Waivers. Except as otherwise provided herein,
no amendment, modification, termination or waiver of any provision of this
Agreement, the Notes or any of the other Loan Documents, or consent to any
departure by Loan Parties therefrom, shall in any event be effective unless the
same shall be in writing and signed by Borrower and Requisite Lenders (or
Administrative Agent, if expressly set forth herein, in any Note or in any other
Loan Document); provided, that except to the extent permitted by any applicable
Lender Addition Agreement, no amendment, modification, termination or waiver
shall, unless in writing and signed by all Lenders, do any of the following: (i)
increase any Lender's Pro Rata Share of either Loan Commitment; (ii) reduce the
principal of, rate of interest on or fees payable with respect to any Loan;
(iii) extend the Revolving Loan Expiration Date, the Term Loan A Maturity Date
or Term Loan B Maturity Date or extend the date on which any Obligation is to be
paid; (iv) change the aggregate unpaid principal amount of the Loans; (v) change
the percentage of Lenders which shall be required for Lenders or any of them to
take any action hereunder; (vi) release Collateral (except if the release of
such
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Collateral is permitted under and effected in accordance with, including any
consents and approvals required therein, Subsection 8.2(I) or any other Loan
Document) or any guaranty of the Obligations (except to the extent expressly
contemplated thereby); (vii) amend or waive this Subsection 9.2 or the
definitions of the terms used in this Subsection 9.2 insofar as the definitions
affect the substance of this Subsection 9.2; and (viii) consent to the
assignment, delegation or other transfer by any Loan Party or its Subsidiaries
of any of its rights and obligations under any Loan Document; provided, further,
that no amendment, modification, termination or waiver affecting the rights or
duties of Administrative Agent under any Loan Document shall in any event be
effective, unless in writing and signed by Administrative Agent, in addition to
Lenders required hereinabove to take such action. Each amendment, modification,
termination or waiver shall be effective only in the specific instance and for
the specific purpose for which it was given. No amendment, modification,
termination or waiver of any provision of any Note shall be effective without
the written concurrence of the holder of that Note. No notice to or demand on
Borrower in any case shall entitle Borrower to any other or further notice or
demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Subsection 9.2
shall be binding upon each holder of the Notes at the time outstanding, each
future holder of the Notes, and, if signed by Borrower, on Loan Parties.
9.3 Notices. Any required notice or other communication shall be
in writing addressed to the respective party as set forth below and may be
personally delivered, telecopied, sent by overnight courier service or U.S. mail
and shall be deemed to have been given: (i) if delivered in person, when
delivered; (ii) if delivered by telecopy, on the date of transmission if
transmitted on a Business Day before 2:00 p.m. (Denver time) and otherwise on
the Business Day next succeeding the date of transmission; (c) if delivered by
overnight courier, two (2) days after delivery to the courier properly
addressed; or (d) if delivered by U.S. mail, four (4) Business Days after
deposit with postage prepaid and properly addressed.
Notices shall be addressed as follows:
If to Borrower: D & E Communications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇, Chief Executive
Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Administrative
Agent or a Lender: To the address set forth on the signature
page hereto or in the applicable Lender
Addition Agreement.
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of Administrative Agent or any Lender to exercise,
nor any partial exercise of, any power, right or privilege hereunder or under
any other Loan Documents shall impair such power, right, or privilege or be
construed to be a waiver of any Default or Event of Default. All rights and
remedies existing hereunder or under any other Loan Document are cumulative to
and not exclusive of any rights or remedies otherwise available.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
9.5 Marshaling; Payments Set Aside. Neither Administrative Agent
nor any Lender shall be under any obligation to marshal any assets in payment of
any or all of the Obligations. To the extent that Loan Parties make payment(s)
or Administrative Agent or any Lender exercises its right of set-off, or
Administrative Agent enforces its Liens and such payment(s) or the proceeds of
such enforcement or set-off is subsequently invalidated, declared to be
fraudulent or preferential, set aside, or required to be repaid by anyone, then
to the extent of such recovery, the Obligations or part thereof originally
intended to be satisfied, and all Liens, rights and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or set-off had not occurred.
9.6 Severability. The invalidity, illegality, or unenforceability
in any jurisdiction of any provision under the Loan Documents shall not affect
or impair the remaining provisions in the Loan Documents.
9.7 Lenders' Obligations Several; Independent Nature of Lenders'
Rights. The obligation of each Lender hereunder is several and not joint and no
Lender shall be responsible for the obligation or commitment of any other Lender
hereunder. In the event that any Lender at any time should fail to make a Loan
as herein provided, the Lenders, or any of them, at their sole option, may make
the Loan that was to have been made by the Lender so failing to make such Loan.
Nothing contained in any Loan Document and no action taken by Administrative
Agent or any Lender pursuant hereto or thereto shall be deemed to constitute
Lenders to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt.
9.8 Headings. Section and Subsection headings are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes or be given substantive effect.
9.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
COLORADO WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE OR
PERMIT APPLICATION OF THE LAWS OF ANY OTHER STATE OR JURISDICTION.
9.10 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns except that no Loan Party may assign its rights or obligations
hereunder without the written consent of all Lenders.
9.11 No Fiduciary Relationship. No provision in the Loan Documents
and no course of dealing between the parties shall be deemed to create any
fiduciary duty owing to Loan Parties by Administrative Agent or any Lender.
9.12 Construction. Administrative Agent, each Lender and Loan
Parties acknowledge that each of them has had the benefit of legal counsel of
its own choice and has been afforded an opportunity to review the Loan Documents
with its legal counsel and that the Loan Documents shall be constructed as if
jointly drafted by Administrative Agent, each Lender and Loan Parties.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
9.13 Confidentiality. Administrative Agent and Lenders agree to
hold any confidential information that they may receive from Loan Parties or any
of their Subsidiaries pursuant to this Agreement in confidence, except for
disclosure: (i) on a confidential basis, as necessary or appropriate, to
directors, officers, employees, agents or legal counsel, independent public
accountants and other professional advisors of Administrative Agent or Lenders;
(ii) to regulatory officials having jurisdiction over Administrative Agent or
Lenders; (iii) as required by Applicable Law or legal process or (iv) in
connection with any legal proceeding between Administrative Agent or Lenders and
Loan Parties (provided that, in the event Administrative Agent or Lenders are so
required to disclose such confidential information pursuant to clauses (iii) or
(iv) of this Subsection 9.13, Administrative Agent or Lenders shall promptly
notify Borrower, so that Loan Parties or any of their Subsidiaries may seek, at
its sole cost and expense, a protective order or other appropriate remedy); and
(v) to another Person in connection with a disposition or proposed disposition
to that Person of all or part of that Lender's interests hereunder or a
participation interest in its Pro Rata Share, provided that such disclosure is
made subject to an appropriate confidentiality agreement on terms substantially
similar to this Subsection 9.13. For purposes of the foregoing, "confidential
information" shall mean all information respecting Loan Parties or any of their
Subsidiaries, other than (A) information previously filed by Loan Parties or any
of their Subsidiaries with any Governmental Authority and available to the
public, (B) information previously published in any public medium from a source
other than, directly or indirectly, Lenders and (C) information obtained by
Administrative Agent or Lenders from a source independent of Loan Parties or
their Subsidiaries.
