Exhibit 10.5
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
May 18, 2007
between
CITIZENS COMMUNICATIONS COMPANY
The LENDERS Party Hereto
and
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
and
DEUTSCHE BANK SECURITIES INC.,
as Sole Lead Arranger and Bookrunner
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$250,000,000
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms...........................................................1
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SECTION 1.02 Terms Generally........................................................12
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SECTION 1.03 Accounting Terms; GAAP.................................................12
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ARTICLE II
THE CREDITS
SECTION 2.01 The Commitments........................................................13
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SECTION 2.02 Loans and Borrowings...................................................13
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SECTION 2.03 Requests for Borrowings................................................13
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SECTION 2.04 Letters of Credit......................................................14
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SECTION 2.05 Funding of Borrowings..................................................18
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SECTION 2.06 Interest Elections.....................................................18
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SECTION 2.07 Termination, Reduction and Increase of the Commitments.................19
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SECTION 2.08 Repayment and Prepayment of Loans; Evidence of Debt....................21
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SECTION 2.09 Fees...................................................................22
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SECTION 2.10 Interest...............................................................23
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SECTION 2.11 Alternate Rate of Interest.............................................23
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SECTION 2.12 Increased Costs........................................................24
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SECTION 2.13 Break Funding Payments.................................................25
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SECTION 2.14 Taxes..................................................................25
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SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.............27
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SECTION 2.16 Mitigation Obligations; Replacement of Lenders.........................28
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization; Powers; Governmental Approvals...........................29
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SECTION 3.02 Financial Statements...................................................30
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SECTION 3.03 No Material Adverse Change.............................................30
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SECTION 3.04 Titles to Properties; Possession under Leases..........................30
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SECTION 3.05 Ownership of Subsidiaries..............................................31
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SECTION 3.06 Litigation; Compliance with Laws.......................................31
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SECTION 3.07 Agreements.............................................................31
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SECTION 3.08 Federal Reserve Regulations............................................32
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SECTION 3.09 Investment Company Act.................................................32
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SECTION 3.10 Use of Proceeds........................................................32
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SECTION 3.11 Tax Returns............................................................32
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SECTION 3.12 No Material Misstatements..............................................32
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SECTION 3.13 Employee Benefit Plans.................................................32
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SECTION 3.14 Insurance..............................................................32
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ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date.........................................................33
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SECTION 4.02 Each Credit Event......................................................34
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ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Existence; Businesses and Properties...................................35
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SECTION 5.02 Financial Statements, Reports, etc.....................................35
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SECTION 5.03 Litigation and Other Notices...........................................37
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SECTION 5.04 Maintaining Records....................................................37
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SECTION 5.05 Use of Proceeds........................................................37
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ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01 Liens; Restrictions on Sales of Receivables............................38
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SECTION 6.02 Ownership of the Principal Subsidiaries................................38
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SECTION 6.03 Asset Sales............................................................39
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SECTION 6.04 Mergers................................................................39
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SECTION 6.05 Restrictions on Dividends..............................................39
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SECTION 6.06 Transactions with Affiliates...........................................39
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SECTION 6.07 Financial Ratio........................................................39
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SECTION 6.08 Guarantors.............................................................40
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01 Events of Default......................................................40
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ARTICLE VIII
AGENCY
SECTION 8.01 Administrative Agent...................................................42
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SECTION 8.02 Bookrunners, Etc.......................................................44
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices................................................................45
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SECTION 9.02 Waivers; Amendments....................................................46
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SECTION 9.03 Expenses; Indemnity; Damage Waiver.....................................47
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SECTION 9.04 Successors and Assigns.................................................48
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SECTION 9.05 Survival...............................................................50
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SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution.........51
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SECTION 9.07 Severability...........................................................51
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SECTION 9.08 Right of Setoff........................................................51
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SECTION 9.09 Governing Law; Jurisdiction; Etc.......................................51
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SECTION 9.10 WAIVER OF JURY TRIAL...................................................52
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SECTION 9.11 Headings...............................................................52
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SECTION 9.12 Treatment of Certain Information; Confidentiality......................52
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SECTION 9.13 USA PATRIOT Act........................................................53
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CREDIT AGREEMENT dated as of May 18, 2007, between CITIZENS COMMUNICATIONS
COMPANY, the LENDERS party hereto, and DEUTSCHE BANK AG NEW YORK BRANCH, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the Lenders (as so
defined) extend credit to it in an aggregate principal or face amount not
exceeding $250,000,000 (as such amount may be decreased or increased pursuant to
the terms of this Agreement) at any one time outstanding.
The Lenders are prepared to extend such credit upon the terms and
conditions hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Additional Lender" has the meaning assigned to such term in Section
2.07(e).
"Adjusted LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, an interest rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied
by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means DBAG NY, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below, based upon the
Leverage Ratio as of the most recent determination date; provided that until the
earlier of the date the certificate is delivered under Section 5.02(c) with
respect to the fiscal quarter ending March 31, 2007 and the date such
certificate is required to be delivered under Section 5.02(c), the "Applicable
Rate" shall be the applicable rate per annum set forth below in Pricing Level 2:
Pricing Leverage Applicable Rate for Applicable Rate for Applicable Rate for
Level Ratio ABR Loans Eurodollar Loans Commitment Fee
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1 Less than or equal to 0.000% 0.625% 0.175%
3.00 to 1.00
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Greater than 3.00 to
2 1.00 but less than or 0.000% 0.750% 0.200%
equal to 3.50 to 1.00
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Greater than 3.50 to
3 1.00 but less than or 0.000% 0.875% 0.225%
equal to 4.00 to 1.00
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4 Greater than 4.00 to 0.250% 1.250% 0.275%
1.00
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For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrower's fiscal year and (ii) each
change in the Applicable Rate resulting from a change in the Leverage Ratio
shall be effective during the period commencing on and including the date one
Business Day after delivery to the Administrative Agent of the Borrower's
consolidated financial statements delivered pursuant to Section 5.02(a) or (b)
and ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Pricing Level
4 if the Borrower fails to deliver the consolidated financial statements
required to be delivered by it pursuant to Section 5.02(a) or (b), during the
period from the expiration of the time for delivery thereof until such
consolidated financial statements are delivered.
"Asset Exchange" means the exchange or other transfer of telecommunications
assets between or among the Borrower and another Person or other Persons in
connection with which the Borrower would transfer telecommunications assets
and/or other property in consideration of the receipt of telecommunications
assets and/or other property having a fair market value substantially equivalent
to those transferred by the Borrower (as determined in good faith by the
Borrower's Board of Directors); provided that the principal value of the assets
being transferred to the Borrower shall be represented by telecommunications
assets.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in
substantially the form of Exhibit A or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Commitment Termination Date and the
date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Citizens Communications Company, a Delaware corporation.
"Borrowing" means (a) all ABR Loans made or converted on the same date or
(b) Eurodollar Loans of the same Type that have the same Interest Period.
"Borrowing Approvals" has the meaning assigned to such term in Section
3.01(b).
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed and (b) if such day relates to a borrowing, a continuation or
conversion of or into, or the Interest Period for, a Eurodollar Borrowing, or to
a notice by the Borrower with respect to any such borrowing, payment,
prepayment, continuation, conversion, or Interest Period, that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any Person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing 50% or more of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Borrower shall at any time have been occupied by
Persons who were neither (i) nominated by the management of the Borrower, nor
(ii) appointed by directors so nominated; or (c) any Person or group (within the
meaning of Rule 13d-5 of the Securities and Exchange Commission as in effect on
the date hereof) shall otherwise directly or indirectly Control the Borrower.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, with respect to each Lender, the commitment, if any, of
such Lender to make Loans and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced or increased from time to time pursuant to Section 2.07 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule 1 or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Commitment, as applicable. The initial aggregate
amount of the Lenders' Commitments is $250,000,000.
"Commitment Termination Date" means May 18, 2012, provided that if such
date is not a Business Day then the "Commitment Termination Date" shall be the
immediately preceding Business Day.
"Companies" has the meaning assigned to such term in Section 5.02(a).
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any period, the sum of (i) operating income for such period
(excluding integration and restructuring costs) plus (ii) depreciation and
amortization expense for such period plus (iii) the amount of non-cash charges
for such period exceeding $25,000,000, all determined on a consolidated basis in
accordance with GAAP. For any period of calculation, "Consolidated EBITDA" shall
be adjusted to give pro forma effect to any Material Transaction (without giving
effect to cost savings not actually realized), as determined reasonably and in
good faith by a Financial Officer, during the period of calculation as if such
Material Transaction occurred on the first day of such period of calculation,
provided that such pro forma calculations shall only include such adjustments as
are permitted under Regulation S-X of the Securities and Exchange Commission. As
used in this definition, "Material Transaction" means any acquisition or
disposition outside the ordinary course of business of any property or assets
that (x) constitute assets comprising all or substantially all of an operating
unit of a business or equity interests of a Person representing a majority of
the ordinary voting power or economic interests in such Person that are
represented by all its outstanding capital stock and (y) involves aggregate
consideration in excess of $50,000,000.
"Consolidated Net Worth" means, as at any date of determination, the
consolidated stockholders' equity of the Borrower and its consolidated
Subsidiaries, including redeemable preferred securities where the redemption
date occurs after the Commitment Termination Date, mandatorily redeemable
convertible preferred securities, mandatorily convertible Indebtedness (or
Indebtedness subject to mandatory forward purchase contracts for equity or
similar securities) and minority equity interests in other persons, as
determined on a consolidated basis in conformity with GAAP consistently applied.
