Exhibit 99.1
REVOLVING CREDIT AGREEMENT
DATED AS OF
May 14, 2001
AMONG
TELEPHONE AND DATA SYSTEMS, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
FLEET NATIONAL BANK,
as Administrative Agent
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent
TD SECURITIES (USA) INC.,
as Syndication Agent
and an Arranger
TORONTO DOMINION (TEXAS), INC.,
as a Bank
and
FLEET SECURITIES, INC.
as an Arranger
TABLE OF CONTENTS
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Section Page
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1. DEFINITIONS AND RULES OF INTERPRETATION....................................1
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1.1. Definitions...........................................................1
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1.2. Rules of Interpretation..............................................10
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2. THE REVOLVING CREDIT FACILITIES...........................................11
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2.1. Commitment to Lend...................................................11
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2.2. Facility Fees; Utilization Fee.......................................12
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2.3. Reduction of ST Commitment and/or MT Commitment......................12
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2.4. The Notes for the Loans..............................................13
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2.5. Notice and Matter of Borrowing or Conversion of Loans; Swing Line....13
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2.6. Funds for Loans......................................................14
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2.7. Mandatory Repayments of Loans........................................15
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2.8. Optional Repayments of Loans.........................................15
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2.9. Settlements..........................................................16
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2A. LETTERS OF CREDIT........................................................17
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2A.1. Letter of Credit Commitments........................................17
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2A.2. Reimbursement Obligations of the Borrower...........................18
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2A.3. Letter of Credit Payments...........................................18
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2A.4. Obligations Absolute................................................19
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2A.5. Reliance by Issuer..................................................19
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2A.6. Letter of Credit Fee................................................20
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3. INTEREST; CERTAIN GENERAL PROVISIONS......................................20
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3.1. Interest on Loans; Payments of Interest..............................20
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3.2. Interest Period Options..............................................20
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3.3. Indemnity............................................................21
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3.4. Funds for Payments...................................................21
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3.5. Computations.........................................................22
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3.6. Inability to Determine Eurodollar Rate...............................22
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3.7. Illegality...........................................................22
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3.8. Additional Costs, Etc................................................23
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3.9. Certificate..........................................................24
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3.10. Capital Adequacy....................................................24
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3.11. Interest on Overdue Amounts.........................................24
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3.12. Payment Date Adjustment for Non-Business Days.......................24
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4. REPRESENTATIONS AND WARRANTIES............................................24
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4.1. Corporate Authority..................................................25
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4.2. Governmental Approvals...............................................25
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4.3. Title to Properties; Leases..........................................25
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4.4. Financial Statements; Projections....................................26
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4.5. No Material Changes, Etc.............................................26
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4.6. Franchises, Patents, Copyrights, Etc.................................26
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4.7. No Litigation........................................................26
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4.8. No Materially Adverse Contracts, Etc.................................27
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4.9. Compliance With Other Instruments, Laws, Etc.........................27
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4.10. Tax Status..........................................................27
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4.11. No Event of Default.................................................27
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4.12. Holding Company and Investment Company Acts.........................27
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4.13. Certain Transactions................................................28
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4.14. ERISA Compliance....................................................28
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4.15. Purpose Credit......................................................28
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4.16. Environmental Compliance............................................29
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4.17. Compliance With Fair Labor Standards Act............................29
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4.18. Subsidiaries........................................................30
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Section Page
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4.19. Solvency............................................................30
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4.20. Disclosure..........................................................30
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5. AFFIRMATIVE COVENANTS OF THE BORROWER.....................................31
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5.1. Punctual Payment.....................................................31
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5.2. Maintenance of Office................................................31
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5.3. Records and Accounts.................................................31
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5.4. Financial Statements, Certificates and Information...................31
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5.5. Corporate Existence; Maintenance of Properties.......................32
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5.6. Insurance............................................................32
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5.7. Taxes; Etc...........................................................33
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5.8. Inspection of Properties and Books...................................33
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5.9. Compliance with Laws, Contracts, Licenses, and Permits...............33
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5.10. Pension Plans.......................................................34
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5.11. Further Assurances..................................................34
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5.12. Notices.............................................................34
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5.13. Fair Labor Standards Act............................................34
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5.14. Environmental Events................................................34
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5.15. Notification of Claims..............................................35
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5.16. Use of Proceeds.....................................................35
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5.17. Notice of Litigation, Judgment and Material Events..................35
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6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER................................35
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6.1. Indebtedness.........................................................35
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6.2. Restrictions on Liens................................................35
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6.2.1. The Borrower.....................................................35
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6.2.2. Subsidiaries.....................................................37
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6.3. Limitation on Sales, Consolidation, Merger, Etc......................39
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6.4. Federal Regulations..................................................40
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6.5. Restrictions on Ability to Repay Loans...............................40
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6.6. Employee Benefit Plans...............................................40
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6.7. Compliance with Environmental Laws...................................40
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6.8. Limitation on Sale and Leaseback.....................................42
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7. FINANCIAL COVENANTS OF THE BORROWER.......................................42
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7.1. Debt to Capitalization Ratio.........................................42
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7.2. Interest Coverage Ratio..............................................42
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8. CLOSING CONDITIONS........................................................42
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8.1. Corporate Action.....................................................42
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8.2. Loan Documents.......................................................42
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8.3. Opinion of Borrower's Legal Counsel..................................42
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8.4. Certified Copies of Charter Documents................................42
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8.5. Incumbency Certificate...............................................42
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8.6. Good Standing Certificates...........................................42
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8.7. Payment of Fees......................................................43
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9. CONDITIONS TO ALL BORROWINGS..............................................43
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9.1. Representations True; No Event of Default............................43
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9.2. No Legal Impediment..................................................43
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9.3. Governmental Regulation..............................................43
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9.4. Proceedings and Documents............................................43
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10. EVENTS OF DEFAULT; ACCELERATION..........................................43
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11. THE AGENTS...............................................................45
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11.1. Authorization.......................................................45
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11.2. Employees and Agents................................................45
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11.3. No Liability........................................................45
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11.4. No Representations..................................................46
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11.5. Payments............................................................46
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11.6. Holders of Notes....................................................46
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Section Page
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11.7. Indemnity...........................................................46
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11.8. Agents as Banks.....................................................46
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11.9. Resignation.........................................................46
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11.10. Documentation Agent and Syndication Agent..........................47
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12. EXPENSES.................................................................47
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13. INDEMNIFICATION..........................................................47
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14. SURVIVAL OF COVENANTS, ETC...............................................48
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15. ASSIGNMENT AND PARTICIPATION.............................................48
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15.1. Conditions to Assignment by Banks...................................48
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15.2. Certain Representations and Warranties; Limitations; Covenants......48
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15.3. Register............................................................49
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15.4. New Notes...........................................................49
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15.5. Participations......................................................50
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15.6. Disclosure..........................................................50
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15.7. Assignee or Participant Affiliated with the Borrower................50
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15.8. Miscellaneous Assignment Provisions.................................50
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15.9. Assignment by Borrower..............................................51
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16. NOTICES, ETC.............................................................51
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17. GOVERNING LAW............................................................51
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18. HEADINGS.................................................................52
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19. COUNTERPARTS.............................................................52
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20. ENTIRE AGREEMENT, ETC....................................................52
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21. WAIVER OF JURY TRIAL.....................................................52
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22. CONSENTS, AMENDMENTS, WAIVERS, ETC.......................................52
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23. FCC APPROVAL.............................................................53
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24. SEVERABILITY.............................................................53
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25. CONFIDENTIALITY..........................................................53
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SCHEDULES AND EXHIBITS
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EXHIBIT A-1: Form of ST Note
EXHIBIT A-2: Form of MT Note
EXHIBIT B: Form of Loan Request
EXHIBIT C: Form of Compliance Certificate
EXHIBIT D: Form of Opinion of Borrower's Counsel
EXHIBIT E: Form of Assignment and Acceptance
SCHEDULE 1.1(a): Commitments
SCHEDULE 1.1(b): Eurodollar Lending Offices
SCHEDULE 1.2: Margin Percentages
SCHEDULE 4.14: Assets and Accrued Benefits
SCHEDULE 4.18: Material Subsidiaries
SCHEDULE 6.2.1: Existing Liens of Borrower
SCHEDULE 6.2.2: Existing Liens of Subsidiaries
SCHEDULE 6.8: Sale and Leaseback Transactions
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REVOLVING CREDIT AGREEMENT
--------------------------
This REVOLVING CREDIT AGREEMENT is made as of the 14th day of May, 2001, by
and among TELEPHONE AND DATA SYSTEMS, INC. (the "Borrower"), a Delaware
corporation having its principal place of business at 00 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, the financial institutions listed on Schedule 1.1(a)
hereto (the "Banks"), FLEET NATIONAL BANK, as administrative agent for the Banks
(the "Administrative Agent"), LASALLE BANK NATIONAL ASSOCIATION, as
documentation agent for the Banks (the "Documentation Agent"), TD SECURITIES
(USA) INC., as syndication agent for the Banks (the "Syndication Agent") and
TORONTO DOMINION (TEXAS), INC., as a Bank.
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
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Section 1.1. Definitions. The following terms shall have the meanings set
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forth in this 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
Administrative Agent. Fleet National Bank, not in its individual capacity,
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but acting as agent for the Banks.
Administrative Agent's Office. See section 3.4.
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Administrative Agent's Special Counsel. Xxxxxxx Xxxx LLP of Boston,
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Massachusetts, or such other counsel as may be approved by the Administrative
Agent.
Affiliate. Any Person that would be considered to be an affiliate of the
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Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agents. Collectively, the Administrative Agent, the Documentation Agent
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and the Syndication Agent.
Assignment and Acceptance. See section 15.1.
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Balance Sheet Date. December 31, 2000.
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Banks. The financial institutions listed on Schedule 1.1(a), and any of
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their successors and assigns.
Base Rate. The greater of: (a) the variable per annum rate of interest so
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designated from time to time by the Administrative Agent at its office in
Boston, Massachusetts as its "prime rate" minus .50% (i.e., 50 Basis Points), or
(b) the Federal Funds Rate plus .75% (i.e., 75 Basis Points). The "prime rate"
is a reference rate and does not necessarily represent the lowest or best rate
being charged to any customer. Changes in the rate of interest resulting from
changes in the "prime rate" or the Federal Funds Rate shall take place
immediately without notice or demand of any kind.
Base Rate Loan. Any Loan bearing interest determined by reference to
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the Base Rate.
Basis Points. One one-hundredth of one percent (0.01%).
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Borrower. Telephone and Data Systems, Inc., a Delaware corporation.
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Business Day. Any day on which banking institutions in Boston,
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Massachusetts, New York, New York and Chicago, Illinois are open for the
transaction of banking business.
Capitalized Lease. As applied to any Person, any lease of property by such
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Person as lessee or obligor, the discounted future rental payments under which
are required to be capitalized on the balance sheet of such Person in accordance
with Generally Accepted Accounting Principles.
Capitalized Rent. The present value (discounted semi-annually at a discount
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rate equal to the weighted average rate of interest borne by the Obligations) of
the total net amount of rent payable for the remaining term of any lease of
property by the Borrower (including any period for which such lease has been
extended); provided that no such rental obligation shall be deemed to be
Capitalized Rent unless the lease resulted from a Sale and Leaseback
Transaction. The total net amount of rent payable under any lease for any period
shall be the total amount of the rent payable by the lessee with respect to such
period but shall not include amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, sewer rates
and similar charges.
Closing Date. May 14, 2001.
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Code. The Internal Revenue Code of 1986, as amended and in effect from
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time to time.
Commitment. With respect to each Bank, its ST Commitment and its MT
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Commitment, as in effect from time to time.
Commitment Percentage. With respect to each Bank, the percentage set forth
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in the column labeled Commitment Percentage, opposite such Bank's name on
Schedule 1.1(a) thereto.
Compliance Certificate. See section 5.4(c).
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Consolidated or consolidated. With reference to any term defined herein,
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shall mean that term as applied to the accounts of the Borrower and all of its
Subsidiaries, consolidated in accordance with Generally Accepted Accounting
Principles.
Consolidated Capitalization. The sum of (i) Funded Debt of the Borrower and
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its Subsidiaries calculated on a consolidated basis, plus (ii) Consolidated Net
Worth plus (iii) deferred taxes and deferred investment credit to the extent
deducted in calculating Consolidated Net Worth.
Consolidated EBITDA. For any period, an amount equal to (a) the sum of (i)
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Consolidated Net Income for such period, plus (ii) depreciation, amortization
and all other non-cash charges deducted from Consolidated Net Income for such
period, plus (iii) to the extent deducted in the calculation of Consolidated Net
Income, Consolidated Interest Expense and taxes paid or payable for such period.
Consolidated Interest Expense. For any period, the aggregate amount of
------------ -------- -------
interest required to be paid or payable in cash by the Borrower or any of its
Subsidiaries during such period on all Funded Debt of the Borrower or any of its
Subsidiaries outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of Capitalized
Leases (including, without duplication, the interest for rental payments made
with respect to Sale and Leaseback Transactions) and including any Utilization
Fee, ST Facility Fee and MT Facility Fee payable pursuant to section 2.2.
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Consolidated Net Income. For any period, the net income of the Borrower and
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its Subsidiaries for such period, after deduction of all expenses, taxes, and
other proper charges for such period, determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles, after eliminating
therefrom (a) all extraordinary nonrecurring gains or losses, including, without
limitation, any gains (or losses) from any sales of assets other than sales in
the ordinary course of business, and (b) non-cash dividends or non-cash
distributions from Investments.
Consolidated Net Worth. The excess of Consolidated Total Assets over
------------ --- -----
Consolidated Total Liabilities.
Consolidated Total Assets. All assets of the Borrower and its Subsidiaries
------------ ----- ------
determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
Consolidated Total Liabilities. All liabilities of the Borrower and its
------------ ----- -----------
Subsidiaries determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles (including all Funded Debt and other indebtedness
of the Borrower and its Subsidiaries).
Continuation Request. A notice given by the Borrower to the Administrative
------------ -------
Agent in accordance with section 3.2 pursuant to which the Borrower notifies the
Administrative Agent of its election to continue a Loan for a particular
Interest Period.
Credit Agreement. This Revolving Credit Agreement, including the Schedules
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and Exhibits hereto.
Debt Rating. At the relevant time of reference thereto, the debt rating
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issued by S&P or Xxxxx'x with respect to unsecured indebtedness of the Borrower
not maturing within twelve months and not by its terms or pursuant to any other
contractual arrangement subordinated in right of payment to other indebtedness
of the Borrower.
Default. See section 10.
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Dollars. Dollars in lawful currency of the United States of America.
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Drawdown Date. The date on which any Loan is made or is to be made in
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accordance with 2.
Eligible Assignee. Any of (a) a commercial bank or finance company
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organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $1,000,000,000, calculated in accordance with generally
accepted accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) if, but only if, an
Event of Default has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial institution approved by
the Administrative Agent, such approval not to be unreasonably withheld.
Environmental Laws. See section 4.16.
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ERISA. The Employee Retirement Income Security Act of 1974, as amended.
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ERISA Affiliate. Any Person which is treated as a single employer with the
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Borrower under section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
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Pension Plan within the meaning of section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Requirement. For any day with respect to a Loan, the
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maximum rate (expressed as a decimal) at which any lender subject thereto would
be required to maintain reserves under Regulation D of the Board of Governors of
the Federal Reserve System (or any successor or similar regulations relating to
such reserve requirements) against "Eurocurrency Liabilities" (as that term is
used in Regulation D), if such liabilities were outstanding. The Eurocurrency
Reserve Requirement shall be adjusted automatically on and as of the effective
date of any change in the Eurocurrency Reserve Requirement.
Eurodollar Business Day. Any Business Day on which commercial banks are
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open for international business (including dealings in Dollar deposits) in
London or such other eurodollar interbank market as may be selected by the
Administrative Agent in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank designated as
-------------------------
such on Schedule 1.1(b) hereto and, thereafter, such other office of such Bank,
if any, that shall be making or maintaining Loans.
Eurodollar Loan. Any Loan bearing interest at a rate determined by
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reference to the Eurodollar Rate.
Eurodollar Rate. For any Interest Period with respect to a Loan, a rate per
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annum equal to the quotient (rounded upwards to the next higher 1/16 of one
percent) of (a) (i) the rate per annum for deposits in Dollars for a period
comparable to such Interest Period which appears on the Telerate Page 3750 as of
11:00 a.m., London time, on the day that is two Eurodollar Business Days prior
to the beginning of such Interest Period, or (ii) if such rate specified in
clause (i) does not appear on the Telerate Page 3750, the rate at which the
Administrative Agent's Eurodollar Lending Office is offered Dollar deposits two
Eurodollar Business Days prior to the beginning of such Interest Period in the
eurodollar interbank market where the eurodollar and foreign currency and
exchange operations of such Eurodollar Lending Office are customarily conducted
at or about 11:00 a.m., Boston time, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the Administrative Agent's Loan to which such
Interest Period applies, divided in either case by (b) a number equal to 1.00
minus the Eurocurrency Reserve Requirement.
Event of Default. See section 10.
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FCC. The Federal Communications Commission (or any successor agency,
---
commission, bureau, department or other political subdivision) of the United
States.
FCC License. Any license, permit, certificate of compliance, franchise,
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approval or authorization granted or issued by the FCC.
Federal Funds Rate. For any day, the rate per annum equal to the weighted
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average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published
for such day (or if such day is not a Business Day, of the next
-5-
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent.
Fleet. Fleet National Bank, in its individual capacity.
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Funded Debt. As to any Person and without duplication, the amount of (a)
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any obligation of such Person to repay money borrowed, (b) any indebtedness of
such Person evidenced by notes (other than short-term trade debt incurred in the
ordinary course of business), bonds, debentures or similar instruments, (c) any
obligation of others constituting Funded Debt of such other Person which is
secured by a lien on the property of such Person or for which such Person is
contingently liable, whether or not such obligation is assumed by such Person
and (d) all obligations of such Person with respect to Capitalized Leases.
Funded Debt to Capitalization Ratio. At the relevant time of reference
------ ---- -- --------------
thereto, the ratio of (a) Funded Debt of the Borrower and its Subsidiaries
calculated on a consolidated basis to (b) Consolidated Capitalization.
Generally Accepted Accounting Principles. Principles that are consistent
--------- -------- ---------- ----------
with the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors in effect for the fiscal year of the Borrower ended
on the Balance Sheet Date, and to the extent consistent with such principles,
the accounting practice of the Borrower reflected in its financial statements
for the year ended on the Balance Sheet Date; provided that a certified public
accountant would, insofar as the use of such accounting principles is pertinent,
be in a position to deliver an unqualified opinion (other than a qualification
regarding changes in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.
