LOAN AGREEMENT Dated as of March 8, 2007 among CITIZENS COMMUNICATIONS COMPANY (as Borrower) and THE LENDERS NAMED HEREIN (as Lenders) CITICORP NORTH AMERICA, INC. (as Administrative Agent) CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA)...
Exhibit
10.3
$200,000,000
Dated
as of March 8, 2007
among
(as
Borrower)
and
THE
LENDERS NAMED HEREIN
(as
Lenders)
CITICORP
NORTH AMERICA, INC.
(as
Administrative Agent)
________________________________________
CITIGROUP
GLOBAL MARKETS INC.,
CREDIT
SUISSE SECURITIES (USA) LLC
and
X.X.
XXXXXX SECURITIES INC.
as
Joint-Lead Arrangers and Joint Book-Running Managers
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1
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Defined
Terms
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1
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Terms
Generally
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13
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Times
of Day
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13
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14
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Commitments
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14
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Loans
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14
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[Reserved]
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15
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Borrowing
Procedure
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15
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Conversions
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15
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Fees
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15
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Repayment
of Loans
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16
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Interest
on Loans
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16
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Default
Interest
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17
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Alternate
Rate of Interest
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17
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Reductions
in Commitment
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17
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Prepayment
|
17
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Reserve
Requirements; Change in Circumstances
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18
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Change
in Legality
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19
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Indemnity
|
20
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Pro
Rata Treatment
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20
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Sharing
of Setoffs
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20
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Payments;
Administrative Agent’s Clawback
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21
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Taxes
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22
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24
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Organization;
Powers; Governmental Approvals
|
24
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Financial
Statements
|
25
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[Reserved]
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25
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Title
to Properties; Possession Under Leases
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25
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Ownership
of Subsidiaries
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25
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Litigation;
Compliance with Laws
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25
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Agreements
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26
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Federal
Reserve Regulations
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26
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Investment
Company Act; Public Utility Holding Company Act
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26
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Use
of Proceeds
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27
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Tax
Returns
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27
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No
Material Misstatements
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27
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Employee
Benefit Plans
|
27
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Insurance
|
27
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Senior
Debt
|
28
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28
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Each
Borrowing
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28
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Term
Loan
|
28
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i
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Page
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30
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Existence;
Businesses and Properties
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30
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Financial
Statements, Reports, etc
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30
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Litigation
and Other Notices
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32
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Maintaining
Records
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32
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Use
of Proceeds
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32
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33
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Liens;
Restrictions on Sales of Receivables
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33
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Ownership
of the Principal Subsidiaries
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33
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[Reserved]
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34
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Mergers
|
34
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Restrictions
on Dividends
|
34
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Transactions
with Affiliates
|
34
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Financial
Ratio
|
35
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Guarantees
|
35
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35
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Events
of Default
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35
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Application
of Funds
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37
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37
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40
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Notices
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40
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Survival
of Agreement
|
41
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Binding
Effect
|
42
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Successors
and Assigns
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42
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Expenses;
Indemnity
|
44
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Right
of Setoff
|
45
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Applicable
Law
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45
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Waivers;
Amendment
|
45
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Interest
Rate Limitation
|
46
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Entire
Agreement
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46
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Waiver
of Jury Trial
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46
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Severability
|
47
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Counterparts
|
47
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Headings
|
47
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Jurisdiction;
Consent to Service of Process
|
47
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USA
PATRIOT Act Notice
|
48
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Payments
Set Aside
|
48
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Treatment
of Certain Information; Confidentiality
|
48
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ii
Exhibit
A Form
of
Borrowing Request
Exhibit
B Form
of
Conversion Request
Exhibit
C Form
of
Assignment and Assumption
Exhibit
D Form
of
Note
Schedule
2.01 Lenders’
Commitment
Schedule
3.13 List
of
Plans
Schedule
6.08 Guarantees
Schedule
9.01 Administrative
Agent’s Office; Certain Addresses for Notices
iii
LOAN
AGREEMENT,
dated
as of March 8, 2007, among CITIZENS COMMUNICATIONS COMPANY, a Delaware
Corporation (the “Borrower”),
the
Lenders listed in Schedule
2.01
(together with any assignees pursuant to Section
9.04,
the
“Lenders”)
and
CITICORP NORTH AMERICA, INC. (“Citicorp”),
as
Administrative Agent for the Lenders (in such capacity, the “Administrative
Agent”).
The
Borrower has requested the Lenders to extend credit in the form of a Term Loan
(such term and each other capitalized term used but not defined in this
introductory statement having the meaning given it in Article
I)
available in a single drawing on the Effective Date in an aggregate principal
amount not in excess of $200,000,000.
The
Lenders are willing to extend such credit to the Borrower on the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
DEFINITIONS
SECTION
1.01. Defined
Terms.
As
used
in this Agreement, the following terms shall have the meanings specified
below:
“ABR
Borrowing”
shall
mean a Borrowing comprised of ABR Loans.
“ABR
Loan”
shall
mean any Loan bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of Article
II.
“Acquisition”
means
the acquisition by the Borrower of all of the capital stock of Commonwealth
Telephone Enterprises, Inc. pursuant to the Acquisition Agreement.
“Acquisition
Agreement”
means
that certain Agreement and Plan of Merger, dated as of September 17, 2006,
among
the Borrower, Commonwealth Telephone Enterprises, Inc. and CF Merger Corp.,
a
newly formed wholly-owned subsidiary of the Borrower.