"Consolidated Tangible Assets" means, for any Person, total assets of such
Person and its consolidated Subsidiaries, determined on a consolidated basis,
less goodwill, patents, trademarks and other assets classified as intangible
assets in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"DBAG NY" means the New York Branch of Deutsche Bank AG.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event or condition which, upon notice, lapse of time or
both would, unless cured or waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all national, federal, state, provincial,
municipal or local laws, statutes, ordinances, orders, judgments, decrees,
injunctions, writs, policies and guidelines (having the force of law),
directives, approvals, notices, rules and regulations and other applicable laws
relating to environmental or occupational health and safety matters, including
those relating to the Release or threatened Release of Specified Substances and
to the generation, use, storage or transportation of Specified Substances, each
as in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974 and the
regulations promulgated and the rulings issued thereunder.
"ERISA Affiliate" means each trade or business (whether or not
incorporated) which together with the Borrower or a Subsidiary of the Borrower
would be deemed to be a "single employer" within the meaning of Section
4001(b)(1) of ERISA.
"ERISA Termination Event" means (i) a "Reportable Event" described in
Section 4043 of ERISA (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations), or (ii) the
withdrawal of the Borrower or any of its ERISA Affiliates from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, or (iv) the institution of proceeding to terminate a Plan by the PBGC or
(v) any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Section 7.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) taxes imposed on
or measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.16(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new lending office) or is attributable to such Foreign
Lender's failure or inability (other than as a result of a Change in Law) to
comply with Section 2.14(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.14(a).
"Existing Credit Agreement" means the Competitive Advance and Revolving
Credit Facility Agreement dated as of October 29, 2004, among the Borrower, the
lenders party thereto, and Bank of America, N.A., as administrative agent, as in
effect on the date hereof.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" of any Person means the President, Chief Financial
Officer, Chief Executive Officer, Vice President - Finance, Executive Vice
President, Chief Accounting Officer or Treasurer of such corporation. Any
document delivered hereunder that is signed by a Financial Officer shall be
conclusively presumed to have been authorized by all necessary corporate action
on the part of the Borrower and such Financial Officer shall be conclusively
presumed to have acted on behalf of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Approval" means any authorization, consent, order, approval,
license, franchise, lease, ruling, tariff, rate, permit, certificate, exemption
of, or filing or registration with, any Governmental Authority.
"Governmental Authority" means the government of the United States of
America or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantee" means, as to any Person, any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part). The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guaranty Agreement" means, collectively, each Guarantee executed and
delivered pursuant to Section 6.08.
"Hostile Acquisition" means any Target Acquisition (as defined below)
involving a tender offer or proxy contest that has not been recommended or
approved by the board of directors (or similar governing body) of the Person
that is the subject of such Target Acquisition prior to the first public
announcement or disclosure relating to such Target Acquisition. As used in this
definition, the term "Target Acquisition" means any transaction, or any series
of related transactions, by which the Borrower and/or any of its Subsidiaries is
to directly or indirectly (i) acquire any ongoing business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise, (ii) acquire (in one
transaction or as the most recent transaction in a series of transactions)
control of at least a majority in ordinary voting power of the securities of a
Person which have ordinary voting power for the election of directors or (iii)
otherwise acquire control of a more than 50% ownership interest in any such
Person.
"Increased Commitment Date" has the meaning assigned to such term in
Section 2.07(e).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind (other than customer deposits made in the ordinary course
of business), (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property or
assets purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Capital Lease Obligations of such
Person, (h) all obligations of such Person in respect of Swap Contracts (except
to the extent such obligations are used as a bona fide hedge of other
Indebtedness of such Person), (i) all obligations of such Person as an account
party in respect of letters of credit and bankers' acceptances (except to the
extent any such obligations are incurred in support of other obligations
constituting Indebtedness of such Person and other than, to the extent
reimbursed if drawn, letters of credit in support of ordinary course performance
obligations), and (j) all Guarantees of such Person in respect of any of the
foregoing; provided that the term Indebtedness shall not include endorsements
for collection or deposit, in either case in the ordinary course of business.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section 9.03(b).
"Information" has the meaning assigned to such term in Section 9.12.
"Interest Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, each
Quarterly Date, and (b) with respect to any Eurodollar Loan, the last day of
each Interest Period therefor and, in the case of any Interest Period of more
than three months' duration, each day prior to the last day of such Interest
Period that occurs at three-month intervals after the first day of such Interest
Period.
"Interest Period" means, for any Eurodollar Loan or Borrowing, the period
commencing on the date of such Loan or Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with the consent of each Lender, nine or twelve months) thereafter, as
specified in the applicable Borrowing Request or Interest Election Request;
provided that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, and (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Loan initially shall be the date on which such
Loan is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Loan.
"Issuing Bank" means DBAG NY, in its capacity as an issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.04(j). The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any governmental authority,
in each case whether or not having the force of law.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 1, any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption and
any "Additional Lender" pursuant to Section 2.07(e), other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"Leverage Ratio" means, as of the last day of any fiscal quarter, the ratio
of (a) Total Indebtedness as of such day to (b) Consolidated EBITDA for the four
consecutive fiscal quarters ending on such day.
"LIBO Rate" means, for the Interest Period for any Eurodollar Borrowing,
the rate appearing on Reuters Page LIBOR01 (or on any successor or substitute
page or service providing rate quotations comparable to those currently provided
on such page, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
Dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the LIBO Rate
for such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, encumbrance, charge, or security interest in or on such asset, (b)
the interest of a vendor or a lessor under any conditional sale agreement,
capital lease, or title retention agreement relating to such asset and (c) in
the case of securities, any purchase option, call, or similar right of a third
party with respect to such securities.
"Loan Documents" means, collectively, this Agreement, the Letter of Credit
Documents, any Guaranty Agreement and each note issued pursuant to Section
2.08(f).
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Margin Regulations" means Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on the business,
assets, operations, financial condition or results of operations of the Borrower
and the Subsidiaries taken as a whole.
"Material Transaction" has the meaning assigned to such term in the
definition of Consolidated EBITDA.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or under any other Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant" means any Person to whom a participation is sold as permitted
by clause (d) of Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any pension plan (including a multiemployer plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code which is
maintained for or to which contributions are made for employees of the Borrower
or any ERISA Affiliate.
"Prime Rate" means the per annum rate of interest established from time to
time by DBAG NY at its principal office in New York, New York as its prime
lending rate. Any change in the interest rate resulting from a change in the
Prime Rate shall become effective as of 12:01 a.m. of the Business Day on which
each change in the Prime Rate is announced by DBAG NY. The prime lending rate is
a reference rate used by DBAG NY in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged on any extension
of credit to any debtor. DBAG NY may make commercial loans or other loans at
rates of interest at, above, or below its prime lending rate.
"Principal Subsidiary" means any Subsidiary of the Borrower whose
Consolidated Tangible Assets comprise in excess of 25% of the Consolidated
Tangible Assets of the Borrower and its consolidated Subsidiaries as of the date
hereof or at any time hereafter.
"Quarterly Dates" means the last Business Day of March, June, September and
December in each year, the first of which shall be the first such day after the
date hereof.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Release" means any spilling, emitting, discharging, depositing, escaping,
leaching, dumping or other releasing, including the movement of any Specified
Substance through the air, soil, surface water, groundwater or property, and
when used as a verb has a like meaning.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures representing more than 50% of the aggregate Revolving Credit Exposures
at such time or, at any time when there are no Revolving Credit Exposures
outstanding, Lenders having Commitments representing more than 50% of the sum of
the total Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
equity interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity interest,
or on account of any return of capital to the Borrower's stockholders, partners
or members (or the equivalent Person thereof).
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Loans and its LC
Exposure at such time.
"Securitization Transaction" means (a) any transfer of accounts receivable
or interests therein (i) to a trust, partnership, corporation or other entity
(other than a Subsidiary), which transfer or pledge is funded by such entity in
whole or in part by the issuance to one or more lenders or investors of
indebtedness or other securities that are to receive payments principally from
the cash flow derived from such accounts receivable or interests in accounts
receivable, or (ii) directly to one or more investors or other purchasers (other
than any Subsidiary), or (b) any transaction in which the Borrower or a
Subsidiary incurs Indebtedness secured principally by Liens on accounts
receivable. The "amount" of any Securitization Transaction shall be deemed at
any time to be (A) in the case of a transaction described in clause (a) of the
preceding sentence, the aggregate uncollected amount of the accounts receivable
transferred pursuant to such Securitization Transaction, net of any such
accounts receivable that have been written off as uncollectible, and (B) in the
case of a transaction described in clause (b) of the preceding sentence, the
aggregate outstanding principal amount of the Indebtedness secured by Liens on
accounts receivable incurred pursuant to such Securitization Transaction.
"Specified Substance" means (i) any chemical, material or substance defined
as or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "restricted hazardous waste"
or "toxic substances" or words of similar import under any applicable
Environmental Laws; (ii) any (A) oil, natural gas, petroleum or petroleum
derived substance, any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil, natural
gas or geothermal fluid, any flammable substances or explosives, any radioactive
materials, any hazardous wastes or substances, any toxic wastes or substances or
(B) other materials or pollutants that, in the case of both (A) and (B), (1)
pose a hazard to the property of the Borrower or any of its Subsidiaries or any
part thereof or to persons on or about such property or to any other property
that may be affected by the Release of such materials or pollutants from such
property or any part thereof or to persons on or about such other property or
(2) cause such property or such other property to be in violation of any
Environmental Law; (iii) asbestos, urea formaldehyde foam insulation, toluene,
polychlorinated biphenyls and any electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million; and (iv) any sound, vibration, heat, radiation or other
form of energy and any other chemical, material or substance, exposure to which
is prohibited, limited or regulated by any Governmental Authority.