Guaranteed Pension Plan. Any pension plan maintained by the Borrower or any
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of its Subsidiaries, or to which the Borrower or any of its Subsidiaries
contributes, that is required to pay plan termination insurance premiums to the
PBGC.
Hazardous Substances. See section 4.16.
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Interest Coverage Ratio. For each period consisting of four consecutive
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fiscal quarters of the Borrower, the ratio of (i) Consolidated EBITDA for such
period to (ii) Consolidated Interest Expense for such period.
Interest Payment Date. (a) As to any Eurodollar Loan in respect of which
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the Interest Period, is (i) 3 months or less, the last day of such Interest
Period, and (ii) more than 3 months, the date that is 3 months from the Drawdown
Date thereof and the last day of such Interest Period, and (b) as to any Base
Rate Loan, the last day of each calendar quarter.
Interest Period. With respect to each Eurodollar Loan, (a) initially, the
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period commencing on the date such Loan is made and ending on the last day of a
period of either seven (7) days or 1, 2, 3, or 6 months as selected by the
Borrower in a Loan Request for any Eurodollar Loan, and (b) thereafter, each
period commencing on the last day of the immediately preceding Interest Period
applicable to such Eurodollar Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Continuation Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
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(i) if any Interest Period with respect to any Eurodollar Loan would
otherwise end on a day that is not a Eurodollar Business Day, that Interest
Period shall be extended to the next succeeding Eurodollar Business Day unless
the result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Eurodollar Business Day;
(ii) if the Borrower shall fail to give a Continuation Request as provided
in section 3.2 with respect to any Eurodollar Loan, the Borrower shall be deemed
to have requested that a seven (7) day Interest Period apply to such Eurodollar
Loan commencing on the last day of the then current Interest Period with respect
thereto;
(iii) any Interest Period that begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month unless such Interest Period is
a seven day Interest Period;
(iv) the Borrower may not select an Interest Period for any ST Loan that
would extend beyond the scheduled ST Maturity Date; and
(v) the Borrower may not select an Interest Period for any MT Loan that
would extend beyond the scheduled MT Maturity Date.
Letter of Credit. See section 2A.1(a).
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Letter of Credit Application. See section 2A.1(a).
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Letter of Credit Fee. See section 2A.6.
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Letter of Credit Participation. See section 2A.1(d).
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Lien. Any mortgage, deed of trust, pledge, hypothecation, assignment,
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deposit arrangement, encumbrance, lien (statutory or other), security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, the interest of a lessor under a
Capitalized Lease, any financing lease having substantially the same economic
effect as any of the foregoing and the filing of any financing statement naming
the owner of the asset to which such Lien relates as debtor.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
---- ---------
Applications and the Letters of Credit.
Loan Request. See section 2.5.
---- -------
Loans. Collectively, the loans advanced to the Borrower by the Banks
-----
pursuant to this Credit Agreement.
Majority Banks. As of any date, any two or more Banks holding more than
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fifty percent (50%) of the outstanding principal amount of the Notes on such
date, and if no such principal is outstanding, any two or more Banks whose
aggregate Commitments constitute more than fifty percent (50%) of the Total
Commitment.
-7-
Material Adverse Change. Any event, development, change or circumstance
-------- ------- ------
that, either individually or when taken together with any such other event,
change or the like, (a) materially adversely affects or could be reasonably
expected to materially adversely affect, the financial condition or business of
the Borrower and its Subsidiaries, taken as a whole, (b) materially adversely
affects or could be reasonably expected to materially adversely affect, the
ability of the Borrower to perform any of its payment or other obligations under
this Credit Agreement or any of the other Loan Documents, or (c) materially
impairs, or could be reasonably expected to materially impair, the validity or
enforceability of this Credit Agreement or any of the other Loan Documents or
any of the rights or remedies of the Agents or the Banks thereunder.
Material Subsidiaries. Those Subsidiaries listed on Schedule 4.18.
-------- ------------
Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries
------- ------- ------
may at any time draw under outstanding Letters of Credit, as such aggregate
amount may be reduced from time to time pursuant to the terms of the Letters of
Credit.
Moody's. Xxxxx'x Investors Service, Inc.
-------
MT Commitment. With respect to each Bank, the amount set forth in the
-- ----------
column labeled MT Commitment, opposite such Bank's name on Schedule 1.1(a)
hereto, as the same may be reduced from time to time.
MT Commitment Percentage. With respect to each Bank, the percentage set
-- ---------- ----------
forth in the column labeled MT Commitment Percentage, opposite such Bank's name
on Schedule 1.1(a) hereto.
MT Facility Fee. See section 2.2(b).
-- -------- ---
MT Loans. Collectively, the loans advanced to the Borrower by the banks
-- -----
pursuant to section 2.1(b) of this Credit Agreement.
MT Margin Percentage. At the relevant time of reference hereto, the
-- ------ ----------
applicable rate per annum, expressed in Basis Points, set forth in the table
attached hereto as Schedule 1.2 beneath the column for the applicable Debt
Rating in the row labeled MT Margin Percentage.
MT Maturity Date. June 7, 2002; provided that in any case, if earlier, the
-- -------- ----
MT Maturity Date shall be deemed to occur on the date on which the outstanding
MT Loans hereunder are declared or become due and payable pursuant to the terms
of this Credit Agreement, including, without limitation, pursuant to section
6.2.2 and/or section 10 hereof, or on which the Total MT Commitment is
terminated.
MT Notes. The promissory notes issued pursuant to section 2.4(b) of this
-- -----
Credit Agreement evidencing the MT Loans.
Multiemployer Plan. Any multiemployer plan within the meaning of section
------------- ----
3(37) of ERISA maintained or contributed to by any of the Borrowers or
any ERISA Affiliate.
Note Record. The grid attached to a Note, or the continuation of such grid,
---- ------
or any other similar record maintained by the Bank holding such Note with
respect to any Loan.
Notes. The promissory notes (including the ST Notes and the MT Notes)
-----
issued pursuant to section 2.4 of this Credit Agreement evidencing the Loans.
-8-
Obligations. All indebtedness, obligations and liabilities of the Borrower
-----------
and its Subsidiaries to the Banks, individually or collectively, existing on the
date of this Credit Agreement or arising thereafter, direct or indirect, joint
or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement or any of the other
Loan Documents or in respect of the Loans made or Reimbursement Obligations
incurred or any of the Notes, Letter of Credit Applications, Letters of Credit
or other instruments at any time evidencing any thereof.
Outstanding or outstanding. With respect to the Loans, the aggregate unpaid
----------- -- -----------
principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by section 4002
----
of ERISA and any successor entity or entities having similar responsibilities.
Person. Any individual, corporation, partnership, limited liability
------
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
Proprietary Rights. See section 4.6.
----------- ------
Real Estate. All real property at any time owned or leased by the Borrower
---- ------
or any of its Subsidiaries.
Register. See section 15.3.
--------
Reimbursement Obligation. The Borrower's obligation to reimburse the
------------- ----------
Administrative Agent and the Banks on account of any drawing under any Letter
of Credit as provided in section 2A.2.
S&P. Standard & Poor's Rating Group, Inc.
---
Sale. Any sale, transfer or other disposition of assets (other than by
----
means of a simultaneous exchange of assets of a similar type and having a
comparable value), whether in one transaction or a series of related
transactions, if the assets so transferred have a value taken at the greater of
(i) fair value (which shall be the price at which the Board of Directors of the
relevant Person shall have agreed to sell such assets in an arm's length
transaction to a third party buyer which is not an Affiliate) or (ii) book
value, as of the date of reference thereto, in excess of five percent (5%) of
the Consolidated Net Worth of the Borrower.
Sale and Leaseback Transaction. Any arrangement with any Person other than
---- --- --------- -----------
a Tax Consolidated Subsidiary providing for the leasing (as lessee) by the
Borrower of any property (except for temporary leases for a term, including any
renewal thereof, of not more than three (3) years (provided that any such
temporary lease may be for a term of up to five (5) years if (a) the Board of
Directors reasonably finds such term to be in the best interest of the Borrower
and (b) the primary purpose of the transaction of which such lease is a part is
not to provide funds to or financing for the Borrower)), which property has been
or is to be sold or transferred by the Borrower (i) to any subsidiary of the
Borrower in contemplation of or in connection with such arrangement or (ii) to
such other Person.
Settlement. The making or receiving of payments, in immediately available
----------
funds, by the Banks, to the extent necessary to cause each Bank's actual share
of the outstanding amount of MT Loans (after giving effect to any Loan Request)
to be equal to such Bank's MT Commitment
-9-
Percentage of the outstanding amount of such MT Loans (after giving effect to
any Loan Request), in any case where, prior to such event or action, the actual
share is not so equal.
Settlement Amount. See section 2.9(a).
---------- ------
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
---------- ----
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Administrative
Agent, on any Business Day following a day on which the account officers of the
Administrative Agent active upon the Borrower's account become aware of the
existence of an Event of Default, (d) any Business Day on which the amount of MT
Loans outstanding from Fleet plus Fleet's MT Commitment Percentage of the sum of
the Maximum Drawing Amount and any Unpaid Reimbursement Obligations is equal to
or greater than Fleet's MT Commitment Percentage of the Total MT Commitment, (e)
the Business Day immediately following any Business Day on which the amount of
MT Loans outstanding increases or decreases by more than $10,000,000 as compared
to the previous Settlement Date, (f) any day on which any conversion of a Base
Rate Loan to a Eurodollar Loan occurs, or (g) any Business Day on which (i) the
amount of outstanding MT Loans decreases and (ii) the amount of the
Administrative Agent's MT Loans outstanding equals zero Dollars ($0).
Settling Bank. See section 2.9(a).
-------- ----
ST Commitment. With respect to each Bank, the amount set forth in the
-- ----------
column labeled ST Commitment, opposite such Bank's name on Schedule 1.1(a)
hereto, as the same may be reduced from time to time.
ST Commitment Percentage. With respect to each Bank, the percentage set
-- ---------- ----------
forth in the column labeled ST Commitment Percentage, opposite such Bank's name
on Schedule 1.1(a) hereto.
ST Facility Fee. See section 2.2(a).
-- -------- ---
ST Loans. Collectively, the loans advanced to the Borrower by the banks
-- -----
pursuant to section 2.1(a) of this Credit Agreement.
ST Margin Percentage. At the relevant time of reference hereto, the
-- ------ ----------
applicable rate per annum, expressed in Basis Points, set forth in the table
attached hereto as Schedule 1.2 beneath the column for the applicable Debt
Rating in the row labeled ST Margin Percentage.
ST Maturity Date. May 10, 2002; provided that in any case, if earlier, the
-- -------- ----
ST Maturity Date shall be deemed to occur on the date on which the outstanding
ST Loans hereunder are declared or become due and payable pursuant to the terms
of this Credit Agreement, including, without limitation, pursuant to section
6.2.2 and/or section 10 hereof, or on which the Total ST Commitment is
terminated.
ST Notes. The promissory notes issued pursuant to section 2.4(a) of this
-- -----
Credit Agreement evidencing the ST Loans.
Subsidiary. Any corporation, association, trust, or other business entity
----------
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
-10-
Tax Consolidated Subsidiary. Any subsidiary of the Borrower with which, at
--- ------------ ----------
the time a Sale and Leaseback Transaction is entered into by the Borrower, the
Borrower would be entitled to file a consolidated federal income tax return.
Telerate Page 3750. The display page designated 3750 on the Dow Xxxxx
-------- ---- ----
Telerate Service (or such other page as may replace that page on that service,
or such other service as may replace the Dow Xxxxx Telerate Service as a
customary reference for interest rates).
Total Commitment. The sum of the Total MT Commitment and the Total ST
----- ----------
Commitment, as in effect from time to time.
Total MT Commitment. The sum of the MT Commitments of the Banks, as in
----- -- ----------
effect from time to time.
Total ST Commitment. The sum of the ST Commitments of the Banks, as in
----- -- ----------
effect from time to time.
Uniform Customs. See section 2A.1(c).
------- -------
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which the
------ ------------- ----------
Borrower does not reimburse the Administrative Agent and the Banks on the date
specified in, and in accordance with, section 2A.2.
Utilization Amount. As of any date, the sum of (i) the Loans outstanding on
----------- ------
such date plus (ii) the Maximum Drawing Amount as of such date plus (iii) the
Unpaid Reimbursement Obligations as of such date.
Utilization Fee. See section 2.2(c).
----------- ---
Voting Stock. Stock or similar interests, of any class or classes (however
------ -----
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of the directors (or persons performing similar functions)
of the corporation, association, trust or other business entity involved,
whether or not the right so to vote exists by reason of the happening of a
contingency.
Section 1.2. Rules of Interpretation.
----- -- --------------
(a) A reference to any document or agreement shall include such document or
agreement as amended, modified or supplemented from time to time in accordance
with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) A reference to any law includes any amendment or modification to such
law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by Generally Accepted Accounting Principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
-11-
(g) All terms not specifically defined herein or by Generally Accepted
Accounting Principles, which terms are defined in the Uniform Commercial Code as
in effect in Massachusetts, have the meanings assigned to them therein.
(h) Reference to a particular "section " refers to that section of the
agreement in which such reference appears unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to the agreement in which they appear as a whole and not to any
particular section or subdivision of that agreement unless otherwise
specifically indicated.
(j) The Section references and defined terms set forth in parentheticals at
the end of certain definitions in section 1.1 are intended for convenience of
reference only to cite to other sections of this Credit Agreement where such
terms are used and shall not define or limit the defined terms set forth in
section 1.1.
Section 2. THE REVOLVING CREDIT FACILITIES.
--- --------- ------ ----------
Section 2.1. Commitment to Lend.
---------- -- ----
(a) Subject to the terms and conditions set forth in this Credit Agreement,
each of the Banks severally agrees to lend to the Borrower and the Borrower may
borrow, repay, and reborrow from time to time between the date of this Credit
Agreement and the ST Maturity Date upon notice by the Borrower to the
Administrative Agent given in accordance with section 2.5 such sums as requested
by the Borrower up to a maximum aggregate principal amount outstanding (after
giving effect to all ST Loans then being requested) at any one time equal to
such Bank's ST Commitment, provided that the sum of the outstanding amount of
the ST Loans (after giving effect to all amounts then being requested) shall not
exceed the Total ST Commitment. The ST Loans shall be made pro rata in
accordance with each Bank's ST Commitment Percentage. Each request for a ST Loan
shall constitute a representation by the Borrower that the conditions set forth
in section 8 and section 9, in the case of the initial ST Loans to be made on
the Closing Date, and section 9, in the case of all other ST Loans, have been
satisfied on the date of such request.
(b) Subject to the terms and conditions set forth in this Credit Agreement,
each of the Banks severally agrees to lend to the Borrower and the Borrower may
borrow, repay, and reborrow from time to time between the date of this Credit
Agreement and the MT Maturity Date upon notice by the Borrower to the
Administrative Agent given in accordance with section 2.5 such sums as requested
by the Borrower up to a maximum aggregate principal amount outstanding (after
giving effect to all MT Loans then being requested) at any one time equal to
such Bank's MT Commitment minus such Bank's MT Commitment Percentage of the sum
of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, provided
that the sum of the outstanding amount of the MT Loans (after giving effect to
all MT Loans then being requested) plus the Maximum Drawing Amount plus all
Unpaid Reimbursement Obligations shall not exceed the Total MT Commitment. The
MT Loans shall be made pro rata in accordance with each Bank's MT Commitment
Percentage. Each request for a MT Loan shall constitute a representation by the
Borrower that the conditions set forth in section 8 and section 9, in the case
of the initial MT Loans to be made on the Closing Date, and section 9, in the
case of all other MT Loans, have been satisfied on the date of such request.
-12-
Section 2.2. Facility Fees; Utilization Fee.
-------- ---- ----------- ---
(a) The Borrower agrees to pay to the Administrative Agent for the accounts
of the Banks in accordance with their respective ST Commitment Percentages a
facility fee (the "ST Facility Fee") calculated daily on the Total ST Commitment
in effect on such date at the per annum rate equal to that amount set forth on
Schedule 1.2 in the row headed ST Facility Fee beneath the column for the Debt
Rating in effect for such date. The amount of such ST Facility Fee shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the ST Maturity Date for the calendar quarter, or portion
thereof, then ended.
(b) The Borrower agrees to pay to the Administrative Agent for the accounts
of the Banks in accordance with their respective MT Commitment Percentages a
facility fee (the "MT Facility Fee") calculated daily on the Total MT Commitment
in effect on such date at the per annum rate equal to that amount set forth on
Schedule 1.2 in the row headed MT Facility Fee beneath the column for the Debt
Rating in effect for such date. The amount of such MT Facility Fee shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the MT Maturity Date for the calendar quarter, or portion
thereof, then ended.
(c) The Borrower agrees to pay to the Administrative Agent for the accounts
of the Banks in accordance with their respective Commitment Percentages a
utilization fee (the "Utilization Fee") calculated daily on the Utilization
Amount at the per annum rate equal to one-eighth of one percent (0.125%) for
each day on which the Utilization Amount exceeds the product of (A) 0.33
multiplied by (B) the Total Commitment in effect on such date. The amount of
such Utilization Fee shall be payable quarterly in arrears on the last day of
each March, June, September and December, on the ST Maturity Date and on the MT
Maturity Date for the calendar quarter of the Borrower, or portion thereof, then
ended.
Section 2.3. Reduction of ST Commitment and/or MT Commitment.
--------- -- -- ---------- ------ -- ----------
(a) The Borrower shall have the right at any time and from time to time
upon five (5) Business Days' written notice to the Administrative Agent to
reduce by $5,000,000 or an integral multiple of $1,000,000 in excess thereof or
terminate entirely the unborrowed portion of the Total ST Commitment, whereupon
the ST Commitments of the Banks shall be reduced pro rata in accordance with
their respective ST Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated. Promptly after receiving any notice
of the Borrower delivered pursuant to this section 2.3(a), the Administrative
Agent will notify the Banks of the substance thereof. No reduction of the ST
Commitments of the Banks may be reinstated. Upon the effective date of any such
termination, the Borrower shall pay to the Administrative Agent for the
respective accounts of the Banks the full amount of any ST Facility Fee then
accrued.
(b) The Borrower shall have the right at any time and from time to time
upon five (5) Business Days' written notice to the Administrative Agent to
reduce by $5,000,000 or an integral multiple of $1,000,000 in excess thereof or
terminate entirely the unborrowed portion of the Total MT Commitment, whereupon
the MT Commitments of the Banks shall be reduced pro rata in accordance with
their respective MT Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated. Promptly after receiving any notice
of the Borrower delivered pursuant to this section 2.3(b), the Administrative
Agent will notify the Banks of the substance thereof. No reduction of the MT
Commitments of the Banks may be reinstated. Upon the effective date of any such
termination, the Borrower shall pay to the Administrative Agent for the
respective accounts of the Banks the full amount of any MT Facility Fee then
accrued.