“Acquisition
Material Adverse Effect”
shall
mean a materially adverse effect on the business, assets, liabilities,
operations or financial condition of the Borrower, the Borrower’s Subsidiaries
and the Target, taken as a whole, since December 31, 2005, excluding any such
effect arising in connection with (i) the Acquisition Agreement, the
transactions contemplated thereby or the announcement or consummation thereof
or
the taking of any actions
required by the Acquisition Agreement, (ii) changes or conditions generally
affecting the industries in which the Borrower, its Subsidiaries or the Target
operate, to the extent such
changes
or conditions do not disproportionately impact the Borrower, its Subsidiaries
and the Target, taken as a whole, (iii) general economic or financial markets
conditions, (iv) any change in GAAP in the United States, (v) changes in any
Federal, state or local law (statutory, common or otherwise), constitution,
treaty, conversion, ordinance, code, rule, regulation, order, injunction,
decree, ruling or other similar requirement enacted, adopted, promulgated or
applied by any Governmental Authority, including any political subdivision
thereof, that is binding upon or applicable to the Borrower, its Subsidiaries
or
the Target, the properties or assets of any of the forgoing or the business
or
operations of any of the foregoing, to the extent such changes do not
disproportionately impact the Borrower, its Subsidiaries and the Target, taken
as a whole, (vi) any failure by the Borrower, its Subsidiaries or the Target
to
meet analysts’ revenue or earning projections and (vii) any decline in the price
of any publicly traded securities of the Borrower or the Target (it being
understood, in the case of clauses
(vi)
and
(vii),
that
the facts or occurrences giving rise or contributing to any such failure or
decline may be deemed to constitute, or be taken into account in determining
whether there has been, or would reasonably be expected to be, an Acquisition
Material Adverse Effect).
“Administrative
Agent’s Office”
means
the Administrative Agent’s address and, as appropriate, account as set forth on
Schedule
9.01,
or such
other address or account as the Administrative Agent may from time to time
notify to the Borrowers and the Lenders.
“Administrative
Questionnaire”
shall
mean an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
shall
mean, when used with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
“Agreement”
means
this Loan Agreement.
“Alternate
Base Rate”
shall
mean, for any day a rate per annum equal to the higher of (a) the Federal Funds
Effective Rate plus 1/2 of 1% and (b) Citibank’s publicly announced “base rate”
in effect on such day.
“Applicable
Rate”
means
(a) during the period commencing on the Effective Date and ending on the date
falling 6 months after the Effective Date, with respect to (i) Loans maintained
as ABR Loans, a rate equal to 0.00% per annum and (ii) Loans maintained as
Eurodollar Loans, a rate equal to 1.00% per annum and (b) thereafter, as of
any
date of determination, a per annum rate equal to the rate set forth below
opposite the applicable type of Loan and the then applicable Leverage Ratio
(determined on the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section
5.02) set
forth
below:
Pricing
Level
|
Leverage
Ratio
|
Applicable
Rate
for
ABR Loans
|
Applicable
Rate
for
Eurodollar
Loans
|
1
|
<
3.0:1
|
0.00%
|
1.00%
|
2
|
>3.0:1
<
3.5:1
|
0.25%
|
1.25%
|
3
|
>3.5:1
<
4.0:1
|
0.50%
|
1.50%
|
4
|
>
4.0:1
|
0.75%
|
1.75%
|
Changes
in the Applicable Rate resulting from a change in the Leverage Ratio on the
last
day of any subsequent fiscal quarter shall become effective as to all Loans
upon
delivery by the Borrower to the Administrative Agent of new financial statements
pursuant to Section
5.02.
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), if the Borrower shall fail to deliver such
financial statements within any of the time periods specified in Section
5.02,
the
Applicable Rate from and including the first Business Day after the date on
which such financial statements were required to be delivered, to but not
including the date the Borrower delivers to the Administrative Agent such
financial statements, shall equal the Applicable Rate provided for in Pricing
Level 4.
“Approved
Electronic Communications”
means
each notice, demand, communication, information, document and other material
that the Borrower is obligated to, or otherwise chooses to, provide to the
Administrative Agent pursuant to any Loan Document or the transactions
contemplated therein, including (a) any supplement to the Guaranty Agreement
and
any other written contractual obligation delivered or required to be delivered
in respect of any Loan Document or the transactions contemplated therein and
(b)
any financial statement, financial and other report, notice, request,
certificate and other information material; provided,
however, that,
“Approved
Electronic Communication” shall
exclude (i) any notice of borrowing or Borrowing Request, notice of Conversion
and any other notice, demand, communication, information, document and other
material relating to a request for a new, or a conversion of an existing,
Borrowing, (ii) any notice pursuant to Section
2.12 and
any
other notice relating to the payment of any principal or other amount due under
any Loan Document prior to the scheduled date therefor, (iii) all notices of
any
Default or Event of Default and (iv) any notice, demand, communication,
information, document and other material required to be delivered to satisfy
any
of the conditions set forth in Article
IV or
any
other condition to any Borrowing or other extension of credit hereunder or
any
condition precedent to the effectiveness of this Agreement.
“Approved
Electronic Platform”
has
the
meaning specified in
Section 9.01(b).
“Arrangers”
shall
mean Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, and
X.X.
Xxxxxx Securities Inc.
“Asset
Exchange”
shall
mean the exchange or other transfer of telecommunications assets between or
among the Borrower and another Person or other Persons in connection with which
the Borrower would transfer telecommunications assets and/or other property
in
consideration of the receipt of telecommunications assets and/or other property
having a fair market value substantially equivalent to those transferred by
the
Borrower (as determined in good faith by the Borrower’s Board of Directors);
provided
that the
principal value of the assets being transferred to the Borrower shall be
represented by telecommunications assets.
“Asset
Sale” means
the
sale, conveyance, transfer, lease or disposition of, any of the Borrower’s or
its Subsidiaries’ respective assets or any interest therein (including the sale
or factoring of any accounts) to any Person (other than to the Borrower or
a
Subsidiary that is not a special purpose entity formed in connection with a
Securitization Transaction), other than any assets or interests therein disposed
of in the ordinary course of business.
“Assignment
and Assumption”
shall
mean an assignment and assumption entered into by a Lender and an assignee,
and
accepted by the Administrative Agent, in substantially the form of Exhibit C
or
any
other form approved by the Administrative Agent.
“Board”
shall
mean the Board of Governors of the Federal Reserve System of the United
States.
“Borrowing”
shall
mean a group of Loans of a single Type made by the Lenders or Converted on
a
single date and as to which a single Interest Period is in effect. All Loans
of
the same Type, having the same Interest Period and made or Converted on the
same
day shall be deemed a single Borrowing hereunder until repaid or next
Converted.
“Borrowing
Request”
shall
mean a request made pursuant to Section 2.04
in the
form of Exhibit A.