"Statutory Reserve Rate" means, for the Interest Period for any Eurodollar
Borrowing, a fraction (expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one minus the arithmetic
mean, taken over each day in such Interest Period, of the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject for eurocurrency funding (currently referred
to as "Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to Regulation D of the Board.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under Regulation D of the Board or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (herein referred to as the
"parent"), any corporation, partnership, association, or other business entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or more than 50% of
the general partnership interests are, at the time any determination is being
made, owned, controlled, or held by the parent, or (b) which is, at the time any
determination is made, otherwise Controlled by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent. Unless otherwise indicated, all references in this Agreement to
"Subsidiaries" shall be construed as references to Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Total Indebtedness" means, as of any date, the aggregate principal amount
of Indebtedness of the Borrower and its consolidated Subsidiaries outstanding as
of such date, in the amount and only to the extent that such Indebtedness would
be reflected on a balance sheet prepared as of such date on a consolidated basis
in accordance with GAAP minus the amount of the cash and cash equivalents of the
Borrower and its consolidated Subsidiaries in excess of $50,000,000 that would
be reflected on such balance sheet.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, the borrowing of Loans,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
SECTION 1.02 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to
any law or regulation herein shall, unless otherwise specified, refer to such
law or regulation as amended, modified or supplemented from time to time and (f)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION 1.03 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. To enable the ready
and consistent determination of compliance with the covenants set forth in
Article VI, the Borrower will not change the last day of its fiscal year from
December 31, or the last days of the first three fiscal quarters in each of its
fiscal years from March 31, June 30 and September 30, respectively.
ARTICLE II
THE CREDITS
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SECTION 2.01 The Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to the Borrower from time to time
during the Availability Period in an aggregate principal amount that will not
result in (a) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment or (b) the total Revolving Credit Exposures exceeding the total
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02 Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required. The
amounts payable at any time hereunder shall be a separate and independent debt
of the Borrower to each Lender and each Lender shall be entitled to protect and
enforce its rights under this Agreement and the other Loan Documents, and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceedings for such purpose.
(b) Type of Loans. Subject to Section 2.11, each Borrowing shall be
comprised entirely of ABR Loans or of Eurodollar Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each Borrowing
shall be in an aggregate amount of $10,000,000 or a larger multiple of
$1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(f). Borrowings of more than one Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of ten Eurodollar
Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other provision of
this Agreement, the Borrower shall not be entitled to request (or to elect to
convert to or continue as a Eurodollar Borrowing) any Borrowing if the Interest
Period requested therefor would end after the Commitment Termination Date.
SECTION 2.03 Requests for Borrowings.
(a) Notice by the Borrower. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request (i) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing, or (ii) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, on the date of the
proposed Borrowing; provided that any such notice of an ABR Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.04(f) may
be given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such Borrowing Request shall be irrevocable.
(b) Content of Borrowing Requests. Each Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the Interest Period therefor,
which shall be a period contemplated by the definition of the term
"Interest Period" and permitted under Section 2.02(d); and
(v) the location and number of the Borrower's account to which funds are
to be disbursed, which shall comply with the requirements of Section
2.05.
(c) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
(d) Failure to Elect. If no election as to the Type of a Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Borrowing,
the Borrower shall be deemed to have selected an Interest Period of one month's
duration.
SECTION 2.04 Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, the Borrower may request the
Issuing Bank to issue, at any time and from time to time during the Availability
Period, Letters of Credit for its own account in such form as is acceptable to
the Administrative Agent and the Issuing Bank in its reasonable determination.
Letters of Credit issued hereunder shall constitute utilization of the
Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(c) Limitations on Amounts. A Letter of Credit shall be issued, amended,
renewed or extended only if (A) (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure shall not exceed $50,000,000 and (ii)
the total Revolving Credit Exposures shall not exceed the total Commitments, and
(B) the Issuing Bank shall not have received written notice from the
Administrative Agent (at the request of the Required Lenders) at least one
Business Day prior to the requested date of issuance, amendment, renewal or
extension that one or more of the conditions contained in Section 4.02 shall not
be satisfied with respect thereto.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date twelve months after the date of
the issuance of such Letter of Credit and (ii) the date that is five Business
Days prior to the Commitment Termination Date; provided, that a Letter of Credit
may provide for the automatic renewal thereof for additional one-year periods
(but shall in no event extend beyond the date referred to in clause (ii) above).
(e) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) by the Issuing Bank, and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. Each Lender acknowledges and agrees that its
obligation to acquire participations and fund ABR Loans pursuant to this
sentence of this clause (e) and the next sentence hereof in respect of Letters
of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments.
In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Bank promptly upon the request of the Issuing
Bank at any time from the time of such LC Disbursement until such LC
Disbursement is reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the Borrower for any reason.
Each such payment shall be deemed to be an ABR Loan by such Lender and shall be
made without any offset, abatement, withholding or reduction whatsoever. Each
such payment shall be made in the same manner as provided in Section 2.05 with
respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to the next following paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to
the extent that the Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear.
(f) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse the Issuing Bank in
respect of such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
(i) the Business Day that the Borrower receives notice of such LC Disbursement,
if such notice is received prior to 10:00 a.m., New York City time, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. The Borrower's
obligations under this clause (f) shall be satisfied to the extent of the making
of ABR Loans under clause (e) above.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply strictly with the
terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any
of their Related Parties, shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit by the
Issuing Bank or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
not be construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination, and that:
(i) the Issuing Bank may accept documents that appear on their face to be
in substantial compliance with the terms of a Letter of Credit without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of
documents that appear on their face to be in substantial compliance
with the terms of such Letter of Credit;
(ii) the Issuing Bank shall have the right, in its sole discretion, to
decline to accept such documents and to make such payment if such
documents are not in strict compliance with the terms of such Letter
of Credit; and
(iii) this sentence shall establish the standard of care to be exercised by
the Issuing Bank when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof (and
the parties hereto hereby waive, to the extent permitted by applicable
law, any standard of care inconsistent with the foregoing).
(h) Disbursement Procedures. The Issuing Bank shall, within a reasonable
time following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly after such examination notify the Administrative Agent and the Borrower
of such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans; provided that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of
this Section, then Section 2.10(c) shall apply. Interest accrued pursuant to
this paragraph shall be for account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (f)
of this Section to reimburse the Issuing Bank shall be for account of such
Lender to the extent of such payment.
(j) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement between the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.09(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(k) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing more than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall immediately deposit into an account established
and maintained on the books and records of the Administrative Agent, which
account may be a "securities account" (within the meaning of Section 8-501 of
the Uniform Commercial Code as in effect in the State of New York), in the name
of the Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Section 7.01. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement.
The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing 100% of the total LC Exposure), be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 2.05 Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by (i) 12:00 noon, New York City time, in the case of a Eurodollar
Borrowing, and (ii) 3:00 p.m., New York City time, in the case of an ABR
Borrowing, in each case to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The Administrative
Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower agreed between
the Borrower and the Administrative Agent; provided that ABR Borrowings made to
finance the reimbursement of an LC Disbursement as provided in Section 2.04(f)
shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to (i) the proposed date of
any Eurodollar Borrowing or (ii) in the case of any proposed ABR Borrowing, 3:00
p.m., New York City time, on the proposed date of such ABR Borrowing, that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of a payment to be made by such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation and
(ii) in the case of a payment to be made by the Borrower, the interest rate
applicable to ABR Loans. If the Borrower and such Lender shall pay such interest
to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such
interest paid by the Borrower for such period. If such Lender pays its share of
the applicable Borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender's Loan included in such Borrowing. Any payment by
the Borrower shall be without prejudice to any claim the Borrower may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
SECTION 2.06 Interest Elections.
(a) Elections by the Borrower. The Loans comprising each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have the Interest Period
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a Borrowing of a different Type or to continue such
Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar
Borrowing, may elect the Interest Period therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) Notice of Elections. To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such Interest Election Request shall
be irrevocable.
(c) Content of Interest Election Requests. Each Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period therefor after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest Period"
and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise
each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails to deliver a
timely and complete Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period therefor, then, unless such
Eurodollar Borrowing is repaid as provided herein, the Borrower shall be deemed
to have selected an Interest Period of one month's duration.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period therefor.
SECTION 2.07 Termination, Reduction and Increase of the Commitments.
(a) Scheduled Termination. Unless previously terminated, the Commitments
shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments; provided that (i) each
partial reduction of the Commitments shall be in an amount that is $10,000,000
or a larger multiple of $1,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.08, the total Revolving Credit Exposures
would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall notify
the Administrative Agent of any election to terminate or reduce the Commitments
under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
(e) Increase of Commitments. The Borrower shall have the right at any time
to increase the aggregate Commitments hereunder to the extent that the sum of
the aggregate Commitments hereunder (after giving effect to such increase) do
not exceed $350,000,000 by adding to this Agreement one or more other lenders,
which may include any Lender (each such lender an "Additional Lender") with the
approval of the Administrative Agent (not to be unreasonably withheld), each of
which Additional Lenders shall have entered into an agreement in form and
substance satisfactory to the Borrower and the Administrative Agent pursuant to
which such Additional Lender shall undertake a Commitment (if any such
Additional Lender is a Lender, its Commitment shall be in addition to such
Lender's Commitment hereunder) which such Commitment shall be in an amount at
least equal to $10,000,000 or a larger multiple of $1,000,000, and upon the
effectiveness of such agreement (the date of the effectiveness of any such
agreement being hereinafter referred to as the "Increased Commitment Date") such
Additional Lender shall thereupon become a "Lender" for all purposes of this
Agreement.
