Exhibit 4.6
$500,000,000
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of
July 30, 2001
among
CENTURYTEL, INC.,
THE LENDERS NAMED HEREIN,
and
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
FLEET NATIONAL BANK,
JPMORGAN, A DIVISION OF CHASE SECURITIES INC.,
and
SUNTRUST BANK,
as Co-Documentation Agents,
and
BANC OF AMERICA SECURITIES LLC
and
SALOMON SMITH BARNEY INC.,
as Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS.......................................................1
1.1 Certain Defined Terms......................................1
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1.2 Number and Gender of Words................................14
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1.3 Accounting Principles.....................................14
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SECTION 2 FACILITIES.......................................................14
2.1 Commitments...............................................14
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2.2 Borrowing Procedure.......................................14
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2.3 Conversions...............................................15
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2.4 Fees......................................................16
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2.5 Optional Termination and Reduction of Commitments.........17
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2.6 Loans.....................................................17
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2.7 Notes.....................................................18
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2.8 Interest on Loans.........................................18
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2.9 Interest on Overdue Amounts...............................19
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2.10 Alternate Rate of Interest for Eurodollar Loans...........19
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2.11 Mandatory and Optional Prepayment of Loans................19
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2.12 Reserve Requirements; Change in Circumstances.............20
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2.13 Change in Legality........................................22
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2.14 INDEMNITY.................................................22
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2.15 Pro Rata Treatment........................................24
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2.16 Sharing of Setoffs........................................24
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2.17 Payments..................................................24
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2.18 Calculation of Eurodollar Rate............................26
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2.19 Booking Loans.............................................26
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2.20 Quotation of Rates........................................26
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SECTION 3 REPRESENTATIONS AND WARRANTIES...................................26
3.1 Purpose of Credit Facility................................26
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3.2 Corporate Existence, Good Standing, and Authority.........27
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3.3 Significant Subsidiaries..................................27
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3.4 Financial Statements......................................27
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3.5 Compliance with Laws, Charter, and Agreements.............28
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3.6 Litigation................................................28
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3.7 Taxes.....................................................28
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3.8 Environmental Matters.....................................28
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3.9 Employee Benefit Plans....................................28
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3.10 Properties; Liens.........................................29
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3.12 Transactions with Affiliates..............................29
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3.13 Leases....................................................29
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3.14 Labor Matters.............................................29
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3.15 Insurance.................................................29
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3.16 Solvency..................................................30
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3.17 Business..................................................30
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3.18 General...................................................30
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SECTION 4 CONDITIONS PRECEDENT.............................................30
4.1 Initial Loan..............................................30
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4.2 Each Loan.................................................31
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4.3 Materiality of Conditions.................................31
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4.4 Waiver of Conditions......................................31
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SECTION 5 COVENANTS........................................................32
5.1 Use of Proceeds...........................................32
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5.2 Books and Records.........................................32
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5.3 Items to be Furnished.....................................32
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5.4 Inspection................................................33
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5.5 Taxes.....................................................33
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5.6 Payment of Obligations....................................33
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5.7 Expenses..................................................34
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5.8 Maintenance of Existence, Assets, Business, and Insurance.34
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5.9 Preservation and Protection of Rights.....................34
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5.10 Employee Benefit Plans....................................34
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5.11 Liens.....................................................34
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5.12 Restricted Payments.......................................35
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5.13 Mergers and Consolidations................................35
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5.14 Loans, Advances, and Investments..........................35
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5.15 Transactions with Affiliates..............................36
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5.16 Sale of Assets............................................36
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5.17 Compliance with Laws and Documents........................36
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5.18 New Businesses............................................37
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5.19 Assignment................................................37
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5.20 Fiscal Year and Accounting Methods........................37
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5.21 Holding Company and Investment Company Status.............37
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5.22 Environmental Laws........................................37
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5.23 Environmental Indemnification.............................37
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5.24 Financial Covenants.......................................38
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SECTION 6 DEFAULT..........................................................39
6.1 Payment of Obligation.....................................39
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6.2 Covenants.................................................39
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6.3 Debtor Relief.............................................40
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6.4 Attachment................................................40
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6.5 Payment of Judgments......................................40
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6.6 Default Under Other Agreements............................40
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6.7 Antitrust Proceedings.....................................40
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6.8 Misrepresentation.........................................40
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6.9 Change in Control.........................................41
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6.10 ERISA.....................................................41
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6.11 Validity and Enforceability of Loan Documents.............41
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SECTION 7 RIGHTS AND REMEDIES..............................................42
7.1 Remedies Upon Event of Default............................42
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7.2 Waivers...................................................42
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7.3 Performance by Administrative Agent.......................42
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7.4 Delegation of Duties and Rights...........................43
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7.5 Lenders Not in Control....................................43
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7.6 Waivers by Lenders........................................43
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7.7 Cumulative Rights.........................................43
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7.8 Application of Proceeds...................................43
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7.9 Certain Proceedings.......................................44
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7.10 Setoff....................................................44
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SECTION 8 AGREEMENT AMONG LENDERS..........................................44
8.1 Agents....................................................44
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8.2 Expenses..................................................46
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8.3 Proportionate Absorption of Losses........................46
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8.4 Delegation of Duties; Reliance............................46
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8.5 Limitation of Liability...................................47
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8.6 Default...................................................48
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8.7 Limitation of Liability of Lenders........................48
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8.8 Relationship of Lenders...................................48
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8.9 Foreign Lenders...........................................48
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8.10 Benefits of Agreement.....................................49
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SECTION 9 MISCELLANEOUS....................................................49
9.1 Changes in GAAP...........................................49
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9.2 Money and Interest........................................49
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9.3 Number and Gender of Words................................50
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9.4 Headings..................................................50
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9.5 Exhibits..................................................50
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9.6 Communications............................................50
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9.7 Form and Number of Documents..............................50
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9.8 Exceptions to Covenants...................................50
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9.9 Survival..................................................50
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9.10 Governing Law.............................................51
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9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL.....................51
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9.12 Maximum Interest Rate.....................................51
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9.13 Invalid Provisions........................................52
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9.14 Entire Agreement..........................................52
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9.15 Amendments, Etc...........................................52
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9.16 Waivers...................................................53
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9.17 Taxes.....................................................53
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9.18 Governmental Regulation...................................53
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9.19 Multiple Counterparts.....................................53
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9.20 Successors and Assigns; Participations; Assignments.......53
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9.21 Confidentiality...........................................55
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9.22 Conflicts and Ambiguities.................................55
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9.23 General Indemnification...................................56
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9.24 Investment Representation.................................56
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SCHEDULES
Parties, Addresses, Commitments, Wiring Information Schedule 1
Permitted Liens Schedule 2
Transactions with Affiliates Schedule 3.12
Business of Companies Schedule 3.17
EXHIBITS
Notice of Borrowing Exhibit A
Revolving Note Exhibit B
Opinion of Borrower's Counsel Exhibit C
Financial Report Certificate Exhibit D
Assignment and Acceptance Exhibit E
364-DAY REVOLVING CREDIT AGREEMENT
THIS 364-DAY REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of
July 30, 2001, among CENTURYTEL, INC., a Louisiana corporation (the "Borrower"),
the lenders listed on the signature pages hereof (the "Lenders"), BANK OF
AMERICA, N.A., a national banking association, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), CITIBANK, N.A., a
national banking association, as syndication agent (in such capacity, the
"Syndication Agent"), FLEET NATIONAL BANK, a national banking association,
JPMORGAN, A DIVISION OF CHASE SECURITIES INC. and SUNTRUST BANK, as
co-documentation agents (in such capacity, the "Co-Documentation Agents"), and
BANC OF AMERICA SECURITIES LLC and SALOMON SMITH BARNEY INC. as Joint Lead
Arrangers and Joint Book Managers (in such capacity, collectively the
"Arrangers").
W I T N E S S E T H:
WHEREAS, the Borrower is party to the $1,500,000,000 Revolving Credit
Facility Agreement dated as of July 31, 2000, as amended, among the Borrower,
the lenders party thereto, Bank of America, N.A., as administrative agent for
such lenders and Citibank, N.A., as syndication agent for such lenders, as
amended (the "Existing Credit Agreement").
WHEREAS, the Borrower desires to replace the Existing Credit Agreement
with this Agreement upon the terms, and subject to the conditions, hereinafter
set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS.
1.1 Certain Defined Terms.
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As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Acquisitions" means the acquisition by the Borrower or its
subsidiaries of at least a majority of the capital stock or all or substantially
all of the Property of another Person, division of another Person or other
business unit of another Person, whether or not involving a merger or
consolidation of such Person, provided that such Person or Property is used or
useful in the same or a similar line of business as set forth on Schedule 3.17
hereto (or any reasonable extensions or expansions thereof).
"Adjusted Consolidated Net Worth" means, as of the date of
determination, Consolidated Net Worth minus (i) deferred assets other than
prepaid insurance, prepaid taxes, prepaid interest, extraordinary retirements,
and deferred charges where such deferred charges are considered by Tribunals
when setting rates, (ii) patents, copyrights, trademarks, trade names,
franchises, experimental expense, goodwill (other than goodwill arising from the
purchase of capital stock or assets of a Person engaged in the telephone or
cellular mobile communications business) and similar intangible or intellectual
property, and (iii) unamortized debt discount and expense (other than debt
discount and expense of the Companies located in jurisdictions where such items
are considered by Tribunals when setting rates).
"Administrative Agent" is defined in the introduction to this
Agreement.
"Affiliate" of any Person means any other individual or entity that
directly or indirectly controls, or is controlled by, or is under common control
with, such Person, and, for purposes of this definition only, "control,"
"controlled by," and "under common control with" mean possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person (whether through ownership of Voting Stock, by contract,
or otherwise).
"Agents" means the Administrative Agent, the Syndication Agent, the
Co-Documentation Agents, and the Arrangers.
"Agreement" means this 364-Day Revolving Credit Agreement, as the same
may be amended, supplemented, modified or restated from time to time.
"Alternate Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the greater of (a)
the Federal Funds Rate for such day plus one-half of one percent (0.5%) and (b)
the Prime Rate for such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
"Applicable Lending Office" means, with respect to each Lender, and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such Type of Loan on the signature pages hereof or
such other office of such Lender (or an Affiliate of such Lender) as such Lender
may from time to time specify to the Administrative Agent and the Borrower by
written notice in accordance with the terms hereof as the office by which its
Loans of such Type are to be made and maintained.
"Applicable Margin" means, at the time of any determination thereof,
for purposes of all Loans, the margin of interest over the Alternate Base Rate
or the Eurodollar Rate, as the case may be, which is applicable at the time of
any determination of interest rates under this Agreement, which Applicable
Margin shall be adjusted based on the Senior Unsecured Long-Term Debt Rating (as
hereinafter defined), as determined as of the last day of the immediately
preceding fiscal quarter of the Borrower, as follows:
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Senior Unsecured Long-Term Debt Eurodollar Loan Margin Base Rate Loan Margin
Rating
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A or A2 or better 30.0 basis points 0 basis points
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A- or A3 37.5 basis points 0 basis points
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BBB+ or Baal 50.0 basis points 0 basis points
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BBB or Baa2 62.5 basis points 0 basis points
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below BBB or Baa2 75.0 basis points 0 basis points
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"Arrangers" is defined in the introduction to this Agreement.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Base Rate Loan" means any Loan with respect to which the Borrower
shall have selected an interest rate based on the Alternate Base Rate in
accordance with the provisions of Section 2.
"Board" means the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" is defined in the introduction to this Agreement.
"Borrowing" means a borrowing consisting of simultaneous Loans from
each of the Lenders distributed ratably among the Lenders in accordance with
their respective Commitments.
"Borrowing Date" means the Business Day upon which the proceeds of any
Borrowing are to be made available to the Borrower.
"Business Day" means a day when the Administrative Agent and each
Lender's Applicable Lending Office are open for business, other than a Saturday
or Sunday, and if the applicable Business Day relates to any Eurodollar Loan, a
day on which dealings in dollar deposits are carried on in the London interbank
market and commercial banks are open for domestic or international business in
London, England, in New York, New York, and in Dallas, Texas.
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(d).
"Co-Documentation Agents" is defined in the introduction to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
"Commitment" means, with respect to any Lender, the commitment of such
Lender to make Loans hereunder, as such commitment may be reduced from time to
time pursuant to Section 2.5(a) or reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.20. The
initial amount of each Lender's Commitment is set forth on Schedule 1, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"Commitment Fee" is defined in Section 2.4(a).
"Commitment Fee Percentage" is defined in Section 2.4(a).
"Commitment Utilization Percentage" means on any day the percentage
equivalent of a fraction (a) the numerator of which is the sum of the aggregate
outstanding principal amount of Loans (the "Used Commitment") and (b) the
denominator of which is the aggregate amount of the Total Commitment (or, on any
day after termination of the Commitments, the aggregate amount of the Total
Commitment in effect immediately preceding such termination).
"Companies" means, collectively, Borrower and its Subsidiaries and
"Company" means any of the same.
"Consolidated Net Worth" means, as of the date of determination, the
amount of stated capital plus (or minus, in the case of a deficit) the capital
surplus and earned surplus of the Companies, as calculated in accordance with
GAAP (but treating Minority Interests in Subsidiaries as liabilities and
excluding the contra-equity account resulting from the Borrower's obligations
under its employee stock ownership plan commitments). For purposes of this
Agreement, Consolidated Net Worth shall exclude the effect of Statements No.101
and 106 of the Financial Accounting Standards Board.
"Current Date" means any date after July 20, 2001.
"Current Financials" means the consolidated Financial Statements of the
Companies for the fiscal year ended December 31, 2000, and the fiscal quarter
ended March 31, 2001.
"Debt" means (without duplication), for any Person, all obligations,
contingent or otherwise (including, without limitation, contingent obligations
in connection with letters of credit), which in accordance with GAAP should be
classified upon such Person's balance sheet as liabilities, but in any event
including, without limitation, whether or not such obligations in accordance
with GAAP should be classified as liabilities, (a) liabilities secured (or for
which the holder of such Debt has an existing Right, contingent or otherwise, to
be so secured) by any Lien existing on property owned or acquired by such Person
or a Subsidiary thereof (whether or not the liability secured thereby shall have
been assumed), (b) obligations which have been or under GAAP should be
capitalized for financial reporting purposes, (c) all guaranties, endorsements,
and other contingent obligations with respect to Debt of others, including, but
not limited to, any obligations to purchase, sell, or furnish property or
services intended by a Company primarily for the purpose of enabling such other
Person to make payment of any of such Person's Debt, or to otherwise assure the
holder of any of such Debt against loss with respect thereto, and (d)
liabilities under any interest rate swap, collar, floor, cap or similar
contract.
"Debt Rating" means the public debt rating by S&P and Moody's for that
class of non-credit enhanced, senior unsecured debt with an original term of
longer than one year issued by the Borrower which has the lowest rating of all
classes of non-credit enhanced, senior unsecured debt with an original term of
longer than one year issued by the Borrower.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
"Default" means the occurrence of any event which with the giving of
notice or the passage of time or both would become an Event of Default.
"Default Rate" means an annual interest rate equal to the lesser of (a)
2% plus the greater of (i) the Alternate Base Rate and (ii) the Eurodollar Rate
and (b) the Highest Lawful Rate.
"EBIT" means, for any period, net income before income Tax expense and
interest expense and excluding the effects of nonrecurring and/or unusual
non-cash transactions that reduce net income and items that do not reduce the
cash flow of the Companies (e.g., write-off of intangibles, write-down of
assets, effect of new accounting pronouncements, etc.).
"EBITDA" means, for any period, the sum of (a) EBIT, plus (b)
depreciation and amortization.
"Eligible Assignee" means (a) any Lender and any Affiliate of any
Lender so long as such Affiliate directly or through one or more of its
Subsidiaries engages in commercial financing transactions in the ordinary course
of its business, and (b) any other commercial bank, savings and loan
association, savings bank, finance company, insurance company, mutual fund or
other financial institution, fund or investor which has been approved in writing
by the Borrower and the Administrative Agent as an Eligible Assignee for
purposes of this Agreement, provided that in each such case such approval shall
not be unreasonably withheld.
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part thereof) used or useful in the
same or a similar line of business as set forth on Schedule 3.17 hereto (or any
reasonable extensions or expansions thereof) and (ii) any Acquisition.
"Environmental Law" means any Law that relates to the environment or
handling or control of Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any company or trade or business (whether or
not incorporated) which, for purposes of Title IV of ERISA, is a member of a
group of which Borrower is a member and which is under common control with
Borrower within the meaning of section 414 of the Code.
"Eurocurrency Liabilities" is defined in Regulation D.
"Eurodollar Loan" means any Loan with respect to which the Borrower
shall have selected an interest rate based on the Eurodollar Rate in accordance
with the provisions of Section 2.