-13-
Section 2.4. The Notes for the Loans.
--- ----- --- --- -----
(a) The ST Loans shall be evidenced by separate promissory notes of the
Borrower in substantially the form of Exhibit A-1 hereto (each an "ST Note"),
dated the Closing Date and completed with appropriate insertions. One ST Note
shall be payable to the order of each Bank in a principal amount equal to such
Bank's ST Commitment or, if less, the outstanding amount of all ST Loans made by
such Bank, plus interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes each Bank to make or cause to be made, at or about the
time of receipt of any payment of principal on such Bank's ST Note, an
appropriate notation reflecting such payment on the Note Record attached to such
Bank's ST Note. The outstanding amount of the Loans set forth on such Note
Record shall be prima facie evidence of the principal amount thereof owing and
unpaid to such Bank, but the failure to record, or any error in so recording,
any such amount on such Note Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any ST Note to make payments of
principal of or interest on any ST Note when due.
(b) The MT Loans shall be evidenced by separate promissory notes of the
Borrower in substantially the form of Exhibit A-2 hereto (each an "MT Note"),
dated the Closing Date and completed with appropriate insertions. One MT Note
shall be payable to the order of each Bank in a principal amount equal to such
Bank's MT Commitment or, if less, the outstanding amount of all MT Loans made by
such Bank, plus interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes each Bank to make or cause to be made, at or about the
time of receipt of any payment of principal on such Bank's MT Note, an
appropriate notation reflecting such payment on the Note Record attached to such
Bank's MT Note. The outstanding amount of the Loans set forth on such Note
Record shall be prima facie evidence of the principal amount thereof owing and
unpaid to such Bank, but the failure to record, or any error in so recording,
any such amount on such Note Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any MT Note to make payments of
principal of or interest on any MT Note when due.
(c) Upon receipt of any affidavit of any officer of a Bank as to the loss,
theft, destruction or mutilation of one its Notes, and, in the case of any such
loss, theft, destruction or mutilation, upon cancellation of such Note, the
Borrower will issue, in lieu thereof, a replacement Note in the same principal
amount thereof and otherwise of like tenor.
Section 2.5. Notice and Matter of Borrowing or Conversion of Loans;
------ --- ------ -- --------- -- ---------- -- -----
Swing Line.
----- ----
(a) Whenever the Borrower desires to obtain a Loan hereunder or to convert
an outstanding Loan into a Loan of another type provided for in this Credit
Agreement, the Borrower shall give to the Administrative Agent written notice in
the form of Exhibit B hereto (or telephonic notice confirmed in a writing in the
form of Exhibit B hereto), which written notice must be received by the
Administrative Agent no later than (i) 11:00 a.m., Boston time, on the day on
which the requested Loan is to be made or converted to a Base Rate Loan, and
(ii) 11:00 a.m., Boston time, on the date two (2) Eurodollar Business Days
before the day on which the requested Loan is to be made or converted to a
Eurodollar Loan. Each such notice (a "Loan Request") shall specify the type of
Loan (i.e., ST Loan or MT Loan), the Drawdown Date, or (as the case may be) the
date of conversion, and principal amount of each Loan or the principal portion
thereof to be converted, the interest rate option to be applicable thereto, and
the duration of the applicable Interest Period, if any (subject in any case to
the provisions of the definition of the term "Interest Period") and shall be
substantially in the form of Exhibit B; provided, however, that when any Default
or Event of Default is continuing, no Base Rate Loan may be converted into a
Eurodollar Loan.
(b) Promptly upon receipt of any such Loan Request, the Administrative
Agent shall notify each of the Banks of the substance thereof. Each Loan Request
shall be irrevocable and
-14-
binding on the Borrower, and shall obligate the Borrower to accept the Loan of
the type requested from the Banks on the proposed Drawdown Date or (as the case
may be) to convert the Loan or a portion thereof as requested. Each Loan Request
shall be in a minimum amount of $3,000,000 or an integral multiple of $250,000
in excess thereof.
(c) Notwithstanding the notice and minimum amount requirements set forth in
section 2.5(a) but otherwise in accordance with the terms and conditions of this
Credit Agreement, the Administrative Agent may, in its sole discretion and
without conferring with the Banks, make MT Loans to the Borrower in an aggregate
principal amount not to exceed $20,000,000. The Borrower acknowledges and agrees
that the making of such MT Loans shall, in each case, be subject in all respects
to the provisions of this Credit Agreement as if they were MT Loans covered by a
Loan Request including, without limitation, the limitations set forth in section
2.1 and the requirements that the applicable provisions of section 8 (in the
case of MT Loans made on the Closing Date) and section 9 be satisfied. All
actions taken by the Administrative Agent pursuant to the provisions of this
section 2.5(c) shall be conclusive and binding on the Borrower and the Banks
absent the Administrative Agent's gross negligence or willful misconduct. MT
Loans made pursuant to this section 2.5(c) shall be Base Rate Loans until
converted in accordance with the provisions of the Credit Agreement and, prior
to a Settlement, such interest shall be for the account of the Administrative
Agent.
Section 2.6. Funds for Loans.
----- --- -----
(a) Not later than 11:00 a.m. (Boston time) on the proposed Drawdown Date
of any Loans, each of the Banks, severally, will make available to the
Administrative Agent, at its head office, in immediately available funds, the
amount of such Bank's ST Commitment Percentage of the amount of the requested ST
Loans and/or such Bank's MT Commitment Percentage of the requested MT Loans (as
applicable). Upon receipt from each Bank of such amount, and upon receipt of the
documents required by section 8 and 9 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Administrative Agent
will make the aggregate amount of such Loans available to the Borrower. The
failure or refusal of any Bank to make available to the Administrative Agent at
the aforesaid time on any Drawdown Date the amount of its ST Commitment
Percentage of the amount of the requested ST Loans and/or its MT Commitment
Percentage of the requested MT Loans (as applicable) shall not relieve any other
Bank from its several obligation hereunder to make available to the
Administrative Agent the amount of such Bank's ST Commitment Percentage of the
amount of the requested ST Loans and/or such Bank's MT Commitment Percentage of
the requested MT Loans (as applicable).
(b) The Administrative Agent may (unless notified to the contrary by any
Bank prior to a Drawdown Date) assume that each Bank has made available to the
Administrative Agent on such Drawdown Date the amount of such Bank's ST
Commitment Percentage of the amount of the requested ST Loans and/or such Bank's
MT Commitment Percentage of the requested MT Loans (as applicable) to be made on
such Drawdown Date, and the Administrative Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Administrative Agent
such amount advanced by the Administrative Agent on a date after such Drawdown
Date, such Bank shall pay to the Administrative Agent on demand an amount equal
to the product of (i) the average computed for the period referred to in clause
(iii) below, of the weighted average interest rate paid by the Administrative
Agent for federal funds acquired by the Administrative Agent during each day
included in such period, times (ii) the amount of such Bank's ST Commitment
Percentage of the amount of such ST Loans and/or such Bank's MT Commitment
Percentage of such MT Loans (as applicable), times (iii) a fraction, the
numerator of which is the number of days that elapse from and including such
Drawdown Date to the date on which the amount of such Bank's ST Commitment
Percentage of the amount of such ST
-15-
Loans and/or such Bank's MT Commitment Percentage of such MT Loans (as
applicable) shall become immediately available to the Administrative Agent, and
the denominator of which is 360. If the amount of such Bank's ST Commitment
Percentage of the amount of such ST Loans and/or such Bank's MT Commitment
Percentage of such MT Loans (as applicable) is not made available to the
Administrative Agent by such Bank within three (3) Business Days of such
Drawdown Date, the Administrative Agent shall be entitled to recover such amount
from the Borrower on demand, with interest thereon at the rate per annum
applicable to the Loans made on such Drawdown Date. A statement of the
Administrative Agent submitted to any Bank with respect to any amounts owing
under this paragraph shall be prima facie evidence of the amount due and owing
to the Administrative Agent by such Bank.
Section 2.7. Mandatory Repayments of Loans.
--------- ---------- -- -----
(a) The Borrower promises to pay the outstanding amount of all ST Loans on
the ST Maturity Date. In addition, if at any time the outstanding amount of the
ST Loans exceeds the Total ST Commitment, then the Borrower shall immediately
pay the amount of such excess to the Administrative Agent for application to the
ST Loans. Each prepayment of ST Loans shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Banks' ST Note, with adjustments to the extent practicable to equalize
any prior payments or repayments not exactly in proportion.
(b) The Borrower promises to pay the outstanding amount of all MT Loans on
the MT Maturity Date. In addition, if at any time the outstanding amount of the
MT Loans, the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the Total MT Commitment at such time, then the Borrower shall
immediately pay the amount of such excess to the Administrative Agent for
application: first, to any Unpaid Reimbursement Obligations; second, to the MT
Loans; and third, to provide to the Administrative Agent cash collateral for
Reimbursement Obligations as contemplated by section 2A.2(b) and (c). Each
payment of any Unpaid Reimbursement Obligations or prepayment of MT Loans shall
be allocated among the Banks, in proportion, as nearly as practicable, to each
Reimbursement Obligation or (as the case may be) the respective unpaid principal
amount of each Banks' MT Note, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in proportion.
-16-
Section 2.8. Optional Repayments of Loans. The Borrower shall have the
-------- ---------- -- -----
right, at its election, to repay the outstanding amount of any Loans, as a whole
or in part, at any time without penalty or premium; provided that in the case of
any full or partial prepayment of the outstanding amount of any Loans prior to
the end of the Interest Period applicable thereto, the Borrower shall be
obligated to reimburse the Banks in respect thereof pursuant to section 3.3. The
Borrower shall give the Administrative Agent, no later than 11:00 a.m. (Boston
time), at least two (2) Eurodollar Business Days' notice of any proposed
repayment of Loans, in each case specifying the proposed date of repayment and
the principal amount to be paid, which notice, if not in writing, shall be
promptly confirmed in writing. Each such partial payment of ST Loans shall be in
a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. Each such partial payment of MT Loans shall be in a minimum amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. Each
repayment pursuant to this section 2.8 shall be accompanied by the payment of
accrued interest on the principal repaid to the date of payment. Each such
partial repayment of ST Loans shall be allocated among the Banks, in proportion,
as nearly as practicable, to the respective unpaid principal amount of each
Bank's ST Note, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion. Each such partial repayment of MT Loans
shall be allocated among the Banks, in proportion, as nearly as practicable, to
the respective unpaid principal amount of each Bank's MT Note, with adjustments
to the extent practicable to equalize any prior repayments not exactly in
proportion.
Section 2.9. Settlements.
-----------
(a) General. On each Settlement Date, the Administrative Agent shall, not
-------
later than 11:00 a.m. (Boston time), give telephonic or facsimile notice (a) to
the Banks and the Borrower of the respective outstanding amount of MT Loans made
by the Administrative Agent on behalf of the Banks from the immediately
preceding Settlement Date through the close of business on the prior day and the
amount of any Eurodollar Loans to be made (following the giving of notice
pursuant to section 2.5(a)(ii)) on such date pursuant to a Loan Request and (b)
to the Banks of the amount (a "Settlement Amount") that each Bank (a "Settling
Bank") shall pay to effect a Settlement of any MT Loan. A statement of the
Administrative Agent submitted to the Banks and the Borrower or to the Banks
with respect to any amounts owing under this section 2.9 shall be prima facie
evidence of the amount due and owing. Each Settling Bank shall, not later than
3:00 p.m. (Boston time) on such Settlement Date, effect a wire transfer of
immediately available funds to the Administrative Agent in the amount of the
Settlement Amount for such Settling Bank. All funds advanced by any Bank as a
Settling Bank pursuant to this section 2.9 shall for all purposes be treated as
an MT Loan made by such Settling Bank to the Borrower and all funds received by
any Bank pursuant to this section 2.9 shall for all purposes be treated as
repayment of amounts owed with respect to MT Loans made by such Bank. In the
event that any bankruptcy, reorganization, liquidation, receivership or similar
cases or proceedings in which the Borrower is a debtor prevents a Settling Bank
from making any MT Loan to effect a Settlement as contemplated hereby, such
Settling Bank will make such dispositions and arrangements with the other Banks
with respect to such MT Loans, either by way of purchase of participations,
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Bank's share of the outstanding MT Loans being equal, as nearly
as may be, to such Bank's MT Commitment Percentage of the outstanding amount of
the MT Loans.
(b) Failure to Make Funds Available. The Administrative Agent may, unless
------- -- ---- ----- ---------
notified to the contrary by any Settling Bank prior to a Settlement Date, assume
that such Settling Bank has made or will make available to the Administrative
Agent on such Settlement Date the amount of such Settling Bank's Settlement
Amount, and the Administrative Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If any Settling Bank makes available to the Administrative Agent such
amount on a date after such Settlement Date, such Settling Bank shall pay to the
Administrative Agent on demand an amount
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equal to the product of (i) the average computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, times (ii) the amount of such
Settlement Amount, times (iii) a fraction, the numerator of which is the number
of days that elapse from and including such Settlement Date to the date on which
the amount of such Settlement Amount shall become immediately available to the
Administrative Agent, and the denominator of which is 360. A statement of the
Administrative Agent submitted to such Settling Bank with respect to any amounts
owing under this section 2.9(b) shall be prima facie evidence of the amount due
and owing to the Administrative Agent by such Settling Bank. If such Settling
Bank's Settlement Amount is not made available to the Administrative Agent by
such Settling Bank within three (3) Business Days following such Settlement
Date, the Administrative Agent shall be entitled to recover such amount from the
Borrower on demand, with interest thereon at the rate per annum applicable to
the MT Loans as of such Settlement Date.
(c) No Effect on Other Banks. The failure or refusal of any Settling Bank
-- ------ -- ----- -----
to make available to the Administrative Agent at the aforesaid time and place on
any Settlement Date the amount of such Settling Bank's Settlement Amount shall
not (a) relieve any other Settling Bank from its several obligations hereunder
to make available to the Administrative Agent the amount of such other Settling
Bank's Settlement Amount or (b) impose upon any Bank, other than the Settling
Bank so failing or refusing, any liability with respect to such failure or
refusal or otherwise increase the MT Commitment of such other Bank.
Section 2A. LETTERS OF CREDIT.
------- -- ------
Section 2A.1. Letter of Credit Commitments.
------ -- ------ -----------
(a) Commitment to Issue Letters of Credit. Subject to the terms and
---------- -- ----- ------- -- ------
conditions hereof and the execution and delivery by the Borrower of a letter of
credit application on the Administrative Agent's customary form (a "Letter of
Credit Application"), the Administrative Agent on behalf of the Banks and in
reliance upon the agreement of the Banks set forth in section 2A.1(d) and upon
the representations and warranties of the Borrower contained herein, agrees, in
its individual capacity, to issue, extend and renew for the account of the
Borrower one or more standby or documentary letters of credit (individually, a
"Letter of Credit"), in such form as may be requested from time to time by the
Borrower and agreed to by the Administrative Agent; provided, however, that,
after giving effect to such request, (i) the sum of the aggregate Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not exceed
$50,000,000 at any one time and (ii) the sum of (A) the Maximum Drawing Amount
on all Letters of Credit, (B) all Unpaid Reimbursement Obligations, and (C) the
amount of all MT Loans outstanding shall not exceed the Total MT Commitment at
such time.
(b) Letter of Credit Applications. Each Letter of Credit Application shall
------ -- ------ ------------
be completed to the satisfaction of the Administrative Agent. In the event that
any provision of any Letter of Credit Application shall be inconsistent with any
provision of this Credit Agreement, then the provisions of this Credit Agreement
shall, to the extent of any such inconsistency, govern.
(c) Terms of Letters of Credit. Each Letter of Credit issued, extended or
----- -- ------- -- ------
renewed hereunder shall, among other things, (i) provide for the payment of
sight drafts for honor thereunder when presented in accordance with the terms
thereof and when accompanied by the documents described therein, and (ii) have
an expiry date no later than the date which is fourteen (14) days (or, if the
Letter of Credit is confirmed by a confirmer or otherwise provides for one or
more nominated persons, forty-five (45) days) prior to the MT Maturity Date.
Each Letter of Credit so issued, extended or renewed shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 or any successor version
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thereto adopted by the Administrative Agent in the ordinary course of its
business as a letter of credit issuer and in effect at the time of issuance of
such Letter of Credit (the "Uniform Customs") or, in the case of a standby
Letter of Credit, either the Uniform Customs or the International Standby
Practices (ISP98), International Chamber of Commerce Publication No. 590, or any
successor code of standby letter of credit practices among banks adopted by the
Administrative Agent in the ordinary course of its business as a standby letter
of credit issuer and in effect at the time of issuance of such Letter of Credit.
(d) Reimbursement Obligations of Banks. Each Bank severally agrees that it
------------- ----------- -- -----
shall be absolutely liable, without regard to the occurrence of any Default or
Event of Default or any other condition precedent whatsoever, to the extent of
such Bank's MT Commitment Percentage, to reimburse the Administrative Agent on
demand for the amount of each draft paid by the Administrative Agent under each
Letter of Credit to the extent that such amount is not reimbursed by the
Borrower pursuant to section 2A.2 (such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank).
(e) Participations of Banks. Each such payment made by a Bank shall be
-------------- -- -----
treated as the purchase by such Bank of a participating interest in the
Borrower's Reimbursement Obligation under section 2A.2 in an amount equal to
such payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to section 2A.2.
Section 2A.2. Reimbursement Obligations of the Borrower. In order to induce
------------- ----------- -- --- --------
the Administrative Agent to issue, extend and renew each Letter of Credit and
the Banks to participate therein, the Borrower hereby agrees to reimburse or pay
to the Administrative Agent, for the account of the Administrative Agent or (as
the case may be) the Banks, with respect to each Letter of Credit issued,
extended or renewed by the Administrative Agent hereunder,
(a) except as otherwise expressly provided in section 2A.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored by the
Administrative Agent, or the Administrative Agent otherwise makes a payment with
respect thereto, (i) the amount paid by the Administrative Agent under or with
respect to such Letter of Credit, and (ii) the amount of any taxes, fees,
charges or other costs and expenses whatsoever incurred by the Administrative
Agent or any Bank in connection with any payment made by the Administrative
Agent or any Bank under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total MT Commitment to
an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent for the
benefit of the Banks and the Administrative Agent as cash collateral for all
Reimbursement Obligations, and
(c) upon the termination of the Total MT Commitment, or the acceleration of
the Reimbursement Obligations with respect to all Letters of Credit in
accordance with section 10, an amount equal to the then Maximum Drawing Amount
on all Letters of Credit, which amount shall be held by the Administrative Agent
for the benefit of the Banks and the Administrative Agent as cash collateral for
all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrower under this section 2A.2 at any
time from the date such amounts become due and payable (whether as stated in
this section 2A.2, by acceleration or otherwise) until payment in full (whether
before or after judgment) shall be payable to the Administrative Agent on demand
at the rate specified in section 3.11 for overdue principal on the MT Loans.