Notwithstanding the foregoing, the increase in the aggregate Commitments
hereunder pursuant to this Section 2.07(e) shall not be effective unless:
(i) the Borrower shall have given the Administrative Agent notice of any
such increase at least 10 days prior to any such Increased Commitment
Date;
(ii) no Default shall have occurred and be continuing on the Increased
Commitment Date (both immediately prior to and after giving effect to
the increase in Commitments on the Increased Commitment Date);
(iii) no existing Lender shall be under any obligation to increase its
Commitment and any such decision whether to increase its Commitment
shall be in such Lender's sole and absolute discretion;
(iv) if any Loan or Letter of Credit shall be outstanding, the Borrower
shall have borrowed Loans from each of the Additional Lenders on the
Increased Commitment Date, and the Additional Lenders shall have made
Loans to the Borrower (in the case of Eurodollar Loans, with Interest
Period(s) ending on the date(s) of any then outstanding Interest
Period(s)) and shall be deemed to have acquired participations in any
outstanding Letters of Credit, and (notwithstanding the provisions of
Section 2.15 requiring that borrowings and prepayments be made ratably
in accordance with the principal amounts of the Loans held by the
Lenders) the Borrower in coordination with the Administrative Agent
shall have taken such actions, including, if necessary, prepaying
Loans held by the other Lenders (together with accrued interest
thereon and any amounts owing pursuant to Section 2.13 as a result of
such payment) in such amounts as may be necessary so that after giving
effect to such Loans, purchases and prepayments the Loans (and
Interest Period(s) of Eurodollar Loan(s)) and the LC Exposure shall be
held by the Lenders pro rata in accordance with the respective amounts
of their Commitments (as so increased) and, in that connection, the
Issuing Bank shall be deemed to have released any Lenders so deemed to
have sold participations in outstanding Letters of Credit on the date
of such replacement from such sold participation; and
(v) there shall have been no reduction of the Commitments pursuant to
Section 2.07(b) on or prior to any such Increased Commitment Date.
Promptly following any increase of Commitments pursuant to this Section 2.07(e),
the Administrative Agent shall provide notice thereof to each of the Lenders.
Without limiting the Obligations of the Borrower provided for in this Section
2.07, the Administrative Agent and the Lenders agree that they will use
commercially reasonable efforts to attempt to minimize the costs of the type
referred to in Section 2.13 that the Borrower would otherwise incur in
connection with an increase of the Commitments.
SECTION 2.08 Repayment and Prepayment of Loans; Evidence of Debt.
(a) Repayment and Prepayment. The Borrower hereby unconditionally promises
to pay to the Administrative Agent for account of the Lenders the outstanding
principal amount of the Loans on the Commitment Termination Date. The Borrower
shall have the right at any time and from time to time to prepay any Borrowing
in whole or in part, subject to the requirements of this Section.
(b) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be paid and shall notify the Administrative Agent of such selection and payment
(i) in the case of payment of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of such payment or (ii)
in the case of payment of an ABR Borrowing, not later than 12:00 noon, New York
City time, on the date of such payment; provided that each simultaneous
repayment or prepayment of ABR and Eurodollar Borrowings shall be applied,
first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in
the order of the remaining duration of their respective Interest Periods (the
Borrowing with the shortest remaining Interest Period to be repaid first). Each
repayment or prepayment of a Borrowing shall be applied ratably to the Loans
included in such Borrowing. Each such notice shall be irrevocable and shall
specify the repayment or prepayment date and the principal amount of each
Borrowing or portion thereof to be repaid or prepaid; provided that, if such
notice is given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.07, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.07. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial repayment or
prepayment of any Borrowing shall be in an aggregate amount of $5,000,000 or a
larger multiple of $1,000,000. Repayments and Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.10.
(c) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The Administrative
Agent shall maintain records in which it shall record (i) the amount of each
Loan made hereunder, the Type thereof and each Interest Period therefor, (ii)
the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for account of the Lenders
and each Lender's share thereof.
(e) Effect of Entries. The entries made in the records maintained pursuant
to paragraph (c) or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such records or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to such Lender (or,
if requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
SECTION 2.09 Fees.
(a) Commitment Fees. The Borrower agrees to pay to the Administrative Agent
for account of each Lender a commitment fee, which shall accrue at the
Applicable Rate on the average daily unused amount of the Commitment of such
Lender during the period from and including the date hereof to but excluding the
date such Commitment terminates. Accrued commitment fees shall be payable in
arrears on each Quarterly Date and on the date the Commitments terminate,
commencing on the first such date to occur after the date hereof. All commitment
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing commitment fees, the Commitment of a Lender
shall be deemed to be used to the extent of the outstanding Loans and LC
Exposure of such Lender.
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Rate applicable to interest on Eurodollar Loans on
the average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including each Quarterly Date shall be
payable on the third Business Day following such Quarterly Date, commencing on
the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of facility fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.10 Interest.
(a) ABR Loans. The Loans comprising each ABR Borrowing shall bear interest
at a rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar Borrowing shall
bear interest at a rate per annum equal to the Adjusted LIBO Rate for the
Interest Period for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to 2% plus the Alternate Base Rate.
(d) Payment of Interest. Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand; (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the
Commitment Termination Date), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Borrowing prior to the end of
the Interest Period therefor, accrued interest on such Borrowing shall be
payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.11 Alternate Rate of Interest. If prior to the commencement of
the Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the
Adjusted LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their respective Loans
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Borrowing to, or the continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and such Borrowing (unless prepaid)
shall be continued as, or converted to, an ABR Borrowing and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made
as an ABR Borrowing.
SECTION 2.12 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank;
(ii) change the basis of taxation of payments to such Lender or the Issuing
Bank in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 2.14 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or the Issuing Bank);
or
(iii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition, cost or expense affecting this Agreement
or Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), in each case by an amount reasonably deemed by such Lender to be
material, then, upon request of such Lender or the Issuing Bank, the Borrower
will pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Bank determines that
any Change in Law affecting such Lender or the Issuing Bank or any lending
office of such Lender or such Lender's or the Issuing Bank's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement, the Commitment of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
Issuing Bank setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to demand such
compensation, provided that the Borrower shall not be required to compensate a
Lender or the Issuing Bank pursuant to this Section for any increased costs
incurred or reductions suffered more than 120 days prior to the date that such
Lender or the Issuing Bank, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender's or the Issuing Bank's intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 120-day period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) Termination or Assignment. If any Lender shall have delivered a notice
or certificate pursuant to paragraph (c) above, the Borrower shall have the
right, at its own expense, upon notice to such Lender and the Administrative
Agent, to require such Lender to (i) terminate its Commitment or (ii) transfer
and assign without recourse (in accordance with and subject to the restrictions
contained in Section 9.04) all or a portion of its interest, rights and
obligations under this Agreement to another financial institution (which must be
reasonably acceptable to the Administrative Agent) which shall assume such
obligations; provided that (A) no such termination or assignment shall conflict
with any law, rule, or regulation or order of any Governmental Authority and (B)
the Borrower or the assignee, as the case may be, shall pay to the affected
Lender in immediately available funds on the date of such termination or
assignment the principal of and interest accrued to the date of payment on the
Loans made by it hereunder and all other amounts accrued for its account or owed
to it hereunder (including under Section 2.13).
SECTION 2.13 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of the Interest
Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of the Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice is permitted to be revocable under Section 2.08(b) and is
revoked in accordance herewith), or (d) the assignment as a result of a request
by the Borrower pursuant to Section 2.16(b) of any Eurodollar Loan other than on
the last day of the Interest Period therefor, then, in any such event, the
Borrower shall compensate each Lender for its loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the Interest Period for such Loan (or,
in the case of a failure to borrow, convert or continue, the duration of the
Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest
that such Lender would earn on such principal amount for such period if such
Lender were to invest such principal amount for such period at the interest rate
that would be bid by such Lender (or an affiliate of such Lender) for Dollar
deposits from other banks in the eurodollar market at the commencement of such
period. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.14 Taxes.
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) Without limiting the provisions of paragraph (a) above, the Borrower
shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other Loan Document, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
resident for tax purposes, or any treaty to which such jurisdiction is a party,
with respect to payments hereunder or under any other Loan Document shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by the Borrower or
the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
(f) If the Administrative Agent, a Lender or the Issuing Bank determines,
in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section, it
shall pay to the Borrower an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such
Lender or the Issuing Bank, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrower, upon the request of the Administrative
Agent, such Lender or the Issuing Bank, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or the
Issuing Bank in the event the Administrative Agent, such Lender or the Issuing
Bank is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Administrative Agent, any Lender
or the Issuing Bank to make available its tax returns (or any other information
relating to its taxes that it deems confidential in its reasonable discretion)
to the Borrower or any other Person.
SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a) Payments by the Borrower. The Borrower shall make each payment required
to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.12,
Section 2.13 or Section 2.14, or otherwise), or under any other Loan Document
(except to the extent otherwise provided therein), prior to 2:00pm, New York
City time, on the date when due, in immediately available funds, without setoff
or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at the
address provided pursuant to Section 9.01, except as otherwise expressly
provided in the relevant Loan Document and except payments to be made directly
to the Issuing Bank as expressly provided herein and payments pursuant to
Section 2.12, Section 2.13, Section 2.14 and Section 9.03, which shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for account of any other Person to
the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder or under any other Loan Document (except
to the extent otherwise provided therein) shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time insufficient funds
are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, to pay interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein: (i)
each Borrowing shall be made from the Lenders, each payment of commitment fee
under Section 2.09 shall be made for account of the Lenders, and each
termination or reduction of the amount of the Commitments under Section 2.07
shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (ii) each Borrowing
shall be allocated pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of the making of Loans) or their respective
Loans that are to be included in such Borrowing (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of Loans
by the Borrower shall be made for account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Loans held by them; and (iv)
each payment of interest on Loans by the Borrower shall be made for account of
the Lenders pro rata in accordance with the amounts of interest on such Loans
then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (A) notify the Administrative Agent of
such fact and (B) purchase (for cash at face value) participations in the Loans
and such other obligations of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans and other amounts owing them,
provided that:
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such
recovery, without interest; and
(ii) the provisions of this paragraph shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained
by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the
Borrower or any Subsidiary thereof (as to which the provisions of this
paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
(e) Payments by the Borrower; Presumptions by the Administrative Agent.