"Eurodollar Rate" means, for any Interest Period for any Eurodollar
Loan, an interest rate per annum (rounded upward to the nearest whole multiple
of 0.01% per annum) obtained by dividing (a) the rate per annum appearing on the
Dow Jones Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
If for any reason the rate specified in subsection (a) above is not
available, the applicable rate for purposes of subsection (a) shall be the rate
per annum appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest
1/100 of 1%).
"Eurodollar Rate Reserve Percentage" for any Interest Period for any
Eurodollar Loan means the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Loans is determined) having a term equal to such
Interest Period.
"Event of Default" means any of the events described in Section 6,
provided there has been satisfied any requirement in connection therewith for
the giving of notice, lapse of time, or happening of any further condition,
event, or act.
"Excess Utilization Day" means each day on which the Commitment
Utilization Percentage equals or exceeds 33%.
"Existing Credit Agreement" means that certain $1,500,000,000 Revolving
Credit Facility Agreement dated as of July 31, 2000, as amended, among the
Borrower, the lenders party thereto, Bank of America, N.A., as administrative
agent for such lenders and Citibank, N.A., as syndication agent for such
lenders, as amended, restated, supplemented or modified from time to time.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by the Administrative Agent.
"Financial Officer" means the chief financial officer, treasurer or
controller of the Borrower.
"Financial Report Certificate" means a certificate substantially in the
form of Exhibit D.
"Financial Statements" means balance sheets, income statements,
statements of stockholders' equity, and statements of cash flow prepared in
comparative form to the corresponding period of the preceding fiscal year.
"Funded Debt" shall mean and include, as of any date as of which the
amount thereof is to be determined, (i) all funded indebtedness of the
Companies, (ii) all funded indebtedness of any Subsidiary (other than funded
indebtedness of such Subsidiary owing to the Borrower or another Subsidiary),
and (iii) all indebtedness for borrowed money, but not (iv) indebtedness secured
by or borrowed against the cash surrender value of life insurance policies up to
the amount of such cash surrender value.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable as of the date of
the Financial Statements in question.
"Guaranty" means by any particular Person, all obligations of such
Person guaranteeing or in effect guaranteeing any Debt, dividend or other
obligation of any other Person (the "primary obligor") in any manner whether
directly or indirectly, including, without limitation of the generality of the
foregoing, obligations incurred through an agreement, contingent or otherwise,
by such particular Person (i) to purchase such Debt or obligation or any
property or assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such Debt or obligation or (y) to
maintain working capital or equity capital or otherwise to advance or make
available funds for the purchase or payment of such Debt or obligation, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of such Debt or obligation of the ability of the primary obligor to
make payment of the Debt or obligation or (iv) otherwise to assure the owner of
the Debt or obligation of the primary obligor against loss in respect thereof.
"Hazardous Substance" means any hazardous or toxic waste, pollutant,
contaminant, or substance.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under applicable Laws, the Lenders are then
permitted to charge the Borrower on the Obligation. If the maximum rate of
interest which, under applicable Laws, the Lenders are permitted to charge the
Borrower on the Obligation shall change after the date hereof, the Highest
Lawful Rate shall be automatically increased or decreased, as the case may be,
as of the effective time of such change without notice to the Borrower.
"Indemnified Parties" is defined in Section 9.23.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
each Quarterly Payment Date, or if earlier the Termination Date, or the date of
prepayment of such Loan or conversion of such Loan to a Eurodollar Loan, and
(ii) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable thereto and, in addition in the case of a Eurodollar Loan with an
Interest Period longer than three months, each day that would have been the
Interest Payment Date for such Loan had an Interest Period of three months been
applicable to such Loan.
"Interest Period" means, with respect to each Loan, the duration of
such Loan and as to any Eurodollar Loan, the period commencing on the date of
such Loan and ending on the numerically corresponding day (or if there is no
corresponding day, the last day) in the calendar month that is one, two, three,
or six months thereafter, as the Borrower may elect; provided, however, (i) if
any Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day,
and (ii) no Interest Period may be selected that ends later than the Termination
Date. Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
"Laws" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, or opinions
of any Tribunal.
"Lenders" means those lenders signatory hereto and other financial
institutions which from time to time become party hereto pursuant to the
provisions of this Agreement.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor to have his claim satisfied out of any
property or assets, or the proceeds therefrom, prior to the general creditors of
the owner thereof.
"Litigation" means any action conducted, pending, or threatened by or
before any Tribunal.
"Loan" means the loans made by the Lenders to the Borrower pursuant to
Section 2.1 of this Agreement, which may be in the form of a Eurodollar Loan or
a Base Rate Loan.
"Loan Papers" means (i) this Agreement, certificates delivered pursuant
to this Agreement, and exhibits and schedules hereto, (ii) any notes, security
documents, guaranties, and other agreements in favor of the Agents and the
Lenders, or any or some of them, ever delivered in connection with this
Agreement, and (iii) all renewals, extensions, or restatements of, or amendments
or supplements to, any of the foregoing.
"Majority Lenders" means at any time the Lenders holding at least 51%
of the then aggregate unpaid principal amount of the Loans or, if no Loans are
outstanding, the Lenders having at least 51% of the available Commitments.
"Margin Stock" means "margin stock" within the meaning of Regulations
T, U, or X of the Board.
"Material Adverse Effect" means any set of one or more circumstances or
events which, individually or collectively, will result in any of the following:
(a) a material and adverse effect upon the validity or enforceability of any
Loan Paper, (b) a material and adverse effect on the consolidated financial
condition of the Companies represented in the later of the Current Financials or
the most recent audited consolidated Financial Statements, (c) a Default or (d)
the issuance of an accountant's report on the Companies' consolidated Financial
Statements containing an explanatory paragraph about the entity's ability to
continue as a going concern (as defined in accordance with Generally Accepted
Auditing Standards).
"Material Agreement" of any Person means any material written or oral
agreement, contract, commitment, or understanding to which such Person is a
party, by which such Person is directly or indirectly bound, or to which any
assets of such Person may be subject, and which is not cancelable by such Person
upon 30 days or less notice without liability for further payment other than
nominal penalty, and which requires such Person to pay more than 1 percent of
Consolidated Net Worth during any 12-month period.
"Minority Interest" means, with respect to any Subsidiary, an amount
determined by valuing preferred stock held by Persons other than the Borrower
and its wholly-owned Subsidiaries at the voluntary or involuntary liquidating
value of such preferred stock, whichever is greater, and by valuing common stock
or partnership interests held by Persons other than the Borrower and its
wholly-owned Subsidiaries at the book value of capital and surplus applicable
thereto on the books of such Subsidiary adjusted, if necessary, to reflect any
changes from the book value of common stock required by the foregoing method of
valuing Minority Interest attributable to preferred stock.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in sections
3(37) or 4001(a)(3) of ERISA or section 414 of the Code to which any Company or
any ERISA Affiliate is making, or has made, or is accruing, or has accrued, an
obligation to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents
proceeds received by the Company in respect of any disposition of assets as
contemplated by Section 5.16(e)(ii), net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof and (c) the amount
necessary to retire any Debt secured by a Permitted Lien on the related
Property; it being understood that "Net Cash Proceeds" shall include, without
limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by any such Company in any
disposition of assets.
"Note" means a promissory note of the Borrower payable to the order of
each Lender, in substantially the form of Exhibit B hereto, with the blanks
appropriately completed, evidencing the aggregate indebtedness of the Borrower
to such Lender resulting from the Loans made by such Lender to the Borrower,
together with all modifications, extensions, renewals, and rearrangements
thereof.
"Notice of Borrowing" is defined in Section 2.2.
"Obligation" means all present and future indebtedness, obligations,
and liabilities, and all renewals, extensions, and modifications thereof, owed
to the Agents and the Lenders, or any or some of them, by the Borrower, arising
pursuant to any Loan Paper, together with all interest thereon and costs,
expenses, and attorneys' fees incurred in the enforcement or collection thereof.
"Participant" is defined in Section 9.20(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"Permitted Liens" means the Liens described on Schedule 2.
"Person" means and includes an individual, partnership, joint venture,
corporation, trust, limited liability company, limited liability partnership, or
other entity, Tribunal, unincorporated organization, or government, or any
department, agency, or political subdivision thereof.
"Plan" means any plan defined in Section 4021(a) of ERISA in respect of
which the Borrower is an "employer" or a "substantial employer" as such terms
are defined in ERISA.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Prime Rate" means the per annum rate of interest established from time
to time by Bank of America as its prime rate, which rate may not be the lowest
rate of interest charged by Bank of America to its customers.
"Purchaser" is defined in Section 9.20(c).
"Quarterly Payment Date" means the last Business Day of each March,
June, September and December of each year, the first of which shall be the first
such day after the date of this Agreement.
"Regulation D" means Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulatory Change" means, with respect to any Lender, (a) any adoption
or change after the date hereof of or in United States federal, state or foreign
Laws (including Regulation D) or guidelines applying to a class of banks
including such Lender, (b) the adoption or making after the date hereof of any
interpretations, directives or requests applying to a class of banks including
such Lender of or under any United States federal, state or foreign Laws or
guidelines (whether or not having the force of law) by any Tribunal, monetary
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or (c) any change in the interpretation or
administration of any United States federal, state or foreign Laws or guidelines
applying to a class of banks including such Lender by any Tribunal, monetary
authority, central bank, or comparable agency charged with the interpretation or
administration thereof.
"Restricted Payment" means
(a) the declaration or payment of dividends by the Borrower,
or distribution (in cash, property, obligations or other securities or
any combination thereof) on account of any shares of any class of
capital stock of the Borrower, or
(b) other payments or distributions by the Borrower whether
by reduction of capital or otherwise on account of any shares of any
class of capital stock of the Borrower, or
(c) the setting apart of money for a sinking or other
analogous fund by the Borrower for the purchase, redemption, retirement
or other acquisition of any shares of any class of capital stock of the
Borrower, or any warrant, option or other right to acquire any capital
stock of the Borrower;
but in each case in (a), (b) and (c) above, excluding dividends or other
distributions payable solely in common stock of the Borrower.
"Rights" means rights, remedies, powers, and privileges.
"S&P" means Standard and Poor's Ratings Services, Inc., a division of
The McGraw Hill Companies, Inc.
"Senior Unsecured Long-Term Debt Rating" means, as of any date, the
Debt Rating that has been most recently announced by S&P and Moody's. In
connection with any determination of the Senior Unsecured Long-Term Debt Rating
pursuant to the immediately preceding sentence:
(i) for purposes of determining the Applicable Margin or the
Commitment Fee Percentage, (a) if only one of S&P and Moody's shall
have in effect a public debt rating, the Applicable Margin and the
Commitment Fee Percentage (as set forth in Section 2.4(a)) shall be
determined by reference to the available rating; (b) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin and the Commitment Fee Percentage shall be based upon
the higher rating, except that if the difference is two or more levels,
the Applicable Margin and the Commitment Fee Percentage shall be based
on the rating that is one level below the higher rating; (c) if any
rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; (d) if S&P
or Moody's shall change the basis on which ratings are established,
each reference to the public debt rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be; (e) if neither S&P nor Moody's shall have
in effect a public debt rating but at least one of S&P and Moody's has
in effect a rating for any class of senior secured debt with an
original term of longer than one year issued by the Borrower, the
Applicable Margin and Commitment Fee Percentage shall be determined by
reference to a rating that is one level lower than the rating that has
been most recently announced by S&P and Moody's for such class of debt;
and (f) if neither S&P nor Moody's shall have in effect either a public
debt rating or a rating for any class of senior secured debt with an
original term of longer than one year issued by the Borrower, the
Applicable Margin and Commitment Fee Percentage shall be set in
accordance with the lowest level rating and highest percentage rate set
forth in the respective tables relating to "Applicable Margin" and
"Commitment Fee Percentage", as the case may be, and
(ii) for purposes of Section 5.16(e), (a) if only one of S&P
and Moody's shall have in effect a public debt rating, the Senior
Unsecured Long-Term Debt Rating shall be determined by reference to the
available rating; (b) if the ratings established by S&P and Moody's
shall fall within different levels, the Senior Unsecured Long-Term Debt
Rating shall be based upon the lower rating; (c) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; (d) if S&P or Moody's
shall change the basis on which ratings are established, each reference
to the public debt rating announced by S&P or Moody's, as the case may
be, shall refer to the then equivalent rating by S&P or Moody's, as the
case may be; (e) if neither S&P nor Moody's shall have in effect a
public debt rating but at least one of S&P and Moody's has in effect a
rating for any class of senior secured debt with an original term of
longer than one year issued by the Borrower, the Senior Unsecured
Long-Term Debt Rating shall be deemed to be the rating that is one
level lower than the rating that has been most recently announced by
S&P and Moody's for such class of debt; and (f) if neither S&P nor
Moody's shall have in effect either a public debt rating or a rating
for any class of senior secured debt with an original term of longer
than one year issued by the Borrower, the Debt Rating by S&P shall be
deemed to be less than BBB+ and the Debt Rating by Moody's shall be
deemed to be less than Baa2.
"Significant Subsidiary" means a Subsidiary of the Borrower (i) the
assets of which equal or exceed 5% of all assets of the Borrower and its
Subsidiaries as shown on a consolidated balance sheet of the Borrower and its
Subsidiaries, (ii) the operating revenue of which, for the most recently ended
period of twelve consecutive months, equals or exceeds 5% of the operating
revenues of the Borrower and its Subsidiaries for such period, or (iii) the net
income of which, for the most recently ended period of twelve consecutive
months, equals or exceeds 5% of the net income of the Borrower and its
Subsidiaries for such period.
"Solvent" means, as to any Person at the time of determination, that
(a) the aggregate fair value of such Person's assets exceeds the present value
of its liabilities (whether contingent, subordinated, unmatured, unliquidated,
or otherwise), and (b) such Person has sufficient cash flow to enable it to pay
its Debts as they mature.
"Subsidiary" means any Person with respect to which Borrower or any one
or more Subsidiaries owns directly or indirectly 50% or more of the issued and
outstanding voting stock (or equivalent interests).
"Syndication Agent" is defined in the introduction to this Agreement.
"Taxes" means all taxes, assessments, fees, or other charges at any
time imposed by any Laws or Tribunal.
"Termination Date" means July 29, 2002, subject, however, to
termination in whole of the Total Commitment pursuant to Section 2.5.
"Total Commitment" means, at any time the aggregate amount of the
Lenders' Commitments, as in effect at such time.
"Tribunal" means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision, agency, department,
commission, board, bureau, or instrumentality.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
Eurodollar Loan).
"United States" and "U.S." each means United States of America.
"Used Commitment" has the meaning set forth in the definition of
"Commitment Utilization Percentage" in Section 1.1.
"Utilization Fee" is defined in Section 2.4(b).
"Voting Stock" shall mean securities (as such term is defined in
Section 2(1) of the Securities Act of 1933, as amended) of any class or classes,
the holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing similar
functions).
1.2 Number and Gender of Words.
--------------------------
Whenever in any Loan Paper the singular number is used, the same shall
include the plural where appropriate and vice versa, and words of any gender
shall include each other gender where appropriate.
1.3 Accounting Principles.
---------------------
All accounting and financial terms used in the Loan Papers and the
compliance with each financial covenant therein shall be determined in
accordance with GAAP as in effect on the date of this Agreement, and all
accounting principles shall be applied on a consistent basis so that the
accounting principles in a current period are comparable in all material
respects to those applied in the consolidated Financial Statements for the
Companies for the twelve months ended December 31, 2000.
SECTION 2
FACILITIES.
2.1 Commitments.
-----------
Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender, severally and not
jointly, agrees to make revolving credit loans ("Loans") to the Borrower, at any
time and from time to time on and after the date hereof and until the
Termination Date. Notwithstanding the foregoing, the aggregate principal amount
of all Loans of a Lender shall not exceed at any time outstanding such Lender's
Commitment. Within the foregoing limits, the Borrower may borrow, repay, prepay,
and reborrow hereunder, on and after the date hereof and prior to the
Termination Date, subject to the terms, provisions, and limitations set forth
herein.