9.14 Consent to Jurisdiction and Service of Process. (A) EACH LOAN
PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL COURT OR COLORADO STATE COURT IN THE STATE OF COLORADO HAVING
SUBJECT MATTER JURISDICTION OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS. EACH LOAN PARTY HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT, PERSONAL JURISDICTION OF ANY SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ADMINISTRATIVE AGENT
OR ANY LENDER TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION.
(B) EACH LOAN PARTY HEREBY AGREES THAT SERVICE OF THE
SUMMONS AND COMPLAINT AND ALL OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING BY REGISTERED MAIL A COPY
OF SUCH PROCESS TO BORROWER AT THE ADDRESS TO WHICH NOTICES TO BORROWER ARE THEN
TO BE SENT PURSUANT TO SUBSECTION 9.3 AND THAT PERSONAL SERVICE OF PROCESS SHALL
NOT BE REQUIRED. NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT SERVICE OF
PROCESS BY ANY OTHER METHOD PERMITTED BY LAW.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
9.15 Waiver of Jury Trial. EACH LOAN PARTY, ADMINISTRATIVE AGENT AND
EACH LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER
LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION AND ANY LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH LOAN PARTY, ADMINISTRATIVE AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH
HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH LOAN
PARTY, ADMINISTRATIVE AGENT AND EACH LENDER FURTHER WARRANT AND REPRESENT THAT
EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE LOAN DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. EACH LOAN
PARTY, ADMINISTRATIVE AGENT AND EACH LENDER ALSO WAIVE ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF
ADMINISTRATIVE AGENT AND LENDER.
9.16 Survival of Warranties and Certain Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement, the making of the Loans, and the execution and
delivery of the Notes. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of the applicable Loan Party or Parties set
forth in Subsections 1.4 (D), 1.11, 1.14, 9.1, 9.14 and 9.15 shall survive the
payment of the Loans and the termination of this Agreement; provided, however,
that Borrower shall have no payment obligation under Section 1.11 or 1.14 after
termination of this Agreement unless notice of such obligation pursuant to
Section 1.11 or 1.14 was delivered to Borrower prior to termination of this
Agreement.
9.17 Entire Agreement. This Agreement, the Notes and the other Loan
Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, understandings, whether oral or written, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous or subsequent oral agreements or discussions of the
parties hereto.
9.18 Counterparts; Effectiveness. This Agreement and any amendments,
waivers, consents or supplements may be executed in any number of counterparts
and by different parties
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Amended and Restated Credit Agreement/D&E Communications, Inc.
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.
9.19 Guaranty of Obligations by Subsidiary Guarantors.
(A) The Guaranty. In order to induce the Lenders to enter into
this Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by the Subsidiary Guarantors from the extensions of
credit hereunder, each of the Subsidiary Guarantors hereby agrees with the
Administrative Agent and the Lenders as follows: the Subsidiary Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all Obligations of
Borrower to the Administrative Agent and the Lenders. If any or all of the
Obligations of Borrower to the Administrative Agent and the Lenders becomes due
and payable hereunder, each Subsidiary Guarantor unconditionally promises to pay
such indebtedness to the Administrative Agent and the Lenders, on order, or
demand, together with any and all reasonable expenses which may be incurred by
the Administrative Agent or the Lenders in collecting any of the Obligations.
Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents, to the extent the obligations of a Subsidiary
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of each
such Subsidiary Guarantor hereunder shall be limited to the maximum amount that
is permissible under Applicable Law (whether federal or state and including,
without limitation, the Bankruptcy Code).
Each Subsidiary Guarantor's maximum Obligations hereunder (the "Maximum
Guarantor Liability") in any case or proceeding referred to below (but only in
such a case or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or against
such Subsidiary Guarantor under the Bankruptcy Code on or within one
year from the date on which any of the Obligations are incurred, the
maximum amount that would not otherwise cause the Obligations of such
Subsidiary Guarantor under this Subsection 9.19 (or any other
obligations of such Subsidiary Guarantor to Administrative Agent,
Lenders and any other Person holding any of the Obligations) to be
avoidable or unenforceable against such Subsidiary Guarantor under (A)
Section 548 of the Bankruptcy Code or (B) any state fraudulent transfer
or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against
such Subsidiary Guarantor under the Bankruptcy Code subsequent to one
year from the date on which any of the Obligations of such Subsidiary
Guarantor are incurred, the maximum amount that would not otherwise
cause the Obligations of such Subsidiary Guarantor under this
Subsection 9.19 (or any other obligations of such Subsidiary Guarantor
to Administrative Agent, Lenders and
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any other Person holding any of the Obligations) to be avoidable or
unenforceable against such Subsidiary Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(iii) in a case or proceeding commenced by or against
such Subsidiary Guarantor under any law, statute or regulation other
than the Bankruptcy Code relating to dissolution, liquidation,
conservatorship, bankruptcy, moratorium, readjustment of debt,
compromise, rearrangement, receivership, insolvency, reorganization or
similar debtor relief from time to time in effect affecting the rights
of creditors generally (collectively, "Other Debtor Relief Law"), the
maximum amount that would not otherwise cause the Obligations of such
Subsidiary Guarantor under this Subsection 9.19 (or any other
obligations of such Subsidiary Guarantor to Administrative Agent,
Lenders and any other Person holding any of the Obligations) to be
avoidable or unenforceable against such Subsidiary Guarantor under such
Other Debtor Relief Law, including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding. (The substantive state or federal laws
under which the possible avoidance or unenforceability of the
Obligations of such Subsidiary Guarantor under this Subsection 9.19 (or
any other obligations of Subsidiary Guarantor to Administrative Agent,
Lenders and any other Person holding any of the Obligations) shall be
determined in any such case or proceeding shall hereinafter be referred
to as the "Avoidance Provisions").