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders or the Issuing Bank hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Bank, as the case may
be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the Issuing Bank with interest thereon,
for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(f) Certain Deductions by the Administrative Agent. If any Lender shall
fail to make any payment required to be made by it pursuant to Section 2.04(e),
Section 2.05 or Section 2.15(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.16 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.12, or requires the Borrower to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.14, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.12 or Section 2.14, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.12, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.14, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 9.04), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 9.04;
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 2.13) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.12 or payments required to be made
pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each of the Lenders that:
SECTION 3.01 Organization; Powers; Governmental Approvals.
(a) The Borrower and each Principal Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and
(iii) is qualified to do business in every jurisdiction where such qualification
is required, except where the failure so to qualify would not have a Material
Adverse Effect. The Borrower's execution, delivery and performance of the Loan
Documents are within its corporate powers, have been duly authorized by all
necessary action and do not violate or create a default under (A) law, (B) its
constituent documents, or (C) any contractual provision binding upon it, except
to the extent (in the case of violations or defaults described under clauses (A)
or (C)) such violation or default would not reasonably be expected to result in
a Material Adverse Effect and would not have an adverse effect on the validity,
binding effect or enforceability of this Agreement or any other Loan Documents
and would not materially adversely affect any of the rights of the
Administrative Agent or any Lender under or in connection with this Agreement or
any other Loan Documents. Each of the Loan Documents constitutes the legal,
valid and binding obligation of the Borrower enforceable against it in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally and general principles of equity,
including an implied covenant of good faith and fair dealing).
(b) Except for (i) any Governmental Approvals required in connection with
any Borrowings (such approvals being "Borrowing Approvals") and (ii) any
Governmental Approvals the failure to obtain which could not reasonably be
expected to result in a Material Adverse Effect or affect the validity or
enforceability of this Agreement or any other Loan Document, all Governmental
Approvals required in connection with the execution and delivery by the Borrower
of this Agreement and the other Loan Documents and the performance by the
Borrower of its obligations hereunder and thereunder have been, and, prior to
the time of any Borrowing, all Borrowing Approvals will be, duly obtained, are
(or, in the case of Borrowing Approvals, will be) in full force and effect
without having been amended or modified in any manner that may impair the
ability of the Borrower to perform its obligations under this Agreement, and are
not (or, in the case of Borrowing Approvals, will not be) the subject of any
pending appeal, stay or other challenge.
SECTION 3.02 Financial Statements. The Borrower has furnished to the
Lenders, for itself and its Subsidiaries, its most recent filings with the
Securities and Exchange Commission on Forms 10-K and 10-Q. Such Forms 10-K and
10-Q do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make any statement therein, in light of the
circumstances under which it was made, not misleading. Each of the financial
statements in such Forms 10-K and 10-Q has been, and each of the financial
statements to be furnished pursuant to Section 5.02 will be, prepared in
accordance with GAAP applied consistently with prior periods, except as therein
noted, and fairly presents or will fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as of the
date thereof and the results of the operations of the Borrower and its
Subsidiaries for the period then ended.
SECTION 3.03 No Material Adverse Change. Since the date of the Borrower's
most recent financial statements contained in its Annual Report on Form 10-K for
the fiscal year ended December 31, 2006, furnished to the Lenders pursuant to
Section 3.02, there has been no material adverse change in, and there has
occurred no event or condition which is likely to result in a material adverse
change in, the financial condition, results of operations, business, assets or
operations of the Borrower and the Subsidiaries taken as a whole (it being
understood that the consummation of an Asset Exchange shall not constitute such
a material adverse change).
SECTION 3.04 Titles to Properties; Possession under Leases.
(a) To the best of the Borrower's knowledge, each of the Borrower and the
Principal Subsidiaries has good and marketable title to, or valid leasehold
interests in, or other rights to use or occupy, all its material properties and
assets, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.01.
(b) Each of the Borrower and the Principal Subsidiaries has complied with
all obligations under all material leases to which it is a party and all such
leases are in full force and effect, except where such failure to comply or
maintain such leases in full force and effect would not have a Material Adverse
Effect. Each of the Borrower and the Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases except where such failure
would not have a Material Adverse Effect.
SECTION 3.05 Ownership of Subsidiaries. The Borrower owns, free and clear
of any Lien (other than Liens expressly permitted by Section 6.01), all of the
issued and outstanding shares of common stock of each of the Principal
Subsidiaries.
SECTION 3.06 Litigation; Compliance with Laws.
(a) There is no action, suit, or proceeding, or any governmental
investigation or any arbitration, in each case pending or, to the knowledge of
the Borrower, threatened against the Borrower or any of the Subsidiaries or any
material property of any thereof before any court or arbitrator or any
governmental or administrative body, agency, or official which (i) challenges
the validity of this Agreement or any other Loan Document, (ii) may reasonably
be expected to have a material adverse effect on the ability of the Borrower to
perform any of its obligations under this Agreement or any other Loan Document
or on the rights of or benefits available to the Lenders under this Agreement or
any other Loan Document or (iii) except as disclosed in the Borrower's Annual
Report on Form 10-K for the fiscal year ended December 31, 2006, or its
quarterly report on Form 10-Q for the quarter ended March 31, 2007, may
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in violation of any
law, rule, or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default could reasonably be anticipated to result in a Material Adverse Effect.
(c) Except as set forth in or contemplated by the financial statements or
other reports referred to in Section 3.02 and which have been delivered to the
Lenders on or prior to the date hereof, (i) the Borrower and each of its
Subsidiaries have complied with all Environmental Laws, except to the extent
that failure to so comply is not reasonably likely to have a Material Adverse
Effect, (ii) neither the Borrower nor any of its Subsidiaries has failed to
obtain, maintain or comply with any permit, license or other approval under any
Environmental Law, except where such failure is not reasonably likely to have a
Material Adverse Effect, (iii) neither the Borrower nor any of its Subsidiaries
has received notice of any failure to comply with any Environmental Law or
become subject to any liability under any Environmental Law, except where such
failure or liability is not reasonably likely to have a Material Adverse Effect,
(iv) no facilities of the Borrower or any of its Subsidiaries are used to manage
any Specified Substance in violation of any law, except to the extent that such
violations, individually or in the aggregate, are not reasonably likely to have
a Material Adverse Effect, and (v) the Borrower is aware of no events,
conditions or circumstances involving any Release of a Specified Substance that
is reasonably likely to have a Material Adverse Effect.
SECTION 3.07 Agreements.
(a) Neither the Borrower nor any of the Subsidiaries is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted, or could reasonably be anticipated to result, in a Material Adverse
Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be anticipated to result in a
Material Adverse Effect.
SECTION 3.08 Federal Reserve Regulations. No part of the proceeds of the
Loans will be used, whether directly or indirectly, and whether immediately,
incidentally, or ultimately, for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the Margin Regulations.
SECTION 3.09 Investment Company Act. Neither the Borrower nor any of the
Subsidiaries is an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940.
SECTION 3.10 Use of Proceeds. The Borrower will use the proceeds of the
Loans only for general corporate purposes, including working capital and support
of commercial paper issuances and Securitization Transactions permitted
hereunder as well as one or more acquisitions or Asset Exchanges; provided that
no such proceeds shall be used (i) to make any Restricted Payment, or (ii)
directly or indirectly in connection with any Hostile Acquisition.
SECTION 3.11 Tax Returns. Each of the Borrower and the Subsidiaries has
filed or caused to be filed all Federal, state and local tax returns required to
have been filed by it and has paid or caused to be paid all taxes shown to be
due and payable on such returns or on any assessments received by it, except (i)
taxes that are being contested in good faith by appropriate proceedings and for
which the Borrower shall have set aside on its books adequate reserves and (ii)
where such failure to file or pay would not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.12 No Material Misstatements. No statement, information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
syndication or negotiation of this Agreement or any other Loan Document or
included herein or therein or delivered pursuant hereto or thereto contained,
contains, or will contain any material misstatement of fact or intentionally
omitted, omits, or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were,
are, or will be made, not misleading.
SECTION 3.13 Employee Benefit Plans.
(a) Each Plan is in compliance with ERISA, except for such noncompliance
that has not resulted, and could not reasonably be anticipated to result, in a
Material Adverse Effect.
(b) No Plan has an accumulated or waived funding deficiency within the
meaning of Section 412 or Section 418B of the Code, except for any such
deficiency that has not resulted, and could not reasonably be anticipated to
result, in a Material Adverse Effect.
(c) No proceedings have been instituted to terminate any Plan, except for
such proceedings where the termination of a Plan has not resulted, and could not
reasonably be anticipated to result, in a Material Adverse Effect.
(d) Neither the Borrower nor any Subsidiary or ERISA Affiliate has incurred
any liability to or on account of a Plan under ERISA (other than obligations to
make contributions in accordance with such Plan), and no condition exists which
presents a material risk to the Borrower or any Subsidiary of incurring such a
liability, except for such liabilities that have not resulted, and could not
reasonably be anticipated to result, in a Material Adverse Effect.
SECTION 3.14 Insurance. Each of the Borrower and the Principal Subsidiaries
maintains insurance with financially sound and reputable insurers, or
self-insurance, with respect to its properties and business against loss or
damage of the kind customarily insured against by reputable companies in the
same or similar business and of such types and in such amounts (with such
deductible amounts) as is customary for such companies under similar
circumstances.