2.2 Borrowing Procedure.
-------------------
In order to effect a Borrowing, the Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed request for Borrowing,
substantially in the form of Exhibit A hereto (a "Notice of Borrowing"), (i) in
the case of Eurodollar Loans, not later than 12:00 Noon, Dallas, Texas time,
three Business Days before the Borrowing Date specified for a proposed
Borrowing, and (ii) in the case of Base Rate Loans, not later than 12:00 Noon,
Dallas, Texas time, on the Business Day which is the Borrowing Date specified
for a proposed Borrowing. Such notice shall be irrevocable and shall in each
case refer to this Agreement and specify (x) whether the Loans then being
requested are to be Eurodollar Loans or Base Rate Loans, (y) the Borrowing Date
of such Loans (which shall be a Business Day) and the aggregate amount thereof
(which shall not be less than $5,000,000 and shall be an integral multiple of
$1,000,000), and (z) in the case of a Eurodollar Loan, the Interest Period with
respect thereto (which shall not end later than the Termination Date). If no
Interest Period with respect to any Eurodollar Loan is specified in any such
Notice of Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly, and in any event on the same
day the Administrative Agent receives a Notice of Borrowing pursuant to this
Section 2.2, if such notice is received by 11:00 a.m., Dallas, Texas time on a
Business Day and otherwise on the next succeeding Business Day, the
Administrative Agent shall advise the other Lenders of such Notice of Borrowing
and of each Lender's portion of the requested Borrowing by telecopier. Each
Borrowing shall consist of Loans of the same Type made on the same day and
having the same Interest Period.
2.3 Conversions.
-----------
Subject to the conditions and limitations set forth in this Agreement,
the Borrower shall have the right from time to time to convert all or part of
one Type of Loan into another Type of Loan or to continue all or a part of any
Loan that is a Eurodollar Loan from one Interest Period to another Interest
Period by giving the Administrative Agent written notice (by means of a Notice
of Borrowing) (i) in the case of Eurodollar Loans, not later than 11:00 a.m.,
Dallas, Texas time, three Business Days before the date specified for such
proposed conversion or continuation, and (ii) in the case of Base Rate Loans,
not later than 11:00 a.m., Dallas, Texas time, on the Business Day which is the
date specified for such proposed conversion or continuation. Such notice shall
specify (A) the proposed date for conversion or continuation, (B) the amount of
the Loan to be converted or continued, (C) in the case of conversions, the Type
of Loan to be converted into, and (D) in the case of a continuation of or
conversion into a Eurodollar Loan, the duration of the Interest Period
applicable thereto; provided that (1) Eurodollar Loans may be converted only on
the last day of the applicable Interest Period, (2) except for conversions to
Base Rate Loans, no conversion shall be made while a Default or Event of Default
has occurred and is continuing and no continuations of any Eurodollar Loan from
one Interest Period to another Interest Period shall be made while a Default or
Event of Default has occurred and is continuing, unless such conversion or
continuation has been approved by Majority Lenders, and (3) each such conversion
or continuation shall be in an amount not less than $5,000,000 and shall be an
integral multiple of $1,000,000. All notices given under this Section shall be
irrevocable. If the Borrower shall fail to give the Administrative Agent the
notice as specified above for continuation or conversion of a Eurodollar Loan
prior to the end of the Interest Period with respect thereto, such Eurodollar
Loan shall automatically be converted into a Base Rate Loan on the last day of
the Interest Period for such Eurodollar Loan.
2.4 Fees.
----
(a) Commitment Fees. The Borrower agrees to pay to each
Lender, through the Administrative Agent, on each Quarterly Payment
Date and on the Termination Date, in immediately available funds, a
commitment fee (a "Commitment Fee") calculated on the unused Commitment
by multiplying the applicable percentage (the "Commitment Fee
Percentage") set forth below by the average daily unused portion of the
Commitment of such Lender, as applicable, during the preceding quarter
(or shorter period commencing with the date hereof and/or ending with
the Date or the Termination Date):
============================================ ===============================
Senior Unsecured Long-Term Debt Rating Commitment Fee Percentage
-------------------------------------------- -------------------------------
-------------------------------------------- -------------------------------
A or A2 or better .065 percent per annum
-------------------------------------------- -------------------------------
-------------------------------------------- -------------------------------
A- or A3 .08 percent per annum
-------------------------------------------- -------------------------------
-------------------------------------------- -------------------------------
BBB+ or Baa1 .10 percent per annum
-------------------------------------------- -------------------------------
-------------------------------------------- -------------------------------
BBB or Baa2 .125 percent per annum
-------------------------------------------- -------------------------------
-------------------------------------------- -------------------------------
below BBB or Baa2 .15 percent per annum
============================================ ===============================
All Commitment Fees shall be computed by the Administrative
Agent on the basis of the actual number of days elapsed in a year of
365 days, and shall be conclusive and binding for all purposes, absent
manifest error. The Commitment Fee due to each Lender shall commence to
accrue on the date hereof and shall cease to accrue on the earlier of
the Termination Date and the termination of the Commitment of such
Lender as provided herein. Notwithstanding the foregoing, in no event
shall any Lender be permitted to receive any compensation hereunder
constituting interest in excess of the Highest Lawful Rate.
(b) Utilization Fees. The Borrower agrees to pay to each
Lender, through the Administrative Agent, on each Quarterly Payment
Date and on the Termination Date, in immediately available funds, a
utilization fee (a "Utilization Fee") equal to (i) 12.5 basis points
(.125%) per annum for each day on which the Commitment Utilization
Percentage is less than 66%, but greater than or equal to 33% and (ii)
25 basis points (.25%) per annum for each day on which the Commitment
Utilization Percentage equals or exceeds 66%, which fee shall accrue on
the daily amount of the Used Commitment of such Lender for each Excess
Utilization Day during the period from and including the Closing Date
to but excluding the date on which such Lender's Commitment terminates;
provided that, if such Lender continues to have any outstanding Loans
after its Commitment terminates, then such utilization fee shall
continue to accrue on the daily aggregate principal amount of such
Lender's Loans for each Excess Utilization Day from and including the
date on which its Commitment terminates to but excluding the date on
which such Lender ceases to have any outstanding Loans.
All Utilization Fees shall be computed by the Administrative
Agent on the basis of the actual number of days elapsed (including the
first day but excluding the last day) in a year of 365 days, and shall
be conclusive and binding for all purposes, absent manifest error. Fees
paid shall not be refundable under any circumstances. Notwithstanding
the foregoing, in no event shall any Lender be permitted to receive any
compensation hereunder constituting interest in excess of the Highest
Lawful Rate.
2.5 Optional Termination and Reduction of Commitments.
-------------------------------------------------
(a) Subject to Section 2.11(b), the Borrower may permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment upon at least two Business Days prior written notice to the
Administrative Agent (who shall promptly forward a copy thereof to each
Lender). Such notice shall specify the date and the amount of the
termination or reduction of the Total Commitment. Each such partial
reduction of the Total Commitment shall be in a minimum aggregate
principal amount of $5,000,000 and in an integral multiple of
$1,000,000.
(b) On the Termination Date the Total Commitment shall
be zero.
(c) Each reduction in the Total Commitment pursuant to this
paragraph shall be made ratably among the Lenders in accordance with
their respective Commitments.
(d) Simultaneously with any termination or reduction of the
Commitments pursuant to this paragraph, the Borrower shall pay to the
Administrative Agent for the accounts of the Lenders the Commitment
Fees on the amount of the Total Commitment, so terminated or reduced,
accrued through the date of such termination or reduction.
2.6 Loans.
-----
(a) Each Borrowing made by the Borrower on any date shall be
in an integral multiple of $1,000,000 and in a minimum aggregate
principal amount of $5,000,000. Loans shall be made by the Lenders
ratably in accordance with their respective Commitments on the
Borrowing Date of the Borrowing; provided, however, that the failure of
any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder.
(b) Each Loan shall be a Eurodollar Loan or a Base Rate Loan,
as the Borrower may request subject to and in accordance with Section
2.2. Each Lender may at its option make any Eurodollar Loan by causing
a foreign branch of such Lender to make such Loan; provided, however,
that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of the
applicable Note and this Agreement. Loans of more than one interest
rate option may be outstanding at the same time; provided, however,
that the Borrower shall not be entitled to request any Loan which, if
made, would result in an aggregate of more than 10 separate Borrowings
being outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Loans and all Base Rate Loans, regardless of whether they commence on
difference dates, shall be considered a single Borrowing.
(c) Subject to Section 2.3, each Lender shall make its portion
of each Borrowing on the proposed Borrowing Date thereof by paying the
amount required to the Administrative Agent in Dallas, Texas in
immediately available funds not later than 12:00 noon, Dallas, Texas
time, and the Administrative Agent shall by 2:00 p.m., Dallas, Texas
time, credit the amounts so received to the general deposit account of
the Borrower with the Administrative Agent or, if Loans are not made on
such date because any condition precedent to a Borrowing herein
specified shall not have been met, return the amounts so received to
the respective Lenders as soon as practicable; provided, however, if
and to the extent the Administrative Agent fails to return any such
amounts to a Lender on the Borrowing Date for such Borrowing, the
Administrative Agent shall pay interest on such unreturned amounts, for
each day from such Borrowing Date to the date such amounts are returned
to such Lender, at the Federal Funds Rate.
(d) The outstanding principal amount of each Loan which is a
Eurodollar Loan shall be due and payable on the last day of the
Interest Period applicable to such Loan, as the case may be, and the
outstanding principal balance of each Loan which is a Base Rate Loan
shall be due and payable on the Termination Date.
2.7 Notes.
-----
The Loans made by each Lender shall be evidenced by a single Note,
payable to the order of such Lender in a principal amount equal to the
Commitment of such Lender. Each Note shall bear interest from the date thereof
on the outstanding principal balance thereof as set forth in Section 2.8 and
Section 2.9. Each Lender shall, and is hereby authorized by the Borrower to,
make in its records relating to such Note an appropriate notation evidencing the
date and amount of each Loan of such Lender, and each payment or prepayment of
principal of any Loan. The aggregate unpaid principal amount so recorded shall
be presumptive evidence of the principal amount owing by the Borrower to a
Lender and unpaid under the Note of such Lender. The failure of any Lender to
make such a notation or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans made by such Lender in accordance
with the terms of the relevant Note.
2.8 Interest on Loans.
-----------------
(a) Subject to the provisions of Section 2.9, each Eurodollar
Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the
lesser of (i) the Highest Lawful Rate and (ii) the Eurodollar Rate for
the Interest Period in effect for such Loan, plus the Applicable
Margin. Interest on each Eurodollar Loan shall be payable on each
Interest Payment Date applicable thereto. The applicable Eurodollar
Rate for each Interest Period shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest
error.
(b) Subject to the provisions of Section 2.9, each Base Rate
Loan shall bear interest at the rate per annum (computed on the basis
of the actual number of days elapsed over a year of (x) 365 or 366
days, as the case may be if the Alternate Base Rate is based on the
Prime Rate or (y) 360 days if the Alternate Base Rate is based on the
Federal Funds Rate) equal to the lesser of (i) the Highest Lawful Rate
and (ii) the Alternate Base Rate plus the Applicable Margin. Interest
on each Base Rate Loan shall be payable on each Quarterly Payment Date
applicable thereto. The applicable Alternate Base Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
2.9 Interest on Overdue Amounts.
---------------------------
If the Borrower shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder, the Borrower
shall on demand from time to time pay interest, to the extent permitted by Law,
on such defaulted amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum equal to the lesser of
(i) the Highest Lawful Rate and (ii) the Default Rate.
2.10 Alternate Rate of Interest for Eurodollar Loans.
-----------------------------------------------
In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Loan, the
Administrative Agent shall have determined that dollar deposits in the amount of
the requested principal amount of such Eurodollar Loan are not generally
available in the London interbank market, or that dollar deposits are not
generally available in the London interbank market for the requested Interest
Period, or that the rate at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining such Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Eurodollar Rate, the Administrative
Agent shall, as soon as practicable thereafter, give telecopy notice of such
determination, stating the specific reasons therefor, to the Borrower and the
Lenders. In the event of any such determination, any request by the Borrower for
a Eurodollar Loan shall, until the circumstances giving rise to such notice no
longer exist, be deemed to be a request for a Base Rate Loan. Each determination
by the Administrative Agent hereunder shall be conclusive absent manifest error.
2.11 Mandatory and Optional Prepayment of Loans.
------------------------------------------
(a) Prior to the Termination Date, the Borrower shall have the
right at any time to prepay any Borrowing, in whole or in part, subject
to the requirements of Section 2.14 and Section 2.15 but otherwise
without premium or penalty, but prepayment of Eurodollar Loans shall
require at least two Business Days prior written notice to the
Administrative Agent; provided, however, that each such partial
prepayment shall be in an integral multiple of $1,000,000 and in a
minimum aggregate principal amount of $2,000,000. Each notice of
prepayment shall specify the prepayment date and the aggregate
principal amount of each Borrowing to be prepaid, shall be irrevocable
and shall commit the Borrower to prepay such Borrowing by the amount
stated therein.
(b) On the date of any termination or reduction of the Total
Commitment pursuant to Section 2.5(a), the Borrower shall pay or prepay
so much of the Loans as shall be necessary in order that the aggregate
principal amount of the Loans outstanding will not exceed the Total
Commitment following such termination or reduction. Subject to the
foregoing and the requirements of Section 2.5, any such payment or
prepayment shall be applied to such Borrowing or Borrowings as the
Borrower shall select. All prepayments under this paragraph shall be
subject to Section 2.14 and Section 2.15.
(c) All Loans, together with accrued and unpaid interest
thereon, shall be due and payable in full on the Termination Date.
(d) All prepayments under this Section 2.11 shall be
accompanied by accrued interest on the principal amount being prepaid
to the date of prepayment.
2.12 Reserve Requirements; Change in Circumstances.
---------------------------------------------
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any Regulatory Change (i) shall change the basis
of taxation of payments to any Lender of the principal of or interest
on any Eurodollar Loan made by such Lender or any other fees or amounts
payable hereunder (other than (x) Taxes imposed on or measured by the
capital, receipts or franchises of such Lender or the overall gross or
net income of such Lender by the jurisdiction in which such Lender has
its principal office or by any political subdivision or taxing
authority therein (or any Tax which is enacted or adopted by such
jurisdiction, political subdivision, or taxing authority as a direct
substitute for any such Taxes) or (y) any Tax, assessment, or other
governmental charge that would not have been imposed but for the
failure of any Lender to comply with any certification, information,
documentation, or other reporting requirement), (ii) shall impose,
modify, or deem applicable any reserve, special deposit, or similar
requirement with respect to any Eurodollar Loan, against assets of,
deposits with or for the account of, or credit extended by, such Lender
under this Agreement, or (iii) with respect to any Eurodollar Loan,
shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or any Eurodollar Loan made by such
Lender, and the result of any of the foregoing shall be to increase the
cost to such Lender of maintaining its Commitment or of making or
maintaining any Eurodollar Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal,
interest, or otherwise) in respect thereof by an amount deemed in good
faith by such Lender to be material, then the Borrower shall pay to the
Administrative Agent for the account of such Lender such additional
amount or amounts as will compensate such Lender for such increase or
reduction to such Lender, to the extent such amounts have not been
included in the calculation of the Eurodollar Rate, upon demand by such
Lender (through the Administrative Agent). Notwithstanding the
foregoing, in no event shall any Lender be permitted to receive any
compensation hereunder constituting interest in excess of the Highest
Lawful Rate.
(b) If any Lender shall have determined in good faith that any
Regulatory Change regarding capital adequacy or compliance by any
Lender (or its parent or any lending office of such Lender) with any
request or directive regarding capital adequacy (whether or not having
the force of Law) of any Tribunal, monetary authority, central bank, or
comparable agency, has or would have the effect of reducing the rate of
return on such Lender's (or its parent's) capital as a consequence of
its obligations hereunder to a level below that which such Lender (or
its parent) could have achieved but for such Regulatory Change, or
compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed in good faith by such
Lender to be material, then from time to time, the Borrower shall pay
to the Administrative Agent for the account of such Lender such
additional amount or amounts as will compensate such Lender for such
reduction upon demand by such Lender (through the Administrative
Agent). Notwithstanding the foregoing, in no event shall any Lender be
permitted to receive any compensation hereunder constituting interest
in excess of the Highest Lawful Rate.
(c) A certificate of a Lender setting forth in reasonable
detail (i) the Regulatory Change or other event giving rise to such
costs, (ii) such amount or amounts as shall be necessary to compensate
such Lender as specified in paragraph (a) or (b) above, as the case may
be, and (ii) the calculation of such amount or amounts under clause
(a)(i), shall be delivered to the Borrower (with a copy to the
Administrative Agent) promptly after such Lender determines it is
entitled to compensation under this Section 2.12, and shall be
conclusive and binding absent manifest error. The Borrower shall pay to
the Administrative Agent for the account of such Lender the amount
shown as due on any such certificate within 15 days after its receipt
of the same. In preparing such certificate, such Lender may employ such
assumptions and allocations of costs and expenses as it shall in good
faith deem reasonable and may use any reasonable averaging and
attribution method.
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable
or reduction in return on capital with respect to any Interest Period
shall not constitute a waiver of such Lender's rights to demand
compensation for any increased costs or reduction in amounts received
or receivable or reduction in return on capital with respect to such
Interest Period or any other Interest Period. The protection of this
Section 2.12 shall be available to each Lender regardless of any
possible contention of invalidity or inapplicability of the law,
regulation, or condition which shall have been imposed.