“Business
Day”
shall
mean any day (other than a day which is a Saturday, Sunday or legal holiday
in
the State of New York) on which banks are open for business in New York City;
provided,
however,
that,
when used in connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
“Capital
Lease Obligations”
of
any
Person shall mean the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
A
“Change
in Control”
shall
be deemed to have occurred if (a) any Person or group (within the meaning of
Rule 13d-5 of the Securities and Exchange Commission as in effect on the date
hereof) shall own directly or indirectly, beneficially or of record, shares
representing 50% or more of the aggregate ordinary voting power represented
by
the issued and outstanding capital stock of the Borrower; or (b) a majority
of
the seats (other than vacant seats) on the board of directors of the Borrower
shall at any time have been occupied by Persons who were neither (i) nominated
by the management of the Borrower, nor (ii) appointed by directors so nominated;
or (c) any Person or group shall otherwise directly or indirectly Control the
Borrower.
“Citibank”
means
Citibank, N.A., a national banking association.
“Citicorp”
has
the
meaning specified in the preamble to this Agreement.
“Code”
shall
mean the Internal Revenue Code of 1986, as the same may be amended from time
to
time.
“Commitment”
means,
as to each Lender, its obligation to make the Term Loan to the Borrower pursuant
to the Agreement in an aggregate principal amount not to exceed the amount
set
forth opposite such Lender’s name on Schedule
2.01 or
in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be reduced from time to time in accordance
with this Agreement.
“Consolidated
EBITDA”
shall
mean, with respect to the Borrower and its Subsidiaries for any period:
Consolidated Net Income for such period plus
(a)
without duplication and to the extent deducted in determining such Consolidated
Net Income, the sum of (i) consolidated interest expense for such period, (ii)
consolidated income tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) dividends on preferred
stock, (v) losses attributable to minority interests, (vi) investment losses,
(vii) any nonrecurring charges for such period relating to severance costs,
restructuring costs or acquisition assimilation expenses, (viii) any
extraordinary charges or non-cash charges for such period (provided
that
any cash
payment made with respect to any such non-cash charge shall be subtracted in
computing Consolidated EBITDA during the period in which such cash payment
is
made) and (ix) net losses in connection with the early retirement of debt and
minus
(b)
without duplication and to the extent included in determining such Consolidated
Net Income, (i) income or gains attributable to minority interests, (ii)
investment income and (iii) any extraordinary gains or non-cash gains for such
period, all determined on a consolidated basis in accordance with GAAP. For
purposes of calculating Consolidated EBITDA for any period of four consecutive
fiscal quarters (each, a “Reference
Period”)
in
connection with any determination of the Leverage Ratio, if after the first
day
of such Reference Period and on or prior to any date on which the Leverage
Ratio
is to be determined the Borrower or a consolidated Subsidiary shall have
effected a Material Transaction, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto (without giving effect
to cost savings not actually realized), as determined reasonably and in good
faith by a Financial Officer, as if such Material Transaction occurred on the
first day of such Reference Period; provided,
that,
such pro forma calculations shall only include such adjustments as are permitted
under Regulation S-X of the Securities and Exchange Commission. As used in
this
definition, “Material
Transaction”
means
any acquisition (including the Acquisition) or disposition outside the ordinary
course of business of any property or assets that (x) constitute assets
comprising all or substantially all of an operating unit of a business or equity
interests of a Person representing a majority of the ordinary voting power
or
economic interests in such Person that are represented by all its outstanding
capital stock and (y) involves aggregate consideration in excess of
$50,000,000.
“Consolidated
Net Income”
shall
mean, for any period, the net income or loss of the Borrower and its
consolidated Subsidiaries for such period determined on a consolidated basis
in
accordance with GAAP;
provided that
there shall be excluded (a) the income of any Person (other than the Borrower)
in which any other Person (other than the Borrower or any consolidated
Subsidiary of the Borrower or any director holding qualifying shares in
compliance with applicable law) owns an equity interest, except to the extent
of
the amount of dividends or other distributions actually paid to the Borrower
or
any of its consolidated Subsidiaries during such period, and (b) (except as
otherwise specified in the definition of Consolidated EBITDA in connection
with
Material Transactions), the income or loss of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or consolidated
with the Borrower or any Subsidiary of the Borrower or the date that such
Person’s assets are acquired by the Borrower or any Subsidiary of the
Borrower.
“Consolidated
Net Worth”
shall
mean, as at any date of determination, the consolidated stockholders’ equity of
the Borrower and its consolidated Subsidiaries, including redeemable preferred
securities where the redemption date occurs after the Maturity Date, mandatorily
redeemable convertible preferred securities, mandatorily convertible
Indebtedness (or Indebtedness subject to mandatory forward purchase contracts
for equity or similar securities) and minority equity interests in other
persons, as determined on a consolidated basis in conformity with GAAP
consistently applied.
“Consolidated
Tangible Assets”
of
any
Person shall mean total assets of such Person and its consolidated Subsidiaries,
determined on a consolidated basis, less goodwill, patents, trademarks and
other
assets classified as intangible assets in accordance with GAAP.
“Control”
shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and “Controlling” and
“Controlled” shall have meanings correlative thereto.
“Conversion”,
“Convert”
or
“Converted”
shall
mean the conversion of any Loan of one Type into a Loan of another Type, or
the
selection of a new, or the renewal of the same, Interest Period for any such
Loan, as the case may be, pursuant to Section 2.05.
“Conversion
Request”
shall
mean a request made pursuant to Section 2.05
in the
form of Exhibit
B.
“Debt
Issuance”
means
the issuance of debt securities (whether in a public offering or private
placement) of the type specified in clause
(b) of
the
definition of “Indebtedness” by
the
Borrower, including any Notes Offering.
“Debtor
Relief Laws”
shall
mean the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
“Default”
shall
mean any event or condition which upon notice, lapse of time, or both would
constitute an Event of Default.
“Defaulting
Lender”
shall
mean any Lender that (a) has failed to fund any portion of the Loans required
to
be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid
by
it hereunder within one Business Day of the date when due, unless the subject
of
a good faith dispute, or (c) has been deemed insolvent or become the subject
of
a bankruptcy or insolvency proceeding.