To the extent set forth above, but only to the extent that the
Obligations of such Subsidiary Guarantor under this Subsection 9.19, or the
transfers made by such Subsidiary Guarantor under the Security Documents to
which it is a party, would otherwise be subject to avoidance under any Avoidance
Provisions if such Subsidiary Guarantor is not deemed to have received valuable
consideration, fair value, fair consideration or reasonably equivalent value for
such transfers or obligations, or if such transfers or Obligations of such
Subsidiary Guarantor under this Subsection 9.19 would render such Subsidiary
Guarantor insolvent, or leave such Subsidiary Guarantor with an unreasonably
small capital or unreasonably small assets to conduct its business, or cause
such Subsidiary Guarantor to have incurred debts (or to have intended to have
incurred debts) beyond its ability to pay such debts as they mature, in each
case as of the time any of the Obligations of such Subsidiary Guarantor are
deemed to have been incurred and transfers made under such Avoidance Provisions,
then the Obligations shall be reduced to that amount which, after giving effect
thereto, would not cause the Obligations of such Subsidiary Guarantor under this
Subsection 9.19 (or any other obligations of such Subsidiary Guarantor to
Administrative Agent, Lenders or any other Person holding any of the
Obligations), as so reduced, to be subject to avoidance under such Avoidance
Provisions. This paragraph is intended solely to preserve the rights hereunder
of Administrative Agent, Lenders and any other Person holding any of the
Obligations to the maximum extent that would not cause the Obligations of such
Subsidiary Guarantor under this Subsection 9.19 to be subject to avoidance under
any Avoidance Provisions, and neither such Subsidiary Guarantor nor any other
Person shall have any right, defense, offset, or claim under this paragraph as
against Administrative Agent, Lenders or any other Person holding any of the
Obligations that would not otherwise be available to such Person under the
Avoidance Provisions.
Each Subsidiary Guarantor agrees that the Obligations of such
Subsidiary Guarantor under
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this Subsection 9.19 may at any time and from time to time exceed the Maximum
Guarantor Liability, without impairing the guaranty or any provision contained
herein or affecting the rights and remedies of Lenders and Administrative Agent
hereunder.
(B) Bankruptcy. Additionally, each of the Subsidiary
Guarantors unconditionally and irrevocably guarantees jointly and severally the
payment of any and all indebtedness of Borrower to the Lenders whether or not
due or payable by Borrower upon the occurrence of any of the events specified in
Subsection 6.1(F) or (G) or , and unconditionally promises to pay such
Obligations to the Administrative Agent for the account of the Lenders, or
order, on demand, in lawful money of the United States. Each of the Subsidiary
Guarantors further agrees that to the extent that Borrower or a Subsidiary
Guarantor shall make a payment or a transfer of an interest in any property to
the Administrative Agent or any Lender, which payment or transfer or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
or otherwise is avoided, and/or required to be repaid to Borrower or a
Subsidiary Guarantor, the estate of Borrower or a Subsidiary Guarantor, a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such avoidance or
repayment, the obligation or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment had not been
made.
(C) Nature of Liability. The liability of each Subsidiary
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the indebtedness of Borrower whether executed by any such Subsidiary
Guarantor, any other guarantor or by any other party, and no Guarantor's
liability hereunder shall be affected or impaired by (a) any direction as to
application of payment by Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the indebtedness of Borrower, or (c) any payment on or
reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by Borrower, or (e) any
payment made to the Administrative Agent or the Lenders on the indebtedness
which the Administrative Agent or such Lenders repay Borrower pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each of the Subsidiary Guarantors waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding.
(D) Independent Obligation. The obligations of each Subsidiary
Guarantor hereunder are independent of the obligations of any other guarantor or
Borrower, and a separate action or actions may be brought and prosecuted against
each Subsidiary Guarantor whether or not action is brought against any other
guarantor or Borrower and whether or not any other Subsidiary Guarantor or
Borrower is joined in any such action or actions.
(E) Authorization. Each of the Subsidiary Guarantors
authorizes the Administrative Agent and each Lender without notice or demand
(except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to (a)
change the terms of the indebtedness or any part thereof, with the consent of
Borrower, (b) take and hold security from any other guarantor or any other party
for the payment of this guaranty or the indebtedness and exchange, enforce waive
and release any such security, and apply such security and direct the order or
manner of sale thereof as the Administrative Agent and
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the Lenders in their discretion may determine and (c) release or substitute any
one or more endorsers, guarantors, Borrower or other obligors.
(F) Reliance. It is not necessary for the Administrative Agent
or the Lenders to inquire into the capacity or powers of Borrower or any
Subsidiary Guarantor or the officers, directors, members, partners or agents
acting or purporting to act on its behalf, and any indebtedness made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
(G) Waiver.
(1) Each of the Subsidiary Guarantors waives any
right (except as shall be required by applicable statute and cannot be waived)
to require the Administrative Agent or any Lender to (i) proceed against
Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from Borrower, any other guarantor or any other party,
or (iii) pursue any other remedy in the Administrative Agent's or any Lender's
power whatsoever. Each of the Subsidiary Guarantors waives any defense based on
or arising out of any defense of Borrower, any other guarantor or any other
party other than payment in full of the indebtedness, including, without
limitation, any defense based on or arising out of the disability of Borrower,
any other guarantor or any other party, or the unenforceability of the
indebtedness or any part thereof from any cause, or the cessation from any cause
of the liability of Borrower other than payment in full of the indebtedness. The
Administrative Agent or any of the Lenders may, at their election, foreclose on
any security held by the Administrative Agent or a Lender by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and any
Lender may have against Borrower or any other party, or any security, without
affecting or impairing in any way the liability of any Subsidiary Guarantor
hereunder except to the extent the indebtedness has been paid. Each of the
Subsidiary Guarantors waives any defense arising out of any such election by the
Administrative Agent and each of the Lenders, even though such election operates
to impair or extinguish any right of reimbursement or subrogation or other right
or remedy of the Subsidiary Guarantors against Borrower or any other party or
any security.
(2) Each of the Subsidiary Guarantors waives all
presentments, demands for performance, protests and notices, including, without
limitation, notices of nonperformance, notice of protest, notices of dishonor,
notices of acceptance of this guaranty, and notices of the existence, creation
or incurring of new or additional indebtedness. Each Subsidiary Guarantor
assumes all responsibility for being and keeping itself informed of Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the indebtedness and the nature, scope and extent of the
risks which such Subsidiary Guarantor assumes and incurs hereunder, and agrees
that neither the Administrative Agent nor any Lender shall have any duty to
advise such Subsidiary Guarantor of information known to it regarding such
circumstances or risks.
(3) Each of the Subsidiary Guarantors hereby agrees
it will not exercise, and irrevocably waives, any rights of subrogation which it
may at any time otherwise have as a result of this guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the
claims of the Lenders against Borrower or any other guarantor of the
indebtedness of
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Borrower owing to the Lenders (collectively, the "Other Parties") and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from any Other Party which it may at any time otherwise have as a
result of this guaranty. Each of the Subsidiary Guarantors hereby further agrees
not to exercise any right to enforce any other remedy which the Administrative
Agent and the Lenders now have or may hereafter have against any Other Party,
any endorser or any other guarantor of all or any part of the indebtedness of
Borrower and any benefit of, and any right to participate in, any security or
collateral given to or for the benefit of the Lenders to secure payment of the
indebtedness of Borrower.