(e) In the event any Lender shall seek compensation pursuant
to this Section 2.12, the Borrower may, provided no Event of Default
has occurred and is continuing, give notice to such Lender (with copies
to the Agents) that it wishes to seek one or more Eligible Assignees to
assume the Commitment of such Lender and to purchase its outstanding
Loans and Notes (if any). Each Lender requesting compensation pursuant
to this Section 2.12 agrees to sell its Commitment, Loans, Notes, and
interest in this Agreement and the other Loan Papers to any such
Eligible Assignee for an amount equal to the sum of the outstanding
unpaid principal of and accrued interest on such Loans and Notes plus
all other fees and amounts (including, without limitation, any
compensation claimed by such Lender under this Section 2.12 and as to
which such Lender has delivered the certificate required by Section
2.12(c) on or before the date such Commitment, Loans, and Notes are
purchased) due such Lender hereunder calculated, in each case, to the
date such Commitment, Loans, Notes (if any), and interest are
purchased, whereupon such Lender shall have no further Commitment or
other obligation to the Borrower hereunder or under any other Loan
Paper.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 2.12, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations
of the Borrower hereunder, the obligations of the Borrower under this
Section 2.12 shall survive for one year after the termination of this
Agreement and/or the payment or assignment of any of the Loans or
Notes.
2.13 Change in Legality.
------------------
(a) Notwithstanding anything to the contrary herein contained,
if any Regulatory Change shall make it unlawful for any Lender to make
or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby, then, by written notice to the Borrower and to the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Lender hereunder, whereupon the
Borrower shall be prohibited from requesting Eurodollar Loans
from such Lender hereunder unless such declaration is
subsequently withdrawn; and
(ii) if such unlawfulness shall be effective prior to
the end of any Interest Period of an outstanding Eurodollar
Loan, require that all outstanding Eurodollar Loans with such
Interest Periods made by it be converted to Base Rate Loans,
in which event (A) all such Eurodollar Loans shall be
automatically converted to Base Rate Loans as of the effective
date of such notice as provided in paragraph (b) below and (B)
all payments and prepayments of principal which would
otherwise have been applied to repay the converted Eurodollar
Loans shall instead be applied to repay the Base Rate Loans
resulting from the conversion of such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the
Borrower (with a copy to the Administrative Agent) by any Lender
pursuant to paragraph (a) above shall be effective on the date of
receipt thereof by the Borrower.
2.14 INDEMNITY.
THE BORROWER SHALL INDEMNIFY EACH LENDER AGAINST ANY LOSS OR REASONABLE
EXPENSE WHICH SUCH LENDER MAY SUSTAIN OR INCUR AS A CONSEQUENCE OF (A) ANY
FAILURE BY THE BORROWER TO FULFILL ON THE DATE OF ANY BORROWING HEREUNDER THE
APPLICABLE CONDITIONS SET FORTH IN SECTION 4, (B) ANY FAILURE BY THE BORROWER TO
BORROW HEREUNDER AFTER A NOTICE OF BORROWING PURSUANT TO SECTION 2 HAS BEEN
GIVEN, (C) ANY PAYMENT, PREPAYMENT, OR CONVERSION OF A EURODOLLAR LOAN REQUIRED
BY ANY OTHER PROVISION OF THIS AGREEMENT OR OTHERWISE MADE ON A DATE OTHER THAN
THE LAST DAY OF THE APPLICABLE INTEREST PERIOD FOR ANY REASON, INCLUDING WITHOUT
LIMITATION THE ACCELERATION OF OUTSTANDING LOANS AS A RESULT OF ANY EVENT OF
DEFAULT, (D) ANY FAILURE BY THE BORROWER FOR ANY REASON (INCLUDING WITHOUT
LIMITATION THE EXISTENCE OF A DEFAULT OR AN EVENT OF DEFAULT) TO PAY, PREPAY OR
CONVERT A EURODOLLAR LOAN ON THE DATE FOR SUCH PAYMENT, PREPAYMENT OR
CONVERSION, SPECIFIED IN THE RELEVANT NOTICE OF PAYMENT, PREPAYMENT OR
CONVERSION UNDER THIS AGREEMENT. THE INDEMNITY OF THE BORROWER PURSUANT TO THE
IMMEDIATELY PRECEDING SENTENCE SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OR
REASONABLE EXPENSE SUSTAINED OR INCURRED OR TO BE SUSTAINED OR INCURRED IN
LIQUIDATING OR EMPLOYING DEPOSITS FROM THIRD PARTIES ACQUIRED TO EFFECT OR
MAINTAIN SUCH LOAN OR ANY PART THEREOF AS A EURODOLLAR LOAN. SUCH LOSS OR
REASONABLE EXPENSE SHALL INCLUDE, WITHOUT LIMITATION, AN AMOUNT EQUAL TO THE
EXCESS, IF ANY, AS REASONABLY DETERMINED BY EACH LENDER OF (I) ITS COST OF
OBTAINING THE FUNDS FOR THE LOAN BEING PAID, PREPAID, OR CONVERTED OR NOT
BORROWED, PAID, PREPAID OR CONVERTED (BASED ON THE EURODOLLAR RATE APPLICABLE
THERETO) FOR THE PERIOD FROM THE DATE OF SUCH PAYMENT, PREPAYMENT, OR CONVERSION
OR FAILURE TO BORROW, PAY, PREPAY OR CONVERT TO THE LAST DAY OF THE INTEREST
PERIOD FOR SUCH LOAN (OR, IN THE CASE OF A FAILURE TO BORROW, PAY, PREPAY OR
CONVERT, THE INTEREST PERIOD FOR THE LOAN WHICH WOULD HAVE COMMENCED ON THE DATE
OF SUCH FAILURE TO BORROW, PAY, PREPAY OR CONVERT) OVER (II) THE AMOUNT OF
INTEREST (AS REASONABLY DETERMINED BY SUCH LENDER) THAT WOULD BE REALIZED BY
SUCH LENDER IN REEMPLOYING THE FUNDS SO PAID, PREPAID, OR CONVERTED OR NOT
BORROWED, PAID, PREPAID OR CONVERTED FOR SUCH PERIOD OR INTEREST PERIOD, AS THE
CASE MAY BE. A CERTIFICATE OF EACH LENDER SETTING FORTH ANY AMOUNT OR AMOUNTS
AND, IN REASONABLE DETAIL, THE COMPUTATIONS THEREOF, WHICH SUCH LENDER IS
ENTITLED TO RECEIVE PURSUANT TO THIS SECTION 2.14 SHALL BE DELIVERED TO THE
BORROWER (WITH A COPY TO THE ADMINISTRATIVE AGENT) AND SHALL BE CONCLUSIVE, IF
MADE IN GOOD FAITH, ABSENT MANIFEST ERROR. THE BORROWER SHALL PAY TO THE
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH LENDER THE AMOUNT SHOWN AS DUE ON
ANY CERTIFICATE WITHIN 30 DAYS AFTER ITS RECEIPT OF THE SAME. NOTWITHSTANDING
THE FOREGOING, IN NO EVENT SHALL ANY LENDER BE PERMITTED TO RECEIVE ANY
COMPENSATION HEREUNDER CONSTITUTING INTEREST IN EXCESS OF THE HIGHEST LAWFUL
RATE. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER OBLIGATIONS OF THE BORROWER
HEREUNDER, THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION 2.14 SHALL SURVIVE
FOR ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT AND/OR THE PAYMENT OR
ASSIGNMENT OF ANY OF THE LOANS OR NOTES.
2.15 Pro Rata Treatment.
------------------
Unless otherwise specifically provided herein, each payment or
prepayment of principal and each payment of interest with respect to a Borrowing
shall be made pro rata among the Lenders in accordance with the respective
principal amounts of the Loans extended by each Lender, if any, with respect to
such Borrowing, and conversions of Loans to Loans of another Type and
continuations of Loans that are Eurodollar Loans from one Interest Period, shall
be made pro rata among the Lenders in accordance with their respective
Commitments.
2.16 Sharing of Setoffs.
------------------
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff, or counterclaim against the Borrower, including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable Debtor Relief Law or
otherwise, obtain payment (voluntary or involuntary) in respect of the Note held
by it (other than pursuant to Section 2.12 or Section 2.14) as a result of which
the unpaid principal portion of the Note held by it shall be proportionately
less than the unpaid principal portion of the Note held by any other Lender, it
shall be deemed to have simultaneously purchased from such other Lender a
participation in the Note held by such other Lender, so that the aggregate
unpaid principal amount of the Note and participations in Notes held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Notes then outstanding as the principal amount of the Note held by it
prior to such exercise of banker's lien, setoff, or counterclaim was to the
principal amount of all Notes outstanding prior to such exercise of banker's
lien, setoff, or counterclaim; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.16 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Note deemed to have been so purchased may,
upon the existence of an Event of Default, exercise any and all rights of
banker's lien, setoff, or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender as fully as if such Lender had made a Loan
directly to the Borrower in the amount of such participation.
2.17 Payments.
--------
(a) The Borrower shall make each payment hereunder and under
any instrument delivered hereunder not later than 1:00 p.m. (Dallas,
Texas time) on the day when due in dollars to the Administrative Agent
at its address referred to on Schedule 1 for the account of the
Lenders, in immediately available funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the
payment of principal of or interest on Loans (other than pursuant to
Section 2.12 and Section 2.14) or Commitment Fees ratably to the
Lenders and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms
of this Agreement.
(b) Whenever any payment hereunder or under any Note shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in all such case be included in the computation of payment of
interest or Commitment Fee, as the case may be; provided, however, if
such extension would cause payment of interest on or principal of a
Eurodollar Loan to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made or will
make such payment in full to the Administrative Agent on such date and
the Administrative Agent may, in reliance upon such assumption, cause
to be distributed to each Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent the Borrower
shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(d) All payments (whether of principal, interest, fees,
reimbursements, or otherwise) by the Borrower under this Agreement
shall be made without setoff or counterclaim and shall be made free and
clear of and without deduction for any present or future Tax, levy,
impost, or any other charge against the Borrower, if any, of any nature
whatsoever now or hereafter imposed by any Tribunal excluding, in the
case of each Lender and the Agents, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the Laws of
which such Lender (or its Applicable Lending Office) or such Agent (as
the case may be) is organized or any political subdivision thereof. If
the making of such payments by the Borrower is prohibited by Law unless
such a Tax, levy, impost, or other charge is deducted or withheld
therefrom, the Borrower shall pay to the Administrative Agent, on the
date of each such payment, such additional amounts (without duplication
of any other amounts required to be paid by the Borrower pursuant to
Section 2.12) as may be necessary in order that the net amounts
received by the Lenders after such deduction or withholding shall equal
the amounts which would have been received if such deduction or
withholding were not required. The Borrower shall confirm that all
applicable Taxes, if any, imposed on this Agreement or transactions
hereunder shall have been properly and legally paid by it to the
appropriate taxing authorities by sending official Tax receipts or
notarized copies of such receipts to the Administrative Agent within 30
days after payment of any applicable Tax.
(e) So long as no Event of Default has occurred and is
continuing, payments and prepayments of the Obligation shall be applied
first to accrued interest then due and payable and to the remaining
Obligation in the order and manner as the Borrower may direct;
provided, however, unless a Default or Event of Default has occurred
and is continuing, any payments and prepayments made pursuant to
Section 2.5(a) or Sections 2.11(a) through (d) shall be applied first
to accrued interest then due and payable, then to principal of the
Loans. At any time during which an Event of Default has occurred and is
continuing or if the Borrower fails to give direction, any payment or
prepayment shall be applied in the following order: (i) to expenses and
fees for which the Agents and the Lenders have not been reimbursed in
accordance with the Loan Papers; (ii) to accrued interest; and (iii) to
the remaining Obligation in the order and manner as the Majority
Lenders deem appropriate.
2.18 Calculation of Eurodollar Rate.
------------------------------
The provisions of this Agreement relating to calculation of the
Eurodollar Rate are included only for the purpose of determining the rate of
interest or other amounts to be paid hereunder that are based upon such rate, it
being understood that each Lender shall be entitled to fund and maintain its
funding of all or any part of a Eurodollar Loan as it sees fit. All such
determinations hereunder, however, shall be made as if each Lender had actually
funded and maintained funding of each Eurodollar Loan through the purchase in
the London interbank market of one or more eurodollar deposits, in an amount
equal to the principal amount of such Loan and having a maturity corresponding
to the Interest Period for such Loan.
2.19 Booking Loans.
-------------
Any Lender may make, carry, or transfer Loans at, to, or for the
account of any of its branch offices.
2.20 Quotation of Rates.
------------------
It is hereby acknowledged that the Borrower may call the Administrative
Agent on or before the date on which notice of a Borrowing is to be delivered by
the Borrower in order to receive an indication of the rate or rates then in
effect, but that such projection shall not be binding upon the Administrative
Agent or any Lender nor affect the rate of interest which thereafter is actually
in effect when the election is made.
SECTION 3
REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agents and the Lenders as
follows:
3.1 Purpose of Credit Facility.
--------------------------
The Borrower will use Loan proceeds only to finance the working capital
needs and general corporate purposes (including Acquisitions and to serve as a
commercial paper liquidity back-stop) of the Companies. The proceeds loaned
hereunder will not be used directly or indirectly for the purpose of purchasing
or carrying, or for the purpose of extending credit to others for the purpose of
purchasing or carrying, any Margin Stock, or to repay any Debt which was created
for such purposes.
3.2 Corporate Existence, Good Standing, and Authority.
-------------------------------------------------
Each Company is, to the best of the Borrower's knowledge, duly
organized, validly existing, and in good standing under the Laws of its state of
incorporation (such jurisdictions being identified on Exhibit 21 of Borrower's
most recent annual report filed with the Securities and Exchange Commission on
Form 10-K). Except where failure would not reasonably be expected to have a
Material Adverse Effect, each Company (a) is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where the
nature and extent of its business and properties require the same, and (b)
possesses all requisite authority, power, licenses, permits, and franchises to
conduct its business as is now being, or is contemplated herein to be,
conducted. The Borrower possesses all requisite authority, power, licenses,
permits, and franchises to execute, deliver, and comply with the terms of the
Loan Papers, all which have been duly authorized and approved by all necessary
corporate action and, except where failure would not reasonably be expected to
have a Material Adverse Effect, for which no approval or consent of any Person
or Tribunal is required which has not been obtained and no filing or other
notification to any Person or Tribunal is required which has not been properly
completed.
3.3 Significant Subsidiaries.
------------------------
Exhibit 21 of Borrower's most recent annual report filed with the
Securities and Exchange Commission on Form 10-K sets forth, in all material
respects, all existing Significant Subsidiaries of the Borrower and correctly
lists, as to each Significant Subsidiary, (a) its name and (b) its jurisdiction
of incorporation. The shares of capital stock of each Significant Subsidiary
owned by the Borrower (either directly or indirectly through another Subsidiary)
as set forth on Exhibit 21 of Borrower's most recent annual report filed with
the Securities and Exchange Commission on Form 10-K are the duly authorized,
validly issued, fully paid, and nonassessable shares of such Significant
Subsidiary and are owned by the Borrower free and clear of all Liens except
Permitted Liens.
3.4 Financial Statements.
--------------------
The Current Financials were prepared in accordance with GAAP and
present fairly the consolidated financial condition and the results of
operations of the Companies as of, and for the periods ended, the dates thereof.
There were no material (to the Companies taken as a whole) liabilities, direct
or indirect, fixed or contingent, of any Company as of the date of the Current
Financials which are not reflected therein. No Company has incurred any material
(to the Companies taken as a whole) liability, direct or indirect, fixed or
contingent, between the dates of the Current Financials and the date hereof,
except in the ordinary course of business, such as in connection with
acquisitions and financing activities.
3.5 Compliance with Laws, Charter, and Agreements.
---------------------------------------------
No Company is, nor will the execution, delivery, performance, or
observance of the Loan Papers cause any Company to be, in violation of any Laws
or any Material Agreements to which it is a party, other than such violations
which would not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Significant Subsidiary is, nor will the execution,
delivery, performance, or observance of the Loan Papers cause the Borrower or
any Significant Subsidiary to be, in violation of its bylaws or charter.
3.6 Litigation.
----------
Except as described in the Form 10-Q filed by the Borrower for the
quarterly period ended March 31, 2001 with the Securities and Exchange
Commission and to the knowledge of the Borrower, no Company is aware of any
"Material" Litigation, and there are no Material outstanding or unpaid judgments
against any Company. Material for purpose of this Section 3.6 in relation to
Litigation would include any actions or proceedings pending or threatened
against any Company before any court or Tribunal seeking damages, net of
insurance proceeds to the Company, in excess of $10,000,000 in any case or 1% of
Consolidated Net Worth in the aggregate, or which might result in any Material
Adverse Effect.