ARTICLE IV
CONDITIONS
----------
SECTION 4.01 Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) Executed Counterparts. The Administrative Agent shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence reasonably
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page to this Agreement) that such party
has signed a counterpart of this Agreement.
(b) Opinion of General Counsel to the Borrower. The Administrative
Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of
Hilary E. Glassman, Esq., General Counsel to the Borrower, substantially in
the form of Exhibit B, and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the Administrative Agent
shall reasonably request (and the Borrower hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to the Borrower. The
Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Cravath, Swaine & Moore LLP, special New York Counsel to
the Borrower, substantially in the form of Exhibit C, and covering such
other matters relating to the Borrower, this Agreement or the Transactions
as the Administrative Agent shall reasonably request (and the Borrower
hereby instructs such counsel to deliver such opinion to the Lenders and
the Administrative Agent).
(d) Opinion of Milbank, Tweed, Hadley & McCloy LLP, Special New York
Counsel to DBAG NY. The Administrative Agent shall have received an
opinion, dated the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to DBAG NY, substantially in the form of Exhibit D
(and DBAG NY hereby instructs such counsel to deliver such opinion to the
Lenders).
(e) Legal Matters. All legal matters incident to this Agreement and
the borrowings hereunder shall be reasonably satisfactory to the
Administrative Agent and the Lenders.
(f) Corporate Documents. The Administrative Agent shall have received,
in form and substance reasonably satisfactory to it, such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower and the authorization of the Transactions.
(g) Officer's Certificate. The Administrative Agent shall have
received, in form and substance reasonably satisfactory to it, a
certificate, dated the Effective Date and signed by a Financial Officer of
the Borrower, confirming that as of the Effective Date (i) the
representations and warranties of the Borrower set forth in this Agreement
and in the other Loan Documents are true and correct in all material
respects and (ii) no Default shall have occurred and be continuing.
(h) Fees. The Administrative Agent and the Lenders shall have received
payment of all fees as the Borrower shall have agreed to pay to the
Administrative Agent or any Lender in connection herewith, including the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to DBAG NY, in connection with the negotiation,
preparation, execution and delivery of this Agreement and the other Loan
Documents and the extensions of credit hereunder (to the extent that
statements for such fees and expenses have been delivered to the Borrower).
(i) Termination of Existing Credit Agreement. The Administrative Agent
shall have received evidence that the principal of and interest on the
loans under, and all other amounts owing under or in respect of, the
Existing Credit Agreement shall have been (or shall simultaneously be) paid
in full and all commitments to extend credit thereunder of any lender
thereunder shall have been terminated, in each case in a manner reasonably
satisfactory to the Administrative Agent.
(j) Necessary Consents and Approvals. The Administrative Agent shall
have received evidence, in form and substance reasonably satisfactory to
it, that all consents, licenses, permits and governmental and third-party
consents and approvals required for the due execution, delivery and
performance by the Borrower of this Agreement have been obtained and remain
in full force and effect.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on May
30, 2007 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02 Each Credit Event. The obligation of each Lender to make any
Loan, including any Loans on the date hereof, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) the representations and warranties of the Borrower set forth in
this Agreement and in the other Loan Documents (except Section 3.03 and
3.06(a) in the case of a conversion of a Loan from one Type to another or
the continuation of a Loan with a new Interest Period that does not
increase the principal amount thereof or the amendment of a Letter of
Credit that does not increase the face amount thereof) shall be true and
correct in all material respects on and as of the date of such Loan or the
date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable (except to the extent such representations and warranties
expressly relate to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date); and
(b) at the time of and immediately after giving effect to such Loan or
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees with the Administrative Agent, the
Issuing Bank and each Lender that, so long as this Agreement shall remain in
effect or the principal of or interest on any Loan (or any portion thereof), or
any other expenses or amounts payable hereunder, shall be unpaid, or any Letter
of Credit shall remain outstanding, the Borrower will:
SECTION 5.01 Existence; Businesses and Properties.
(a) Preserve and maintain, cause each of the Principal Subsidiaries to
preserve and maintain, and cause each other Subsidiary to preserve and maintain
(where the failure by any such other Subsidiary to so preserve and maintain
would likely result in a Material Adverse Effect), its corporate existence,
rights and franchises, except in connection with an Asset Exchange, provided
that the corporate existence of any Principal Subsidiary may be terminated if
such termination is not disadvantageous to the Administrative Agent or any
Lender;
(b) continue to own all of the outstanding shares of common stock of each
Principal Subsidiary, except in connection with an Asset Exchange;
(c) comply, and cause each of the Subsidiaries to comply, in all material
respects, with all applicable laws, rules, regulations and orders, including all
Environmental Laws;
(d) pay, and cause each of the Subsidiaries to pay, before any such amounts
become delinquent, (i) all taxes, assessments and governmental charges imposed
upon it or upon its property, and (ii) all claims (including claims for labor,
materials, supplies, or services) which might, if unpaid, become a Lien upon its
property, unless, in each case, the validity or amount thereof is being disputed
in good faith, and the Borrower has maintained adequate reserves with respect
thereto, in each case where the failure to so pay would be reasonably expected
to cause a Material Adverse Effect;
(e) keep, and cause each of the Subsidiaries to keep, proper books of
record and account, containing complete and accurate entries of all financial
and business transactions of the Borrower and such Subsidiary in all material
respects;
(f) continue to carry on, and cause each Principal Subsidiary to continue
to carry on, substantially the same type of business as the Borrower or such
Principal Subsidiary conducted as of the date hereof and business reasonably
related thereto, except for changes in such business that result from an Asset
Exchange; and
(g) maintain or cause to be maintained insurance with financially sound and
reputable insurers, or self-insurance, with respect to its properties and
business and the properties and business of the Subsidiaries against loss or
damage of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance to be of such types and in such
amounts (with such deductible amounts) as is customary for such companies under
similar circumstances;
provided that the foregoing shall not limit the right of the Borrower or any of
its Subsidiaries to engage in any transaction not otherwise prohibited by
Section 6.02, 6.03 or 6.04.
SECTION 5.02 Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 110 days after the
end of each fiscal year, consolidated balance sheets and the related
statements of income and cash flows of the Borrower and its Subsidiaries
(the Borrower and its Subsidiaries being collectively referred to as the
"Companies") as of the close of such fiscal year (which requirement shall
be deemed satisfied by the delivery of the Borrower's Annual Report on Form
10-K (or any successor form) for such year), all audited by KPMG LLP or
other independent public accountants of recognized national standing and
accompanied by an opinion of such accountants to the effect that such
consolidated financial statements fairly present in all material respects
the financial condition and results of operations of the Companies on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 65 days after the end of each of the first three fiscal
quarters of each fiscal year (commencing with the fiscal quarter ended
March 31, 2007), consolidated balance sheets and related statements of
income and cash flows of the Companies as of the close of such fiscal
quarter and the then elapsed portion of the fiscal year (which requirement
shall be deemed satisfied by the delivery of the Borrower's Quarterly
Report on Form 10-Q (or any successor form) for such quarter), each
certified by a Financial Officer as fairly presenting the financial
condition and results of operations of the Companies on a consolidated
basis in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) of this Section 5.02, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto and (ii) setting
forth reasonably detailed calculations (including with respect to any pro
forma effect given to a Material Transaction) demonstrating compliance with
Section 6.07 as of the last day of the most recent fiscal quarter covered
by such financial statements;
(d) promptly upon the mailing or filing thereof, copies of all
financial statements, reports and proxy statements mailed to the Borrower's
public shareholders, and copies of all registration statements (other than
those on Form S-8) and Form 8-K's (to the extent that such Form 8-K's
disclose actual or potential adverse developments with respect to the
Borrower or any of its Subsidiaries that constitute, or could reasonably be
anticipated to constitute, a Material Adverse Effect) filed with the
Securities and Exchange Commission (or any successor thereto) or any
national securities exchange;
(e) promptly after (i) the occurrence thereof, notice of any ERISA
Termination Event or "prohibited transaction", as such term is defined in
Section 4975 of the Code, with respect to any Plan that results, or could
reasonably be anticipated to result, in a Material Adverse Effect, which
notice shall specify the nature thereof and the Borrower's proposed
response thereto, and (ii) actual knowledge thereof, copies of any notice
of PBGC's intention to terminate or to have a trustee appointed to
administer any Plan; and
(f) promptly, from time to time, such other information, regarding its
operations, business affairs and financial condition, or compliance with
the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
Documents required to be delivered pursuant to Section 5.02(a), (b) or (d) (to
the extent any such documents are included in materials otherwise filed with the
Securities and Exchange Commission (or any successor thereto)) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a link
thereto at www.czn.com; or (ii) on which such documents are posted on the
Borrower's behalf on an Internet or intranet website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender and (ii) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of
the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the compliance certificates required by
Section 5.02(c) to the Administrative Agent. Except for such compliance
certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
SECTION 5.03 Litigation and Other Notices. Furnish to the Administrative
Agent and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written notice of intention
of any Person to file or commence, any action, suit or proceeding, whether
at law or in equity or by or before any Governmental Authority, against the
Borrower or any of the Subsidiaries which is reasonably likely to be
adversely determined and which, if adversely determined, could reasonably
be anticipated to result in a Material Adverse Effect; and
(c) any development with respect to the Borrower or any Subsidiary
that has resulted in, or could reasonably be anticipated to result in, a
Material Adverse Effect.