(H) Limitation on Enforcement. The Lenders agree that this
guaranty may be enforced only by the action of the Administrative Agent acting
upon the instructions of the Requisite Lenders and that no Lender shall have any
right individually to seek to enforce or to enforce this guaranty, it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent for the benefit of the Lenders under the terms of this
Agreement. The Lenders further agree that this guaranty may not be enforced
against any natural person who is a director, officer, employee or stockholder
of the Subsidiary Guarantors.
(I) Confirmation of Payment. The Administrative Agent and the
Lenders will, upon request after payment of the indebtedness and obligations
which are the subject of this guaranty and termination of the Commitments,
confirm to Borrower, the Subsidiary Guarantors or any other Person that the such
indebtedness and obligations have been paid and the Commitments relating thereto
terminated, subject to the provisions of Subsection 9.19(B).
9.20 Borrower as Agent for Loan Parties. The Loan Parties hereby
irrevocably appoint and authorize Borrower (i) to provide the Administrative
Agent with all notices and instructions under this Agreement and (ii) to take
such action on behalf of the Loan Parties as Borrower deems appropriate on its
behalf and to exercise such other powers as are reasonably incidental thereto to
carry out the purposes of this Agreement.
SECTION 10
DEFINITIONS
10.1 Certain Defined Terms. The terms defined below are used in this
Agreement as so defined. Terms defined in the preamble and recitals to this
Agreement are used in this Agreement as so defined.
"Adjustment Date" means each date which is the fifth Business Day after
the receipt by Administrative Agent of (i) each Compliance Certificate delivered
by Borrower pursuant to Subsection 4.6(C) and (ii) in the case a decrease in an
applicable margin is warranted, a written notice from Borrower to decrease such
margin.
"Administrative Agent" means CoBank in its capacity as administrative
agent for Lenders under this Agreement and each of the other Loan Documents and
any successor in such capacity appointed pursuant to Section 8.2.
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"Affiliate" means with respect to any Loan Party any Person: (i)
directly or indirectly controlling, controlled by, or under common control with,
such Loan Party or any of its Subsidiaries; (ii) directly or indirectly owning
or holding ten percent (10%) or more of any equity interest in such Loan Party
or any of its Subsidiaries; or (iii) five percent (5%) or more of whose voting
stock or other equity interest is directly or indirectly owned or held by such
Loan Party or any of its Subsidiaries. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" means this Amended and Restated Credit Agreement (including
all schedules and exhibits hereto), as amended and supplemented from time to
time as permitted herein.
"Annual Operating Cash Flow" means, as of any date, Operating Cash Flow
for the four (4) most recently completed fiscal quarters.
"Applicable Commitment Fee Percentage" means, from time to time, a per
annum percentage equal to 0.750% per annum.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including the Licenses, the
Communications Act and all Environmental Laws, and all orders, decisions,
judgments and decrees of all courts and arbitrators in proceedings or actions to
which the Person in question is a party or by which it is bound.
"Asset Disposition" means the disposition, whether by sale, lease,
transfer, loss, damage, destruction, condemnation or otherwise, by any Loan
Party or any of its Subsidiaries, of any of the following: (i) any of the
capital stock or the ownership interests of any of its Subsidiaries (other than
to another Subsidiary) or (ii) any or all of its assets, other than bona fide
sales of inventory to customers for fair value in the ordinary course of
business, dispositions of obsolete equipment not used or useful in the business
of such Loan Party and sales of Cash Equivalents and other investments permitted
under Section 3.3(C) and set forth on Schedule 3.3 hereto for fair value; but
shall not include dispositions of assets for which all of the following
conditions are met: (a) the aggregate market value of assets sold in any one
transaction or series of related transaction for any calendar year does not
exceed $1,000,000 for Loan Parties and their Subsidiaries; (b) the consideration
received is at least equal to the fair market value of such assets; (c) the sole
consideration received is cash; (d) after giving effect to the sale or other
disposition of such assets, Borrower, on a consolidated basis with its
Subsidiaries, are in compliance on a pro forma basis with the covenants set
forth in Section 4 recomputed for the most recently ended month for which
information is available; and (e) no Default or Event of Default then exists or
shall result from such sale or other disposition.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as amended from time to time or any applicable bankruptcy,
insolvency or other similar federal or state law now or hereafter in effect and
all rules and regulations promulgated thereunder.
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"Base Rate" means a variable rate of interest per annum equal, on any
day, to the higher of (i) the Prime Rate or (ii) the sum of Federal Funds Rate
plus 0.50%.
"Base Rate Loans" means, at any time, the aggregate amount of all Loans
then bearing interest at the rate determined by reference to the Base Rate.
"Base Rate Margin" means the applicable percent per annum determined in
accordance with Subsection 1.2(B).
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of Colorado, or is a day on which
banking institutions located in such state or in Pennsylvania are closed or
which the Federal Reserve Banks are closed, and (ii) with respect to all
notices, determinations, findings and payments in connection with LIBOR Loans,
any day that is a Business Day described in clause (i) above and that is also a
day for trading by and between banks in U.S. dollar deposits in the applicable
interbank LIBOR market.
"Calculation Period" means each period commencing on each Adjustment
Date and ending on the day preceding each subsequent Adjustment Date.
"Cash Equivalents" means: (i) marketable direct obligations issued or
unconditionally guarantied by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year from the date of acquisition thereof;
(ii) commercial paper maturing no more than 270 days year from the date issued
and, at the time of acquisition, having a rating of at least A-1 from Standard &
Poor's Rating Service or at least P-1 from ▇▇▇▇▇'▇ Investors Service, Inc.;
(iii) certificates of deposit or bankers' acceptances maturing within one (1)
year from the date of issuance thereof issued by, or overnight reverse
repurchase agreements from, any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia having
combined capital and surplus of not less than $100,000,000 and whose long-term
unsecured debt obligations (or the long-term unsecured debt obligations of the
bank holding company owning all of the capital stock of such bank or trust
company) shall have been given a rating of "A" or better by Standard & Poor's
Rating Service or at ▇▇▇▇▇ "▇▇" from ▇▇▇▇▇'▇ Investors Service, Inc; and (iv)
time deposits maturing no more than thirty (30) days from the date of creation
thereof with commercial banks having membership in the Federal Deposit Insurance
Corporation in amounts at any one such institution not exceeding the lesser of
$100,000 or the maximum amount of insurance applicable to the aggregate amount
of Borrower's deposits at such institution.
"Closing Date" means the date of this Agreement.
"Collateral" means, collectively: (i) all "Collateral" as defined in
the Security Documents; and (ii) any property or interest provided in addition
to or in substitution for any of the foregoing.