3.7 Taxes.
-----
All Tax returns of each Company required to be filed have been filed
(or extensions have been granted) except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, and all Taxes imposed
upon each Company which are due and payable have been paid other than Taxes for
which the criteria for Permitted Liens have been satisfied.
3.8 Environmental Matters.
---------------------
No Company's ownership of its assets violates any applicable
Environmental Law, other than such violations which would not reasonably be
expected to have a Material Adverse Effect. To the Borrower's knowledge, no
investigation or review is pending or threatened by any Tribunal with respect to
any alleged violation of any Environmental Law in connection with any Company's
assets. None of any Company's assets have been used by such Company or, to the
Borrower's knowledge, any other Person as a dump site for any Hazardous
Substance except where such use would not reasonably be expected to have a
Material Adverse Effect.
3.9 Employee Benefit Plans.
----------------------
(a) No employee benefit plan as defined in the Code and Title IV of
ERISA of any Company has incurred an accumulated funding deficiency in an amount
sufficient to have a Material Adverse Effect, (b) no Company has incurred
liability to the PBGC in connection with any such plan where such liability
could reasonably be expected to have a Material Adverse Effect, (c) no Company
has withdrawn in whole or in part from participation in a Multiemployer Plan
where the withdrawal could reasonably be expected to have a Material Adverse
Effect, and (d) to the best of the Borrower's knowledge, no "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the Code) or
"reportable event" (as defined in section 4043 of ERISA) has occurred which
could reasonably be expected to have a Material Adverse Effect.
3.10 Properties; Liens.
-----------------
Each Company has good and marketable (except for Permitted Liens) title
to all its property reflected on the Current Financials (except for dispositions
of property in the ordinary course of business between the date or dates thereof
and the date hereof). Except for Permitted Liens, there is no Lien on any
property of any Company, and the execution, delivery, performance, or observance
of the Loan Papers will not require or result in the creation of any Lien other
than Permitted Liens.
3.11 Holding Company and Investment Company Status.
---------------------------------------------
The Borrower is not (a) a "holding company," a "subsidiary company" of
a "holding company," an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, (b) a "public utility"
within the meaning of the Federal Power Act, as amended, (c) an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(d) an "investment adviser" within the meaning of the Investment Advisers Act of
1940, as amended, or (e) directly subject to the jurisdiction of the Federal
Communications Commission or any public service commission.
3.12 Transactions with Affiliates.
----------------------------
Except as disclosed on Schedule 3.12, no Company is a party to a
material transaction with any of its Affiliates other than transactions in the
ordinary course of business and upon fair and reasonable terms not materially
less favorable than such Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate. For purposes
of this Section 3.12, such transactions are "material" if they, individually or
in the aggregate, require any Company to pay more than 1 percent of Consolidated
Net Worth over the course of such transactions.
3.13 Leases.
------
All material leases under which any Company is lessee or tenant are in
full force and effect, and no default or potential default exists thereunder.
3.14 Labor Matters.
-------------
There are no actual or, to the Borrower's knowledge, threatened
strikes, labor disputes, slow downs, walkouts, or other concerted interruptions
of operations by any Company's employees, the effect of which would have a
Material Adverse Effect.
3.15 Insurance.
---------
Each Company maintains with financially sound insurance companies or
associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates) insurance concerning its properties and businesses against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary in the case of same or similar
businesses; provided, however, a program of self-insurance in such amounts and
against such risks as are prudent and which is consistent with accepted business
practice shall constitute compliance with this Section 3.15.
3.16 Solvency.
--------
The Companies are, and after giving effect to the transactions
contemplated under the Loan Papers will be, Solvent.
3.17 Business.
--------
The business of the Borrower, as presently conducted and as proposed to
be conducted, is set forth on Schedule 3.17.
3.18 General.
-------
All writings exhibited or delivered to the Agents by or on behalf of
any Company are and will be genuine and in all material respects what they
purport and appear to be.
SECTION 4
CONDITIONS PRECEDENT.
4.1 Initial Loan.
------------
No Lender will be obligated to fund the initial Loan unless the
Administrative Agent has received all of the following in form and substance
satisfactory to the Administrative Agent and its special counsel:
(a) Loan Papers. This Agreement, the Notes, a Notice of
-----------
Borrowing, and the Current Financials.
(b) Secretary's Certificates. A certificate dated as of
------------------------
the date hereof, executed and delivered by the Borrower, certifying
that (i) attached is a true, correct, and complete copy of (A) the
Borrower's charter, certified by the appropriate state official and
dated a Current Date, (B) the Borrower's bylaws, and (C) resolutions of
the Borrower's board of directors authorizing the execution and
delivery of each Loan Paper to which the Borrower is a party and (ii)
the officers whose specimen signatures appear on such certificate hold
the corporate office indicated and are authorized to sign agreements,
documents, and instruments on behalf of the Borrower.
(c) Good Standing, Existence, and Authority. Certificates
---------------------------------------
(dated a Current Date) relating to the Borrower's existence, good s
tanding, and authority to transact business issued by appropriate
state officials.
(d) Opinions of Borrower's Counsel. The favorable opinion,
------------------------------
dated the Closing Date and substantially in the form of Exhibit C of
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., special
counsel to the Borrower.
(e) Officer's Certificate. A certificate, dated the
---------------------
Closing Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance, as of the
Closing Date, with the conditions set forth in paragraphs (a) and (b)
of Section 4.2.
(f) Fees and Expenses. Payment from the Borrower of all
------------------
fees then due the Agents or the Lenders pursuant to this Agreement
or any other agreement.
(g) Existing Credit Agreement. The commitments under the
-------------------------
Existing Credit Agreement shall have been terminated and all amounts
owing thereunder shall have been paid.
(h) Other. Such other agreements, documents, instruments,
-----
opinions, certificates, and evidences as the Administrative Agent may
reasonably request.
4.2 Each Loan.
---------
In addition, the Lenders will not be obligated to fund any Loan unless
at the time of such funding (a) the representations and warranties made in the
Loan Papers are true and correct in all material respects (except to the extent
that (i) the representations and warranties speak to a specific date or (ii) the
facts on which such representations and warranties are based have been changed
by transactions contemplated or permitted by this Agreement), (b) no Default or
Event of Default shall have occurred and shall be continuing, (c) the funding of
such Loan is permitted by Law, and (d) if requested by the Administrative Agent
or the Majority Lenders, the Borrower shall have delivered to the Administrative
Agent evidence substantiating any of the matters contained in this Agreement
which are necessary to enable the Borrower to qualify for such Loan.
4.3 Materiality of Conditions.
-------------------------
Each condition precedent herein is material to the transactions
contemplated herein, and time is of the essence in respect of each thereof.
4.4 Waiver of Conditions.
--------------------
Subject to the provisions of Section 9.15, the Majority Lenders may
elect to fund any Loan without all conditions being satisfied, but this shall
not be deemed to be a waiver of the requirement that each such condition
precedent be satisfied as a prerequisite for any subsequent Loan, unless the
Majority Lenders (or, if required by Section 9.15, all Lenders) specifically
waive each such item in writing.
SECTION 5
COVENANTS.
So long as the Lenders are committed to make Loans under this Agreement
and thereafter until the Obligation is paid and performed in full, unless the
Borrower receives a prior written notice from the Majority Lenders (or, if
required by Section 9.15, all Lenders) that they do not object to a deviation,
the Borrower covenants and agrees with the Agents and the Lenders as follows:
5.1 Use of Proceeds.
---------------
Proceeds of Loans advanced hereunder shall be used only as represented
herein.
5.2 Books and Records.
-----------------
Each Company shall maintain, in accordance with GAAP, proper and
complete books, records, and accounts which are necessary to prepare the
financial statements required to be delivered hereunder.
5.3 Items to be Furnished.
---------------------
The Borrower shall cause the following to be furnished to the
Administrative Agent:
(a) Promptly after preparation, and no later than 120 days
after the last day of each fiscal year of the Borrower, Financial
Statements showing the consolidated financial condition and results of
operations of the Companies as of, and for the year ended on, such last
day, accompanied by (i) the opinion of KPMG Peat Marwick LLP (or
another firm of nationally-recognized independent certified public
accountants reasonably acceptable to Majority Lenders), based on an
audit using generally accepted auditing standards, that such Financial
Statements were prepared in accordance with GAAP and present fairly the
consolidated financial condition and results of operations of the
Companies (and such accountants shall indicate in a letter to the
Administrative Agent, that during their audit no Default or Event of
Default not already reported was discovered or, if such Default or
Event of Default was discovered, the nature and period of existence
thereof) and (ii) a Financial Report Certificate with respect to such
Financial Statements.
(b) Promptly after preparation, and no later than 60 days
after the last day of each of the first three quarters of each fiscal
year of the Borrower, (i) Financial Statements showing the consolidated
financial condition and results of operations of the Companies as of,
and for the period from the beginning of the current fiscal year to,
such last day, and (ii) a Financial Report Certificate with respect to
such Financial Statements.
(c) Promptly after preparation (and no later than the later of
15 days (a) after such filing is due or (b) after timely filing, if
filed with the Securities and Exchange Commission), true copies of all
regular and periodic reports, statements, documents, plans, and other
written communications furnished by or on behalf of any Company to
stockholders or to the Securities and Exchange Commission. However,
only registration statements covering more than 2 percent of the
Borrower's outstanding shares of common stock shall be required to be
furnished unless specifically requested by the Administrative Agent.
(d) Promptly upon receipt thereof, copies of any notices
received from any Tribunal (including, without limitation, state
regulatory agencies) relating to the possible violation or violation of
any Law which might have a Material Adverse Effect.
(e) Notice, promptly after the Borrower knows or has reason to
know of, (i) the existence of any Material Litigation as defined in
Section 3.6, (ii) any material change in any material fact or
circumstance represented or warranted in any Loan Paper, or (iii) a
Default or Event of Default, specifying the nature thereof and what
action the Borrower or any other Company has taken, is taking, or
proposes to take with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason
to know of, a Subsidiary Encumbrance, as defined in Section 5.24(c).
(g) Promptly upon the Administrative Agent's reasonable
request, such information (not otherwise required to be furnished under
the Loan Papers) respecting the business affairs, assets, and
liabilities of any Company, and any opinions, certifications, and
documents, in addition to those mentioned herein.
5.4 Inspection.
----------
The Borrower shall allow the Administrative Agent and each Lender, when
the Administrative Agent or such Lender reasonably deems necessary, at such
Lender's own expense if no Default then exists, to inspect any of its
properties, to review reports, files, and other records and to make and take
away copies thereof, to conduct tests or investigations, and to discuss any of
its affairs, conditions, and finances with any director, officer, or employee of
such Company from time to time, upon reasonable notice during reasonable
business hours, or otherwise when reasonably considered necessary.
5.5 Taxes.
-----
Each Company shall promptly pay when due any Taxes, except those which
if unpaid would not cause a Material Adverse Effect and Taxes for which the
criteria for Permitted Liens have been satisfied. No Company shall use any
proceeds of Loans to pay the wages of employees unless a timely payment to or
deposit with the United States of America of all amounts of Tax required to be
deducted and withheld with respect to such wages is also made.
5.6 Payment of Obligations.
----------------------
Each Company shall promptly pay (or renew and extend) all of its
material obligations as the same become due, but no Company will make any
voluntary prepayment of the principal of any Debt other than the Obligation,
whether subordinate to the Obligation or not, if a Default or Event of Default
exists under any Loan Paper.
5.7 Expenses.
--------
The Borrower shall promptly pay (a) all reasonable and necessary
out-of-pocket costs, fees, and expenses paid or incurred by the Administrative
Agent incident to any Loan Paper (including, but not limited to, the reasonable
fees and expenses of counsel to the Administrative Agent in connection with the
negotiation, preparation, delivery, and execution of the Loan Papers and any
related amendment, waiver, or consent); and (b) all out-of-pocket costs, fees
and expenses paid or incurred by the Administrative Agent and any of the Lenders
in connection with the enforcement of the obligations of any Company or the
exercise of any Rights (including, but not limited to, reasonable attorneys'
fees and court costs), all of which shall be a part of the Obligation.
5.8 Maintenance of Existence, Assets, Business, and Insurance.
---------------------------------------------------------
Except as permitted by Section 5.13, each Company shall at all times:
Maintain its corporate existence and authority to transact business and good
standing in its jurisdiction of incorporation or organization and all other
jurisdictions where the failure to so maintain could reasonably be expected to
have a Material Adverse Effect; maintain all licenses, permits, and franchises
necessary for its business, where the failure to so maintain could reasonably be
expected to have a Material Adverse Effect; keep all of its assets which are
necessary to its business in good working order and condition (ordinary wear and
tear excepted), and make all necessary repairs and replacements thereto; and
maintain either (a) insurance with such insurers, in such amounts, and covering
such risks, as shall be ordinary and customary in the industry or (b) a
comparable self-insurance program.
5.9 Preservation and Protection of Rights.
-------------------------------------
Each Company shall perform such acts and duly authorize, execute,
acknowledge, deliver, file, and record any additional agreements, documents,
instruments, and certificates as the Administrative Agent may reasonably deem
necessary or appropriate in order to preserve and protect the Rights of the
Agents or the Lenders under any Loan Paper.
5.10 Employee Benefit Plans.
----------------------
No Company will, directly or indirectly, if it would have a Material
Adverse Effect, (a) engage in any "prohibited transaction" (as defined in
section 406 of ERISA or section 4975 of the Code), (b) permit the funding
requirements under ERISA with respect to any employee benefit plan established
or maintained by any Company to ever be less than the minimum required by ERISA,
(c) permit any employee benefit plan established or maintained by any Company to
ever be subject to involuntary termination proceedings, or (d) fully or
partially withdraw from any Multiemployer Plan.
5.11 Liens.
-----
No Company will create, incur, or suffer or permit to be created or
incurred or to exist any Lien (other than Permitted Liens) upon any of its
assets unless the Obligations then outstanding shall be secured by such Lien
equally and ratably with any and all obligations and indebtedness secured by
such Lien.
5.12 Restricted Payments.
-------------------
The Borrower will not directly or indirectly make or declare any
Restricted Payment, unless no Default has occurred and is continuing or would
result from such Restricted Payment.
5.13 Mergers and Consolidations.
--------------------------
No Company will merge or consolidate with any Person other than any
merger or consolidation whereby the Borrower (or another Company, if the
Borrower is not a party thereto) is the surviving corporation and immediately
after such merger or consolidation there shall not exist any Default or Event of
Default.
5.14 Loans, Advances, and Investments.
--------------------------------
Except as permitted by Section 5.13, no Company will make any loan,
advance, extension of credit, or capital contribution to, make any investment
in, or purchase or commit to purchase any stock or other securities or evidences
of Debt of, or interests in, any other Person, other than (a) Acquisitions, (b)
expense accounts for and other advances to directors, officers, and employees of
such Company in the ordinary course of business not to exceed $1,000,000 in the
aggregate outstanding at any time; (c) investments in (or secured by)
obligations of the United States of America and agencies thereof and obligations
guaranteed by the United States of America maturing within one year from the
date of acquisition; (d) certificates of deposit issued by any of the Lenders;
(e) certificates of deposit which are fully insured by the Federal Deposit
Insurance Corporation or are issued by commercial banks organized under the Laws
of the United States of America or any state thereof and having combined
capital, surplus, and undivided profits of not less than $100,000,000 (as shown
on such Person's most recently published statement of condition), and which
certificates of deposit have one of the two highest ratings from Moody's or S&P,
unless Borrower has a written commitment to borrow funds from such commercial
bank; (f) commercial paper rated A-1 by Moody's or P-1 by S&P (g) investments
having one of the two highest ratings from Moody's or S&P (h) extensions of
credit in connection with trade receivables and overpayments of trade payables,
in each case resulting from transactions in the ordinary course of business; (i)
loans from any Company to any other Company, investments by any Company in any
other Company, and Guaranties by any Company of the Debt of any other Company;
(j) investments in the cash surrender value of life insurance policies issued by
Persons with a financial rating from A.M. Best Company (as reported in Best's
Insurance Reports) of at least "A+"; provided, however, that if such Person's
financial rating is downgraded to less than "A+", then within 90 days following
such downgrading, either (i) such cash value life insurance policies will be
transferred to another insurance company with a financial rating of at least
"A+", (ii) such cash value insurance policies will be collapsed and the cash
value thereof will be collected by the investing Company, or (iii) such
investment will become an investment subject to the limitations of subparagraph
(n) of this Section 5.14; (k) investments in the capital stock or securities of
or loans to or Guaranties of the Debt of any Person engaged in business
comparable to the general business of any Company (x) in which a Company
possesses (or will possess, after such investment) an equity ownership interest
in such Person or (y) secured by the borrower's interest in such business; (l)
in the ordinary course of business, investments in the capital stock of the
Rural Telephone Bank, National Bank for Cooperatives, or the National Rural
Utilities Cooperative Finance Corporation, or any other lender from whom the
investing Company is intending to borrow money which requires such Company to
make an equity investment in such lender in order to so borrow; (m) Guaranties
of the Debt of the Borrower's Employee Stock Ownership Plan; and (n) other
loans, advances, Guaranties, and investments which never exceed in the aggregate
at any time 25% of Adjusted Consolidated Net Worth (valued on the basis of
original cost, plus subsequent cash and stock additions, less any write-down in
value).