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Section 2A.3. Letter of Credit Payments. If any draft shall be presented or
------ -- ------ --------
other demand for payment shall be made under any Letter of Credit, the
Administrative Agent shall notify the Borrower of the date and amount of the
draft presented or demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. If the Borrower fails to
reimburse the Administrative Agent as provided in section 2A.2 on or before the
date that such draft is paid or other payment is made by the Administrative
Agent, the Administrative Agent may at any time thereafter notify the Banks of
the amount of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following the receipt of such notice,
each Bank shall make available to the Administrative Agent, at the
Administrative Agent's Office, in immediately available funds, such Bank's MT
Commitment Percentage of such Unpaid Reimbursement Obligation, together with an
amount equal to the product of (a) the average, computed for the period referred
to in clause (c) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, times (b) the amount equal to such
Bank's MT Commitment Percentage of such Unpaid Reimbursement Obligation, times
(c) a fraction, the numerator of which is the number of days that elapse from
and including the date the Administrative Agent paid the draft presented for
honor or otherwise made payment to the date on which such Bank's MT Commitment
Percentage of such Unpaid Reimbursement Obligation shall become immediately
available to the Administrative Agent, and the denominator of which is 360. The
responsibility of the Administrative Agent to the Borrower and the Banks shall
be only to exercise reasonable care and to determine that the documents
(including each draft) delivered under each Letter of Credit in connection with
such presentment shall be in conformity in all material respects with such
Letter of Credit.
Section 2A.4. Obligations Absolute. The Borrower's obligations under this
----------- --------
section 2A shall be absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Administrative Agent, any
Bank or any beneficiary of a Letter of Credit. The Borrower further agrees with
the Administrative Agent and the Banks that the Administrative Agent and the
Banks shall not be responsible for, and the Borrower's Reimbursement Obligations
under section 2A.2 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among the Borrower, the beneficiary of any Letter of
Credit or any financing institution or other party to which any Letter of Credit
may be transferred or any claims or defenses whatsoever of the Borrower against
the beneficiary of any Letter of Credit or any such transferee. The
Administrative Agent and the Banks shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. The
Borrower agrees that any action taken or omitted by the Administrative Agent or
any Bank under or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith, shall be binding upon the Borrower
and shall not result in any liability on the part of the Administrative Agent or
any Bank to the Borrower.
Section 2A.5. Reliance by Issuer. To the extent not inconsistent with
-------- -- ------
section 2A.4, the Administrative Agent shall be entitled to rely, and shall be
fully protected in relying upon, any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements of legal
counsel, independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement unless it
shall first have received such advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Banks against any and all liability and expense which may be
incurred
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by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Credit Agreement in accordance with a request
of the Majority Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Banks and all future holders of the
Notes or of a Letter of Credit Participation.
Section 2A.6. Letter of Credit Fee. The Borrower shall pay a fee (in each
------ -- ------ ---
case, a "Letter of Credit Fee") to the Administrative Agent in respect of each
Letter of Credit in (a) an amount equal to the per annum rate set forth on
Schedule 1.2 in the applicable row headed MT Margin Percentage beneath the
column for the Debt Rating in effect for such date on the face amount of such
Letter of Credit for the accounts of the Banks in accordance with their
respective MT Commitment Percentages and (b) an amount equal to one-tenth of one
percent (0.10%) per annum on the face amount of such Letter of Credit for the
account of the Administrative Agent as a fronting fee. The accrued Letter of
Credit Fee shall be payable, quarterly in arrears, on the last day of each
March, June, September and December and on the MT Maturity Date for the calendar
quarter, or portion thereof, then ended. In respect of each Letter of Credit,
the Borrower shall also pay to the Administrative Agent for the Administrative
Agent's own account, at such other time or times as such charges are customarily
made by the Administrative Agent, the Administrative Agent's customary issuance,
amendment, negotiation or document examination and other administrative fees as
in effect from time to time.
Section 3. INTEREST; CERTAIN GENERAL PROVISIONS.
-------- ------- ------- ----------
Section 3.1. Interest on Loans; Payments of Interest.
-------- -- ----- -------- -- --------
(a) Except as otherwise provided by section 3.11 hereof, each Base Rate
Loan shall bear interest on the outstanding principal amount thereof at a rate
per annum equal to the Base Rate in effect from time to time, which rate shall
change contemporaneously with any change in the Base Rate.
(b) Except as otherwise provided by section 3.11 hereof, each ST Loan that
is a Eurodollar Loan shall bear interest on the outstanding principal amount
thereof, for each Interest Period applicable thereto, at a rate per annum equal
to the Eurodollar Rate determined for such Interest Period, plus the applicable
ST Margin Percentage as in effect on the first day of such Interest Period.
(c) Except as otherwise provided by section 3.11 hereof, each MT Loan that
is a Eurodollar Loan shall bear interest on the outstanding principal amount
thereof, for each Interest Period applicable thereto, at a rate per annum equal
to the Eurodollar Rate determined for such Interest Period, plus the applicable
MT Margin Percentage as in effect on the first day of such Interest Period.
(d) The Borrower absolutely and unconditionally promises to pay all
interest accrued on each Loan in arrears on each Interest Payment Date with
respect thereto.
Section 3.2. Interest Period Options. Upon notice (a "Continuation
-------- ------ -------
Request") given to the Administrative Agent no later than 11:00 a.m. (Boston
time) at least two (2) Eurodollar Business Days' prior to the expiration of an
Interest Period applicable to any Eurodollar Loan, the Borrower may elect to
continue such Eurodollar Loan upon the expiration of the then applicable
Interest Period for another Interest Period of the duration specified in such
notice; provided, however, that no Eurodollar Loan may be continued for an
Interest Period in excess of seven (7) days when any
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Default or Event of Default is continuing; and provided further that the
Eurodollar Loans to which a particular Interest Period applies shall be in an
aggregate principal amount of $3,000,000 or an integral multiple of $250,000 in
excess thereof. Each continuation of a Eurodollar Loan hereunder shall be
allocated between the Banks in proportion, as nearly as practicable, to such
Bank's ST Commitment Percentage or MT Commitment Percentage (as the case may
be), with adjustments to the extent practicable to equalize any prior
continuations not exactly in proportion.
Section 3.3. Indemnity. The Borrower agrees to indemnify each Bank and to
---------
hold each Bank harmless from any loss or expense that such Bank may sustain or
incur as a consequence of (a) default by the Borrower in payment of the
principal amount of or interest on any Loans, including any such loss or expense
arising from interest or fees payable by such Bank to lenders of funds obtained
by it in order to maintain its Loans, (b) default by the Borrower in making a
borrowing after the Borrower has given (or is deemed to have given) a Loan
Request or a Continuation Request in accordance with section 2.5 or 3.2 other
than as a result of a default by any Bank, (c) the making of any payment of a
Loan on a day that is not the last day of the applicable Interest Period with
respect thereto, including interest or fees payable by any Bank to lenders of
funds obtained by it in order to maintain any such Loan, to the extent not
off-set by income derived from the redeployment of such funds or (d) default by
the Borrower in making any repayment of a Loan after the Borrower has given a
notice in accordance with section 2.8. This covenant shall survive the
termination of this Credit Agreement and payment of the Notes.
Section 3.4. Funds for Payments. All payments of principal, interest,
----- --- --------
Reimbursement Obligations, the ST Facility Fee, the MT Facility Fee, the
Utilization Fee, the Letter of Credit Fees and any other amounts due hereunder
or under any of the other Loan Documents shall be made by the Borrower to the
Administrative Agent at the Administrative Agent's office at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 or at such other location in the Boston,
Massachusetts area that the Administrative Agent may from time to time designate
in writing (the "Administrative Agent's Office"), in each case in Dollars in
immediately available funds. All payments by the Borrower hereunder and under
any of the other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower will pay
to the Administrative Agent, for the account of the Banks or (as the case may
be) the Administrative Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Banks or the Administrative Agent to
receive the same net amount which the Banks or the Administrative Agent would
have received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Administrative Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document. The Borrower may, within 90 days of the imposition of
any such obligation by any Bank, by notice in writing to the Administrative
Agent and such Bank, (a) require such Bank that imposed such obligation to
cooperate with the Borrower in obtaining an Eligible Assignee satisfactory to
the Administrative Agent as a replacement bank for such Bank and in assigning
such Bank's interest hereunder and under its Note to such Eligible Assignee
subject to the terms, conditions, and procedures of section 15, or (b) repay all
amounts owed to such Bank, terminate such Bank's Commitments and reduce the
aggregate of the Commitments under the Credit Agreement by a corresponding
amount. Each Bank that is not incorporated or organized under the laws of the
United States of America or a state thereof or the District of Columbia agrees
that, on an annual basis, it will deliver to the Borrower and the Administrative
Agent two duly completed copies of United States
-00-
Xxxxxxxx Xxxxxxx Service Form W-8BEN or W-8ECI or successor applicable form, as
the case may be, certifying in each case that such Bank is entitled to receive
payments under this Credit Agreement and the Note payable to it, without
deduction or withholding of any United States federal income taxes.
Section 3.5. Computations. All computations of interest on Eurodollar
------------
Loans, the ST Facility Fee, the MT Facility Fee, the Letter of Credit Fees and
the Utilization Fee shall be based on a 360 day year and paid for the actual
number of days elapsed. All computations of interest on Base Rate Loans shall be
based on a 365 day year and paid for the actual number of days elapsed. Except
as otherwise specifically provided herein, whenever a payment hereunder or under
any of the other Loan Documents becomes due on a day that is not a Business Day,
the due date for such payment shall be extended to the next succeeding Business
Day, and interest shall accrue during such extension. The outstanding amount of
the Loans as reflected on the Note Records from time to time shall be considered
conclusive and binding absent manifest mathematical error on the Borrower unless
within thirty (30) Business Days after receipt of any notice by the
Administrative Agent or any of the Banks of such outstanding amount, the
Borrower shall notify the Administrative Agent or such Bank to the contrary.
Section 3.6. Inability to Determine Eurodollar Rate. In the event the
--------- -- --------- ---------- ----
Administrative Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate that would otherwise determine the
rate of interest to be applicable during any Interest Period, the Administrative
Agent shall forthwith give telex notice of such determination (which shall be
conclusive and binding on the Borrower) to the Borrower at least one (1)
Business Day before the first day of such Interest Period. In such event, (a)
any Loan Request or Continuation Request with respect to Loans shall be
automatically withdrawn, (b) the Borrowers and the Banks shall negotiate in good
faith to agree on an alternative interest rate which is reasonably equivalent to
the Eurodollar Rate; provided that if the Borrowers and the Banks are unable to
agree on such alternative interest rate prior to the last day of the then
current Interest Period, each Loan then outstanding will as of the last day of
the then current Interest Period bear interest at a per annum rate equal to the
Base Rate in effect from time to time payable in arrears on the last day of each
fiscal quarter of the Borrower and (c) the obligations of the Banks to make
additional Loans shall be suspended until the Administrative Agent determines
that the circumstances giving rise to such suspension no longer exist, whereupon
the Administrative Agent shall so notify the Borrower and the Banks.
Section 3.7. Illegality. Notwithstanding any other provisions herein, if
----------
any introduction of or change in any law, regulation, treaty or directive or in
the interpretation or application thereof shall make it unlawful, or any central
bank or other governmental authority having jurisdiction over any Bank or its
Eurodollar Lending Office shall assert that it is unlawful, for such Bank or its
Eurodollar Lending Office to make or maintain Loans that bear interest
calculated by reference to the Eurodollar Rate, (a) such Bank shall forthwith
give notice by telefax of such circumstances, confirmed in a writing delivered
to the Borrower by courier or postal service (which notice shall be withdrawn by
such Bank when such Bank shall reasonably determine that it shall no longer be
illegal for such Bank or its Eurodollar Lending Office to make or maintain such
Loans), (b) the commitment of such Bank to make or maintain Loans shall
forthwith be cancelled and (c) such Bank's Loans then outstanding, if any, shall
be converted automatically on the next succeeding last day of each Interest
Period applicable to such Loans or within such earlier period as may be required
by law to Loans which bear interest at a per annum rate equal to an alternative
interest rate which is reasonably equivalent to the Eurodollar Rate upon which
the Administrative Agent and the Banks may in good faith agree; provided that if
the Borrower and the Banks are unable to agree on such alternative interest
rate, such Loans shall bear interest at a per annum rate equal to the Base Rate
in effect from time to time payable in arrears on the last day of each fiscal
quarter of the Borrower. The Borrower agrees promptly to pay the Administrative
Agent for the account of each Bank, upon demand by the
-23-
Administrative Agent, any additional amounts necessary to compensate the Banks
for any costs incurred by the Banks in making any conversion in accordance with
this section 3.7, including any interest or fees payable by the Banks to lenders
of funds obtained by them in order to make or maintain their Loans (the
Administrative Agent's written notice of such costs, as certified to the
Borrower, to be conclusive absent manifest error).
Section 3.8. Additional Costs, Etc. If any present or future, or any change
---------- ----- ---
in any present or future, applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and interpretations thereof
by any competent court or by any governmental or other regulatory body or
official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:
(a) subject any Bank to any tax, levy, impost, duty, charge, fee, deduction
or withholding of any nature with respect to this Credit Agreement, the other
Loan Documents, any Letters of Credit, such Bank's ST Commitment, such Bank's MT
Commitment or the Loans advanced by such Bank (other than taxes based upon or
measured by the income or profits of such Bank), or
(b) materially change the basis of taxation (except for changes in taxes on
income or profits) of payments to any Bank of the principal of or the interest
on any Loans or any other amounts payable to such Bank under this Credit
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, or other similar requirements against
assets held by, or deposits in or for the account of, or loans by, or
commitments of, or letters of credit issued by, an office of any Bank, or
(d) impose on any Bank any other conditions or requirements with respect to
this Credit Agreement, the other Loan Documents, any Letters of Credit, the
Loans, such Bank's ST Commitment, such Bank's MT Commitment, or any class of
loans or commitments of which any of the Loans or such Bank's ST Commitment or
MT Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining the Loans, any Letter
of Credit or such Bank's ST Commitment or MT Commitment, or
(ii) to reduce the amount of principal, interest or other
amounts payable to such Bank hereunder on account of such Bank's
ST Commitment or MT Commitment, the Loans or any Letter of
Credit, or
(iii) to require such Bank to make any payment or to forego
any interest or Reimbursement Obligation or other sum payable
hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference
to the gross amount of any sum receivable or deemed received by
such Bank from the Borrower hereunder,
then, and in each such case, the Borrower will, upon written demand made by such
Bank at any time and from time to time and as often as the occasion therefor may
arise, pay to such Bank such additional amounts as will be sufficient to
compensate such Bank for such additional cost, reduction,
-24-
payment or foregone interest or Reimbursement Obligation or other sum (after
such Bank shall have allocated the same fairly and equitably among all customers
of any class generally affected thereby); provided that in the event that such
additional cost, reduction, payment, or foregone interest or Reimbursement
Obligations or other sum which was incurred by such Bank is subsequently
returned or reimbursed to such Bank, such Bank shall return or reimburse to the
Borrower any additional amount paid pursuant to this section 3.8 by the Borrower
to such Bank with respect thereto. In the event that any of the foregoing events
occur, each Bank will use its reasonable efforts to take such actions as are
reasonably feasible and available to such Bank to decrease the additional costs
payable hereunder; provided that no Bank shall be required to transfer any
activities related to this Agreement to any jurisdiction in which such Bank does
not at such time regularly conduct ordinary banking operations or to a
jurisdiction which otherwise will be disadvantageous to such Bank. Such Bank
shall give the Borrower written notice of any event causing such additional
cost, reduction, payment or foregone interest or Reimbursement Obligation or
other sum within 90 days of the occurrence thereof and the Borrower shall not be
liable for any such costs incurred prior to the date which is 90 days prior to
the date of such notice.
-25-
Section 3.9. Certificate. A certificate setting forth any additional
-----------
amounts payable pursuant to section 3.7 and 3.8 and the changes as a result of
which such amounts are due and the computations in reasonable detail pursuant to
which such amounts were calculated, submitted by any Bank to the Borrower, shall
be conclusive absent manifest error. Upon delivery of a notice to such Bank no
more than thirty Business Days after receipt of such certificate, the Borrower
shall have reasonable opportunity to review and discuss such computations with a
responsible officer at such Bank.
Section 3.10. Capital Adequacy. If any present or future, or any change in
------- --------
any present or future, law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the interpretation thereof
by a court or governmental authority with appropriate jurisdiction affects the
amount of capital required or expected to be maintained by any Bank or any
corporation controlling such Bank and such Bank determines that the amount of
capital required to be maintained by it or such corporation is increased by or
based upon the existence of its ST Commitment, MT Commitment or the Loans made
pursuant hereto, then such Bank may notify the Borrower of such fact. To the
extent that the costs of such increased capital requirements are not reflected
in the rates of interest payable hereunder, the Borrower and such Bank shall
thereafter attempt to negotiate in good faith, within thirty (30) days of the
day on which the Borrower receives such notice, an adjustment payable hereunder
that will adequately compensate such Bank in light of these circumstances. If
the Borrower and such Bank are unable to agree to such adjustment within thirty
(30) days of the date on which the Borrower receives such notice, then
commencing on the date of such notice (but not earlier than the effective date
of any such increased capital requirement), the fees payable hereunder shall
increase by an amount that will, in such Bank's reasonable determination,
provide adequate compensation to such Bank, such amount to be conclusive and
binding on the Borrower, absent manifest error. Each Bank shall allocate such
cost increases among its customers in good faith and on an equitable basis.
Section 3.11. Interest on Overdue Amounts. Overdue principal and (to the
-------- -- ------- -------
extent permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall bear
interest compounded daily and payable on demand at a rate per annum which is two
percent (2%) above the per annum interest rate otherwise applicable thereto,
until such amount shall be paid in full (after as well as before judgment).
Section 3.12. Payment Date Adjustment for Non-Business Days. Unless
------- ---- ---------- --- ------------ ----
otherwise explicitly set forth herein, if any payment hereunder becomes due on a
day which is not a Business Day, the due date of such payment shall be extended
to the next succeeding Business Day, and such extension of time shall be
included in computing interest and fees in connection with such payment.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
--------------- --- ----------
warrants to the Banks and the Administrative Agent as follows:
Section 4.1. Corporate Authority.