“Dollars”
or
“$”
shall
mean lawful money of the United States of America.
“Effective
Date”
shall
mean the date on which the conditions specified in Section 4.02
are
satisfied (or waived in accordance with Section 9.08)
and the
Initial Loans are made hereunder.
“Eligible
Assignee”
shall
mean (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any other Person
(other than a natural person) approved by (a) the Administrative Agent, and
(b)
unless an Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); provided
that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.
“Environmental
Laws”
shall
mean all national, federal, state, provincial, municipal or local laws,
statutes, ordinances, orders, judgments, decrees, injunctions, writs, policies
and guidelines (having the force of law), directives, approvals, notices, rules
and regulations and other applicable laws relating to environmental or
occupational health and safety matters, including those relating to the Release
or threatened Release of Specified Substances and to the generation, use,
storage or transportation of Specified Substances, each as in effect as of
the
date of determination.
“Equity
Interests”
means,
with respect to any Person, all of the shares, interests, rights, participations
or other equivalents (however designated) of stock of (or other ownership or
profit interests or units in) such Person and all warrants, options or other
rights for the purchase, acquisition or exchange from such Person of any of
the
foregoing (including through convertible securities).
“Equity
Issuance”
means
the issue or sale of any Equity Interests of the Borrower or any Subsidiary
of
the Borrower, pursuant to a public offering. An Equity Issuance shall exclude
the issuance of Equity Interests to management of the Borrower, its directors,
officers and employees in connection with any stock option plan, stock purchase
plan, employee benefit or similar compensation plan.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
“ERISA
Affiliate”
shall
mean each trade or business (whether or not incorporated) which together with
the Borrower or a Subsidiary of the Borrower would be deemed to be a “single
employer” within the meaning of Section 4001(b)(1) of ERISA.
“ERISA
Termination Event”
shall
mean (i) a “Reportable Event” described in Section 4043 of ERISA (other than a
“Reportable Event” not subject to the provision for 30-day notice to the PBGC
under such regulations), or (ii) the withdrawal of the Borrower or any of its
ERISA Affiliates from a Plan during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as
a
termination under Section 4041 of ERISA, or (iv) the institution of proceeding
to terminate a Plan by the PBGC , (v) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or (vi) upon the effectiveness
of Title I of the Pension Protection Act, an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) or
“funding shortfall” (within the meaning of Section 430 of the Code) exists with
respect to any Plan.
“Eurodollar
Borrowing”
shall
mean a Borrowing comprised of Eurodollar Loans.
“Eurodollar
Loan”
shall
mean any Loan bearing interest at a rate determined by reference to the LIBO
Rate in accordance with the provisions of Article
II.
“Event
of Default”
shall
have the meaning assigned to such term in Article
VII.
“Existing
Facility”
shall
mean the Competitive Advance and Revolving Credit Facility Agreement dated
as of
October 29, 2004 among the Borrower, the lenders party thereto and Bank of
America, N.A., as administrative agent.
“Existing
Target Debt”
shall
mean any Indebtedness of the Target outstanding on the Effective
Date.
“Federal
Funds Effective Rate”
shall
mean, for any day, the rate per annum equal to the weighted average of the
rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that
(a) if
such day is not a Business Day, the Federal Funds Effective Rate for such day
shall be such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Effective
Rate
for such day shall be the average rate (rounded upward, if necessary, to a
whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
“Fee
Letter”
means
the letter agreement, dated November 3, 2006, among the Borrower, Citigroup
Global Markets Inc., Credit Suisse, Credit Suisse Securities (USA) LLC, X.X.
Xxxxxx Securities Inc., and JPMorgan Chase Bank, N.A.
“Fees”
shall
mean any fees payable by the Borrower pursuant to the Fee Letter.
“Financial
Officer”
of
any
corporation shall mean the President, Chief Financial Officer, Chief Executive
Officer, Vice President - Finance, Executive Vice President, Chief Accounting
Officer or Treasurer of such corporation. Any document delivered hereunder
that
is signed by a Financial Officer shall be conclusively presumed to have been
authorized by all necessary corporate action on the part of the Borrower and
such Financial Officer shall be conclusively presumed to have acted on behalf
of
the Borrower.
“Foreign
Lender”
means
any Lender that is organized under the laws of a jurisdiction other than that
in
which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
“GAAP”
shall
mean generally accepted accounting principles in the United States, applied
on a
consistent basis.
“Governmental
Approval”
shall
mean any authorization, consent, order, approval, license, franchise, lease,
ruling, tariff, rate, permit, certificate, exemption of, or filing or
registration with, any Governmental Authority.
“Governmental
Authority”
shall
mean any Federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory body.
“Guarantee”
means,
as to any Person, any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness
or
other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services
for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow
of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation
of
the payment or performance thereof or to protect such obligee against loss
in
respect thereof (in whole or in part). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee
is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranty
Agreement”
means,
collectively, each Guarantee executed and delivered pursuant to Section 6.08.
“Indebtedness”
of
any
Person shall mean, without duplication, (a) all obligations of such Person
for
borrowed money or with respect to deposits or advances of any kind (other than
customer deposits made in the ordinary course of business), (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
(c)
all obligations of such Person upon which interest charges are customarily
paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(e) all obligations of such Person issued or assumed as the deferred purchase
price of property or services, (f) all Indebtedness of others secured by (or
for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (g)
all Capital Lease Obligations of such Person, (h) all obligations of such Person
in respect of Swap Contracts (except to the extent such obligations are used
as
a bona fide hedge of other Indebtedness of such Person), (i) all obligations
of
such Person as an account party in respect of letters of credit and bankers’
acceptances (except to the extent any such obligations are incurred in support
of other obligations constituting Indebtedness of such Person and other than,
to
the extent reimbursed if drawn, letters of credit in support of ordinary course
performance obligations) and (j) all Guarantees of such Person in respect
of any of the foregoing; provided,
however,
that
the term Indebtedness shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
“Interest
Payment Date”
shall
mean, with respect to any Loan, the last day of the Interest Period applicable
thereto and, in the case of a Eurodollar Loan with an Interest Period of more
than three months’ duration, each day that would have been an Interest Payment
Date for such Loan had successive Interest Periods of three months’ duration
been applicable to such Loan and, in addition, the date of any Conversion of
such Loan to a Loan of a different Type.