5.15 Transactions with Affiliates.
----------------------------
No Company will enter into any material transaction with any of its
Affiliates, other than transactions in the ordinary course of business and upon
fair and reasonable terms not materially less favorable than such Company could
obtain or could become entitled to in an arm's-length transaction with a Person
that was not its Affiliate. For purposes of this Section 5.15, such transactions
are "material" if they, individually or in the aggregate, require any Company to
pay more than 1 percent of Consolidated Net Worth over the course of such
transactions.
5.16 Sale of Assets.
--------------
No Company will sell, lease, or otherwise dispose of all or any
substantial part of its assets other than (a) sales of inventory in the ordinary
course of business, (b) sales of equipment for a fair and adequate
consideration, provided that if any such equipment is sold, and a replacement is
necessary for the proper operation of the business of such Company, such Company
will replace such equipment with adequate equipment, (c) the exchange of assets
- -- other than equipment -- for similar assets of equal or greater value, (d) the
sale, discount, or transfer of delinquent notes or accounts receivable in the
ordinary course of business for purposes of collection, and (e) other
dispositions of assets (other than accounts receivable and related assets),
provided that the Companies shall, within the period of 180 days following the
consummation of each such transaction, apply (or cause to be applied) an amount
equal to the Net Cash Proceeds of such disposition of assets to either (i) make
Eligible Reinvestments or (ii) permanently reduce the Total Commitment, provided
further that, notwithstanding the foregoing provisions of this clause (e), at
any time that the Senior Unsecured Long-Term Debt Rating shall be lower than the
Senior Unsecured Long-Term Debt Rating in effect as of the Closing Date (it
being understood that the Debt Rating by S&P as of the Closing Date is BBB+ and
the Debt Rating by Moody's as of the Closing Date is Baa2), the net book value
of all assets disposed of pursuant to this clause (e) (net of acquisitions of
similar assets) in all such transactions during any period of 12 consecutive
months (commencing with the first date as of which such lower Senior Unsecured
Long-Term Debt Rating shall have become effective) shall not exceed an amount
equal to 10 percent of Consolidated Net Worth as set forth in the most recent
Financial Statements delivered pursuant to Section 5.3 of this Agreement.
5.17 Compliance with Laws and Documents.
----------------------------------
No Company will violate the provisions of any Laws or any Material
Agreement if such violation alone, or when aggregated with all other such
violations, could reasonably be expected to have a Material Adverse Effect. No
Company will violate the provisions of its charter or bylaws or modify, repeal,
replace, or amend any provision of its charter or bylaws if such action could
reasonably be expected to have a Material Adverse Effect. The Borrower will
provide to the Administrative Agent a copy of each document that materially
modifies, repeals, replaces, or amends the charter or bylaws of the Borrower.
5.18 New Businesses.
--------------
No Company will engage in any material business other than the
businesses in which it is presently engaged or businesses related thereto, as
described on Schedule 3.17.
5.19 Assignment.
----------
The Borrower will not assign or transfer any of its Rights, duties, or
obligations under any of the Loan Papers.
5.20 Fiscal Year and Accounting Methods.
----------------------------------
The Borrower will not change its fiscal year or accounting methods
(other than immaterial changes and changes required by changes in GAAP) without
the prior written consent of the Administrative Agent (which shall not be
unreasonably withheld).
5.21 Holding Company and Investment Company Status.
---------------------------------------------
The Borrower will not conduct its business in such a way that it will
become (a) a "holding company," a "subsidiary company" of a "holding company,"
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, (b) a "public utility" within the meaning of
the Federal Power Act, as amended, (c) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or (d) an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended.
5.22 Environmental Laws.
------------------
Each Company shall conduct its business so as to comply with all
applicable Environmental Laws and shall promptly take corrective action to
remedy any non-compliance with any Environmental Law, except where failure to so
comply or take such action would not reasonably be expected to have a Material
Adverse Effect. Each Company shall maintain a system which, in its reasonable
business judgment, will assure its continued compliance with Environmental Laws.
5.23 Environmental Indemnification.
-----------------------------
Borrower shall indemnify, protect, and hold each Indemnified Party
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, proceedings, costs, expenses
(including, without limitation, all reasonable attorneys' fees and legal
expenses whether or not suit is brought), and disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against such Indemnified Parties, with respect to or as a direct or indirect
result of the violation by any Company of any Environmental Law; or with respect
to or as a direct or indirect result of any Company's generation, manufacture,
production, storage, release, threatened release, discharge, disposal or
presence in connection with its properties of a Hazardous Substance including,
without limitation, (a) all damages of any such use, generation, manufacture,
production, storage, release, threatened release, discharge, disposal, or
presence, or (b) the costs of any required or necessary environmental
investigation, monitoring, repair, cleanup, or detoxification and the
preparation and implementation of any closure, remedial, or other plans. The
provisions of and undertakings and indemnification set forth in this paragraph
shall survive the satisfaction and payment of the Obligation and termination of
this Agreement for a period of time set forth in the statute of limitations in
any applicable Environmental Law.
5.24 Financial Covenants.
-------------------
(a) As calculated at the end of each fiscal quarter of the
Borrower (but computed with respect to EBITDA for the four fiscal
quarters ending on the last day of such fiscal quarter), the Borrower
shall not permit the ratio of Funded Debt of the Companies to EBITDA of
the Companies to exceed 4.00 to 1.0.
(b) As calculated at the end of each fiscal quarter of the
Borrower (but computed with respect to EBITDA for the four fiscal
quarters ending on the last day of such fiscal quarter), the Borrower
shall not permit the ratio of Funded Debt of its Subsidiaries to EBITDA
of the Companies to exceed 1.50 to 1.0.
(c) As calculated at the end of each fiscal quarter of the
Borrower (but computed for the four fiscal quarters ending on the last
day of such fiscal quarter), the Borrower shall not permit the ratio of
EBIT of the Companies to the sum of (i) consolidated interest expense
of the Companies and (ii) dividends declared or paid by any Company
(other than to another Company) on its preferred capital stock (but if
such dividends are declared and paid during such four-quarter period,
the amount shall not be counted twice) to be less than 1.50 to 1.0.
For purposes of this Section 5.24(c), EBIT and interest
expense of any Subsidiary which is subject to any Subsidiary
Encumbrance, shall be reduced to the extent such Subsidiary is
restricted by the Subsidiary Encumbrance. As used in this Section
5.24(c), "Subsidiary Encumbrance" shall mean, so long as a default has
occurred and is continuing under the agreement creating such
encumbrance or restriction, any encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make any other
distributions on its capital stock or any other interest or
participation in its profits owned by the Borrower or any Subsidiary of
the Borrower, or pay any Debt owed to the Borrower or a Subsidiary of
the Borrower, (ii) make loans or advances to, or grant liens in favor
of, the Borrower or any of the Borrower's Subsidiaries or (iii)
transfer any of its properties or assets to the Borrower, except for
such encumbrances or restrictions (A) existing on the date of this
Agreement, (B) arising in connection with loans made to any Company by
the Rural Electrification Administration, the Rural Utilities Service,
the Rural Telephone Bank, or similar lenders such as the Rural
Telephone Finance Cooperative, or (C) now existing or hereafter arising
under or by reason of either (x) applicable Law or (y) this Agreement
and the other Loan Papers.
(d) If at any time after the date of this Agreement the
Borrower enters into any financing arrangement with a third party which
requires the Borrower or the Companies as a whole to maintain a
specified minimum net worth, then such minimum net worth requirement or
covenant shall be incorporated herein by reference and made a part of
this Agreement for all purposes as of the date such financing
arrangement is entered into by the Borrower.
Further, for purposes of this Section 5.24 Funded Debt shall include any
Company's Guaranty of Funded Debt of any Person other than another Company or
the Borrower's Employee Stock Ownership Plan. For the first four quarters
following any Acquisition, calculations under this Section 5.24 shall be made on
a pro forma basis as if the properties acquired in connection with such
Acquisition were properties of the Companies during the period of calculation.
SECTION 6
DEFAULT.
The term "Event of Default" means the occurrence and continuance of any
one or more of the following events (including the passage of time, if any,
specified therefor) (provided that, if any such event occurs and the Lenders or
Majority Lenders, as required by the provisions of Section 9.15, subsequently
agree in writing that they will not exercise any remedies hereunder as a result
thereof, the occurrence and continuance of such event shall no longer be deemed
an Event of Default hereunder insofar as the state of facts giving rise to such
event is concerned):
6.1 Payment of Obligation.
---------------------
The failure or refusal of the Borrower to pay any portion of the
Obligation, as the same become due in accordance with the terms of the Loan
Papers and, in the case of an interest payment, such failure or refusal
continues for a period of 5 Business Days (no grace period being given for
failure or refusal to make a principal payment). Notwithstanding the foregoing,
the Borrower's failure to pay, if caused solely by a wire transfer malfunction
or similar problem outside the Borrower's control, shall not be deemed an Event
of Default.
6.2 Covenants.
---------
(a) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition
contained in Sections 5.3(e)(iii), 5.11, 5.12, 5,14, 5.15, 5.18, 5.19,
5.20, 5.21 and 5.24.
(b) The failure or refusal of the Borrower (and, if
applicable, any other Company) to punctually and properly perform,
observe, and comply with any covenant, agreement, or condition
contained in any of the Loan Papers to which such Company is a party,
other than covenants to pay the Obligation and the covenants listed in
clause (a) preceding, and such failure or refusal continues for 10 days
after notice from the Administrative Agent to the Borrower.
6.3 Debtor Relief.
-------------
The Companies shall not be Solvent, or any Company (a) fails to pay its
Debts generally as they become due, (b) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Relief Law, or (c) becomes a party to or
is made the subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or otherwise adversely
affect the Rights of the Agents or the Lenders granted in the Loan Papers
(unless, in the event such proceeding is involuntary, the petition instituting
same is dismissed within 60 days after its filing).
6.4 Attachment.
----------
The failure of any Company to have discharged within 60 days after
commencement any attachment, sequestration, or similar proceeding which,
individually or together with all such other proceedings then pending, affects
assets of such Company having a value (individually or collectively) of 1
percent of Consolidated Net Worth or more.
6.5 Payment of Judgments.
--------------------
Any Company fails to pay any judgments or orders for the payment of
money in excess of 1 percent of Consolidated Net Worth (individually or
collectively) rendered against it or any of its assets and either (a) any
enforcement proceedings shall have been commenced by any creditor upon any such
judgment or order or (b) a stay of enforcement of any such judgment or order, by
reason of pending appeal or otherwise, shall not be in effect prior to the time
its assets may be lawfully sold to satisfy such judgment.
6.6 Default Under Other Agreements.
------------------------------
A default exists under any Material Agreement to which any Company is a
party, the effect of which is to cause, or which permits the holder thereof (or
a trustee or representative of such holder) to cause, unpaid consideration of at
least 2% of Consolidated Net Worth (individually or in the aggregate) to become
due prior to the stated maturity or prior to the regularly scheduled dates of
payment.
6.7 Antitrust Proceedings.
---------------------
A petition or complaint is filed before or by any Tribunal (including,
without limitation, the Federal Trade Commission, the United States Justice
Department, or the Federal Communications Commission) seeking to cause the
Borrower or any Subsidiary to divest a significant portion of its assets or any
of its Subsidiaries pursuant to any antitrust, restraint of trade, unfair
competition, or similar Laws, and such petition or complaint is not dismissed or
discharged within 270 days after the filing thereof.
6.8 Misrepresentation.
-----------------
Administrative Agent or any Lender discovers that any statement,
representation, or warranty in the Loan Papers, any Financial Statement of the
Borrower, or any writing ever delivered to Administrative Agent or any Lender
pursuant to the Loan Papers is false, misleading, or erroneous when made or
delivered in any material respect.
6.9 Change in Control.
-----------------
A Change of Control shall occur. For the purpose of this Section, a
"Change of Control" shall be deemed to have occurred if:
(a) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), but excluding any employee benefit plan or plans of
Borrower and its Subsidiaries and Affiliates, becomes the beneficial
owner, directly or indirectly, of thirty percent (30%) or more of the
combined voting power of Borrower's outstanding voting securities
ordinarily having the right to vote for the election of directors of
Borrower; or
(b) the individuals who, as of June 30, 2001 constituted the
Board of Directors of Borrower (the "Board" generally and as of June
30, 2001 the "Incumbent Board") cease for any reason to constitute at
least two-thirds (2/3) of the Board, or in the case of a merger or
consolidation of Borrower, do not constitute or cease to constitute at
least two-thirds (2/3) of the board of directors of the surviving
company (or in a case where the surviving corporation is controlled,
directly or indirectly, by another corporation or entity do not
constitute or cease to constitute at least two-thirds (2/3) of the
board of such controlling corporation or do not have or cease to have
at least two-thirds (2/3) voting seats on any body comparable to a
board of directors of such controlling entity or, if there is no body
comparable to a board of directors, at least two-thirds (2/3) voting
control of such controlling entity), provided that any person becoming
a director (or, in the case of a controlling non-corporate entity,
obtaining a position comparable to a director or obtaining a voting
interest in such entity) subsequent to June 30, 2001, whose election,
or nomination for election, was approved by a vote of the persons
comprising at least two-thirds (2/3) of the Incumbent Board (other than
an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board.
6.10 ERISA.
-----
Any one of the following shall have occurred: (a) any "Reportable
Event" as such term is defined in ERISA under any Plan, (b) the appointment by
an appropriate Tribunal of a trustee to administer any Plan, (c) the termination
of any Plan within the meaning of Title IV of ERISA, or (d) any material
accumulated funding deficiency within the meaning of ERISA exists under any
Plan, and any of (a), (b), (c) or (d) results in a Material Adverse Effect.
6.11 Validity and Enforceability of Loan Documents.
---------------------------------------------
Any Loan Paper shall, at any time after its execution and delivery and
for any reason, cease to be in full force and effect in any material respect or
be declared to be null and void or the validity or enforceability thereof be
contested by any Company party thereto or any Company shall deny that it has any
liability or obligations under any Loan Paper to which it is a party.
SECTION 7
RIGHTS AND REMEDIES.
7.1 Remedies Upon Event of Default.
------------------------------
(a) Should an Event of Default occur and be continuing under
Section 6.3, the commitment of the Lenders to make Loans shall
automatically terminate and the entire unpaid balance of the Obligation
shall automatically become due and payable without any action of any
kind whatsoever.
(b) Should any other Event of Default occur and be continuing,
subject to any agreement among the Lenders, the Administrative Agent
may (and shall upon the request of the Majority Lenders), at its (or
the Majority Lenders') election, do any one or more of the following:
(i) If the maturity of the Obligation has not already been accelerated
under Section 7.1(a), declare the entire unpaid balance of the
Obligation, or any part thereof, immediately due and payable, whereupon
it shall be due and payable (and notice of such declaration shall
promptly be given thereafter by the Administrative Agent to the
Borrower); (ii) terminate commitments to make Loans hereunder; (iii)
reduce any claim to judgment; (iv) exercise (or request each Lender to
exercise) the Rights of offset or banker's Lien against the interest of
the Borrower in and to every account and other property of the Borrower
which are in the possession of any Lender to the extent of the full
amount of the Obligation; and (v) exercise any and all other legal or
equitable Rights afforded by the Loan Papers, the Laws of the State of
New York or any other jurisdiction as the Administrative Agent shall
deem appropriate, or otherwise, including, but not limited to, the
Right to bring suit or other proceedings before any Tribunal either for
specific performance of any covenant or condition contained in any of
the Loan Papers or in aid of the exercise of any Right granted to the
Lenders in any of the Loan Papers.
7.2 Waivers.
-------
The Borrower hereby waives presentment and demand for payment, protest,
notice of intention to accelerate, notice of acceleration, and notice of protest
and nonpayment, and agrees that its liability with respect to the Obligation, or
any part thereof, shall not be affected by any renewal or extension in the time
of payment of the Obligation, by any indulgence, or by any release or change in
any security for the payment of the Obligation.
7.3 Performance by Administrative Agent.
-----------------------------------
If any covenant, duty, or agreement of any Company is not performed in
accordance with the terms of the Loan Papers, the Administrative Agent may, at
its option (but subject to the approval of the Majority Lenders), perform or
attempt to perform such covenant, duty, or agreement on behalf of such Company.