-------------------
(a) Incorporation; Good Standing. Each of the Borrower and its Material
------------- ---- --------
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation, (ii) has all requisite
corporate power and authority and legal right to own and operate its property,
to lease the property it operates as lessee and to conduct its business as now
conducted and as presently contemplated, and (iii) is in good standing as a
foreign corporation and is duly authorized to do business in each jurisdiction
where such qualification is necessary except where (x) a failure to be so
qualified would not have a materially adverse effect on the business, assets or
financial condition of the Borrower or the Borrower and its Material
Subsidiaries, taken as a whole or the Borrower's ability to perform the
Obligations or (y) the Borrower or such Subsidiary has applied for qualification
to do business in such jurisdiction and such application is pending.
-26-
(b) Authorization. The execution, delivery and performance of this Credit
-------------
Agreement and the other Loan Documents to which the Borrower is or is to become
a party and the transactions contemplated hereby and thereby (i) are within the
corporate authority and legal right of the Borrower, (ii) have been duly
authorized by all necessary corporate proceedings, (iii) do not conflict with or
result in any breach or contravention of any provision of law, statute, rule or
regulation to which the Borrower is subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrower which would have a
materially adverse effect on the business, assets or financial condition of the
Borrower or the Borrower and its Material Subsidiaries, taken as a whole and
(iv) do not conflict with any provision of the corporate charter or bylaws of,
or any agreement or other instrument binding upon, the Borrower.
(c) Enforceability. The execution and delivery of this Credit Agreement and
--------------
the other Loan Documents to which the Borrower is or is to become a party will
result in valid and legally binding obligations of the Borrower enforceable
against it in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
Section 4.2. Governmental Approvals. The execution, delivery and
------------ ---------
performance by the Borrower of this Credit Agreement and the other Loan
Documents to which the Borrower is or is to become a party and the transactions
contemplated hereby and thereby do not require the Borrower to obtain the
approval or consent of, to make a filing with, or to perform or obtain the
performance of any other act by or in respect of any governmental agency or
authority other than those already obtained or performed.
Section 4.3. Title to Properties; Leases. Other than as noted on the
----- -- ---------- ------
audited consolidated financial statements of the Borrower and its Subsidiaries
as at the Balance Sheet Date, the Borrower and its Subsidiaries own all of the
assets reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date and except for defects of title to certain real
property which do not materially impair the value or usefulness thereof),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances,
except for liens permitted pursuant to Section 6.2. The Borrower and its
Material Subsidiaries enjoy peaceful and undisturbed possession under all leases
under which they are operating, and all said leases are valid and subsisting and
in full force and effect except to the extent that the failure to enjoy peaceful
and undisturbed possession of such lease or the failure of such lease to be
valid, subsisting and in full force and effect does not have a material adverse
effect on the assets, financial condition or business of the Borrower and its
Material Subsidiaries, taken as a whole.
Section 4.4. Financial Statements; Projections.
--------- ---------- -----------
(a) There has been furnished to each of the Banks a consolidated balance
sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date, and
related consolidated statements of income, retained earnings and cash flow for
the fiscal year then ended, certified by Xxxxxx Xxxxxxxx and Company, the
Borrower's independent certified public accountants. There has also been
furnished to each of the Banks an unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of fiscal quarter ending March 31,
2001, and the related consolidated statement of income and consolidated
statement of cash flow for the portion of the Borrower's fiscal year then
elapsed, all in reasonable detail. Such balance sheets and statements of income,
retained
-27-
earnings and cash flow have been prepared in accordance with Generally Accepted
Accounting Principles consistently applied and are correct and complete and
fairly present the financial condition of the Borrower and its Material
Subsidiaries as at the close of business on the date thereof and the
consolidated results of operations for the fiscal period then ended. There are
no contingent liabilities of the Borrower or any of its Subsidiaries as of each
such date involving material amounts, known to the officers of the Borrower and
not disclosed in said balance sheet and the related notes thereto.
(b) The projections of the annual operating budgets of the Borrower and its
Subsidiaries on a consolidated basis, balance sheets and cash flow statements
for the 2001 to 2003 fiscal years, copies of which have been delivered to the
Agents, disclose all assumptions made with respect to general economic,
financial and market conditions used in formulating such projections. To the
knowledge of the Borrower or any of its Subsidiaries, no facts exist that
(individually or in the aggregate) would result in any material change in any of
such projections. The projections are based upon reasonable estimates and
assumptions, have been prepared on the basis of the assumptions stated therein
and reflect the reasonable estimates of the Borrower and its Subsidiaries of the
results of operations and other information projected therein.
Section 4.5. No Material Changes, Etc. Since the Balance Sheet Date there
-- -------- ------- ---
has occurred no Material Adverse Change.
Section 4.6. Franchises, Patents, Copyrights, Etc. Each of the Borrower and
---------- ------- ---------- ---
its Subsidiaries, respectively, possesses or has a valid right to use all
material franchises, patents, copyrights, inventions, technology, trademark
registrations, trademarks, trade names, trade secrets, service marks, FCC
Licenses, other licenses and permits, and rights in respect of the foregoing
and, to the best of its knowledge, patent and trademark applications and rights
in respect thereto (collectively, the "Proprietary Rights"), adequate for the
conduct of its business substantially as now conducted without known conflict
with any rights of others which could affect or impair in a material manner the
business or assets of the Borrower and its Material Subsidiaries, taken as a
whole. Except as disclosed in the financial statements referred to in section
4.4 hereof, the Borrower is not aware of any existing or threatened infringement
or misappropriation of (a) any Proprietary Rights of others by the Borrower or
any of its Subsidiaries or (b) any Proprietary Rights of the Borrower or any of
its Subsidiaries by others, in any way which might materially adversely affect
the business, assets or condition, financial or otherwise, of the Borrower and
its Material Subsidiaries, taken as a whole.
Section 4.7. No Litigation. There are no actions, suits, proceedings or
-- ----------
investigations of any kind pending or, to the Borrower's knowledge, threatened
against the Borrower or any of its Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined are reasonably
likely to in the aggregate, materially adversely affect the properties, assets,
financial condition or business of the Borrower and its Material Subsidiaries,
taken as a whole or materially impair the right of the Borrower and its Material
Subsidiaries, taken as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower, or which question the validity of
this Credit Agreement or any of the other Loan Documents, or any action taken or
to be taken pursuant hereto or thereto. There are no final judgments against the
Borrower or any of its Subsidiaries that, with other outstanding final
judgments, undischarged and not covered by insurance, exceeds in the aggregate
five percent (5%) of the Consolidated Net Worth of the Borrower.
Section 4.8. No Materially Adverse Contracts, Etc. Neither the Borrower nor
-- ---------- ------- --------- ---
any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or, to
the Borrower's knowledge, is expected in the future to have a materially adverse
effect on the business, assets or financial condition of the Borrower and its
-28-
Material Subsidiaries, taken as a whole. Neither the Borrower nor any of its
Subsidiaries is a party to any contract or agreement that has or, to the best of
the Borrower's knowledge, is expected, in the judgment of the Borrower's
officers, to have any materially adverse effect on the business of the Borrower
and its Material Subsidiaries, taken as a whole.
Section 4.9. Compliance With Other Instruments, Laws, Etc. Neither the
---------- ---- ----- ----------- ---- ---
Borrower nor any of its Subsidiaries is in violation of any provision of its
charter documents, bylaws, or any agreement or instrument to which it is subject
or by which it or any of its properties are bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that are reasonably likely to result in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or business of the Borrower and its Material Subsidiaries, taken as a whole or
the Borrower's ability to perform the Obligations.
Section 4.10. Tax Status. The Borrower and, to the best of the Borrower's
--- ------
knowledge, its Subsidiaries have (a) made or filed all federal and state income
and all other material tax returns, reports and declarations required by any
jurisdiction to which any of them is subject or properly filed for and received
extensions with respect thereto which are still in full force and effect and
which have been fully complied with in all material respects, (b) paid all taxes
and other governmental assessments and charges shown or determined to be due on
such returns, reports and declarations, except those being contested in good
faith by appropriate proceedings and for which adequate reserves, to the extent
required by Generally Accepted Accounting Principles, have been established and
(c) set aside on their books provisions reasonably adequate for the payment of
all estimated taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Borrower know of no basis for any such claim.
Section 4.11. No Event of Default. No Default or Event of Default has
-- ----- -- -------
occurred and is continuing.
Section 4.12. Holding Company and Investment Company Acts. Neither the
------- ------- --- ---------- ------- ----
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
it a "registered investment company", or an "affiliated company" or a "principal
underwriter" of a "registered investment company", as such terms are defined in
the Investment Company Act of 1940.
Section 4.13. Certain Transactions. Except for arm's length transactions
------- ------------
pursuant to which the Borrower makes payments in the ordinary course of business
upon terms no less favorable than the Borrower could obtain from third parties
and transactions disclosed in the Borrower's Form 10-K filed with the Securities
and Exchange Commission for its fiscal year ending December 31, 2000, none of
the officers, directors or other key employees of the Borrower or any of its
Material Subsidiaries is presently a party to any transaction with the Borrower
or any of its Material Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such key employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any officer, director,
or any such key employee has a substantial interest or is an officer, director,
trustee or partner.
Section 4.14. ERISA Compliance.
----- ----------
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(a) In General. To the best of the Borrower's knowledge, the Borrower and
-- -------
its Subsidiaries have complied in all material respects with provisions of the
Code, to the extent applicable, and of ERISA relevant to the Borrower's Pension
Plans (as defined in Section 3(2) of ERISA), including the provisions thereof
respecting funding requirements for, and the termination of, such plans and
respecting prohibited transactions thereunder, and the funding of any Guaranteed
Pension Plan complies with the minimum funding standards of Section 412 of the
Code.
(b) Guaranteed Pension Plans. Each contribution required to be made to a
---------- ------- -----
Guaranteed Pension Plan, whether required to be made to avoid the incurrence of
an accumulated funding deficiency, the notice or lien provisions of section
302(f) of ERISA, or otherwise, has been timely made. No waiver of an accumulated
funding deficiency or extension of amortization periods has been received with
respect to any Guaranteed Pension Plan. No liability to the PBGC (other than
required insurance premiums, all of which have been paid) has been incurred by
the Borrowers or any ERISA Affiliate with respect to any Guaranteed Pension Plan
and there has not been any ERISA Reportable Event, or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of the date of
this representation), and except as disclosed on Schedule 4.14 attached hereto,
the current value of all accrued benefits under each of such plans did not, as
of the latest valuation date, exceed the then current value of the assets of
such plans allocable to such accrued benefits based upon the actuarial methods
and assumptions used for such plans.
(c) Multiemployer Plans. Neither the Borrower nor any ERISA Affiliate has
------------- -----
incurred any material liability (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under section 4201 of ERISA or as a result of a sale of
assets described in section 4204 of ERISA. Neither the Borrower nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of section 4241 or section 4245 of ERISA
or that any Multiemployer Plan intends to terminate or has been terminated under
section 4041A of ERISA.
Section 4.15. Purpose Credit.
------- ------
(a) The Borrower has not engaged principally or as one of its important
activities in the business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal Reserve
System.
(b) The Borrower shall not, directly or indirectly, apply any part of the
proceeds of the Notes for the purpose of or in connection with the Borrower's
broker-dealer activities, if any, within the meaning of Regulation T of the
Federal Reserve Board (Title 12, Part 220, Code of Federal Regulations, as
amended) or any published regulations, interpretations or rulings thereunder.
(c) The issuance of the Notes and the application of the proceeds thereof
by the Borrower will not contravene Regulation X of the Federal Reserve Board
(Title 12, Part 224, Code of Federal Regulations, as amended) or any published
regulations, interpretations or rulings thereunder.
Section 4.16. Environmental Compliance.
------------- ----------
(a) The Borrower has no actual knowledge that any operator of the Real
Estate, has violated, or is alleged to have violated, any judgment, decree,
order, law, license, rule or regulation pertaining to environmental matters
(hereinafter "Environmental Laws"), which violation would
-30-
have a material adverse effect on the environment or the business, assets or
financial condition of the Borrower or any of its Material Subsidiaries, taken
as a whole.
(b) Neither the Borrower nor any of its Material Subsidiaries has received
notice from any third party including, without limitation, any federal, state or
local governmental authority, (i) that any one of them has been identified by
the United States Environmental Protection Agency ("EPA") as a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X; (ii) that any hazardous waste,
as defined by 42 U.S.C. section 6903(5), any hazardous substances as defined by
42 U.S.C. section 9601(14), any pollutant or contaminant as defined by 42 U.S.C.
section 9601(33) and any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws (hereinafter
"Hazardous Substances") which any one of them has generated, transported or
disposed of has been found at any site at which a federal, state or local agency
or other third party has conducted or has ordered that the Borrower or any of
its Material Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out of
any third party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances.
(c) Neither the Borrower nor any of its Material Subsidiaries are subject
to any applicable environmental law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the recording
or delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated hereby
or the effectiveness of any other transactions contemplated hereby.
Section 4.17. Compliance With Fair Labor Standards Act. To the best of the
---------- ---- ---- ----- --------- ---
Borrower's knowledge, the Borrower has at all times operated its business in
compliance with all applicable provisions of the Fair Labor Standards Act of
1938 (29 U.S.C. section 106 and 207) except to the extent that the Borrower's
failure to comply therewith would not have a material adverse affect on the
business, assets or condition, financial or otherwise, of the Borrower and its
Material Subsidiaries, taken as a whole. To the best of the Borrower's
knowledge, none of the Borrower's inventory has been produced by employees who
are or were employed in violation of the minimum wage or maximum hour provisions
of such Act or any regulations thereunder.
Section 4.18. Subsidiaries. Attached hereto as Schedule 4.18 is a schedule
------------
showing with respect to each Material Subsidiary the jurisdiction in which it is
organized and the approximate percentage of the outstanding Voting Stock of that
Subsidiary held either by the Borrower or another Subsidiary. All of the
outstanding capital stock of each Material Subsidiary has been duly authorized
and issued and is fully-paid and non-assessable; and, except as indicated in
Schedule 4.18, free and clear of any pledge, charge, lien, security interest or
other encumbrance or restriction on transfer.
Section 4.19. Solvency. The Borrower, both before and after giving effect
--------
to the transactions contemplated by this Credit Agreement and the other Loan
Documents (a) is solvent, (b) has assets having a fair value in excess of their
liabilities, (c) has assets having a fair value in excess of the amount required
to pay its liabilities on existing debts as such debts become absolute and
matured, and (d) has, and expects to continue to have, access to adequate
capital for the conduct of its business and the ability to pay its debts from
time to time incurred in connection with the operation of its business as such
debts mature.
Section 4.20. Disclosure. No representation or warranty made by the
----------
Borrower in any of the
-31-
Loan Documents or in any other document furnished from time to time in
connection herewith or therewith, contains any misrepresentation of a material
fact or omits to state any material fact necessary to make the statements herein
or therein not misleading. There is no fact known to the Borrower that
materially adversely affects, or that might reasonably be expected to materially
adversely affect, the business, property or financial condition of the Borrower
and its Material Subsidiaries on a consolidated basis.
Section 5. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower covenants
----------- --------- -- --- --------
and agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of
Credit or Note is outstanding or any Bank has any obligation to make any Loans
or the Administrative Agent has any obligation to issue, extend or renew any
Letters of Credit:
Section 5.1. Punctual Payment. The Borrower will duly and punctually pay or
-------- -------
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Utilization Fee, the ST Facility Fee
and the MT Facility Fee, all in accordance with the terms of this Credit
Agreement and the Notes.
Section 5.2. Maintenance of Office. The Borrower will maintain its chief
----------- -- ------
executive office in Chicago, Illinois, or at such other place in the United
States of America as the Borrower shall designate upon written notice to the
Administrative Agent, where notices, presentations and demands to or upon the
Borrower in respect of the Loan Documents may be given or made.
Section 5.3. Records and Accounts. The Borrower will (a) keep, and cause
------- --- --------
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with
Generally Accepted Accounting Principles and (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties and the properties of its
Subsidiaries, contingencies, and other reserves.
Section 5.4. Financial Statements, Certificates and Information. The
--------- ---------- ------------ --- -----------
Borrower will deliver to each of the Banks or, with respect to subsection (f) of
this section 5.4 only, make available to each of the Banks at the Borrower's
principal place of business:
(a) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such year, and the
related consolidated statements of income, retained earnings and cash flows for
such year, each setting forth in comparative form the figures for the previous
fiscal year and all such consolidated statements to be in reasonable detail,
prepared in accordance with Generally Accepted Accounting Principles, and
certified without material qualification as to any circumstance which could
reasonably be expected to have a material adverse effect on the Borrower and its
Material Subsidiaries, taken as a whole, by independent public accountants of
nationally recognized standing selected by the Borrower and acceptable to the
Majority Banks, together with a written statement from such accountants to the
effect that they have read a copy of this Credit Agreement, and that, in making
the examination necessary to said certification, they have obtained no knowledge
of any Default or Event of Default, or, if such accountants shall have obtained
knowledge of any then existing Default or Event of Default they shall disclose
in such statement any such Default or Event of Default; provided that such
accountants shall not be liable to the Banks for failure to obtain knowledge of
any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five (45)
days after the end of each of the first three fiscal quarters in each of the
Borrower's fiscal years, copies of the
-32-
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such quarter, and the related consolidated statements of income and
cash flows for such quarter and the portion of the Borrower's fiscal year then
elapsed, together with comparative consolidated figures for the same periods of
the preceding year, all in reasonable detail and prepared in accordance with
Generally Accepted Accounting Principles and accompanied by a certificate of the
principal financial officer of the Borrower stating that the information
contained in such financial statements is correct and complete and fairly
presents the financial position of the Borrower and its Subsidiaries on the date
thereof and the results of their operations for the periods covered thereby
(subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred
to in subsections (a) and (b) above, a statement certified by the principal
financial officer of the Borrower in substantially the form of Exhibit C hereto
and setting forth in reasonable detail computations evidencing compliance with
the covenants contained in section 7.1 and 7.2 as at the end of the period
covered by such statements or during such period as may be required, and (if
applicable) reconciliations to reflect changes in Generally Accepted Accounting
Principles since the Balance Sheet Date (each a "Compliance Certificate");
(d) contemporaneously with the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange Commission
or sent to the stockholders of the Borrower or any holder of the Borrower's
Funded Debt;
(e) promptly upon request by the Administrative Agent or any Bank, all
detailed audits or reports submitted to the Borrower by independent public
accountants in connection with any annual or interim audits of the books of the
Borrower or any Material Subsidiary; and
(f) from time to time upon request by the Administrative Agent or any Bank,
such other financial data and information (including, without limitation,
accountants management letters and such other information regarding the business
and affairs and condition, financial and other, of the Borrower, its
Subsidiaries and their respective properties) as the Administrative Agent or any
Bank may reasonably request, subject to the confidentiality provisions set forth
in section 25 hereof.