SECTION 5.04 Maintaining Records. Maintain all financial records in
accordance with GAAP and, upon reasonable notice, permit the Administrative
Agent and each Lender to visit and inspect the financial records of the Borrower
at reasonable times and as often as reasonably requested and to make extracts
from and copies of such financial records, and permit any representatives
designated by the Administrative Agent or any Lender to discuss the affairs,
finances and condition of the Borrower with the appropriate officers thereof
and, with the Borrower's consent (which shall not be unreasonably withheld), the
independent accountants therefor; provided that if the Borrower shall so
require, a single representative shall be appointed by Lenders holding at least
50% of the aggregate outstanding principal balance of the Loans to exercise the
rights granted to the Lenders under this Section 5.04; provided further that
when an Event of Default exists the Administrative Agent or any Lender may do
any of the foregoing, upon reasonable notice, at any time during normal business
hours (without appointment of a single representative by the Lenders).
SECTION 5.05 Use of Proceeds. Use the proceeds of the Loans only for
general corporate purposes, including working capital and support of commercial
paper issuances and Securitization Transactions permitted hereunder as well as
one or more acquisitions or Asset Exchanges; provided that no such proceeds
shall be used (i) to make any Restricted Payment, or (ii) directly or indirectly
in connection with any Hostile Acquisition.
ARTICLE VI
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees with each Lender, the Issuing Bank and
the Administrative Agent that, so long as this Agreement shall remain in effect
or the principal of or interest on any Loan (or any portion thereof), or any
other expenses or amounts payable hereunder, shall be unpaid or any Letter of
Credit shall remain outstanding, it will not:
SECTION 6.01 Liens; Restrictions on Sales of Receivables. Create, incur,
assume, or suffer to exist, or permit any of the Principal Subsidiaries to
create, incur, assume, or suffer to exist, any Lien on any of its property now
owned or hereafter acquired to secure any Indebtedness of the Borrower or any
such Principal Subsidiary, or sell or assign any accounts receivable (other than
in the ordinary course of business substantially in accordance with the
Borrower's past practice), other than: (a) Liens incurred or deposits made in
the ordinary course of business to secure surety and appeal bonds, leases,
return-of-money bonds and other similar obligations (exclusive of obligations of
the payment of borrowed money); (b) pledges or deposits to secure the utility
obligations of the Borrower incurred in the ordinary course of business; (c)
Liens upon or in property now owned or hereafter acquired to secure Indebtedness
incurred solely for the purpose of financing the acquisition, construction or
improvement of any property, provided that such Indebtedness shall not exceed
the fair market value of the property being acquired, constructed or improved;
(d) Liens on the assets of any Principal Subsidiary to secure the repayment of
project financing for such Principal Subsidiary; (e) Liens on the assets of any
Person merged or consolidated with or into (in accordance with Section 6.04) the
Borrower or any Principal Subsidiary that were in effect at the time of such
merger or consolidation; (f) Liens for taxes, assessments and governmental
charges or levies, which are not yet due or are which are being contested in
good faith by appropriate proceedings; (g) Liens securing Indebtedness of the
Borrower or any Principal Subsidiary to the Rural Electrification Administration
or the Rural Utilities Service (or any successor to any such agency); (h)
carriers', warehousemen's, mechanics', materialmen's, repairmen's, suppliers or
other like Liens arising in the ordinary course of business relating to
obligations not overdue for a period of more than 60 days or which are bonded or
being contested in good faith by appropriate proceedings; (i) pledges or
deposits in connection with workers' compensation laws or similar legislation or
to secure public or statutory obligations; (j) Liens incurred on deposits to
secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (k) easements, rights of
way, restrictions and other encumbrances incurred which, in the aggregate, do
not materially interfere with the ordinary conduct of business; (l) restrictions
by Governmental Authorities on the operations, business or assets of the
Borrower or its Subsidiaries that are customary in the Borrower's and its
Subsidiaries' businesses; (m) sales of accounts receivable pursuant to, and
Liens existing or deemed to exist in connection with, any Securitization
Transactions, provided that the aggregate amount of all such Securitization
Transactions shall not at any time exceed $150,000,000; and (n) other Liens
securing Indebtedness outstanding in an aggregate principal amount not to exceed
$25,000,000; provided that the Borrower or any Principal Subsidiary may create,
incur, assume or suffer to exist other Liens (in addition to Liens excepted by
the foregoing clauses (a) through (n)) on its assets so long as such Liens
equally and ratably secure the Obligations pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent.
SECTION 6.02 Ownership of the Principal Subsidiaries. Sell, assign, pledge,
or otherwise transfer or dispose of any shares of common stock, voting stock, or
stock convertible into voting or common stock of any Principal Subsidiary,
except (a) to another Subsidiary or (b) in connection with an Asset Exchange;
provided that the Borrower may pledge any shares of common stock, voting stock,
or stock convertible into voting or common stock of any Principal Subsidiary so
long as such pledge equally and ratably secures the Obligations pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION 6.03 Asset Sales. Except in connection with an Asset Exchange,
permit any Principal Subsidiary to sell, assign, or otherwise dispose of
telecommunications assets (whether in one transaction or a series of
transactions), if the net, after-tax proceeds thereof are used by the Borrower
or any Subsidiary to prepay (other than a mandatory prepayment in accordance
with the terms of the applicable governing documents, including pursuant to any
put provision) Indebtedness incurred after the date hereof which Indebtedness
has a maturity later than the Commitment Termination Date (other than bridge or
other financings incurred in connection with an asset purchase or sale,
including acquisition indebtedness or indebtedness of an acquired entity or
indebtedness incurred to refinance indebtedness outstanding as of the date
hereof).
SECTION 6.04 Mergers. Merge or consolidate with, or sell, assign, lease, or
otherwise dispose of (whether in one transaction or a series of transactions)
all or substantially all of its assets (whether now owned or hereafter
acquired), except in connection with an Asset Exchange, to any Person, or permit
any Principal Subsidiary to do so, except that any Subsidiary may merge into or,
subject to Section 6.03, transfer assets to the Borrower or any other Subsidiary
and the Borrower may merge with any Person; provided that, immediately
thereafter and after giving effect thereto, no event shall occur or be
continuing which constitutes an Event of Default or a Default and, in the case
of any such merger to which the Borrower is a party, either the Borrower is the
surviving corporation or the surviving entity (if not the Borrower) has a
consolidated net worth (as determined in accordance with GAAP) immediately
subsequent to such merger at least equal to the Consolidated Net Worth of the
Borrower immediately prior to such merger and expressly assumes the obligations
of the Borrower hereunder; provided that, notwithstanding the foregoing, the
Borrower and any of the Principal Subsidiaries may sell assets in the ordinary
course of its business and may sell or otherwise dispose of worn out or obsolete
equipment on a basis consistent with good business practices.
SECTION 6.05 Restrictions on Dividends.
(a) Enter into or permit any Principal Subsidiary to enter into, any
contract or agreement (other than with a governmental regulatory authority
having jurisdiction over the Borrower or such Principal Subsidiary) restricting
the ability of such Principal Subsidiary to pay dividends or make distributions
to the Borrower in any manner that would impair the ability of the Borrower to
meet its present and future obligations hereunder.
(b) In the case of the Borrower only, declare or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, in each case if any Event of Default has occurred and is
continuing at the time of such action or will result therefrom (but excluding
the payment of dividends declared and announced by the Board of Directors at a
time when no Event of Default existed).
SECTION 6.06 Transactions with Affiliates. Except in connection with an
Asset Exchange, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that as long as no Default or
Event of Default shall have occurred and be continuing, the Borrower or any
Subsidiary may engage in any of the foregoing transactions (i) in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (ii) as otherwise may be required by any Federal
or state Governmental Authority, or (iii) so long as such transactions are not
materially disadvantageous to the Borrower.
SECTION 6.07 Financial Ratio. Permit the Leverage Ratio as of the last day
of any fiscal quarter to be greater than 4.5 to 1.
SECTION 6.08 Guarantors. Permit any Subsidiary to enter into, directly or
indirectly, any Guarantee of any Indebtedness of the Borrower or any Subsidiary
unless the Obligations are Guaranteed on a pari passu basis pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent, except (i) any Guarantee in effect at the time such
Subsidiary becomes a Subsidiary of the Borrower, so long as such Guarantee was
not entered into solely in contemplation of such Person becoming a Subsidiary of
the Borrower, (ii) any Guarantee in effect as of the Effective Date that is
listed on Schedule 2, and (iii) additional Guarantees aggregating not more than
$25,000,000 at any one time outstanding.