“Interest
Period”
shall
mean (a) as to any Eurodollar Borrowing, the period commencing on the date
of
such Borrowing or, with respect to any Conversion, on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the
case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that
is 1,
2 or 3 months thereafter (or such longer period as may be agreed to by all
of
the Lenders), as the Borrower may elect, and (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing and ending on the date 90 days
thereafter or, if earlier, on the Maturity Date or the date of prepayment of
such Borrowing; provided,
however,
that if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case
of Eurodollar Loans only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first
day
of an Interest Period to but excluding the last day of such Interest
Period.
“Laws”
means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations
and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“Lenders”
shall
mean the meaning specified in the introductory paragraph hereto.
“Leverage
Ratio”
shall
mean, with respect to any fiscal quarter, as of the last day of such fiscal
quarter, the ratio of (a) Total Indebtedness as of such last day to (b)
Consolidated EBITDA, for the four consecutive fiscal quarter period ending
on
such day.
“LIBO
Rate”
means,
with respect to any Interest Period for any Eurodollar Loan, the rate offered
for deposits in Dollars for the applicable Interest Period appearing on the
Dow
Xxxxx Markets Telerate Page 3750 as of 11:00 a.m., London time, on the second
full Business Day next preceding the first day of each Interest Period. In
the
event that such rate does not appear on the Dow Xxxxx Markets Telerate Page
3750
(or otherwise on the Dow Xxxxx Markets screen), the Eurodollar Rate for the
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying Eurodollar Rates as may
be
selected by the Administrative Agent.
“Lien”
shall
mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge, or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital lease,
or
title retention agreement relating to such asset and (c) in the case of
securities, any purchase option, call, or similar right of a third party with
respect to such securities.
“Loan”
shall
mean the Term Loan, whether made as a Eurodollar Loan or an ABR Loan, as
permitted hereby.
“Loan
Documents”
means
this Agreement, the Note, the Fee Letter and any Guaranty
Agreement.
“Margin
Regulations”
shall
mean Regulations T, U and X of the Board.
“Material
Adverse Effect”
shall
mean a materially adverse effect on the business, assets, operations, financial
condition or results of operations of the Borrower and the Subsidiaries taken
as
a whole.
“Material
Transaction”
shall
have the meaning assigned to such term in the definition of Consolidated
EBITDA.
“Maturity
Date”
shall
mean March 6, 2008.
“Net
Cash Proceeds”
means
proceeds received by the Borrower or any of its Subsidiaries after the Effective
Date in cash or cash equivalents (a) to the extent the cumulative amount of
such
proceeds from all Asset Sales following the Effective Date exceeds $350 million
in the aggregate, the amount of such proceeds arising from any Asset Sale,
other
than an Asset Exchange, net
of
(i) selling expenses related to such sale (including without limitation, fees
incurred for legal, accounting, underwriting, brokerage and other costs of
sale), assignment or other disposition, (ii) taxes paid or reasonably estimated
to be payable as a result thereof, (iii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations or purchase price adjustment associated with such Asset Sale
(provided that, to the extent and at the time any such amounts are released
from
such reserve, such amounts shall constitute Net Cash Proceeds), and (iv) any
amount, including principal, interest and penalties, required to be paid or
prepaid with respect to Indebtedness (other than the Obligations) secured by
the
assets sold in such Asset Sale, and from
any
(b)(i) Equity Issuance or (ii) any Debt Issuance,
in
each
case net of documented reasonable brokers’ and advisors’ expenses and fees
(including legal, accounting, underwriting, brokerage and related fees) and
other costs incurred in connection with such transaction.
“Note”
means
a
promissory note made by the Borrower in favor of a Lender evidencing Loans
made
by such Lender, substantially in the form of Exhibit
D.
“Notes
Offering”
means
the issuance after the Effective Date by the Borrower in a public offering,
a
Rule 144A or other private placement or a Regulation S offering of senior
unsecured notes.
“Obligations”
means
all advances to, and debts, liabilities, obligations, covenants and duties
of,
the Borrower arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against
the Borrower or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
“Outstanding
Amount”
means
with respect to Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments
of
such Loans occurring on such date.
“Participant”
has
the
meaning specified in Section
9.04(d).
“Patriot
Act” has
the
meaning assigned to such term in Section
9.16
hereof.
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Pension
Protection Act”
shall
mean the Pension Protection Act of 2006, as amended.
“Person”
shall
mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, or government,
or
any agency or political subdivision thereof.
“Plan”
shall
mean any pension plan (including a multiemployer plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code which is maintained for or
to
which contributions are made for employees of the Borrower or any ERISA
Affiliate.
“Principal
Subsidiaries”
shall
mean any Subsidiary of the Borrower, whose Consolidated Tangible Assets comprise
in excess of 25% of the Consolidated Tangible Assets of the Borrower and its
consolidated Subsidiaries as of the date hereof or at any time
hereafter.
“Register”
shall
have the meaning given such term in Section 9.04(c).
“Regulation
D”
shall
mean Regulation D of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
T”
shall
mean Regulation T of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
U”
shall
mean Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
X”
shall
mean Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Release”
shall
mean any spilling, emitting, discharging, depositing, escaping, leaching,
dumping or other releasing, including the movement of any Specified Substance
through the air, soil, surface water, groundwater or property, and when used
as
a verb has a like meaning.
“Required
Lenders”
shall
mean, at any time, Lenders having more than fifty percent (50%) of the sum
of
the Total Commitments at such time and the aggregate principal amount of all
Loans outstanding at such time, provided,
however,
that
the Total Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making
a
determination of Required Lenders.
“Restricted
Payment”
means
any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other equity interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or
other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination
of
any such capital stock or other equity interest, or on account of any return
of
capital to the Borrower’s stockholders, partners or members (or the equivalent
Person thereof).