Section 5.5. Corporate Existence; Maintenance of Properties. The Borrower
--------- --------- ----------- -- ----------
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, material rights, franchises and
Proprietary Rights and those of its Subsidiaries except to the extent that the
Borrower's failure to do so will not have a materially adverse effect on the
assets, financial condition or business of the Borrower and its Material
Subsidiaries, taken as a whole. It (a) will cause all of its material properties
and those of its Subsidiaries used or useful in the conduct of its business or
the business of its Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all reasonably necessary equipment,
(b) will cause to be made all reasonably necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and (c)
will, and will cause each of its Material Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses;
provided that nothing in this section 5.5 shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties or those of
its Material Subsidiaries if such discontinuance is, in the sole judgment of the
Borrower, desirable in the conduct of its or their business and that do not in
the aggregate materially adversely affect the business of the Borrower and its
Material Subsidiaries on a consolidated basis.
Section 5.6. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its insurable
-33-
properties and business against such casualties and contingencies as shall be in
accordance with the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts, containing such terms, in
such forms and for such periods as may be reasonably satisfactory to the
Administrative Agent; provided, however, that the Borrower and any Subsidiary
may self-insure for physical damage to automobiles, welfare benefits and against
liability to workers in any state or jurisdiction, or may effect worker's
compensation insurance therein through an insurance fund operated by such state
or jurisdiction; and provided, further, that notwithstanding anything to the
contrary contained herein, the Borrower or such Subsidiary will keep its assets
which are of an insurable character insured by financially sound and reputable
insurers against loss or damage by fire or explosion in amounts sufficient to
prevent the Borrower or such Subsidiary from becoming a co-insurer and not in
any event less than 80% of the full insurable value of the property insured.
Section 5.7. Taxes; Etc. The Borrower will, and will cause each of its
----- ---
Subsidiaries to, (a) duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue or (b) properly file for and receive
extensions for such payment and duly pay and discharge, or cause to be paid and
discharged, within such extension period, all taxes, assessments and other
governmental charges (other than taxes, assessments and other governmental
charges imposed by foreign jurisdictions, including states in which neither the
Borrower nor any of its Subsidiaries conducts a material portion of its
business, that in the aggregate are not material to the business or assets of
the Borrower on an individual basis or of the Borrower and its Subsidiaries on a
consolidated basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and provided further that the Borrower
and each Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor.
Section 5.8. Inspection of Properties and Books. The Borrower shall permit
---------- -- ---------- --- -----
the Banks, through the Administrative Agent or any of the Banks' other
designated representatives, to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the Borrower
and its Subsidiaries with, and to be advised as to the same by, its and their
officers, employees and independent public accountants (such accountants being
hereby authorized by the Borrower to so discuss and advise) all at such
reasonable times and intervals as the Administrative Agent or any Bank may
reasonably request. In connection with any such inspections or discussions, each
Bank, on behalf of itself and any representative authorized by it, agrees to
treat all non-public information as confidential information pursuant to section
25 and to take all reasonable precautions to prevent such confidential
information from being exposed to third parties and to those of its employees
and representatives who do not need to know such confidential information;
provided that this section 5.8 shall not affect the disclosure by any Bank of
information required to be disclosed to its auditors, regulatory agencies or
pursuant to subpoena or other legal process or by virtue of any other law,
regulation, order or interpretation.
Section 5.9. Compliance with Laws, Contracts, Licenses, and Permits. The
---------- ---- ---- --------- -------- --- -------
Borrower will, and will cause each of its Material Subsidiaries to, comply with
(a) the applicable laws and regulations wherever its business is conducted,
including all Environmental Laws which may be in effect from time to time, (b)
the provisions of its charter documents and by-laws, (c) all agreements and
instruments by which it or any of its properties or business may be bound and
(d) all applicable decrees, orders, and judgments; if in each such case failure
to comply would have a materially adverse effect on the Borrower and its
Material Subsidiaries, taken as a whole. If at any time
-34-
any authorization, consent, approval, permit or license from any officer, agency
or instrumentality of any government shall become necessary or required in order
that the Borrower may fulfill any of the Obligations, the Borrower will promptly
take or cause to be taken all reasonable steps within the power of the Borrower
to obtain such authorization, consent, approval, permit or license and furnish
the Banks with evidence thereof.
Section 5.10. Pension Plans. The Borrower and any ERISA Affiliate shall:
-------------
(a) promptly after the Borrower or any ERISA Affiliate knows or has reason
to know that any ERISA Reportable Event has occurred, notify the Administrative
Agent that such ERISA Reportable Event has occurred;
(b) promptly upon request make available to each Bank at the Borrower's
principal place of business a copy of (i) any actuarial statement related to any
pension plan required to be submitted under section 103(d) of ERISA or (ii) any
notice, report or demand sent or received by a pension plan under section 4065
of ERISA;
(c) furnish to each Bank forthwith, a copy of (i) any notice of a pension
plan termination sent to the PBGC under section 4041(a) of ERISA and (ii) any
notice, report or demand sent or received by a pension plan under section 4041,
4042, 4043, 4063, 4066 or 4068 of ERISA; and
(d) furnish to each Bank a copy of any request for waiver from the funding
standards or extension of the amortization periods required by section 412 of
the Code no later than the date on which the request is submitted to the
Department of Labor or the Internal Revenue Service, as the case may be.
Section 5.11. Further Assurances. The Borrower will cooperate with the
------- ----------
Banks and the Administrative Agent and execute such further instruments and
documents as the Banks or the Administrative Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
Section 5.12. Notices. The Borrower will promptly notify the Administrative
-------
Agent and each of the Banks in writing of the occurrence of any Default or Event
of Default. If any Person shall give any notice or take any other action in
respect of a claimed default (whether or not constituting an Event of Default)
under this Credit Agreement or any other note, evidence of indebtedness,
indenture or other obligation to which or with respect to which the Borrower or
any of its Subsidiaries is a party or obligor, whether as principal or surety,
the Borrower shall forthwith give written notice thereof to each of the Banks,
describing the notice or action and the nature of the claimed default.
Section 5.13. Fair Labor Standards Act. The Borrower will, and will cause
---- ----- --------- ---
each of its Subsidiaries to, at all times operate its business in compliance
with all applicable provisions of the Fair Labor Standards Act of 1938 (29
U.S.C. section 206 and 207) if the failure to comply with such provisions might
reasonably be expected to have a materially adverse affect on the Borrower and
its Subsidiaries, taken as a whole.
Section 5.14. Environmental Events. The Borrower will promptly give notice
------------- ------
to the Administrative Agent (a) of any violation of any Environmental Law that
the Borrower or any of its Subsidiaries reports in writing or is reportable by
such Person in writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental liability,
or any federal, state or local environmental agency or board, that might
reasonably be expected to materially adversely affect the
-35-
assets, liabilities, financial conditions or operations of the Borrower and its
Material Subsidiaries on a consolidated basis.
Section 5.15. Notification of Claims. The Borrower will, immediately upon
------------ -- ------
becoming aware thereof, notify the Administrative Agent in writing of any
uninsured set-off, claims (including, with respect to the Real Estate,
environmental claims), withholdings or other defenses which might reasonably be
expected to have a materially adverse affect on the assets, liabilities,
financial conditions or operations of the Borrower and its Material Subsidiaries
on a consolidated basis.
Section 5.16. Use of Proceeds. The Borrower will use the proceeds of the
--- -- --------
Loans and obtain Letters of Credit solely for general corporate purposes,
including without limitation the financing of capital expenditures and
acquisitions and for working capital purposes.
Section 5.17. Notice of Litigation, Judgment and Material Events. The
------ -- ---------- -------- --- -------- ------
Borrower will give notice to the Administrative Agent in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened in
writing or any pending litigation and proceedings affecting the Borrower or any
of its Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party involving an uninsured claim against the Borrower individually
or the Borrower and its Subsidiaries on a consolidated basis that could
reasonably be expected to have a materially adverse effect on the Borrower and
its Subsidiaries on a consolidated basis and stating the nature and status of
such litigation or proceedings. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Administrative Agent, in writing, in form
and detail satisfactory to the Administrative Agent, (a) within ten (10) days of
any judgment not covered by insurance or reserves, final or otherwise, against
the Borrower or any of its Subsidiaries in an amount which in aggregate with
other such judgments against the Borrower or any of its Subsidiaries exceeds
five percent (5%) of the Consolidated Net Worth of the Borrower and (b) promptly
after becoming aware thereof, of the occurrence of any event that it is
reasonable to expect will be required to be reported to or filed with the
Securities and Exchange Commission.
Section 6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
------- -------- --------- -- --- --------
covenants and agrees that, so long as any Loan, Unpaid Reimbursement
Obligations, Letter of Credit or Note is outstanding or any Bank has any
obligation to make any Loans or the Administrative Agent has any obligation to
issue, extend or renew any Letters of Credit:
Section 6.1. Indebtedness. The Borrower will not, and will not permit any
------------
of its Subsidiaries to incur any Funded Debt if an Event of Default will occur
hereunder immediately after giving effect thereto as a consequence of the
incurrence of such Funded Debt. The Borrower will not incur any obligation to
repay money borrowed in an aggregate amount in excess of $225,000,000 under or
in connection with any line of credit having an initial or scheduled maturity
date of less than one year from the initial borrowing date or renewal date
therefor.
Section 6.2. Restrictions on Liens.
------------ -- -----
Section 6.2.1. The Borrower. The Borrower will not create or incur or
--- --------
suffer to be created or incurred or to exist any Lien of any kind upon any of
its property or assets of any character, whether now owned or hereafter
acquired, or upon the income or profits therefrom to secure Funded Debt without
in any such case effectively providing concurrently with the creation or
incurrence of any such Liens that the Obligations shall be secured equally and
ratably with (or, at the option of the Borrower, prior to) such Funded Debt,
unless immediately after the incurrence of such Funded Debt (and after giving
effect to the application of the proceeds, if any, therefrom), the aggregate
principal amount of all such Funded Debt, together with the aggregate amount of
Capitalized Rent in respect of
-36-
Sale and Leaseback Transactions (other than Sale and Leaseback Transactions
described in clauses (a) through (d), inclusive, of section 6.8), would not
exceed two percent (2%) of Consolidated Capitalization; provided that the
foregoing restrictions shall not apply to, and there shall be excluded in
computing the aggregate amount of Funded Debt secured by Liens for the purpose
of such restrictions:
(a) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations not overdue or in respect
of which the Borrower shall at the time in good faith be prosecuting an appeal
or proceeding for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review and for which any reserves required
in accordance with Generally Accepted Accounting Principles have been
established;
(b) deposits or pledges made in connection with, or to secure payment of,
workmen's compensation, unemployment insurance, old age pensions or other social
security obligations;
(c) liens on properties in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower shall at
the time in good faith be prosecuting an appeal or proceeding for review and in
respect of which a stay of execution shall have been obtained pending such
appeal or review and for which any reserves required in accordance with
Generally Accepted Accounting Principles have been established;
(d) liens of carriers, warehousemen, mechanics and materialmen, and other
like liens on properties in existence less than 120 days from the date of
creation thereof in respect of obligations not overdue;
(e) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which the Borrower is a party, and other minor liens or encumbrances none of
which in the opinion of the Borrower interferes materially with the use of the
property affected in the ordinary conduct of the business of the Borrower, which
defects do not individually or in the aggregate have a materially adverse effect
on the business of the Borrower individually or of the Borrower and its
Subsidiaries on a consolidated basis;
(f) presently outstanding liens listed on Schedule 6.2.1 hereto;
(g) Liens on property existing at the time the Borrower acquires such
property and not created in anticipation of such acquisition, purchase money
security interests in or purchase money mortgages on real or personal property
acquired or constructed after the date hereof to secure Funded Debt permitted to
be incurred hereunder and incurred in connection with the acquisition or
construction of such property at the time of or within 270 days following the
acquisition of such property, which security interests or mortgages cover only
the real or personal property so acquired, and Liens on existing properties or
assets to secure Funded Debt permitted hereunder and incurred for improvements
on such properties or assets;
(h) Liens on the property of a Person (i) existing at the time such Person
is merged into or consolidated with the Borrower as permitted hereby or at the
time of a sale, lease or other disposition of the properties of a Person as an
entirety or substantially as an entirety to the Borrower as permitted hereby,
(ii) resulting from such merger, consolidation, sale, lease or disposition by
virtue of any Lien on property granted by the Borrower as permitted hereby prior
to such merger, consolidation, sale, lease or disposition (and not in
contemplation thereof or in connection therewith)
-37-
which applies to after-acquired property of the Borrower, or (iii) resulting
from such merger, consolidation, sale, lease or disposition pursuant to a Lien
or contractual provision granted or entered into by such Person prior to such
merger, consolidation, sale, lease or disposition (and not at the request of the
Borrower); provided that any such Lien referred to in clause (i) shall not apply
to any property of the Borrower other than the property subject thereto at the
time such Person or properties were acquired and any such Lien referred to in
clause (ii) or (iii) shall not apply to any property of the Borrower other than
the property so acquired;
(i) Liens arising by reason of deposits with, or the giving of any form of
security to, any governmental agency or any body created or approved by law or
governmental regulation, which Lien is required by law or governmental
regulation as a condition to the transaction of any business or the exercise of
any privilege, franchise, license or permit and Liens in favor of a government
or governmental entity to secure partial progress, advance or other payments, or
other obligations, pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the costs
of acquiring, constructing or improving the property subject to such Liens
(including, without limitation, Liens incurred in connection with pollution
control, industrial revenue, private activity bond or similar financing); and
(j) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses (a) through (i), inclusive; provided, however, that the
principal amount secured thereby shall not exceed the principal amount secured
thereby at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the obligation so extended, renewed or replaced (plus
improvements to such property).
Section 6.2.2. Subsidiaries. No Subsidiary of the Borrower shall create or
------------
incur or suffer to be created or incurred or to exist any Lien of any kind (but
in any event, subject to the exceptions set forth in the last sentence of this
section 6.2.2) upon any of its property or assets of any character, whether now
owned or hereafter acquired, or upon the income or profits therefrom, to secure
its obligations with respect to Funded Debt in an aggregate amount for all
Subsidiaries in excess of two percent (2%) of the Consolidated Capitalization of
the Borrower unless contemporaneously with the creation or incurrence of such
Lien, but in any event not later than ten Business Days following such creation
or incurrence, the Borrower shall request S&P and Moody's to review its Debt
Rating of the Borrower. The Borrower shall promptly notify the Administrative
Agent if such review results in a change in the Debt Rating issued by either S&P
or Moody's. In the event that the Debt Rating issued by S&P is downgraded to BB
or worse following such review or the Debt Rating issued by Xxxxx'x is
downgraded to Ba3 or worse following such review, the Administrative Agent, upon
the request of the Majority Banks, shall notify the Borrower that on the later
to occur of (a) the date which is thirty (30) days following the date of such
notice to the Borrower or (b) the date which is one hundred and eighty (180)
days following the issuance of such downgraded Debt Rating, the unused portion
of the credit hereunder shall terminate and all amounts owing with respect to
this Credit Agreement and the Notes shall be due and payable without
presentment, demand or protest. Upon the occurrence of such accelerated Maturity
Date, the unused portion of the credit shall terminate and all amounts owing
with respect to this Credit Agreement and the Notes shall be due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower. Notwithstanding anything to the
contrary set forth herein, the foregoing restriction on Liens shall not apply
to, and there shall be excluded in calculating the aggregate amount of Funded
Debt secured by Liens for purposes of the requirement set forth in the first
sentence of this section 6.2.2, Funded Debt secured by the following:
(a) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims for
labor, material or supplies in
-38-
respect of obligations not overdue or in respect of which the relevant
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceeding for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review and for which any reserves required
in accordance with Generally Accepted Accounting Principles have been
established;
(b) deposits or pledges made in connection with, or to secure payment of,
workmen's compensation, unemployment insurance, old age pensions or other social
security obligations;
(c) liens on properties in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the relevant
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceeding for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review and for which any reserves required
in accordance with Generally Accepted Accounting Principles have been
established;
(d) liens of carriers, warehousemen, mechanics and materialmen, and other
like liens on properties in existence less than 120 days from the date of
creation thereof in respect of obligations not overdue;
(e) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which any Subsidiary is a party, and other minor liens or encumbrances none
of which in the opinion of the Borrower interferes materially with the use of
the property affected in the ordinary conduct of the business of such
Subsidiary, which defects do not individually or in the aggregate have a
materially adverse effect on the business of such Subsidiary individually or of
the Borrower and its Subsidiaries on a consolidated basis;
(f) presently outstanding liens listed on Schedule 6.2.2 hereto;
(g) Liens on property existing at the time the relevant Subsidiary acquires
such property and not created in anticipation of such acquisition, purchase
money security interests in or purchase money mortgages on real or personal
property acquired or constructed after the date hereof to secure Funded Debt
permitted to be incurred hereunder and incurred in connection with the
acquisition or construction of such property at the time of or within 270 days
following the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired, and Liens on
existing properties or assets to secure Funded Debt permitted hereunder and
incurred for improvements on such properties or assets;
(h) liens on the property of a Person (i) existing at the time such Person
is merged into or consolidated with the relevant Subsidiary as permitted hereby
or at the time of a sale, lease or other disposition of the properties of a
Person as an entirety or substantially as an entirety to the relevant Subsidiary
as permitted hereby, (ii) resulting from such merger, consolidation, sale, lease
or disposition by virtue of any Lien on property granted by the relevant
Subsidiary as permitted hereby prior to such merger, consolidation, sale, lease
or disposition (and not in contemplation thereof or in connection therewith)
which applies to after-acquired property of the relevant Subsidiary, or (iii)
resulting from such merger, consolidation, sale, lease or disposition pursuant
to a Lien or contractual provision granted or entered into by such Person prior
to such merger, consolidation, sale, lease or disposition (and not at the
request of the relevant Subsidiary); provided that any such Lien referred to in
clause (i) shall not apply to any property of the relevant Subsidiary other than
the property subject thereto at the time such Person or properties were acquired
and any such Lien referred to in clause (ii) or (iii) shall not apply to any
property of the relevant Subsidiary other than the property so acquired;
-39-
(i) Liens arising by reason of deposits with, or the giving of any form of
security to, any governmental agency or any body created or approved by law or
governmental regulation, which Lien is required by law or governmental
regulation as a condition to the transaction of any business or the exercise of
any privilege, franchise, license or permit and Liens in favor of a government
or governmental entity to secure partial progress, advance or other payments, or
other obligations, pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the costs
of acquiring, constructing or improving the property subject to such Liens
(including, without limitation, Liens incurred in connection with pollution
control, industrial revenue, private activity bond or similar financing) and
Liens to secure Funded Debt incurred by any telephone companies owned by the
Borrower or any of its Subsidiaries to secure Funded Debt owing to governmental
entities such as the Rural Utility Services;
(j) Liens to secure Funded Debt incurred by any telephone company owned by
the Borrower or any of its Subsidiaries to secure Funded Debt owing to
governmental entities and Liens incurred by the Borrower or any of its
Subsidiaries to secure the indebtedness incurred to finance the purchase of
equipment or services; and
(k) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses (a) through (j), inclusive; provided, however, that the
principal amount secured thereby shall not exceed the principal amount secured
thereby at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the obligation so extended, renewed or replaced (plus
improvements to such property).