In such event, any amount expended by the Administrative Agent in such
performance or attempted performance shall be reasonable, payable by the
Borrower to the Administrative Agent on demand, shall become part of the
Obligation, and shall bear interest at the Default Rate from the date of such
expenditure by the Administrative Agent until paid. Notwithstanding the
foregoing, it is expressly understood that the Administrative Agent does not
assume and shall never have, except by its express written consent, any
liability or responsibility for the performance of any covenant, duty, or
agreement of any Company.
7.4 Delegation of Duties and Rights.
-------------------------------
The Administrative Agent and the Lenders may perform any of their
duties or exercise any of their Rights under the Loan Papers by or through the
Administrative Agent and their and the Administrative Agent's officers,
directors, employees, attorneys, agents, or other representatives.
7.5 Lenders Not in Control.
----------------------
None of the covenants or other provisions contained in this Agreement
or in any other Loan Paper shall, or shall be deemed to, give the Agents or the
Lenders the Right to exercise control over the assets (including, without
limitation, real property), affairs, or management of any Company, the power of
the Agents and the Lenders being limited to the Right to exercise the remedies
provided in this Section 7.
7.6 Waivers by Lenders.
------------------
The acceptance by the Agents or the Lenders at any time and from time
to time of partial payment on the Obligation shall not be deemed to be a waiver
of any Event of Default then existing. No waiver by the Agents, the Majority
Lenders, or all of the Lenders of any Event of Default shall be deemed to be a
waiver of any other then-existing or subsequent Event of Default. No delay or
omission by the Agents, the Majority Lenders, or all of the Lenders in
exercising any Right under the Loan Papers shall impair such Right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
7.7 Cumulative Rights.
-----------------
All Rights available to the Agents and the Lenders under the Loan
Papers are cumulative of and in addition to all other Rights granted to the
Agents and the Lenders at law or in equity, whether or not the Obligation is due
and payable and whether or not the Agents or the Lenders have instituted any
suit for collection, foreclosure, or other action in connection with the Loan
Papers.
7.8 Application of Proceeds.
-----------------------
Any and all proceeds ever received by the Agents or the Lenders from
the exercise of any Rights pertaining to the Obligation shall be applied to the
Obligations in the order and manner set forth in Section 2.17.
7.9 Certain Proceedings.
-------------------
The Borrower will promptly execute and deliver or cause the execution
and delivery of, all applications, certificates, instruments, registration
statements, and all other documents and papers the Agents or the Lenders may
reasonably request in connection with the obtaining of any consent, approval,
registration, qualification, permit, license, or authorization of any other
Tribunal or other Person necessary or appropriate for the effective exercise of
any Rights under the Loan Papers. Because the Borrower agrees that the Agents'
and the Lenders' remedies at Law for failure of the Borrower to comply with the
provisions of this paragraph would be inadequate and that such failure would not
be adequately compensable in damages, the Borrower agrees that the covenants of
this paragraph may be specifically enforced.
7.10 Setoff.
------
If an Event of Default shall have occurred and is continuing, each
Lender is hereby authorized at any time and from time to time, without prior
notice to the Borrower (any such notice being hereby expressly waived by the
Borrower), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and any other indebtedness at
any time owing by such Lender to or for the credit or the account of the
Borrower against any portion of the Obligation owing to such Lender,
irrespective of whether or not all of the Obligation, or any part thereof, shall
be then due. Each Lender agrees promptly to notify the Borrower (with a copy to
the Administrative Agent) after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights and remedies of each Lender hereunder are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
SECTION 8
AGREEMENT AMONG LENDERS.
8.1 Agents.
------
(a) Each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act on its behalf and to exercise such powers
under this Agreement as are specifically delegated to or required of
the Administrative Agent by the terms hereto, together with such powers
as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement or the Notes (including, without
limitation, enforcement or collection of the Notes), the Administrative
Agents shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon
the instructions of the Majority Lenders, and such instructions shall
be binding upon all Lenders and all holders of Notes; provided,
however, that the Administrative Agent shall not be required to take
any action which exposes it to personal liability or which is contrary
to this Agreement or applicable Law.
(b) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be
removed as the Administrative Agent under this Agreement and the Notes
at any time with cause by all Lenders other than the Administrative
Agent (the "Removing Lenders"). Upon any such resignation or removal,
the Majority Lenders shall have the right, with the consent of the
Borrower, not to be unreasonably withheld, to appoint a successor
Administrative Agent from among the Lenders (other than the resigning
Administrative Agent). If no successor Administrative Agent shall have
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 calendar days after the retiring Administrative
Agent's giving notice of resignation or the Removing Lenders' removal
of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, with the consent of the Borrower,
not to be unreasonably withheld, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the Laws of or
authorized to do business in the United States of America or any state
thereof and having a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as the
Administrative Agent hereunder and under the Notes by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the Notes. After any retiring
Administrative Agent's resignation or removal as the Administrative
Agent hereunder and under the Notes, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement
and the Notes.
(c) Banc of America Securities LLC and Salomon Smith
Barney Inc. are hereby appointed as Joint Lead Arrangers
and Joint Book Managers hereunder. Citibank, N.A. is hereby
appointed to act as Syndication Agent hereunder. Fleet
National Bank, JPMorgan, a division of Chase Securities Inc.
and SunTrust Bank, are hereby appointed to act as
Co-Documentation Agents hereunder. Neither the Syndication Agent,
the Co-Documentation Agents nor the Joint Lead Arrangers and Joint
Book Managers shall have any Right, obligation, liability,
responsibility or duty under this Agreement in such capacity.
(d) If Administrative Agent fails to take any action under any
Loan Paper after an Event of Default and within a reasonable time after
being reasonably requested to do so by any Lender (when such Lender is
entitled to make such request under the Loan Papers and after such
requesting Lender has obtained the concurrence of such other Lenders as
may be required hereunder), the Administrative Agent shall not suffer
or incur any liability as a result of such failure or refusal, but such
requesting Lender may request the Administrative Agent to resign as the
Administrative Agent, whereupon the Administrative Agent shall so
resign upon receiving such request.
(e) The Administrative Agent, in its capacity as a Lender,
shall have the same Rights under the Loan Papers as any other Lender
and may exercise the same as though it were not acting as the
Administrative Agent; the term "Lender" shall, unless the context
otherwise indicates, include the Administrative Agent; and any
resignation by the Administrative Agent hereunder shall not impair or
otherwise affect any Rights which it has or may have in its capacity as
an individual Lender.
(f) Subject in all respects to the terms and conditions of the
Loan Papers, the Agents may be engaged in, or may hereafter engage in,
one or more loan, letter of credit, leasing, or other financing
transactions (collectively, the "other financings") not the subject of
the Loan Papers, with one or more of the Companies, or may act as
trustee on behalf of, or depositary for, or otherwise engage in other
business transactions with one or more of the Companies, in each case
with no responsibility to account therefor to the Lenders. Without
limiting Rights to which the Lenders are specifically entitled under
the Loan Papers, no other Lenders shall have, by virtue of their being
parties hereto, any interest in (i) any such other financings, (ii) any
present or future guaranties by or for the account of any Company which
are not contemplated or included in the Loan Papers, (iii) any present
or future offset exercised by such Agent in respect of such other
financings, or (iv) any present or future property taken as security
for any such other financings, even if such property may become
security for the obligations of any Company arising under the Loan
Papers by reason of a general description of indebtedness related to
any such other financings; provided that, if any payments in respect of
such guaranties or such property or the proceeds thereof shall be
applied to reduce the Obligation, then each Lender shall be entitled to
share in such application according to its pro rata part thereof.
8.2 Expenses.
--------
Each Lender shall pay its pro rata part of any reasonable expenses
(including, without limitation, court costs, reasonable attorneys' fees, and
other costs of collection) incurred by the Administrative Agent in connection
with any of the Loan Papers if the Administrative Agent does not receive
reimbursement therefor from other sources within 60 days after incurred;
provided that each Lender shall be entitled to receive its pro rata part of any
reimbursement for such expenses, or part thereof, which the Administrative Agent
subsequently receives from such other sources.
8.3 Proportionate Absorption of Losses.
----------------------------------
Except as herein provided, nothing in the Loan Papers shall be deemed
to give any Lender any advantage over any other Lender insofar as the portion of
the Obligation arising under the Loan Papers is concerned, or to relieve any
Lender from absorbing its pro rata part of any losses sustained with respect to
the Obligation (except to the extent unilateral actions or inactions by any
Lender result in any credit, allowance, setoff, defense, or counterclaim solely
with respect to all or any part of such Lender's pro rata part of the
Obligation).
8.4 Delegation of Duties; Reliance.
------------------------------
The Administrative Agent may exercise any of its duties under the Loan
Papers by or through its officers, directors, employees, attorneys, or agents
(collectively, "Representatives"), and the Administrative Agent and its
Representatives shall (a) be entitled to rely upon (and shall be protected in
relying upon) any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telecopy, telegram or teletype message, statement, order, or
other documents or conversation believed by it or them to be genuine and correct
and to have been signed or made by the proper Person and, with respect to legal
matters, upon opinion of counsel selected by the Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of its pro rata
part of the Obligation for all purposes until, subject to Section 9.20, written
notice of the assignment or transfer thereof shall have been given to and
received by the Administrative Agent (and, any request, authorization, consent,
or approval of any Lender shall be conclusive and binding on each subsequent
holder, assignee, or transferee of such Lender's pro rata part of the Obligation
or Participant therein), and (c) not be deemed to have notice of the occurrence
of an Event of Default unless an officer of the Administrative Agent has actual
knowledge thereof or the Administrative Agent has been notified thereof by a
Lender or the Borrower.
8.5 Limitation of Liability.
-----------------------
(a) Neither the Administrative Agent nor any of its
Representatives (as defined in Section 8.4) shall be liable for any
action taken or omitted to be taken by it or them under the Loan Papers
in good faith and believed by it or them to be within the discretion or
power conferred upon it or them by the Loan Papers or be responsible
for the consequences of any error of judgment, except for fraud, gross
negligence, or willful misconduct (IT BEING THE EXPRESS INTENTION OF
THE PARTIES THAT THE ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES SHALL
HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS RESULTING FROM THEIR
ORDINARY CONTRIBUTORY NEGLIGENCE), and neither the Administrative Agent
nor any of its Representatives has a fiduciary relationship with any
Lender by virtue of the Loan Papers (provided that nothing herein shall
negate the obligation of Administrative Agent to account for funds
received by it for the account of any Lender).
(b) Unless indemnified to its satisfaction against loss, cost,
liability, and expense, the Administrative Agent shall not be compelled
to do any act under the Loan Papers or to take any action toward the
execution or enforcement of the powers thereby created or to prosecute
or defend any suit in respect of the Loan Papers. If the Administrative
Agent requests instructions from the Lenders or from the Majority
Lenders, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with
any Loan Paper, the Administrative Agent shall be entitled (but shall
not be required) to refrain (without incurring any liability to any
Person by so refraining) from such act or action unless and until it
has received such instructions. In no event, however, shall the
Administrative Agent or any of its Representatives be required to take
any action which it or they reasonably determine could incur for it or
them criminal or onerous civil liability.
(c) The Administrative Agent shall not be responsible in any
manner to any Lender or any Participant for, and each Lender represents
and warrants that it has not relied upon the Administrative Agent in
respect of, (i) the creditworthiness of the Borrower and the risks
involved to such Lender, (ii) the effectiveness, enforceability,
genuineness, validity, or the due execution of any Loan Paper, (iii)
any representation, warranty, document, certificate, report, or
statement made therein or furnished thereunder or in connection
therewith, or (iv) observation of or compliance with any of the terms,
covenants, or conditions of any Loan Paper on the part of any Company.
Each Lender also acknowledges and agrees that it will, independently
and without reliance upon the Administrative Agent or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement. Each Lender agrees to
indemnify the Administrative Agent and its Representatives and hold
them harmless from and against (but limited to such Lender's pro rata
part of) any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses, and
reasonable disbursements of any kind or nature whatsoever which may be
imposed on, asserted against, or incurred by any of them in any way
relating to or arising out of the Loan Papers or any action taken or
omitted by them under the Loan Papers, except to the extent the same
result solely from fraud, gross negligence, or willful misconduct by
the Administrative Agent or its Representatives (it being the express
intention of the parties that the Administrative Agent and its
Representatives shall have no liability for actions and omissions
resulting from their ordinary contributory negligence).
8.6 Default.
-------
Upon the occurrence and continuance of an Event of Default, the Lenders
agree to promptly confer in order that the Majority Lenders (or, if required by
Section 9.15, all Lenders) may agree upon a course of action for the enforcement
of the Rights of the Lenders; provided that the Administrative Agent shall be
entitled (but not obligated) to proceed to take any actions necessary in its
reasonable judgment to preserve the Rights of the Administrative Agent and the
Lenders hereunder, pending agreement by the Majority Lenders (or, if required by
Section 9.15, all Lenders) on the course of action to be taken.
8.7 Limitation of Liability of Lenders.
----------------------------------
No Lender or any Participant shall incur any liability to any other
Lender or Participant except for acts or omissions in bad faith, and no Lender
or any Participant shall incur any liability to any Company or any other Person
for any act or omission of any other Lender or any Participant.
8.8 Relationship of Lenders.
-----------------------
Nothing herein shall be construed as creating a partnership or joint
venture among the Agents, the Agents and the Lenders, or the Lenders.
8.9 Foreign Lenders.
---------------
Each Lender that is organized under the Laws of any jurisdiction other
than the United States of America or any State thereof (a) represents to the
Administrative Agent and the Borrower that (i) under applicable Laws and
treaties no Taxes will be required to be withheld by the Administrative Agent or
the Borrower with respect to any payments to be made to such Lender in respect
of the Obligation and (ii) it has furnished to the Administrative Agent and the
Borrower two duly completed copies of either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 (wherein such Lender claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder), and (b) covenants to (i) provide the
Administrative Agent and the Borrower a new Form 4224 or Form 1001 upon the
obsolescence of any previously delivered form in accordance with applicable U.S.
Laws and amendments thereto duly executed and completed by such Lender and (ii)
comply from time to time with all applicable U.S. Laws with regard to such
withholding tax exemption.
8.10 Benefits of Agreement.
---------------------
Except for requiring the Borrower's consent under Section 8.1(b) and
the representations and covenants in Section 8.9 in favor of the Borrower, none
of the provisions of this Section 8 shall inure to the benefit of any Company or
any Person other than the Agents, the Lenders, and the Participants;
consequently, neither any Company nor any other Person shall be entitled to rely
upon, or to raise as a defense, in any manner whatsoever, the failure of any
Agent or any Lender to comply with such provisions.
SECTION 9
MISCELLANEOUS.
9.1 Changes in GAAP.
---------------
All accounting and financial terms used in any of the Loan Papers and
the compliance with each covenant contained in the Loan Papers which relates to
financial matters shall be determined in accordance with GAAP, except to the
extent that a deviation therefrom is expressly stated in such Loan Papers.
Should a change in GAAP require a change in any method of accounting or should
any voluntary change in the accounting methods be permitted pursuant to Section
5.20, then such change shall not result in an Event of Default if, at the time
of such change, such Event of Default had not occurred and was not then
continuing, based upon the former methods of accounting used by or on behalf of
the Borrower; provided that, after any such change in accounting methods, the
Financial Statements required to be delivered shall either be (a) supplemented
with financial information prepared in comparative form, in compliance with the
former methods of accounting used prior to such change, as well as with the new
method or methods of accounting and, for the purpose of determining whether an
Event of Default has occurred, Lenders shall look solely to that portion of such
supplemental information that complies with the former methods of accounting, or
(b) supplemented with financial information prepared in compliance with such new
method or methods of accounting but accompanied by such information, in form and
detail satisfactory to Lenders, that will allow Lenders to readily determine the
effect of such changes in accounting methods on such Financial Statements, and,
for the purpose of determining whether an Event of Default has occurred, Lenders
shall look solely to such supplemental information as adjusted to reflect
compliance with such former method or methods of accounting.
9.2 Money and Interest.
------------------
Unless stipulated otherwise (a) all references in any of the Loan
Papers to "dollars," "money," "payments," or other similar financial or monetary
terms are references to currency of the United States of America and (b) all
references to interest are to simple and not compound interest.
9.3 Number and Gender of Words.
--------------------------
Whenever in any Loan Paper the singular number is used, the same shall
include the plural where appropriate, and vice versa; and words of any gender in
any Loan Paper shall include each other gender where appropriate. The words
"herein," "hereof," and "hereunder," and other words of similar import refer to
the relevant Loan Paper as a whole and not to any particular part or subdivision
thereof.
9.4 Headings.
--------
The headings, captions, and arrangements used in any of the Loan Papers
are, unless specified otherwise, for convenience only and shall not be deemed to
limit, amplify, or modify the terms of the Loan Papers, nor affect the meaning
thereof.