“Securitization
Transaction”
means
(a) any transfer of accounts receivable or interests therein (i) to a
trust, partnership, corporation or other entity (other than a Subsidiary),
which
transfer or pledge is funded by such entity in whole or in part by the issuance
to one or more lenders or investors of indebtedness or other securities that
are
to receive payments principally from the cash flow derived from such accounts
receivable or interests in accounts receivable, or (ii) directly to one or
more investors or other purchasers (other than any Subsidiary), or (b) any
transaction in which the Borrower or a Subsidiary incurs Indebtedness secured
by
Liens on accounts receivable. The “amount” of any Securitization Transaction
shall be deemed at any time to be (A) in the case of a transaction
described in clause (a) of the preceding sentence, the aggregate
uncollected amount of the accounts receivable transferred pursuant to such
Securitization Transaction, net of any such accounts receivable that have been
written off as uncollectible, and (B) in the case of a transaction
described in clause (b) of the preceding sentence, the aggregate
outstanding principal amount of the Indebtedness secured by Liens on accounts
receivable Incurred pursuant to such Securitization Transaction.
“Specified
Substance”
shall
mean (i) any chemical, material or substance defined as or included in the
definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”,
“extremely hazardous waste”, “restricted hazardous waste” or “toxic substances”
or words of similar import under any applicable Environmental Laws; (ii) any
(A)
oil, natural gas, petroleum or petroleum derived substance, any drilling fluids,
produced waters and other wastes associated with the exploration, development
or
production of crude oil, natural gas or geothermal fluid, any flammable
substances or explosives, any radioactive materials, any hazardous wastes or
substances, any toxic wastes or substances or (B) other materials or
pollutants that, in the case of both (A) and (B), (1) pose a hazard to the
property of the Borrower or any of its Subsidiaries or any part thereof or
to
persons on or about such property or to any other property that may be affected
by the Release of such materials or pollutants from such property or any part
thereof or to persons on or about such other property or (2) cause such
property or such other property to be in violation of any Environmental Law;
(iii) asbestos, urea formaldehyde foam insulation, toluene, polychlorinated
biphenyls and any electrical equipment which contains any oil or dielectric
fluid containing levels of polychlorinated biphenyls in excess of fifty parts
per million; and (iv) any sound, vibration, heat, radiation or other form
of energy and any other chemical, material or substance, exposure to which
is
prohibited, limited or regulated by any Governmental Authority.
“Subsidiary”
shall
mean, with respect to any Person (herein referred to as the “parent”), any
corporation, partnership, association, or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, owned,
controlled, or held by the parent, or (b) which is, at the time any
determination is made, otherwise Controlled by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of
the
parent. Unless otherwise indicated, all references in this Agreement to
“Subsidiaries” shall be construed as references to Subsidiaries of the
Borrower.
“Swap
Contract”
means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any
of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap
Termination Value”
means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
“Target”
means
Commonwealth Telephone Enterprises, Inc. and its Subsidiaries.
“Term
Loan”
means
any Loan made pursuant to Section
2.01(a)
on the
Effective Date.
“Total
Commitment”
shall
mean the aggregate amount of the Lenders’ Commitments, as in effect on the
Effective Date.
“Total
Indebtedness”
means,
as of any date, the aggregate principal amount of Indebtedness of the Borrower
and its consolidated Subsidiaries outstanding as of such date, in the amount
and
only to the extent that such Indebtedness would be reflected on a balance sheet
prepared as of such date on a consolidated basis in accordance with
GAAP, minus the
amount of the cash and cash equivalents of the Borrower and its consolidated
Subsidiaries in excess of $50,000,000 that would be reflected on such balance
sheet.
“Total
Outstandings”
means
the aggregate Outstanding Amount of all Loans.
“Transferee”
shall
mean any transferee or assignee of all or any portion of a Lender’s interests,
rights and obligations hereunder, including any participation
holder.
“Type”,
when
used in respect of any Loan or Borrowing, shall refer to the Rate by reference
to which interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, “Rate” shall include the LIBO Rate and the
Alternate Base Rate.
SECTION
1.02. Terms
Generally.
The
definitions in Section 1.01
shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”.
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time;
provided,
however,
that,
for purposes of determining compliance with any covenant set forth in
Article
VI,
such
terms shall be construed in accordance with GAAP as in effect on the date of
this Agreement applied on a basis consistent with the application used in
preparing the Borrower’s audited financial statements referred to in
Section 3.02.
SECTION
1.03. Times
of Day.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern Standard Time (daylight or standard, as applicable).
THE
CREDITS
SECTION
2.01. Commitments.
(a) Term
Loan. Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly, to make a
term
loan (the “Term
Loan”)
to the
Borrower in Dollars, on the Effective Date in an amount not to exceed such
Lender’s Commitment, in each case in accordance with Section
2.04.
The
Term Loan may be Eurodollar Loans or ABR Loans, as determined by the Borrower
and notified to the Administrative Agent in accordance with Sections
2.04 and
2.05.
Amounts
repaid or prepaid in respect of the Term Loan may not be
reborrowed.
Each
Lender’s Commitment is set forth opposite its respective name in Schedule 2.01.
Such
Commitment may be reduced from time to time pursuant to Section 2.11
and
Section 2.13(f)
and
adjusted to reflect any assignments pursuant to Section
9.04.
SECTION
2.02. Loans.
(a) Each
Loan
shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their Commitments; provided,
however,
that
the failure of any Lender to make any Loan shall not in itself relieve any
other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make
any
Loan required to be made by such other Lender). The Loans comprising any
Borrowing shall be in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000.
(b) Each
Borrowing shall be comprised entirely of Eurodollar Loans or ABR Loans, as
the
Borrower may request pursuant to Section 2.04.
Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided
that
any
exercise of such option shall not affect the obligation of the Borrower to
repay
such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time; provided,
however,
that
the Borrower shall not be entitled to request any Borrowing which, if made,
would result in an aggregate of more than five separate Loans of any Lender
being outstanding hereunder at any one time. For purposes of the foregoing,
Loans having different Interest Periods, regardless of whether they commence
on
the same date, shall be considered separate Loans.