Section 6.3. Limitation on Sales, Consolidation, Merger, Etc.
---------- -- ----- ------------- ------ ---
(a) The Borrower will not, and will not permit any of its Subsidiaries to
complete a Sale if a Default or Event of Default is continuing, or would result
immediately after giving effect to such Sale.
(b) Nothing contained in this Credit Agreement shall prevent any
consolidation of the Borrower with or merger of the Borrower into any other
Person or Persons (whether or not affiliated with the Borrower), or successive
consolidations or mergers to which the Borrower or its successor or successors
shall be a party or parties, provided that, and the Borrower hereby consents and
agrees that, upon any such consolidation or merger, the due and punctual payment
of the principal of and interest on all of the Loans and the due and punctual
performance and observance of all of the covenants, conditions and other
obligations of the Credit Agreement and the Notes to be performed and observed
by the Borrower, shall be expressly assumed in an agreement satisfactory in form
and substance to the Administrative Agent and the Banks, executed and delivered
to the Administrative Agent by the Person formed by such consolidation or
merger, provided, further, that the Person formed by such consolidation or
merger shall be a Person organized and existing under the laws of the United
States, any state thereof or the District of Columbia, and provided, further,
that immediately before and after giving effect to any such transaction (and
treating any Funded Debt or Sale and Leaseback Transaction which becomes an
obligation of the resulting or surviving Person as a result of such transaction
as having been incurred or entered into by such Person at the time of such
transaction), no Default or Event of Default shall exist. Unless the conditions
prescribed above in this section 6.3(b) are satisfied, no such consolidation or
merger shall be permitted.
(c) Nothing contained in this Credit Agreement shall prevent any
consolidation of any Subsidiary of the Borrower with, or merger of any
Subsidiary of the Borrower into, any other Person or Persons (whether or not
affiliated with the Borrower), or successive consolidations or mergers to which
any such Subsidiary of the Borrower or its successor or successors shall be a
party or parties,
-40-
provided that, immediately before and after giving effect to any such
transaction, no Default or Event of Default shall exist. Unless the condition
prescribed above in this section 6.3(c) is satisfied, no such consolidation or
merger shall be permitted.
Section 6.4. Federal Regulations. The Borrower will not, and will not
------- -----------
permit any of its Subsidiaries to, engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System. The Borrower will not, directly or indirectly, use any
part of the proceeds of any Loans for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System or for any
purpose that violates, or that would be inconsistent with, the provisions of the
Regulations of such Board of Governors.
Section 6.5. Restrictions on Ability to Repay Loans. The Borrower will not,
------------ -- ------- -- ----- -----
and will not permit any of its Material Subsidiaries to, become or remain
subject to any restriction which could reasonably be expected to impair the
Borrower's ability to repay in full its Obligations hereunder, including,
without limitation, any restriction which would prohibit the distribution by any
Material Subsidiary to the Borrower of proceeds from asset sales.
Section 6.6. Employee Benefit Plans. Neither the Borrower nor any ERISA
-------- ------- -----
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of section
406 of ERISA or section 4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan (other than those maintained by
Persons that become ERISA Affiliates after the Closing Date) to incur an
"accumulated funding deficiency", as such term is defined in section 302 of
ERISA, in excess of $500,000, whether or not such deficiency is or may be
waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent which,
or terminate any Guaranteed Pension Plan in a manner which, could result in the
imposition of a lien or encumbrance on the assets of the Borrower or any of its
Subsidiaries pursuant to section 302(f) or section 4068 of ERISA; or
(d) permit or take any action which would result in the aggregate benefit
liabilities (with the meaning of section 4001 of ERISA) of all Guaranteed
Pension Plans (other than those maintained by Persons that become ERISA
Affiliates after the Closing Date) exceeding the value of the aggregate assets
of such Plans by more than $500,000, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of benefit
liabilities.
Section 6.7. Compliance with Environmental Laws. Except as permitted by any
---------- ---- ------------- ----
applicable Environmental Laws, the Borrower will not, and will not permit any of
its Subsidiaries to, (a) use any of the Real Estate or any portion thereof for
the handling, processing, storage or disposal of Hazardous Substances, (b) cause
or permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances, (c) generate any
Hazardous Substances on any of the Real Estate, (d) conduct any activity at any
Real Estate or use any Real Estate in any manner which is likely to cause a
release (i.e. releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, disposing or dumping) of
Hazardous Substances on, upon or into the Real Estate or (e) otherwise conduct
any activity at any Real Estate or use any Real Estate in any manner that might
reasonably be expected to violate any
-41-
Environmental Law or bring such Real Estate in violation of any Environmental
Law if any of the foregoing would be reasonably likely to have a material
adverse effect on the Borrower and its Subsidiaries, taken as a whole.
Section 6.8. Limitation on Sale and Leaseback. The Borrower will not enter
---------- -- ---- --- ---------
into any Sale and Leaseback Transaction unless immediately thereafter (and after
giving effect to the application of the proceeds, if any, therefrom), the
aggregate amount of Capitalized Rent in respect of Sale and Leaseback
Transactions, together with the aggregate principal amount of all Funded Debt
secured by Liens (other than Funded Debt described in clauses (a) through (j),
inclusive, of section 6.2.1) would not exceed two percent (2%) of Consolidated
Capitalization; provided that foregoing restrictions shall not apply to, and
there shall be excluded in computing Funded Debt for the purpose of such
restrictions:
(a) presently outstanding Sale and Leaseback Transactions listed on
Schedule 6.8 hereto;
(b) any Sale and Leaseback Transaction entered into by the Borrower to
finance the payment of all or any part of the purchase price of such real or
personal property (including any improvements to existing property) acquired or
constructed after the date hereof at the time of or within 270 days following
the acquisition or construction of such property, which covers only the real or
personal property so acquired and does not in the aggregate exceed the lesser of
the purchase price or the fair market value of such property;
(c) any Sale and Leaseback Transaction involving property of a Person
existing at the time such Person is merged into or consolidated with the
Borrower as permitted hereby or at the time of a sale, lease or other
disposition of the properties of a Person as an entirety or substantially as an
entirety to the Borrower as permitted hereby;
(d) any Sale and Leaseback Transaction in which the lessor is a government
or governmental entity and which Sale and Leaseback Transaction is entered into
to secure partial progress, advance or other payments, or other obligations,
pursuant to any contract or statute or to secure any indebtedness incurred for
the purpose of securing all or any part of the cost of constructing or improving
the property subject to such Sale and Leaseback Transaction (including, without
limitation, Sale and Leaseback Transactions incurred in connection with
pollution control, industrial revenue, private activity bond or similar
financing);
(e) any Sale and Leaseback Transaction involving the extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or in
part of a lease pursuant to a Sale and Leaseback Transaction referred to in the
foregoing clauses (a) through (d), inclusive; provided, however, that any such
lease, extension, renewal or replacement shall be limited to all or any part of
the same property leased under the lease so extended, renewed or replaced (plus
improvements to such property); and
(f) any Sale and Leaseback Transaction the net proceeds of which are at
least equal to the fair value (as determined by the Borrower's Board of
Directors) of the property leased pursuant to such Sale and Leaseback
Transaction, so long as within 270 days of the effective date of such Sale and
Leaseback Transaction, the Borrower applies (or irrevocably commits to an escrow
account for the purpose or purposes hereinafter mentioned) an amount equal to
the net proceeds of such Sale and Leaseback Transaction to either (x) the
purchase of other property having a fair market value at least equal to the fair
market value of the property leased in such Sale and Leaseback Transaction and
having a similar utility and function or (y) the repayment of Funded Debt of the
Borrower or the retirement of preferred stock of any Subsidiary (other than
preferred stock owned by the Borrower or any Subsidiary) and if any such
repayment is applied to the Loans under this Credit Agreement then
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upon such repayment first the Total MT Commitment shall be automatically reduced
by an amount equal to the amount of such repayment and second the Total ST
Commitment shall be automatically reduced by an amount equal to the amount of
such repayment.
Section 7. FINANCIAL COVENANTS OF THE BORROWER. The Borrower covenants and
--------- --------- -- --- --------
agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of
Credit or Note is outstanding or any Bank has any obligation to make any Loans
or the Administrative Agent has any obligation to issue, extend or renew any
Letters of Credit:
Section 7.1. Debt to Capitalization Ratio. The Borrower will not permit its
---- -- -------------- -----
Funded Debt to Capitalization Ratio to exceed sixty-five percent at any time.
Section 7.2. Interest Coverage Ratio. The Borrower will not permit its
-------- -------- -----
Interest Coverage Ratio for any period consisting of the four consecutive fiscal
quarters of the Borrower most recently ended to be less than 3.00 to 1.00.
Section 8. CLOSING CONDITIONS. The effectiveness of this Agreement and the
------- ----------
obligation of any Bank to make the initial Loans and of the Administrative Agent
to issue any initial Letters of Credit on the Closing Date shall be subject to
the satisfaction of the following conditions precedent:
Section 8.1. Corporate Action. All corporate action necessary for the valid
--------- ------
execution, delivery and performance by the Borrower of this Credit Agreement and
the other Loan Documents to which it is or is to become a party shall have been
duly and effectively taken, and evidence thereof satisfactory to the Banks shall
have been provided to each of the Banks.
Section 8.2. Loan Documents. Each of the Loan Documents shall have been
---- ---------
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to each of the
Banks. Each Bank shall have received a fully executed copy of each such
document.
Section 8.3. Opinion of Borrower's Legal Counsel. Each of the Banks and the
------- -- ---------- ----- -------
Administrative Agent shall have received from legal counsel to the Borrower, a
favorable opinion addressed to the Banks and the Administrative Agent dated the
Closing Date, in substantially the form of Exhibit D hereto.
Section 8.4. Certified Copies of Charter Documents. Each of the Banks shall
--------- ------ -- ------- ---------
have received from the Borrower a copy of the Borrower's charter or other
incorporation documents and by-laws certified by the Secretary of the Borrower
to be true and complete as of the Closing Date.
Section 8.5. Incumbency Certificate. Each of the Banks shall have received
---------- -----------
from the Borrower an incumbency certificate, dated the Closing Date, signed by a
duly authorized officer of the Borrower, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to sign, in
the name and on behalf of the Borrower, each of the Loan Documents to which it
is or is to become a party; (b) to make Loan Requests, Continuation Requests and
to apply for Letters of Credit; and (c) to give notices and to take other action
on its behalf under the Loan Documents.
Section 8.6. Good Standing Certificates. The Administrative Agent shall
---- -------- ------------
have received, with a copy for each Bank, a certificate from the Secretary of
State, or other appropriate authority of such
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jurisdiction, evidencing the good standing of the Borrower in the jurisdiction
of its incorporation and each jurisdiction in which a failure to so qualify
could have a materially adverse effect on the business, operations, property or
financial or other condition of the Borrower.
Section 8.7. Payment of Fees. The Borrower shall have paid (a) to the
------- -- ----
Agents all fees which the Borrower is obligated to pay on the Closing Date
pursuant to the fee letters executed by the Borrower and the Agents in
connection with this Credit Agreement and (b) to the Administrative Agent's
Special Counsel all invoiced amounts which the Borrower is obligated to pay
pursuant to section 12(c).
Section 9. CONDITIONS TO ALL BORROWINGS. The obligation of any Bank to make
---------- -- --- ----------
any Loan, and of the Administrative Agent to issue, extend or renew any Letter
of Credit, in each case whether on or after the Closing Date, shall also be
subject to the satisfaction of the following conditions precedent:
Section 9.1. Representations True; No Event of Default. Each of the
--------------- ---- -- ----- -- -------
representations and warranties of the Borrower contained in this Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with this Credit Agreement shall be true as of the date as of which
they were made and shall also be true at and as of the time of the making of the
Loan or the issuance, extension or renewal of such Letter of Credit, with the
same effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Credit Agreement
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing. The
Administrative Agent shall have received a certificate of the Borrower signed by
an authorized officer of the Borrower to such effect.
Section 9.2. No Legal Impediment. No change shall have occurred in any law
-- ----- ----------
or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Bank would make it illegal for such Bank to make the Loans or to
participate in the issuance, extension or renewal of any Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew any Letter of Credit.
Section 9.3. Governmental Regulation. Each Bank shall have received such
------------ ----------
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
Section 9.4. Proceedings and Documents. All proceedings in connection with
----------- --- ---------
the transactions contemplated by this Credit Agreement and all documents
incident thereto shall be satisfactory in substance and in form to the Banks and
to the Administrative Agent's Special Counsel, and the Banks and such counsel
shall have received all information and such counterpart originals or certified
or other copies of such documents as the Banks may reasonably request.
Section 10. EVENTS OF DEFAULT; ACCELERATION. If any of the following events
------ -- ------- ------------
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
-44-
(b) the Borrower shall fail to pay any interest on the Loans, any Letter of
Credit Fee, the ST Facility Fee, the MT Facility Fee, the Utilization Fee or
other sums due hereunder or under any of the other Loan Documents, on or prior
to the second day immediately succeeding the day on which the same shall become
due and payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(c) the Borrower or any Subsidiary of the Borrower shall fail to comply
with any of its covenants contained in section 5.9, 5.10, 5.12, 5.15 through
5.17, inclusive, section 6 or section 7;
(d) the Borrower fails to perform any term, covenant or agreement contained
in section 5.4 for five (5) days after written notice of such failure has been
given to the Borrower by the Administrative Agent or the Borrower shall fail to
perform any other term, covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified elsewhere in this section 10)
for thirty (30) days after written notice of such failure has been given to the
Borrower by the Administrative Agent or, if such performance is not possible
within such thirty (30) day period, the Borrower shall fail to undertake such
performance within such thirty (30) day period and thereafter to diligently and
in good faith pursue the completion of such performance;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents or in
any other document or instrument delivered pursuant to or in connection with
this Credit Agreement shall prove to have been false in any material respect
upon the date when made;
(f) the Borrower or any of its Subsidiaries shall (i) fail to pay at
maturity, or within any applicable period of grace, any obligation for borrowed
money in an aggregate amount equal to or greater than 2% of the Consolidated
Capitalization of the Borrower or (ii) fail to observe or perform any term,
covenant or agreement relating to or contained in any instrument or agreement
evidencing or securing any obligation for borrowed money which results in the
acceleration (whether by declaration or automatically) of such indebtedness in
an aggregate amount equal to or greater than 2% of the Consolidated
Capitalization of the Borrower;
(g) the Borrower or any of its Material Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its inability to
pay or generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Material Subsidiaries or of
any substantial part of the assets of the Borrower or any of its Material
Subsidiaries or shall commence any case or other proceeding relating to the
Borrower or any of its Material Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or
shall take any action to authorize or in furtherance of any of the foregoing, or
if any such petition or application shall be filed or any such case or other
proceeding shall be commenced against the Borrower or any of its Material
Subsidiaries and the Borrower or any of its Material Subsidiaries shall indicate
its approval thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating the Borrower or any of its Material
Subsidiaries bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower or any Material Subsidiary of the Borrower in an involuntary case under
federal bankruptcy laws as now or hereafter constituted; or
(i) there shall remain in force, undischarged, unsatisfied and unstayed,
for more than thirty (30) days, whether or not consecutive, any final judgment
against the Borrower or any of its
-45-
Subsidiaries that, with other outstanding final judgments, undischarged and not
covered by insurance, against such Person(s) exceeds in the aggregate five (5)
percent of the Consolidated Net Worth of the Borrower;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit Agreement, the Notes, the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower; provided that in the
event of any Event of Default specified in section 10(g) or section 10(h), all
such amounts shall become immediately due and payable automatically and without
any requirement of notice from the Administrative Agent or any Bank.
If any one or more of the Events of Default specified in section 10(g) or
section 10(h) shall occur, any unused portion of the credit hereunder shall
forthwith terminate and each of the Banks shall be relieved of all obligations
to make Loans hereunder and the Administrative Agent shall be relieved of all
further obligations to issue, extend or renew Letters of Credit. If any other
Event of Default shall have occurred and be continuing, the Administrative
Agent, upon the request of the Majority Banks, shall, by notice to the Borrower,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Banks shall be relieved of all further obligations to make Loans
and the Administrative Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any such notice is given to the
Borrower, the Administrative Agent will forthwith furnish a copy thereof to each
of the Banks. No termination of the credit hereunder shall relieve the Borrower
of any of the Obligations or any of its existing obligations to the Banks
arising under other agreements or instruments.
Section 11. THE AGENTS.
--- ------
Section 11.1. Authorization. The Administrative Agent is authorized to take
-------------
such action on behalf of each of the Banks and to exercise all such powers as
are hereunder and in related documents delegated to the Administrative Agent,
together with such powers as are reasonably incident thereto; provided that no
duties or responsibilities not expressly assumed herein or therein shall be
implied to have been assumed by the Administrative Agent. The relationship among
the Agents, on the one hand, and the Banks, on the other hand, shall be that of
agent and principal only and nothing contained in this Credit Agreement or any
of the related documents shall be construed to constitute the Agents as trustees
of the Banks.
Section 11.2. Employees and Agents. The Administrative Agent may exercise
--------- --- ------
its powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Credit Agreement and the other
Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and upon the occurrence and during the continuation of a Default or
an Event of Default, all reasonable fees and expenses of any such Persons shall
be paid by the Borrower.
Section 11.3. No Liability. None of the Agents nor any of their respective
-- ---------
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Agents or such
other Person, as the case may be, may
-46-
be liable for losses due to its own willful misconduct or gross negligence.
Section 11.4. No Representations. The Agents shall not be responsible for
-- ---------------
the execution or validity or enforceability of this Credit Agreement, the Notes,
the Letters of Credit or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes. The Agents shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to them by the Borrower or any
holder of any of the Notes shall have been duly authorized or is true, accurate
and complete. The Agents have not made nor do they now make any representations
or warranties, express or implied, nor do they assume any liability to the
Banks, with respect to the credit worthiness or financial conditions of the
Borrower or any of its Subsidiaries. Each Bank acknowledges that it has,
independently and without reliance upon the Agents or the other Banks, and based
upon such information and documents as it has deemed appropriate, made its own
credit analysis and decision to enter into this Credit Agreement.
Section 11.5. Payments. If in the opinion of the Administrative Agent the
--------
distribution of any amount received by it in such capacity hereunder or under
the Notes might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge that
any amount received and distributed by the Administrative Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either
repay to the Administrative Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. With respect to Obligations, a
payment to the Administrative Agent shall be deemed to be a payment to each Bank
of its pro rata share of such payment.