ARTICLE VII
EVENTS OF DEFAULT
-----------------
SECTION 7.01 Events of Default. If any of the following events ("Events of
Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or under any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries in or in connection with this
Agreement or any other Loan Document or any amendment or modification
hereof or thereof, or any waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in connection with this Agreement or any other Loan Document or any
amendment or modification hereof or thereof, or any waiver hereunder or
thereunder, shall prove to have been incorrect when made or deemed made in
any material respect;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.01(f) or Section 5.05 or in
Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30 days
after the earlier to occur of (i) the Borrower obtaining knowledge thereof
and (ii) the date that notice thereof shall have been given to the Borrower
by the Administrative Agent or any Lender;
(f) the Borrower or any Principal Subsidiary shall fail to make any
payment of any amount in respect of Indebtedness in an aggregate principal
amount of $50,000,000 or more, when and as the same shall become due and
payable after giving effect to any applicable grace periods;
(g) any event or condition occurs that results in any Indebtedness of
any one or more of the Borrower and its Principal Subsidiaries in an
aggregate principal amount exceeding $50,000,000 becoming due prior to its
scheduled maturity or that enables or permits the holder or holders of any
such Indebtedness or any trustee or agent on its or their behalf to cause
any such Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity, in each case after giving effect to any applicable grace period;
or any such Indebtedness shall be required to be prepaid (other than by a
regularly scheduled required prepayment, pursuant to any put right (or
similar right) of the holder thereof, or by the exercise by the Borrower or
any Principal Subsidiary of its right to make a voluntary prepayment) in
whole or in part prior to its stated maturity; or there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to
which the Borrower or any Principal Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as defined in
such Swap Contract) under such Swap Contract as to which the Borrower or
any Principal Subsidiary is an Affected Party (as defined in such Swap
Contract) and, in either event, the Swap Termination Value owed by the
Borrower or such Subsidiary as a result thereof is greater than
$50,000,000; provided that this clause (g) shall not apply to any
Indebtedness that becomes due as a result of a voluntary redemption or
repayment of such Indebtedness effected in accordance with the terms of the
agreement governing such Indebtedness and which is not prohibited by this
Agreement;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
liquidation, reorganization or other relief in respect of the Borrower or
any of its Principal Subsidiaries or its debts, or of a substantial part of
its assets, under any Federal or state bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any of its Principal Subsidiaries or for a substantial
part of its assets, and, in any such case, such proceeding or petition
shall continue undismissed for a period of 60 or more days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Principal Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal or state
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any of its Principal Subsidiaries or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 shall be rendered against the Borrower or
any of its Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Borrower or any of its Subsidiaries to enforce any such judgment;
(k) a Plan shall fail to maintain the minimum funding standard
required by Section 412(a) of the Code for any plan year or a waiver of
such standard is sought or granted under Section 412(d), or a Plan is or
shall have been terminated or the subject of termination proceedings under
ERISA, or the Borrower or an ERISA Affiliate has incurred a liability to or
on account of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA,
and there shall result from any such event or events a Material Adverse
Effect; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Section 7.01), and at any time thereafter
during the continuance of such event, the Administrative Agent at the request of
the Required Lenders shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower, and (iii) require that
the Borrower cash collaterize the LC Exposure pursuant to Section 2.04(k); and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable and the Borrower shall automatically be
required to provide such cash collateral, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
AGENCY
------
SECTION 8.01 Administrative Agent.
Each of the Lenders and the Issuing Bank hereby irrevocably appoints DBAG
NY to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the
Issuing Bank, and the Borrower shall not have rights as a third party
beneficiary of any of such provisions except with respect to a successor
Administrative Agent.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Section 9.02) or (ii) in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the
Issuing Bank.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the Issuing Bank, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Bank prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties and exercise
its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to
the Lenders, the Issuing Bank and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right to appoint a
successor, which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank with an office in New York, New York and which shall
be reasonably acceptable to the Borrower. If no such successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the Issuing Bank, appoint a successor Administrative Agent meeting the
qualifications set forth above, provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents and (2) all payments, communications and determinations provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender and the Issuing Bank directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
paragraph. Upon the acceptance of a successor's appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 9.03 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Each Lender and the Issuing Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 9.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents.
SECTION 8.02 Bookrunners, Etc.. Anything herein to the contrary
notwithstanding, none of the bookrunners, arrangers, syndication agents or
documentation agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the Issuing Bank hereunder.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01 Notices.
(a) Notices Generally. Except as provided in paragraph (b) below, all
notices, requests, demands and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopier, as follows:
(i) if to the Borrower, to it at Citizens Communications Company, 3
High Ridge Park, Stamford, Connecticut 06905, Attention of Treasurer
(Telecopier No. 203-614-4602; Telephone No. 203-614-5124; Electronic Mail:
darmour@czn.com), with a copy to Citizens Communications Company, 3 High
Ridge Park, Stamford, Connecticut 06905, Attention of General Counsel
(Telecopier No. 203-614-4651; Telephone No. 203-614-5600; Electronic Mail:
hilary.glassman@czn.com);
(ii) if to the Administrative Agent, to Deutsche Bank AG New York
Branch, 60 Wall Street, New York, New York 10005, Attention of Maxeen
Jacques (Telecopier No. 201-593-2307; Telephone No. 201-593-2483;
Electronic Mail: maxeen.jacques@db.com);
(iii) if to DBAG NY as Issuing Bank, to Deutsche Bank AG New York
Branch, 60 Wall Street, New York, New York 10005, Attention of Lyyn
Nicaretta (Telecopier No. 212-797-0780; Telephone No. 212-250-9631;
Electronic Mail: lynn.nicaretta@db.com), with a copy to Deutsche Bank AG
New York Branch, 60 Wall Street, New York, New York 10005, Attention of Ann
Thompson (Telecopier No. 212-797-0780; Telephone No. 212-250-9639;
Electronic Mail: ann.thompson@db.com); and
(iv) if to a Lender, to it at its address (or telecopier number) set
forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant
to Article II if such Lender or the Issuing Bank, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto (or, in the case of any such change by a Lender, by
notice to the Borrower and the Administrative Agent).
SECTION 9.02 Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall
(i) increase the Commitment of any Lender without the written consent
of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender adversely affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby,
(iv) change Section 2.15(b) or (c) in a manner that would alter the
pro rata sharing of payments required thereby without the written consent
of each Lender, or
(v) change any of the provisions of this Section or the percentage in
the definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;
and provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or the Issuing Bank
hereunder without the prior written consent of the Administrative Agent or the
Issuing Bank, as the case may be.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender (including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender) (A) in connection with any
amendments, modifications or waivers of the provisions of this Agreement or of
the other Loan Documents or (B) in connection with the enforcement or protection
of its rights (x) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (y) in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the Issuing
Bank, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the Transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit)
or (iii) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower, and
regardless of whether any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under paragraph (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof) or the Issuing Bank or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) or the Issuing Bank or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Bank in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or the Issuing Bank
in connection with such capacity. The obligations of the Lenders under this
paragraph (c) are several obligations.
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable promptly
after demand therefor.
SECTION 9.04 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender,
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in accordance with
the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f)
of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, the Issuing Bank,
Participants to the extent provided in paragraph (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) to any Person; provided that any such assignment shall be
subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender, no
minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $10,000,000,
unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loan or the Commitment
assigned.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in
addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such
assignment is to a Lender or an Affiliate of a Lender;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is
to a Person that is not a Lender or an Affiliate of a Lender; and
(C) the consent of the Issuing Bank shall be required for any
assignment that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then
outstanding).
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500, and the assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(v) No Assignment to the Borrower. No such assignment shall be made to the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to
a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Section 2.13 and Section 9.03 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in New York, New
York a copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and the Issuing
Bank shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in Section 9.02(b) that
affects such Participant. Subject to paragraph (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Section 2.13
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided that such Participant agrees to be subject to
Section 2.15(d) as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 2.12 and Section 2.14 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.14 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.14(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Section 2.12, Section 2.13, Section 2.14 and
Section 9.03 shall survive and remain in full force and effect regardless of the
consummation of the Transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic
Execution.
(a) Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents, and any separate letter agreements with respect to fees payable
to the Administrative Agent, constitute the entire contract between and among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page to this Agreement by
electronic transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
(b) Electronic Execution of Assignments. The words "execution", "signed",
"signature" and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
SECTION 9.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender, the Issuing Bank and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the Issuing Bank or any such Affiliate to or for the
credit or the account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the Issuing Bank, irrespective of whether or not such
Lender or the Issuing Bank shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender or the
Issuing Bank different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the Issuing Bank and
their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the Issuing
Bank or their respective Affiliates may have. Each Lender and the Issuing Bank
agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
SECTION 9.09 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court
or, to the fullest extent permitted by applicable law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or in any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower irrevocably and unconditionally waives,
to the fullest extent permitted by applicable law, any objection that it may now
or hereafter have to the laying of venue of any action or proceeding arising out
of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party hereto irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party hereto to serve process in any
other manner permitted by applicable law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and other
representatives (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners) (and, in the case of any non-ordinary course disclosure under
this clause (b), the disclosing party shall use its reasonable efforts to inform
the Borrower thereof prior to any such disclosure and, in any event, shall
promptly inform the Borrower thereof, in each case to the extent legally
permitted to do so), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process (in which case the
disclosing party shall use its reasonable efforts to inform the Borrower thereof
prior to any such disclosure and, in any event, shall promptly inform the
Borrower thereof, in each case to the extent legally permitted to do so), (d) to
any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, the Issuing Bank or any Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the Borrower or any
of its Subsidiaries; provided that, in the case of information received from the
Borrower or any of its Subsidiaries after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13 USA PATRIOT Act. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), such Lender may be required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with said Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CITIZENS COMMUNICATIONS COMPANY
By /s/ Donald R. Shassian
-------------------------
Name: Donald R. Shassian
Title: Chief Financial Officer
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
By /s/ Yvonne Tilden
--------------------------
Name: Yvonne Tilden
Title: Vice President
By /s/ Andreas Neumeier
---------------------------
Name: Andreas Neumeier
Title: Director
LENDERS
-------
DEUTSCHE BANK AG NEW YORK BRANCH
By /s/ Yvonne Tilden
-------------------------
Name: Yvonne Tilden
Title: Vice President
By /s/ Andreas Neumeier
-------------------------
Name: Andreas Neumeier
Title: Director
CITIBANK, N.A.
By /s/ Ross Levitsky
---------------------------
Name: Ross Levitsky
Title: Vice President
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By /s/ Doreen Barr
----------------------------
Name: Doreen Barr
Title: Vice President
By /s/ Rianka Mohan
------------------------------
Name: Rianka Mohan
Title: Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P.
By /s/ Mark Walton
------------------------------
Name: Mark Walton
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A.
By /s/ John Kowalczuk
--------------------------
Name: John Kowalczuk
Title: Vice President
UBS LOAN FINANCE LLC
By /s/ Irja R. Otsa
--------------------------
Name: Irja R. Otsa
Title: Associate Director
By /s/ David B. Julie
--------------------------
Name: David B. Julie
Title: Associate Director