"Communications Act" shall mean the Communications Act of 1934, as
amended, and any similar or successor federal statute, and the rules and
regulations of the FCC thereunder, all as the same may be in effect from time to
time.
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"Communications System" means a computer network integration system,
land-line telephone system, a competitive local exchange carrier system, a cable
television system (both land-line and wireless), an internet service provider
system, cellular mobile radio telephone system, a PCS System or other
telecommunications-related system and other businesses reasonably related
thereto, and shall include a microwave system or a paging system operated in
connection with (and in the same general service area as) any of the foregoing
systems.
"Contingent Obligation," as applied to any Person, means any direct or
indirect liability of that Person: (i) with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent
of the Person incurring such liability, or the primary effect thereof, is to
provide assurance to the obligee of such liability that such liability will be
paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such liability will be protected (in whole or in
part) against loss with respect thereto; (ii) with respect to any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; or (iii) under any foreign
exchange contract, currency swap agreement, interest rate swap agreement or
other similar agreement or arrangement designed to alter the risks of that
Person arising from fluctuations in currency values or interest rates.
Contingent Obligations shall also include (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of nonperformance by any other party or
parties to an agreement, and (c) any liability of such Person for the
obligations of another through any agreement to purchase, repurchase or
otherwise acquire such obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet item or level of
income of another. The amount of any Contingent Obligation shall be equal to the
amount of the obligation so guaranteed or otherwise supported or, if not a fixed
and determined amount, the maximum amount so guaranteed.
"Debt Service Coverage Ratio" means, as of the date of calculation, the
ratio derived by dividing (i) Annual Operating Cash Flow minus cash income taxes
by (ii) the sum of: (a) all principal payments scheduled to be made on
Indebtedness (or scheduled reductions in commitments on lines of credit to the
extent such reductions would cause the repayment of principal amounts then
outstanding under such lines) plus (b) cash interest expense, in each case as
determined for the then most recently completed four (4) fiscal quarters.
"Default" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default if that condition or event
were not cured or removed within any applicable grace or cure period.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to the pollution, public health, safety
or protection of the environment, including those relating to releases,
discharges, emissions, spills, leaching, or disposals of hazardous substances
(including petroleum, crude oil or any fraction or derivative thereof, or other
hydrocarbons) to air, water, land or ground water, to the
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withdrawal or use of ground water, to the use, handling or disposal of
polychlorinated biphenyls, asbestos or urea formaldehyde, to the treatment,
storage, disposal or management of hazardous substances (including petroleum,
crude oil or any fraction thereof, or other hydrocarbons), pollutants or
contaminants, to exposure to toxic, hazardous or other controlled, prohibited,
or regulated substances, including, without limitation, any such provisions
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Section 9601 et seq.) and the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et
seq.).
"Equity" means the difference between total assets less total
liabilities (determined in accordance with GAAP consistently applied).
"Excess Cash Flow" means, for any fiscal quarter, (i) Operating Cash
Flow for such fiscal quarter minus (ii) the sum of (a) Fixed Charges, (b) net
changes in working capital for such quarter, (c) dividends or distributions
permitted under Subsection 3.5(A) and (d) voluntary reductions of the Revolving
Loan Commitment under Subsection 1.6(C); provided, however, corresponding
voluntary prepayments of Revolving Loans are made as described in Subsection
1.7(A).
"Facility" or "Facilities" means, individually, each of the Revolving
Loan Facility, the Term Loan A Facility and the Term Loan B Facility, and
collectively, the Revolving Loan Facility, the Term Loan A Facility and the Term
Loan B Facility.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, for any day, the rate of interest per
annum (rounded upward, if necessary, to the nearest whole multiple of 1/100 of
1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day and (ii) if no such rate is so
published on the next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Administrative Agent on such day on such
transactions as determined by Administrative Agent.
"Fixed Charge Coverage Ratio" means the ratio derived by dividing (i)
Annual Operating Cash Flow by (ii) Fixed Charges calculated for the then most
recently completed four (4) fiscal quarters.
"Fixed Charges" means the sum of (i) scheduled principal payments, (ii)
interest expense, (iii) income taxes, and (iv) capital expenditures.
"GAAP" means generally accepted accounting principles as set forth in
statements from Auditing Standards No. 69, as amended, entitled "The Meaning of
"Present Fairly in Conformance with Generally Accepted Accounting Principles in
the Independent Auditors Reports" issued by the Auditing Standards Board of the
American Institute of Certified Public Accountants and statements
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and pronouncements of the Financial Accounting Standards Board that are
applicable to the circumstances as of the date of determination.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including all Licenses.
"Governmental Authority" means any nation, province, or state or any
political subdivision of any of the foregoing, and any government or any Person
exercising executive, legislative, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing, including the FCC and any PUC.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of any Loan Party, and any confirming letter
executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified.
"Indebtedness," as applied to any Person, means, without duplication:
(i) all obligations for borrowed money; (ii) obligations representing the
deferred purchase price of property or services other than accounts payable
arising in connection with the purchase of goods or services on terms customary
in the trade, excluding FSAB 101 obligations and long term incentive plan
obligations; (iii) obligations, whether or not assumed, secured by liens or a
pledge of or an encumbrance on the proceeds or production from property now or
hereafter owned or acquired; (iv) obligations which are evidenced by notes,
acceptances or other instruments; (v) leases of real or personal property which
are required to be capitalized under GAAP or which are treated as operating
leases under regulations applicable to them but which otherwise would be
required to be capitalized under GAAP; (vi) fixed payment obligations under
guarantees that are due and remain unpaid; and (vii) net termination obligations
of such Person under Hedging Agreements, calculated as of any date as if such
agreement or arrangement were terminated on such date.
"Indebtedness to Total Capitalization Ratio" means the ratio derived by
dividing Indebtedness by Total Capitalization.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement, dated as of even date herewith, among Administrative Agent, CoBank
and certain of the Loan Parties, as amended, restated or otherwise modified.
"Investment" means (i) any direct or indirect purchase or other
acquisition by any Loan Party or any of its Subsidiaries of any beneficial
interest in, including stock, partnership interest or other equity securities
of, any other Person, other than trade associations and similar organizations
purchased or acquired in the ordinary course of business; and (ii) any direct or
indirect loan, advance, guarantee, assumption of liability or other obligation
of liability, or capital contribution by any Loan Party or any of their
Subsidiaries to any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to
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Amended and Restated Credit Agreement/D&E Communications, Inc.
that other Person in the ordinary course of business. The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as amended from time to
time, and all rules and regulations promulgated thereunder.
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit 10.1(D) and delivered by an additional Subsidiary of any
Borrower in accordance with the provisions of Section 2.8.
"Lender" or "Lenders" means one or more of the banks identified as
Lenders in the first paragraph of this Agreement and their successors and
permitted assigns pursuant to Subsection 8.1.