Section 11.6. Holders of Notes. The Administrative Agent may deem and treat
------- -- -----
the payee of any Note or the purchaser of any Letter of Credit Participation as
the absolute owner thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder.
Section 11.7. Indemnity. The Banks jointly and severally agree hereby to
---------
indemnify and hold harmless the Agents from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agents have not been reimbursed
by the Borrower as required by section 12 or section 13), and liabilities of
every nature and character arising out of or related to this Credit Agreement or
the Notes or the transactions contemplated or evidenced hereby or thereby, or
the Agents' actions taken hereunder or thereunder, except to the extent that any
of the same shall be directly caused by such Agent's own willful misconduct or
gross negligence.
Section 11.8. Agents as Banks. In their individual capacities, Fleet,
------ -- -----
LaSalle Bank National Association and Toronto Dominion (Texas), Inc. shall have
the same obligations and the same rights, powers and privileges in respect to
its ST Commitments and MT Commitments and the Loans made by it, and as the
holder of any of the Notes and as the purchaser of any Letter of Credit
Participations, as it would have were it not also an Agent or an Affiliate of an
Agent.
Section 11.9. Resignation. Any Agent may resign at any time by giving
-----------
ninety (90) days'
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prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint another Bank or
any other financial institution as the successor Agent. Unless a Default or
Event of Default shall have occurred and be continuing, such successor, if other
than a Bank, shall be reasonably acceptable to the Borrower. If no successor
Agent shall have been so appointed by the Majority Banks and shall have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, as the case may be. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation, the provisions of this Credit Agreement shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent.
Section 11.10. Documentation Agent and Syndication Agent. Neither the
------------- ----- --- ----------- -----
Documentation Agent nor the Syndication Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such.
Section 12. EXPENSES. The Borrower agrees to pay (a) the reasonable cost of
--------
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (b) any taxes (including
any interest and penalties in respect thereto) payable by the Administrative
Agent or the Banks (other than taxes based upon the Administrative Agent's or
any Bank's net income) on or with respect to the transactions contemplated by
this Credit Agreement (the Borrower hereby agreeing to indemnify the Banks with
respect thereto), (c) the reasonable fees, expenses and disbursements of the
Administrative Agent's Special Counsel or any local counsel to the
Administrative Agent incurred in connection with the preparation, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder regardless of whether any such transaction is
consummated, (d) the fees, expenses and disbursements of the Administrative
Agent incurred by the Administrative Agent in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder and amendments, modifications,
approvals, consents or waivers hereto or hereunder, regardless of whether any
such transaction is consummated, and (e) all reasonable out-of-pocket expenses
(including reasonable attorneys' (which attorneys may be, but shall not be
required to be, employees of any Bank or the Administrative Agent) fees and
costs) incurred by any Bank or the Administrative Agent in connection with (i)
the enforcement of any of the Loan Documents against the Borrower or any of its
Subsidiaries or the administration thereof after the occurrence of a Default or
Event of Default, (ii) any so-called "work-out" of the Obligations and (iii) any
litigation, proceeding or dispute whether arising hereunder or otherwise in
connection with the transactions contemplated hereby or under the other Loan
Documents, in any way related to any Bank's or the Administrative Agent's
relationship with the Borrower or any of its Subsidiaries. The covenants of this
section 12 shall survive payment or satisfaction of payment of amounts owing
under or with respect to the Loan Documents.
Section 13. INDEMNIFICATION. The Borrower agrees to indemnify and hold
---------------
harmless the Administrative Agent and the Banks from and against any and all
claims, actions and suits whether groundless or otherwise, and from and against
any and all liabilities, losses, damages and expenses of every nature and
character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions evidenced hereby unless any such claims, actions
or suits arise out of the Administrative Agent's or the Banks' intentional
misconduct or gross negligence. In litigation, or the preparation therefor, the
Banks and the Administrative Agent shall be entitled to select their own counsel
and, in addition to the foregoing indemnity, the Borrower agrees to pay
-48-
promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under this section 13 are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The covenants of this section 13 shall survive payment or
satisfaction of payment of amounts owing under or with respect to the Loan
Documents.
Section 14. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
-------- -- --------- ---
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower pursuant hereto shall be deemed to have been relied upon by the
Banks and the Administrative Agent, notwithstanding any investigation heretofore
or hereafter made by any of them, and shall survive the making by the Banks of
the Loans and the issuance, extension or renewal of any Letters of Credit, as
herein contemplated, and shall continue in full force and effect so long as any
Obligation remains outstanding or any Bank has any obligation to make any Loans
or the Administrative Agent has any obligation to issue, extend or renew any
Letter of Credit. All statements contained in any certificate or other paper
delivered to any Bank or the Administrative Agent at any time by or on behalf of
the Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
Section 15. ASSIGNMENT AND PARTICIPATION.
---------- --- -------------
Section 15.1. Conditions to Assignment by Banks. Except as provided herein,
---------- -- ---------- -- -----
each Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its ST Commitment Percentage and ST Commitment and the same portion
of the ST Loans at the time owing to it, all or a portion of its MT Commitment
Percentage and MT Commitment and the same portion of the MT Loans at the time
owing to it, the Notes held by it and its participation interest in the risk
relating to any Letters of Credit); provided that (a) the Administrative Agent
and the Borrower (unless such assignment is (i) to any Federal Reserve Bank or
(ii) from the Administrative Agent to an affiliate of an Administrative Agent)
shall have given its prior written consent to such assignment, which consent
will not be unreasonably withheld, (b) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Credit Agreement, (c) each Bank shall have an aggregate
ST Commitment plus MT Commitment that is at least $5,000,000 and (d) the parties
to such assignment shall execute and deliver to the Administrative Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit E hereto (an "Assignment and
Acceptance"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder,
(ii) the assigning Bank shall, to the extent provided in such assignment and
upon payment to the Administrative Agent of the registration fee referred to in
section 15.3, be released from its obligations under this Credit Agreement and
(iii) Schedule 1.1(a) shall be deemed to be automatically amended to reflect the
change in the Banks and each Bank's ST Commitment, MT Commitment, ST Commitment
Percentage and MT Commitment Percentage resulting from such Assignment and
Acceptance.
Section 15.2. Certain Representations and Warranties; Limitations;
------- --------------- --- ---------- -----------
Covenants. By executing and delivering an Assignment and Acceptance, the parties
---------
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned
-49-
thereby free and clear of any adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or the attachment, perfection or priority of any security interest or
mortgage; (b) the assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower and
its Subsidiaries or any other Person primarily or secondarily liable in respect
of any of the Obligations, or the performance or observance by the Borrower and
its Subsidiaries or any other Person primarily or secondarily liable in respect
of any of the Obligations of any of their obligations under this Credit
Agreement or any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (c) such assignee confirms that it has
received a copy of this Credit Agreement, together with copies of the most
recent financial statements referred to in section 4.4 and section 5.4 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (d)
such assignee will, independently and without reliance upon the assigning Bank,
the Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Credit Agreement; (e)
such assignee represents and warrants that it is an Eligible Assignee; (f) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Credit Agreement and
the other Loan Documents as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto; (g) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Credit Agreement are
required to be performed by it as a Bank; (h) such assignee represents and
warrants that it is legally authorized to enter into such Assignment and
Acceptance; and (i) such assignee acknowledges that it has made arrangements
with the assigning Bank satisfactory to such assignee with respect to its pro
rata share of Letter of Credit Fees in respect of outstanding Letters of Credit.
Section 15.3. Register. The Administrative Agent shall maintain a copy of
--------
each Assignment and Acceptance delivered to it and a register or similar list
(the "Register") for the recordation of the names and addresses of the Banks and
the ST Commitment Percentage and MT Commitment Percentage of, and principal
amount of the Loans owing to and Letter of Credit Participations purchased by,
the Banks from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Banks may treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Credit Agreement. The Register shall be
available for inspection by the Borrower and the Banks at any reasonable time
and from time to time upon reasonable prior notice. Upon each such recordation,
the assigning Bank agrees to pay to the Administrative Agent a registration fee
in the sum of $3,500.
Section 15.4. New Notes. Upon its receipt of an Assignment and Acceptance
--- -----
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank). Within five (5) Business
Days after receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Bank in
an amount equal to the amount retained by it hereunder. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and
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shall otherwise be in substantially the form of the assigned Notes. Upon the
request of any Bank, the Borrower shall within five (5) days of the issuance of
any new Notes pursuant to this section 15.4, at the requesting Bank's expense,
deliver an opinion of counsel, addressed to the Banks and the Agents, relating
to the due authorization, execution and delivery of such new Notes and the
legality, validity and binding effect thereof, in form and substance
satisfactory to the Banks. The surrendered Notes shall be cancelled and returned
to the Borrower.
Section 15.5. Participations. Each Bank may sell participations to one or
--------------
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (a) each such participation shall be in an amount of not less than
$5,000,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the ST Commitment or MT Commitment of such Bank as it relates to such
participant, reduce the amount of any ST Facility Fees, MT Facility Fees,
Utilization Fee or Letter of Credit Fees to which such participant is entitled
or extend any regularly scheduled payment date for principal or interest.
Section 15.6. Disclosure. The Borrower agrees that in addition to
----------
disclosures made in accordance with standard and customary banking practices,
any Bank may in accordance with the terms of section 25 hereof disclose
information obtained by such Bank pursuant to this Credit Agreement, other than
the projections delivered to the Agents referenced in section 4.4(b), to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
Section 15.7. Assignee or Participant Affiliated with the Borrower. If any
-------- -- ----------- ---------- ---- --- --------
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to section
10, and the determination of the Majority Banks shall for all purposes of this
Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Loans or Reimbursement Obligations. If any Bank
sells a participating interest in any of the Loans or Reimbursement Obligations
to a participant, and such participant is the Borrower or an Affiliate of the
Borrower, then such transferor Bank shall promptly notify the Administrative
Agent of the sale of such participation. A transferor Bank shall have no right
to vote as a Bank hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of agreeing to
amendments or modifications to any of the Loan Documents or for purposes of
making requests to the Administrative Agent pursuant to section 10 to the extent
that such participation is beneficially owned by the Borrower or any Affiliate
of the Borrower, and the determination of the Majority Banks shall for all
purposes of this Agreement and the other Loan Documents be made without regard
to the interest of such transferor Bank in the Loans or Reimbursement
Obligations to the extent of such participation.
Section 15.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
------------- ---------- ----------
retain its rights to be indemnified pursuant to section 12 and section 13 with
respect to any claims or actions arising prior to the date of such assignment.
Any assignee Bank that is not incorporated or organized
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under the laws of the United States of America or any state thereof, shall,
prior to the date on which any interest or fees are payable hereunder or under
any of the other Loan Documents for its account, deliver to the Borrower and the
Administrative Agent two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be,
certifying in each case that such Bank is entitled to receive payments under
this Credit Agreement or any of the other Loan Documents payable to it, without
deduction or withholding of any United States federal income taxes. Anything
contained in this section 15 to the contrary notwithstanding, any Bank may at
any time pledge all or any portion of its interest and rights under this Credit
Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Banks organized under section 4 of the Federal Reserve Act, 12
U.S.C. section 341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
Section 15.9. Assignment by Borrower. The Borrower shall not assign or
---------- -- --------
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of the Administrative Agent and each of the
Banks.
Section 16. NOTICES, ETC. Except as otherwise expressly provided in this
------- ---
Credit Agreement, all notices and other communications made or required to be
given pursuant to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, or sent
by telegraph, telecopy, telefax or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrower, at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Corporate Treasurer, (with a copy to Xxxxxxx X. Xxxx, Xxxxxx
Xxxxxx Xxxxx & Xxxx, Bank One Plaza, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 and a copy to Xxxxxxx Xxxxxxxxx, Secretary of the Borrower at 0000
Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 53562-3539), or at such other address for notice
as the Borrower shall last have furnished in writing to the Person giving the
notice;
(b) if to the Administrative Agent or Fleet, at the address set forth for
Fleet on Schedule 1.1(a) hereto or such other address for notice as Fleet shall
last have furnished in writing to the Person giving the notice;
(c) if to any other Agent or any other Bank, at the address set forth for
such Agent or Bank in Schedule 1.1(a) hereto or such other address for notice as
such Agent or such Bank shall have last furnished in writing to the Person
giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if telecopied, or delivered by hand to a
responsible officer of the party to which it is directed, at the time of the
receipt thereof by such officer and (ii) if sent by registered or certified
first-class mail, postage prepaid, three days after the date mailed.
Section 17. GOVERNING LAW. THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN
--------- ---
DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR
ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN
GENERAL OBLIGATIONS LAW section 5-1401). THE BORROWER CONSENTS TO THE
JURISDICTION IN ANY OF THE FEDERAL OR STATE COURTS LOCATED IN THE STATE OF NEW
YORK IN CONNECTION WITH ANY SUIT TO ENFORCE THE RIGHTS OF THE BANKS AND THE
AGENT UNDER THIS CREDIT AGREEMENT OR ANY OF
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THE OTHER LOAN DOCUMENTS.
Section 18. HEADINGS. The captions in this Credit Agreement are for
--------
convenience of reference only and shall not define or limit the provisions
hereof.
Section 19. COUNTERPARTS. This Credit Agreement and any amendment hereof
------------
may be executed in several counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original,
and all of which together shall constitute one instrument. In proving this
Credit Agreement it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
Section 20. ENTIRE AGREEMENT, ETC. The Loan Documents and any other
------ --------- ---
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Credit Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in section 22.
Section 21. WAIVER OF JURY TRIAL. The Borrower hereby waives its right to a
------ -- ---- -----
jury trial with respect to any action or claim arising out of any dispute in
connection with this Credit Agreement or any of the other Loan Documents, any
rights or obligations hereunder or thereunder or the performance of such rights
and obligations. The Borrower (a) certifies that no representative, agent or
attorney of any Bank or the Administrative Agent has represented, expressly or
otherwise, that such Bank or the Administrative Agent would not, in the event of
litigation seek to enforce the foregoing waivers and (b) acknowledges that it
has been induced to enter into this Credit Agreement and the other Loan
Documents by, among other things, the mutual waivers and certifications
contained herein.
Section 22. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
-------- ---------- ------- ---
expressly provided in this Credit Agreement, any consent or approval required or
permitted by this Credit Agreement to be given by the Banks may be given, and
any term of this Credit Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower of any terms of this Credit Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Borrower and the written consent of the
Majority Banks. Notwithstanding the foregoing, no amendment, modification or
waiver shall:
(a) without the written consent of the Borrower and each Bank directly
affected thereby:
(i) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the Notes
or the amount of the ST Facility Fee, the MT Facility Fee, the
Utilization Fee or Letter of Credit Fees (other than interest accruing
pursuant to section 3.11 following the effective date of any waiver by
the Majority Banks of the Default or Event of Default relating
thereto);
(ii) increase the amount of such Bank's ST Commitment or MT
Commitment, or extend the expiration date of such Bank's ST Commitment
or MT Commitment; and
(iii) postpone or extend the ST Maturity Date or the MT Maturity
Date or any other regularly scheduled dates for payments of principal
of, or interest on, the Loans or Reimbursement Obligations or any fees
or other amounts payable to such Bank (it being understood that (A) a
waiver of the application of the default rate of interest pursuant to
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section 3.11, and (B) any vote to rescind any acceleration made
pursuant to section 10 of amounts owing with respect to the Loans and
other Obligations shall require only the approval of the Majority
Banks);
(b) without the written consent of all of the Banks, amend or waive this
section 22 or the definition of Majority Banks;
(c) without the written consent of the Administrative Agent, amend or waive
section 2.5(c), section 2.9, the amount or time of payment of Letter of Credit
Fees payable for the Administrative Agent's account or any other provision
applicable to the Administrative Agent; and
(d) without the written consent of the Agents, amend or waive section 11.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of any Bank or the Administrative Agent in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
Section 23. FCC APPROVAL. Notwithstanding anything to the contrary
--- --------
contained in this Credit Agreement or in the other Loan Documents, neither the
Administrative Agent nor any Bank will take any action pursuant to this
Agreement or any of the other Loan Documents, which would constitute or result
in a change in control of the Borrower or any of its Subsidiaries requiring the
prior approval of the FCC without first obtaining such prior approval of the
FCC. After the occurrence of an Event of Default, the Borrower shall take or
cause to be taken any action which the Agents may reasonably request in order to
obtain from the FCC such approval as may be necessary to enable the Agents to
exercise and enjoy the full rights and benefits granted to the Administrative
Agent, for the benefit of the Banks by this Credit Agreement or any of the other
Loan Documents, including, at the Borrower's cost and expense, the use of the
Borrower's best efforts to assist in obtaining such approval for any action or
transaction contemplated by this Credit Agreement or any of the other Loan
Documents for which such approval is required by law.
Section 24. SEVERABILITY. The provisions of this Credit Agreement are
------------
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
Section 25. CONFIDENTIALITY. Each of the Banks and the Administrative Agent
---------------
agrees to keep any non-public information delivered or made available to it
pursuant to this Credit Agreement or any other Loan Document confidential from
any Person other than officers, employees, agents, accountants, professional
advisors, counsel, designees or representatives of such Bank or the
Administrative Agent who are or are expected to become engaged in evaluating,
approving, structuring or administering this Credit Agreement or any of the
other Loan Documents; provided, that, nothing herein shall prevent the
Administrative Agent or any Bank from disclosing such information (i) ,other
than the projections delivered to the Agents referenced in section 4.4(b), to
any assignee or participant that has agreed in writing to comply with the
confidentiality provision of this section 25 in connection with the contemplated
assignment or participation, (ii) to any of its Affiliates to the extent any
such Affiliates require such information in the ordinary course of the
Administrative Agent's or such Bank's credit committee or asset management
procedures, or (iii) as
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required or requested by any governmental authority or representative thereof or
pursuant to subpoena or other legal process, by virtue of any other law,
regulation, order, or interpretation, or as required in connection with the
exercise or any remedy under this Credit Agreement or any of the other Loan
Documents.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement under seal as of the date first set forth above.
TELEPHONE AND DATA SYSTEMS, INC.
/s/ Xxxxxx X. Xxxxxx
By:------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and CFO
/s/ Xxxxx X. Xxxxxx
By:------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
FLEET NATIONAL BANK, individually and
as Administrative Agent
/s/ Xxxxxx (Xxx) Xxxxxxx
By:------------------------------------------------
Name: Xxxxxx (Xxx) Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, individually and
as Documentation Agent
/s/ Xxxxxxx X. Xxxxxxxxxx
By:------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Commercial Banking Officer
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TORONTO DOMINION (TEXAS), INC.,
individually
/s/ Xxxxxx X. Xxxxxx
By:------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
TD SECURITIES (USA) INC.,
as Syndication Agent
/s/ Xxxxxx Xxxx
By:------------------------------------------------
Name: Xxxxxx Xxxx
Title: Associate