(c) Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to the Administrative
Agent at the Administrative Agent’s Office, not later than 1:00 P.M., and the
Administrative Agent shall by 3:00 P.M. credit the amounts so received to an
account specified by the Borrower or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders. Each Loan shall be
made by the Lenders pro
rata in
accordance with Section 2.16.
(d) Notwithstanding
any other provision of this Agreement, the Interest Period requested by the
Borrower with respect to any Borrowing shall not end after the Maturity
Date.
SECTION
2.03. [Reserved].
SECTION
2.04. Borrowing
Procedure.
In
order
to request a Borrowing (other than a Conversion), the Borrower shall hand
deliver or telecopy to the Administrative Agent a notice in the form of
Exhibit
A (a)
in
the case of a Eurodollar Borrowing, not later than 11:00 A.M. three Business
Days before a proposed Borrowing, and (b) in the case of an ABR Borrowing,
not
later than 11:00 A.M. on the day of a proposed Borrowing. Such notice shall
be
irrevocable (unless otherwise expressly provided herein) and shall in each
case
specify (i) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing
is
to be a Eurodollar Borrowing, the Interest Period with respect thereto. If
no
election as to the Type of Borrowing is specified in any such notice, then
the
requested Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration. The Administrative Agent shall promptly advise (but in any event
no
later than 12:00 P.M. on such date) the Lenders of any notice given pursuant
to
this Section 2.04
and of
each Lender’s portion of the requested Borrowing.
SECTION
2.05. Conversions.
The
Borrower may from time to time Convert any Loan (or portion thereof) of any
Type
and with any Interest Period (if applicable) to one or more Loans of the same
or
any other Type and with any Interest Period (if applicable) by delivering (by
hand delivery or telecopier) a request for such Conversion in the form of
Exhibit
B to
the
Administrative Agent no later than (i) 11:00 A.M. on the third Business Day
prior to the date of any proposed Conversion into a Eurodollar Loan and
(ii) 11:00 A.M., on the day of any proposed Conversion into an ABR
Loan. The Administrative Agent shall give each Lender prompt notice of each
Conversion Request. Each Conversion Request shall be irrevocable (unless
otherwise expressly provided herein) and binding on the Borrower and shall
specify the requested (A) date of such Conversion, (B) Type of, and Interest
Period, if any, applicable to, the Loans (or portions thereof) proposed to
be
Converted, (C) Type of Loans to which such Loans (or portions thereof) are
proposed to be Converted, (D) initial Interest Period, if any, to be applicable
to the Loans resulting from such Conversion and (E) aggregate amount of Loans
(or portions thereof) proposed to be Converted. No Eurodollar Loans may be
Converted on a date other than the last day of the Interest Period applicable
thereto, unless the Borrower reimburses each Lender pursuant to Section 2.15
for all
losses or expenses incurred by such Lender in connection with such Conversion.
If the Borrower shall fail to give a timely Conversion Request pursuant to
this
subsection in respect of any Loans, such Loans shall, on the last day of the
then existing Interest Period therefor, automatically Convert into, or remain
as, as the case may be, ABR Loans, unless such Loans are repaid at the end
of
such Interest Period. If the Borrower shall fail, in any Conversion Request
that
has been timely given, to select the duration of any Interest Period for Loans
to be Converted into Eurodollar Loans, such Loans shall, on the last day of
the
then existing Interest Period therefor, automatically Convert into Eurodollar
Loans with an Interest Period of one month’s duration. If, on the date of any
proposed Conversion, the Borrower shall have failed to fulfill any condition
set
forth in Section 4.01,
all
Loans then outstanding shall, on such date, automatically Convert into, or
remain as, as the case may be, ABR Loans.
SECTION
2.06. Fees.
(a) The
Borrower has agreed to pay to the Administrative Agent and the Arrangers the
fees in the amounts and on the dates specified in the Fee Letter.
(b) All
Fees
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION
2.07. Repayment
of Loans.
(a) The
outstanding principal balance of each Loan shall be payable on the Maturity
Date. Each Loan shall bear interest from the date thereof on the outstanding
principal balance thereof as set forth in Section 2.08.
Each
Lender shall, and is hereby authorized by the Borrower to record in such
Lender’s internal records an appropriate notation evidencing the date and amount
of each Loan of such Lender, each payment or prepayment of principal of any
Loan, and such other relevant information as such Lender records in its internal
records with respect to loans of a type similar to such Loans; provided,
however,
that
the failure of any Lender to make such a notation or any error therein shall
not
in any manner affect the obligation of the Borrower to repay the Loans, made
by
such Lender in accordance with the terms hereof.
(b) Any
Lender may request that any Loans made by it be evidenced by one or more
promissory notes. Promptly upon receipt of such request, the Borrower shall
prepare, execute and deliver to such Lender one or more promissory notes payable
to such Lender (or, if requested by such Lender, to such Lender and its
assignees) substantially in the form of Exhibit
D.
Thereafter, the Loans evidenced by such promissory notes and interest thereon
shall at all times (including after assignment pursuant to Section 9.04)
be
represented by one or more promissory notes in such form payable to the payee
named therein.
SECTION
2.08. Interest
on Loans.
(a) Subject
to the provisions of Section 2.09,
the
Loans comprising each Eurodollar Borrowing shall bear interest (computed on
the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per
annum equal
to
the LIBO Rate for the Interest Period in effect for such Borrowing plus
the
Applicable Rate. Interest on each Eurodollar Borrowing shall be payable on
each
applicable Interest Payment Date. The LIBO Rate for each Interest Period shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error. The Administrative Agent shall promptly (but
in any event no later than 10:30 A.M. two Business Days prior to the
commencement of such Interest Period) (A) advise the Borrower and each Lender,
as appropriate, of such determination and (B) upon the request of the Borrower,
provide the Borrower with the calculations and relevant factors supporting
such
determination.
(b) Subject
to the provisions of Section 2.09,
the
Loans comprising each ABR Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 365 or 366 days, as the
case
may be, when determined with reference to clause (b) of the definition of
Alternate Base Rate and over a year of 360 days in all other cases) at a rate
per
annum equal
to
the Alternate Base Rate plus the Applicable Rate. Interest on each ABR Borrowing
shall be payable on each applicable Interest Payment Date. The Alternate Base
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error. The Administrative Agent shall
promptly (but in any event no later than 11:30 A.M. on the day of each ABR
Borrowing) (A) advise the Borrower and each Lender of such determination and
(B)
upon the request of the Borrower, provide the Borrower with the calculations
and
relevant factors supporting such determination.