"Lender Addition Agreement" means an agreement among Administrative
Agent, a Lender and such Lender's assignee regarding their respective rights and
obligations with respect to assignments of the Loans, the Loan Commitments and
other interests under this Agreement and the other Loan Documents, substantially
in the form of Exhibit 10.1(E).
"LIBOR" means for each applicable Interest Period, a fixed annual rate
equal to: (a) the rate of interest determined by Administrative Agent at which
deposits in U.S. dollars for the relevant Interest Period are offered based on
information presented by the Telerate Service as quoted by the British Bankers
Association as of 11:00 a.m. (London time) on the day which is two (2) Business
Days prior to the first day of such Interest Period, provided, that in the event
British Bankers Association ceases to provide such quotations (as determined by
Administrative Agent), then Administrative Agent will notify Borrower, and
Borrower will agree upon a substitute basis for obtaining such quotations,
divided by (b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day which is two (2) Business Days prior to the
beginning of such Interest Period for Eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of such Board) which are
required to be maintained by a member bank of the Federal Reserve System
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect thereto,
as now and from time to time in effect); such rate to be rounded upward to the
next whole multiple of one-hundredth of one percent (0.01%).
"LIBOR Loans" means Loans accruing interest at rates determined by
reference to the LIBOR.
"LIBOR Margin" means the applicable percent per annum determined in
accordance with Subsection 1.2(B).
"Licenses" shall mean any land-line telephone, cellular telephone,
microwave, personal communications or other telecommunications or similar
license, authorization, waiver, certificate of compliance, franchise, approval
or permit, whether for the acquisition, construction or operation of
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Amended and Restated Credit Agreement/D&E Communications, Inc.
any Communications System, granted or issued by the FCC or any applicable PUC
and held by any Borrowers or any of its Subsidiaries, all of which are listed as
of the Closing Date on Schedule 5.13(A).
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind, whether voluntary or involuntary (including any
conditional sale or other title retention agreement and any lease in the nature
thereof), and any agreement to give any lien, mortgage, pledge, security
interest, charge or encumbrance.
"Loan" or "Loans" means, individually, an advance under any of the
Revolving Loan Commitment, the Term Loan A Commitment or the Term Loan B
Commitment, and collectively, advances under the Revolving Loan Commitment, the
Term Loan A Commitment and the Term Loan B Commitment.
"Loan Commitment" and "Loan Commitments" mean, individually, each of
the Revolving Loan Commitment, the Term Loan A Commitment and the Term Loan B
Commitment, and collectively, the Revolving Loan A Commitment and the Term Loan
B Commitment, as each such commitment is reduced from time to time as provided
in this Agreement.
"Loan Documents" means this Agreement, the Notes, the Security
Documents and all other instruments, documents and agreements executed and
delivered concurrently herewith or at any time hereafter to or for the benefit
of Administrative Agent or any Lender in connection with the Loans and other
transactions contemplated by this Agreement, all as amended, supplemented or
modified from time to time.
"Long-Term Fixed Rate" means a quoted fixed rate of interest per annum
as determined by CoBank in its sole discretion.
"Long-Term Fixed Rate Loan" means a Term Loan accruing interest at a
rate determined by reference to the Long-Term Fixed Rate.
"Management Equity Interests" means all options, warrants and other
rights to acquire capital stock or other ownership interests in Borrower, and
all capital stock and other ownership interests in Borrower issued on account
thereof or upon the exercise thereof, that were issued and are held by any
member of the board or management of any Loan Party or an employee of any Loan
Party pursuant to any equity subscription agreement, dividend reinvestment plan
or stock option agreement in effect on the date hereof.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets or condition (financial or otherwise)
of Borrower and its Subsidiaries, on a consolidated basis, or (ii) the
impairment of the ability of Borrower and its Subsidiaries, on a consolidated
basis, to perform their obligations under the Loan Documents or of
Administrative Agent or any Lender to enforce any Loan Document or collect any
of the Obligations. In determining whether any individual event could reasonably
be expected to have a Material Adverse Effect, notwithstanding that such event
does not of itself have such effect, a Material Adverse Effect
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Amended and Restated Credit Agreement/D&E Communications, Inc.
shall be deemed to have occurred if the cumulative effect of such event and all
other then existing events could reasonably be expected to have a Material
Adverse Effect.
"Material Contracts" means (a) any contract or any other agreement,
written or oral, of any Loan Party or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $500,000 per annum
and (b) any other contract or agreement, written or oral, of any Loan Party or
any of its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect; provided, however, that any contract
or agreement which is terminable by a party other than a Loan Party or any of
its Subsidiaries without cause upon notice of ninety-five (95) days or less
shall not be considered a Material Contract.
"Mortgages" means, collectively, those mortgages, in form and content
approved by Administrative Agent, executed by certain Loan Parties in favor of
Administrative Agent, for the benefit of itself and Lenders, encumbering all
interests now owned or hereafter owned and leased by such Loan Parties in all
real property of such Loan Parties with a value in excess of $3,000,000, as
amended and supplemented from time to time.
"Net Proceeds" means cash proceeds received by any Borrowers or any of
its Subsidiaries from any Asset Disposition (including insurance proceeds,
awards of condemnation, and payments under notes or other debt securities
received in connection with any Asset Disposition), net of (i) the costs of such
sale, lease, transfer or other disposition (including taxes attributable to such
sale, lease or transfer) and (ii) amounts applied to repayment of Indebtedness
(other than the Obligations) secured by a Lien on the asset or property
disposed.
"Net Worth" means the difference between total assets and total
liabilities (not including preferred stock).
"Note" or "Notes" means one or more of the Revolving Notes and the Term
Notes.
"Obligations" means (i) all obligations, liabilities and indebtedness
of every nature of Loan Parties from time to time owed to Administrative Agent
or any Lender under the Loan Documents including the principal amount of all
debts, claims and indebtedness, accrued and unpaid interest and all fees, costs
and expenses thereunder, whether primary, secondary, direct, contingent, fixed
or otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable whether before or after the filing of a proceeding under the Bankruptcy
Code by or against any Loan Party or any of its Subsidiaries and (ii) all net
liabilities and obligations, wherever arising, owing from Borrower to any Lender
or any Affiliate of any Lender, under any Hedging Agreement entered into by
Borrower with a Lender or an Affiliate of a Lender and relating to fixing or
limiting interest rate obligations of Borrower under this Agreement.
"Operating Cash Flow" means the sum of (i) net income or deficit, as
the case may be (excluding extraordinary gains, extraordinary losses, the
non-cash write up or write down of any asset), (ii) total interest expense
(including non-cash interest), (iii) depreciation and amortization expense and
other similar non-cash expenses, (iv) taxes, federal or state, imposed upon
income and (v) non-cash employee and director compensation. For any period of
calculation, Operating Cash Flow shall be adjusted to give effect to any
acquisition, sale or other disposition of any operation or
66
business (or any portion thereof) during the period of calculation as if such
acquisition, sale or other disposition occurred on the first day of such period
of calculation.