9.5 Exhibits.
--------
If any Exhibit, which is to be executed and delivered, contains blanks,
the same shall be completed correctly and in accordance with the terms and
provisions contained and as contemplated herein prior to, at the time of, or
after the execution and delivery thereof.
9.6 Communications.
--------------
Unless specifically otherwise provided, whenever any Loan Paper
requires or permits any consent, approval, notice, request, or demand from one
party to another, such communication must be in writing (which may be by
telecopy) to be effective and shall be deemed to have been given on the day
actually delivered or, if mailed, on the Business Day it is received by the
party to be notified at the address indicated on Schedule 1 (unless changed by
notice pursuant hereto).
9.7 Form and Number of Documents.
----------------------------
Each agreement, document, instrument, or other writing to be furnished
under any provision of this Agreement must be in form and substance and in such
number of counterparts as may be reasonably required by the Administrative Agent
and its counsel.
9.8 Exceptions to Covenants.
-----------------------
The Borrower shall not take any action or fail to take any action which
is permitted as an exception to any of the covenants contained in any of the
Loan Papers if such action or omission would result in the breach of any other
covenant contained in any of the Loan Papers.
9.9 Survival.
--------
All covenants, agreements, undertakings, representations, and
warranties made in any of the Loan Papers (a) shall survive all closings under
the Loan Papers, (b) except as otherwise indicated, shall not be affected by any
investigation made by any party, and (c) unless otherwise provided herein shall
terminate upon the later of the termination of this Agreement and the payment in
full of the Obligation.
9.10 Governing Law.
-------------
The Laws (other than conflict-of-laws provisions thereof) of the State
of New York and of the United States of America shall govern the Rights and
duties of the parties hereto and the validity, construction, enforcement, and
interpretation of the Loan Papers.
9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL.
-------------------------------------
EACH PARTY HERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS,
HEREBY (a) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS OF THE STATE OF NORTH CAROLINA AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR
IN CONNECTION WITH THE LOAN PAPERS AND THE OBLIGATION BY SERVICE OF PROCESS AS
PROVIDED BY NORTH CAROLINA LAW, (b) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE LOAN PAPERS
AND THE OBLIGATION BROUGHT IN DISTRICT COURTS OF MECKLENBURG COUNTY, NORTH
CAROLINA, OR IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
NORTH CAROLINA, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (d) AGREES TO
DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN CHARLOTTE, NORTH
CAROLINA, IN CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO THE AGENT
EVIDENCE THEREOF, IF REQUESTED, (e) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (f) IRREVOCABLY AGREES THAT ANY LEGAL
PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS ON THE OBLIGATION SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED
COURTS, AND (g) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RIGHT TO A JURY TRIAL IN ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS AND THE OBLIGATION.
9.12 Maximum Interest Rate.
---------------------
Regardless of any provision contained in any of the Loan Papers, no
Lender shall ever be entitled to contract for, charge, take, reserve, receive,
or apply, as interest on the Obligation, or any part thereof, any amount in
excess of the Highest Lawful Rate, and, in the event the Lenders ever contract
for, charge, take, reserve, receive, or apply as interest any such excess, it
shall be deemed a partial prepayment without penalty of principal and treated
hereunder as such and any remaining excess shall be refunded to the Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Borrower and the Lenders
shall, to the maximum extent permitted under applicable Law, (a) treat all
Borrowings as but a single extension of credit (and the Lenders and the Borrower
agree that such is the case and that provision herein for multiple Borrowings
and multiple Notes is for convenience only), (b) characterize any nonprincipal
payment as an expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d) "spread" the total amount
of interest throughout the entire contemplated term of the Obligation; provided
that, if the Obligation is paid and performed in full prior to the end of the
full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Highest Lawful Rate, the Lenders shall
refund such excess, and, in such event, the Lenders shall not be subject to any
penalties provided by any Laws for contracting for, charging, taking, reserving,
or receiving interest in excess of the Highest Lawful Rate.
9.13 Invalid Provisions.
------------------
If any provision in any Loan Paper is held to be illegal, invalid, or
unenforceable, such provision shall be fully severable; the appropriate Loan
Paper shall be construed and enforced as if such provision had never comprised a
part thereof; and the remaining provisions thereof shall remain in full force
and effect and shall not be affected by such provision or by its severance
therefrom. Furthermore, in lieu of such provision there shall be added
automatically as a part of such Loan Paper a provision as similar thereto as may
be possible and be legal, valid, and enforceable.
9.14 Entire Agreement.
----------------
THIS AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE OTHER
WRITTEN LOAN PAPERS EXECUTED BY THE BORROWER, THE AGENTS, AND THE LENDERS (OR BY
THE BORROWER FOR THE BENEFIT OF THE AGENTS OR ANY LENDER) REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9.15 Amendments, Etc.
---------------
No amendment or waiver of any provision of any Loan Paper nor consent
to any departure therefrom by the Borrower shall be effective unless the same
shall be in writing and signed by the Majority Lenders, and then such amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver,
or consent shall, unless in writing and signed by all Lenders, do any of the
following: (a) increase the Commitment, or extend the due date for payment of
any of the Obligation, (b) reduce the principal amount of Loans due hereunder or
any interest rate or the amount of fees applicable to the Obligation (except
such reductions as are contemplated by this Agreement), (c) amend or waive
compliance with this Section 9.15 or (d) amend the definition of Majority
Lenders; provided that no amendment, waiver, or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Administrative Agent
under this or any other Loan Paper.
9.16 Waivers.
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No course of dealing nor any failure or delay by the Administrative
Agent, any Lender, or any of their respective officers, directors, employees,
agents, representatives, or attorneys with respect to exercising any Right of
the Lenders hereunder shall operate as a waiver thereof. A waiver must be in
writing and signed by the Lenders (or the Majority Lenders to the extent
permitted hereunder) to be effective, and such waiver will be effective only in
the specific instance and for the specific purpose for which it is given.
9.17 Taxes.
-----
Any Taxes (excluding income, gross receipts and franchise taxes)
payable or ruled payable by any Tribunal in respect of this Agreement or any
other Loan Paper shall be paid by the Borrower, together with interest and
penalties, if any.
9.18 Governmental Regulation.
-----------------------
Anything contained in this Agreement to the contrary notwithstanding,
the Lenders shall not be obligated to extend credit to the Borrower in violation
of any Law.
9.19 Multiple Counterparts.
---------------------
This Agreement may be executed in a number of identical counterparts,
each of which shall be deemed an original for all purposes and all of which
constitute, collectively, one Agreement; but, in making proof of this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart. It is not necessary that each Lender execute the same counterpart
so long as identical counterparts are executed by the Borrower and each Lender.
This Agreement shall become effective when counterparts hereof shall have been
executed and delivered to the Administrative Agent by each Lender, the Agents,
and the Borrower, or, in the case only of the Lenders, when the Administrative
Agent shall have received telecopied or other evidence satisfactory to it that
each Lender has executed and is delivering to the Administrative Agent a
counterpart hereof.
9.20 Successors and Assigns; Participations; Assignments.
---------------------------------------------------
(a) This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective successors and
assigns, except that (i) the Borrower may not, directly or indirectly,
assign or transfer, or attempt to assign or transfer, any of its
Rights, duties, or obligations under any Loan Papers to which it is a
party without the express written consent of all Lenders, and (ii)
except as permitted under this Section 9.20, no Lender may transfer,
pledge, assign, sell participations in, or otherwise encumber its
portion of the Obligation.
(b) Subject to the provisions of this Section 9.20, any Lender
may sell to one or more Persons (each a "Participant") participating
interests (in each case not less than $5,000,000) in its portion of the
Obligation; provided that the Administrative Agent and the Borrower
shall have the right to approve any Participant which is not a
financial institution. In the event of any such sale to a Participant,
(i) such Lender shall remain a "Lender" under this Agreement and the
Participant shall not constitute a "Lender" hereunder, (ii) such
Lender's obligations under this Agreement shall remain unchanged, (iii)
such Lender shall remain solely responsible for the performance
thereof, (iv) such Lender shall remain the holder of its share of the
Obligation for all purposes under this Agreement, and (v) the Borrower
and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's Rights and
obligations under the Loan Papers. Participants shall have no Rights
under the Loan Papers, other than certain voting rights as provided
below. Each Lender shall be entitled to obtain (on behalf of its
Participants) the benefits of Section 2 with respect to all
participations in its Loans outstanding from time to time. No Lender
shall sell any participating interest under which the Participant shall
have any Rights to approve any amendment, modification, or waiver of
any Loan Paper, except to the extent such amendment, modification, or
waiver extends the due date for payment of any amount in respect of
principal, interest, or fees due under the Loan Papers, or reduces the
interest rate or the amount of principal or fees applicable to the
Obligation (except such reductions as are contemplated by this
Agreement); provided that in those cases where a Participant is
entitled to the benefits of Section 2 or a Lender grants Rights to its
Participants to approve amendments to or waivers of the Loan Papers
respecting the matters previously described in this sentence, such
Lender must include a voting mechanism in the relevant participation
agreement whereby a majority of such Lender's portion of the Obligation
(whether held by such Lender or participated) shall control the vote
for all of such Lender's portion of the Obligation. Except in the case
of the sale of a participating interest to a Lender, the relevant
participation agreement shall not permit the Participant to transfer,
pledge, assign, sell participations in, or otherwise encumber its
portion of the Obligation.
(c) Subject to the provisions of this Section 9.20, any Lender
may sell to one or more Eligible Assignees (each a "Purchaser") a
proportionate part (in each case not less than $5,000,000) of its
Rights and obligations under the Loan Papers pursuant to an Assignment
and Acceptance (herein so called) between such Purchaser and such
Lender in the form of Exhibit E hereto. Upon (i) delivery of an
executed copy of the Assignment and Acceptance to the Borrower and the
Administrative Agent and (ii) payment of a fee of $3,500 from such
Lender to the Administrative Agent, from and after the assignment's
effective date (which shall be after the date of such delivery), such
Purchaser shall for all purposes be a Lender hereunder and shall have
all the Rights and obligations of a Lender hereunder to the same extent
as if it were an original party hereto with commitments as set forth in
the Assignment and Acceptance, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent, but
shall retain such rights to expense reimbursement and indemnification
to which it was entitled at the effective date. Upon any transfer
pursuant to this Section 9.20(c), Schedule 1 shall automatically be
deemed to reflect the name, address, and Commitment of such Purchaser
and the Administrative Agent shall deliver to the Borrower and the
Lenders an amended Schedule 1 reflecting such changes. A Purchaser
shall be subject to all the provisions in this Section 9.20 the same as
if it were a Lender as of the date hereof.
(d) If pursuant to Section 9.20(c) any interest in the
Obligation is transferred to any Purchaser which is organized under the
Laws of any jurisdiction other than the United States of America or any
State thereof, the transferor Lender shall cause such Purchaser,
concurrently with the effectiveness of such transfer, (i) to represent
to the transferor Lender (for the benefit of the transferor Lender, the
Administrative Agent, and the Borrower) that under applicable Laws and
treaties no Taxes will be required to be withheld by the Administrative
Agent, the Borrower, or the transferor Lender with respect to any
payments to be made to such Purchaser in respect of the Obligation,
(ii) to furnish to each of the transferor Lender, the Administrative
Agent, and the Borrower two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service
Form 1001 (wherein such Purchaser claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments
hereunder), and (iii) to agree (for the benefit of the transferor
Lender, the Administrative Agent, and the Borrower) to provide the
transferor Lender, the Administrative Agent, and the Borrower a new
Form 4224 or Form 1001 upon the obsolescence of any previously
delivered form in accordance with applicable U.S. Laws and amendments
thereto duly executed and completed by such Purchaser, and to comply
from time to time with all applicable U.S. Laws with regard to such
withholding tax exemption.
(e) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Loans and Notes hereunder to a Federal Reserve
Bank in support of borrowings by such Lender from such Federal Reserve
Bank.
9.21 Confidentiality.
---------------
All nonpublic information furnished by the Companies to the Agents or
the Lenders in connection with the Loan Papers and the transactions contemplated
thereby will be treated as confidential, but nothing herein contained shall
limit or impair any Agent's or any Lender's right, and each Agent and the
Lenders shall be entitled, (a) to disclose the same to any Tribunal or as
otherwise required by Law or to any prospective or actual Participant or
Purchaser or to the respective affiliates, directors, officers, employees,
attorneys, and agents of any prospective or actual Participant or Purchaser
(provided that such prospective or actual Participant or Purchaser has agreed in
writing to comply with this Section 9.21 and provided further that the Borrower
has given its prior written consent to such distribution), (b) to use such
information to the extent pertinent to an evaluation of the Obligation, (c) to
enforce compliance with the terms and conditions of the Loan Papers, and (d) to
take any action which such Agent or any Lender deems necessary to protect its
interests if an Event of Default has occurred and is continuing.
9.22 Conflicts and Ambiguities.
-------------------------
Any conflict or ambiguity between the terms and provisions herein and
terms and provisions in any other Loan Paper shall be controlled by the terms
and provisions herein.
9.23 General Indemnification.
-----------------------
THE BORROWER SHALL INDEMNIFY, PROTECT, AND HOLD THE AGENTS AND THE
LENDERS AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS
(COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND
LEGAL EXPENSES WHETHER OR NOT SUIT IS BROUGHT AND SETTLEMENT COSTS), AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR
ARISING OUT OF THE LOAN PAPERS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN
(COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), TO THE EXTENT THAT ANY OF THE
INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR INDIRECTLY, FROM ANY CLAIM MADE OR
ACTION, SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF ANY PERSON OTHER THAN
THE INDEMNIFIED PARTIES; PROVIDED, HOWEVER, THAT ALTHOUGH EACH INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO BE INDEMNIFIED FROM ITS OWN ORDINARY NEGLIGENCE, NO
INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN
FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. THE PROVISIONS OF AND
UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH SHALL SURVIVE THE
SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF THIS AGREEMENT FOR
THE PERIOD OF TIME SET FORTH IN ANY APPLICABLE STATUTE OF LIMITATIONS.
9.24 Investment Representation.
-------------------------
The Notes are being acquired by the Lenders for their own respective
account for investment and not with the view to, or for sale in connection with,
any distribution thereof. The Lenders understand that the Notes will not be
registered under the Securities Act of 1933 or any securities act of any state
pursuant to an exemption from the registration provisions thereof. Each Lender
shall indemnify the Borrower against and hold it harmless from any claim, and
any cost or expense therefrom, that the Borrower shall have committed a
violation of applicable Law by virtue of the exercise by such Lender of its
right to sell participations or make assignments hereunder.
EXECUTED as of the day and year first mentioned.
CENTURYTEL, INC.
By: /s/ R. Stewart Ewing, Jr.
--------------------------------------------------------
Name: R. Stewart Ewing, Jr.
------------------------------------------------------
Title: Executive Vice President
-----------------------------------------------------
BANK OF AMERICA, N.A.
as the Administrative Agent and a Lender
By: /s/ Michael Pavell
--------------------------------------------------------
Name: Michael Pavell
------------------------------------------------------
Title: Vice President
-----------------------------------------------------
CITIBANK, N.A.,
as the Syndication Agent and a Lender
By: /s/ Maureen Maroney
--------------------------------------------------------
Name: Maureen Maroney
------------------------------------------------------
Title: Director
-----------------------------------------------------
FLEET NATIONAL BANK
as Co-Documentation Agent and a Lender
By: /s/ Amy B. Peden
--------------------------------------------------------
Name: Amy B. Peden
------------------------------------------------------
Title: Assistant Vice President
-----------------------------------------------------
JPMORGAN, A DIVISION OF CHASE
SECURITIES INC., as Co-Documentation Agent
By: /s/ Rajesh Kapadia
--------------------------------------------------------
Name: Rajesh Kapadia
------------------------------------------------------
Title: V.P.
-----------------------------------------------------
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ Dennis R. Wilczek
--------------------------------------------------------
Name: Dennis R. Wilczek
------------------------------------------------------
Title: Vice President
-----------------------------------------------------
SUNTRUST BANK,
as Co-Documentation Agent and a Lender
By: /s/ W. David Wisdom
--------------------------------------------------------
Name: W. David Wisdom
------------------------------------------------------
Title: Vice President
-----------------------------------------------------
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Book Manager
By: /s/ Steven C. Ayala
--------------------------------------------------------
Name: Steven C. Ayala
------------------------------------------------------
Title: Principal
-----------------------------------------------------
SALOMON SMITH BARNEY INC.,
as Joint Lead Arranger and Joint Book Manager
By: /s/ Carolyn A. Keen
--------------------------------------------------------
Name: Carolyn A. Keen
------------------------------------------------------
Title: Attorney-in-fact
-----------------------------------------------------