"PCS System" shall mean any broadband personal communications services
telecommunications system operating on radio spectrum at 1900 MHZ or a License
to operate such a system.
"Permitted Encumbrances" means the following:
(1) Liens for taxes, assessments or other governmental charges
not yet due and payable or as to which the period of grace (not to exceed thirty
(30) days), if any, related thereto has not expired unless the same are being
diligently contested in good faith and by appropriate proceedings and then only
if and to the extent that adequate reserves therefor are maintained in
accordance with GAAP;
(2) statutory Liens of landlords, carriers, warehousemen,
mechanics, materialmen and other similar liens imposed by law, which are
incurred in the ordinary course of business for sums not more than thirty (30)
days delinquent or which are being contested in good faith;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security (other than any Lien imposed by the Employee
Retirement Income Security Act of 1974 or any rule or regulation promulgated
thereunder), or to secure the performance of tenders, statutory obligations,
surety, stay, customs and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(4) deposits, in an aggregate amount not to exceed $500,000,
made in the ordinary course of business to secure liability to insurance
carriers;
(5) any attachment or judgment Lien not constituting an Event
of Default under Subsection 6.1(I);
(6) easements, rights of way, restrictions and other similar
charges or encumbrances which in the aggregate are not substantial in amount and
which do not, in any case, materially detract from the value of such property or
impair the use thereof in the ordinary conduct of the business of Loan Parties
or their Subsidiaries;
(7) Liens in favor of Administrative Agent, for the benefit of
Administrative Agent and Lenders;
(8) Liens in favor of CoBank as set forth in Subsection 2.7 or
in connection with the Indebtedness permitted under Subsection 3.1(F) hereof.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
(9) Liens securing purchase money security agreements and
capital leases permitted under Section 3.1(D), provided that such Liens are
created substantially simultaneously with the acquisition or lease of the
related asset, do not encumber any property other than the items purchased with
the proceeds of such Indebtedness or leased pursuant to such Indebtedness and
such Liens do not secure any amounts other than amounts necessary to purchase or
lease such items;
(10) Liens securing subordinated Indebtedness to the extent
permitted under Section 3.1(E), provided that such Liens are expressly
subordinate to any Lien in favor of Administrative Agent, for the benefit of
Administrative Agent and Lenders, granted hereunder on terms satisfactory to
Requisite Lenders in their sole discretion;
(11) Liens in connection with the guarantee of indebtedness of
PenTeleData Limited Partnership I to CoreStates Bank, N.A. permitted by
Subsection 3.4(F); and
(12) the claims of customers of Borrowers on deposits made by
such customers in connection with the purchase of goods or services from
Borrowers.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, limited liability partnerships,
general partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof and their respective permitted successors and
assigns (or in the case of a governmental person, the successor functional
equivalent of such Person).
"Prime Rate" means, a variable rate of interest per annum equal, on any
day, to the rate of interest published on such day in the Eastern Edition of The
Wall Street Journal as the average prime lending rate for 75% of the United
States' 30 largest commercial banks, or if the Eastern Edition of The Wall
Street Journal or such rate is not published on such day, such rate as last
published in the Eastern Edition of The Wall Street Journal. In the event the
Eastern Edition of The Wall Street Journal ceases to publish such rate or an
equivalent, the term "Prime Rate" shall be determined by reference to such other
regularly published prime rate based upon any averaging of such 30 banks, as
Administrative Agent shall determine, or if no such published average prime rate
is available, then the term "Prime Rate" shall mean a variable rate of interest
per annum as determined by Administrative Agent equal to the highest of the
"prime rate," "reference rate," "base rate" or other similar rate announced
from time to time by any of Bankers Trust Company and Citibank as selected by
Administrative Agent (with the understanding that any such rate may merely be a
reference rate and may not necessarily represent the lowest or best rate
actually charged to any customer by such bank).
"Pro Rata Share" means (i) with respect to matters relating to a
particular Loan Commitment, the percentage obtained by dividing (a) the
commitment of a Lender under such Loan Commitment by (b) all commitments of all
Lenders under such Loan Commitment and (ii) with respect to all other matters,
including, without limitation, for purposes of the definition of "Requisite
Lenders," the percentage obtained by dividing (a) the aggregate Total Lender
Loan Commitments of a Lender by (b) the aggregate Total Lender Loan Commitments
of all Lenders, in either case as such percentage may be adjusted by assignments
permitted pursuant to Subsection 8.1; provided, however, if any
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Loan Commitment is terminated pursuant to the terms hereof, in lieu of
commitments, the calculation of clauses (i) and (ii) above, as they relate to or
include such Loan Commitment, shall be based on the aggregate amount of such
Lender's outstanding Loans related to such Loan Commitment and the aggregate
amount of all outstanding Loans related to such Loan Commitment.
"Projections" means, for Borrower and its Subsidiaries, forecasted; (i)
balance sheets; (ii) profit and loss statements; and (iii) cash flow statements,
all prepared on a consistent basis with Borrower's or such Subsidiaries'
historical financial statements, together with appropriate supporting details
and a statement of underlying assumptions. The Projections represent and will
represent as of the date thereof the good faith estimate of Borrower and its
senior management concerning the most probable course of its business.
"PUC" means any state, provincial or other local regulatory agency or
body that exercises jurisdiction over the rates or services or the ownership,
construction or operation of any Communication System or over Persons who own,
construct or operate a Communication System, in each case by reason of the
nature or type of the business subject to regulation and not pursuant to laws
and regulations of general applicability to Persons conducting business in any
such jurisdiction.
"Requisite Lenders" means at least two Lenders (to the extent more than
one Lender holds any of the Loan Commitments) who have in the aggregate Pro Rata
Shares greater than sixty-six and two-thirds percent (66.667%).
"Restricted Junior Payment" means: (i) any dividend or other
distribution, direct or indirect, on account of any equity interest in any Loan
Party or any of its Subsidiaries, including any membership interest and any
shares of any class of stock of any Loan Party or any of its Subsidiaries now or
hereafter outstanding, except a dividend payable solely in shares of a class of
stock or membership interest to the holders of that class; (ii) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any equity interest in any
Loan Party or any of its Subsidiaries, (iii) any payment or prepayment of
interest on, principal of, premium, if any, redemption, conversion, exchange,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any Indebtedness subject to subordination provisions for the benefit of
Administrative Agent and Lenders; and (iv) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire any equity interest in any Loan Party or any of its Subsidiaries.
"Revolving Loan" or "Revolving Loans" means an advance or advances
under the Revolving Loan Commitment.
"Revolving Loan Commitment" means, initially, $75,000,000, as such
amount is reduced from time to time as provided in this Agreement.
"Revolving Loan Expiration Date" means the earlier of (i) the
suspension (subject to reinstatement) of the Lenders' obligations to make Loans
pursuant to Subsection 6.2, (ii) the acceleration of the Obligations pursuant to
Subsection 6.3 or (iii) December 31, 2010.
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Amended and Restated Credit Agreement/D&E Communications, Inc.
"Revolving Loan Facility" means, the revolving loan credit facility
extended to Borrower pursuant to Section 1.1(B).
"Revolving Note" or "Revolving Notes" means one or more of the notes of
Borrower substantially in the form of Exhibit 10.1(B), or any combination
thereof, and any replacements, restatements, renewals or extensions of any such
notes, in whole or in part.
"Security Agreement" means the Pledge and Security Agreement, dated as
of even date herewith, executed by each of the Loan Parties in favor of
Administrative Agent, for the benefit of itself and Lenders, as amended and
supplemented from time to time.
"Security Documents" means, collectively, all instruments, documents
and agreements executed to provide collateral security with respect to the
Obligations, including, without limitation, the Security Agreement, the
Mortgages and all instruments, documents and agreements executed pursuant to the
terms of the foregoing, in such case, as amended and supplemented from time to
time.
"Security Interest" shall mean all Liens in favor of Administrative
Agent, for the benefit of itself and Lenders, created hereunder or under any of
the Security Documents to secure the Obligations.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which more than fifty
percent (50%) of the total voting power of shares of stock (or equivalent
ownership or controlling interest) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Term Loan" or "Term Loans" means an advance or advances under the Term
Loan Commitments.
"Term Loan A" means the advance under the Term Loan A Commitment.
"Term Loan B" means the advance under the Term Loan B Commitment.
"Term Loan Commitments" means the Term Loan A Commitment and the Term
Loan B Commitment.
"Term Loan A Commitment" means, initially, $50,000,000, as such amount
is reduced from time to time as provided in this Agreement.
"Term Loan B Commitment" means, initially, $125,000,000, as such amount
is reduced from time to time as provided in this Agreement.
"Term Loan A Facility" means, the term loan credit facility extended to
Borrower pursuant to Section 1.1(A).
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Amended and Restated Credit Agreement/D&E Communications, Inc.
"Term Loan B Facility" means, the term loan credit facility extended to
Borrower pursuant to Section 1.1(C).
"Term Loan A Maturity Date" means the earlier of (i) the acceleration
of the Obligations pursuant to Section 6.3 or (ii) June 30, 2011.
"Term Loan B Maturity Date" means the earlier of (i) the acceleration
of the Obligations pursuant to Section 6.3 or (ii) December 31, 2010.
"Term Loan A Note" or "Term Loan A Notes" means one or more of the
notes of Borrower substantially in the form of Exhibit 10.1(A), or any
combination thereof, and any replacements, restatements, renewals or extensions
of any such notes, in whole or in part.
"Term Loan B Note" or "Term Loan B Notes" means one or more of the
notes of Borrower substantially in the form of Exhibit 10.1(C), or any
combination thereof, and any replacements, restatements, renewals or extensions
of any such notes, in whole or in part.
"Total Capitalization" means the sum of Indebtedness plus Net Worth.
"Total Lender Loan Commitment" means the aggregate commitments of any
Lender with respect to the Revolving Loan Commitment and the Term Loan
Commitments.
"Total Leverage Ratio" means the ratio derived by dividing Indebtedness
by Annual Operating Cash Flow.
10.2 Other Definitional Provisions. References to "Sections,"
"Subsections," "Exhibits" and "Schedules" shall be to Sections, Subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in Subsection 10.1 may, unless
the context otherwise requires, be used in the singular or the plural depending
on the reference. In this Agreement, "hereof," "herein," "hereto," "hereunder"
and the like mean and refer to this Agreement as a whole and not merely to the
specific section, paragraph or clause in which the respective word appears;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
tangible visible form; the words "including," "includes" and "include" shall be
deemed to be followed by the words "without limitation"; references to
agreements and other contractual instruments shall be deemed to include
subsequent amendments, assignments, and other modifications thereto, but only to
the extent such amendments, assignments and other modifications are not
prohibited by the terms of this Agreement or any other Loan Document; references
to Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; and all references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
[Signatures begin on following page]
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Amended and Restated Credit Agreement/D&E Communications, Inc.
Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
D & E COMMUNICATIONS, INC., as
Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, Chief Financial
-----------------------------------
Officer and Treasurer
-----------------------------------
THE DENVER AND EPHRATA TELEPHONE &
TELEGRAPH COMPANY,
as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
D&E NETWORKS, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, Secretary and
-----------------------------------
Treasurer
---------
D & E WIRELESS, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
D & E SYSTEMS, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
[Signatures continued on following page.]
Amended and Restated Credit Agreement/D&E Communications, Inc.
D & E INVESTMENTS, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
D & E VENTURES, INC., as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Chief Financial Officer, Secretary
-----------------------------------
and Treasurer
-------------
D&E MANAGEMENT SERVICES, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, Secretary and
-----------------------------------
Treasurer
---------
PCS LICENSES, INC., as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, Secretary and
-----------------------------------
Treasurer
---------
CONESTOGA ENTERPRISES, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Secretary and Treasurer
-----------------------------------
[Signatures continued on following page.]
Amended and Restated Credit Agreement/D&E Communications, Inc.
THE CONESTOGA TELEPHONE AND TELEGRAPH COMPANY,
as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
BUFFALO VALLEY TELEPHONE COMPANY, as a
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
CONESTOGA MOBILE SYSTEMS, INC., as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
CONESTOGA WIRELESS COMPANY, as a Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
-----------------------------------
CONESTOGA INVESTMENT CORPORATION, as a
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
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[Signatures continued on following page.]
Amended and Restated Credit Agreement/D&E Communications, Inc.
INFOCORE, INC., as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President, Secretary and
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Treasurer
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TELEBEAMUSA, INC., as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President, Secretary and
-----------------------------------
Treasurer
---------
[Signatures continued on following page.]
Amended and Restated Credit Agreement/D&E Communications, Inc.
Commitment to make Term Loan A: COBANK, ACB, as Administrative Agent
$50,000,000 and a Lender
Pro Rata Share of Term Loan A
Commitment: 100.00000000% By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Commitment to make Term Loan B: Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
$125,000,000 -------------------------
Title: V.P.
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Pro Rata Share of Term Loan B Address: CoBank, ACB
Commitment: 100.0000000% ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Commitment to make Revolving Attention: Communications and Energy
Loans: $75,000,000 Banking Group
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Pro Rata Share of Revolving Loan
Commitment: 100.00000000%
Total Lender Loan Commitment:
$250,000,000
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 100.00000000%