SECTION
2.09. Default
Interest.
If
the
Borrower shall default in the payment of the principal of or interest on any
Loan or any other amount becoming due hereunder, whether by scheduled maturity,
notice of prepayment, acceleration, or otherwise, the Borrower shall on demand
from time to time from the Administrative Agent pay interest, to the extent
permitted by law, on such defaulted amount up to (but not including) the date
of
actual payment (after as well as before judgment) at a rate per
annum (computed
on the basis of the actual number of days elapsed over a year of 360 days)
equal
to the Alternate Base Rate plus
2%.
SECTION
2.10. Alternate
Rate of Interest.
In
the
event, and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal
amounts of the Eurodollar Loans comprising such Borrowing are not generally
available in the London interbank market, or that the rates at which such dollar
deposits are being offered will not adequately and fairly reflect the cost
to
any Lender of making or maintaining its Eurodollar Loan during such Interest
Period, or that reasonable means do not exist for ascertaining the LIBO Rate,
the Administrative Agent shall, as soon as practicable thereafter, give written
notice of such determination to the Borrower and the Lenders. In the event
of
any such determination, until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice
no
longer exist, (i) any request by the Borrower for a Eurodollar Borrowing
pursuant to Section 2.04
shall be
deemed to be a request for an ABR Borrowing (unless the Borrower shall have
withdrawn its request for such Eurodollar Borrowing not later than 10:00 A.M.
on
the day of the proposed Borrowing) and (ii) any request by the Borrower for
a
Conversion to Eurodollar Loans pursuant to Section 2.05
shall be
deemed to be a request for a Conversion to ABR Loans (unless the Borrower shall
have withdrawn its request for such Conversion not later than 10:00 A.M. on
the
day of the proposed Conversion). Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
SECTION
2.11. Reductions
in Commitment.
Unless
earlier terminated pursuant to this Agreement, the Commitment of each Lender
shall automatically and permanently terminate on the Effective
Date.
SECTION
2.12. Prepayment.
(a) The
Borrower shall have the right at any time and from time to time to prepay any
Borrowing, in whole or in part, upon giving written notice (or telephone notice
promptly confirmed by written notice) to the Administrative Agent:
(i) before 11:00 A.M. three Business Days prior to prepayment, in the case
of Eurodollar Loans, and (ii) before 11:00 A.M. on the day of prepayment,
in the case of ABR Loans; provided,
however,
that
each partial prepayment shall be in an amount which is an integral multiple
of
$1,000,000 and not less than $5,000,000. Each notice of prepayment shall specify
the prepayment date and the principal amount of each Borrowing (or portion
thereof) to be prepaid, shall be irrevocable and shall commit the Borrower
to
prepay such Borrowing (or portion thereof) by the amount stated therein on
the
date stated therein.
(b) By
no
later than three (3) Business Days after the receipt by the Borrower or any
of
its Subsidiaries of Net Cash Proceeds arising from (i) any Asset Sale, (ii)
any
Equity Issuance or (iii) any Debt Issuance, the Borrower shall prepay the Loans
in an amount equal to 100% of such Net Cash Proceeds.
(c) All
prepayments under this Section 2.12
shall be
subject to Section 2.15
but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of payment.
(d) Any
prepayments pursuant to this Section 2.12
shall be
appropriately recorded by the Administrative Agent in the Register in accordance
with Section 9.04(c).
In
addition, all notices with respect to any such change shall be maintained by
the
Administrative Agent with the Register.
SECTION
2.13. Reserve
Requirements; Change in Circumstances.
(a) It
is
understood that the cost to each Lender of making or maintaining any of the
Eurodollar Loans may fluctuate as a result of the applicability of reserve
requirements imposed by the Board at the ratios provided for in Regulation
D on
the date hereof. The Borrower agrees to pay to each of the Lenders from time
to
time such amounts as shall be necessary to compensate such Lender for the
portion of the cost of making or maintaining Eurodollar Loans resulting from
any
such reserve requirements provided for in Regulation D as in effect on the
date
hereof, it being understood that the rates of interest applicable to Eurodollar
Loans have been determined on the assumption that no such reserve requirements
exist or will exist and that such rates do not reflect costs imposed on the
Lenders in connection with such reserve requirements.
(b) Notwithstanding
any other provision herein, if after the date of this Agreement any change
in
applicable law or regulation (including, without limitation, Regulation D)
or in
the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not having
the force of law) shall change the basis of taxation of payments to any Lender
of the principal of or interest on any Eurodollar Loan made by such Lender
or
any Fees or other amounts payable hereunder (other than changes in respect
of
taxes imposed on the overall net income of such Lender and franchise taxes
imposed on it by the jurisdiction in which such Lender has its principal office
or by any political subdivision or taxing authority therein), or shall impose,
modify, or deem applicable any reserve, special deposit, or similar requirement
against assets of, deposits with or for the account of or credit extended by
such Lender, or shall impose on such Lender or the London interbank market
any
other condition affecting this Agreement or any Eurodollar Loan made by such
Lender and the result of any of the foregoing shall be to increase the cost
to
such Lender of making or maintaining any Eurodollar Loan or to reduce the amount
of any sum received or receivable by such Lender hereunder (whether of
principal, interest, or otherwise) by an amount deemed by such Lender to be
material, then, to the extent not otherwise being reimbursed under Section 2.19
hereof,
the Borrower will pay to such Lender, upon demand such additional amount or
amounts as will compensate such Lender, for such additional costs incurred
or
reduction suffered.
(c) If
any
Lender shall have determined that the adoption after the date hereof of any
law,
rule, regulation, or guideline regarding capital adequacy, or any change in
any
existing law, rule, regulation, or guideline regarding capital adequacy or
in
the interpretation or administration of any of the foregoing by any Governmental
Authority, central bank, or comparable agency charged with the interpretation
or
administration thereof, or compliance by any Lender (or any lending office
of
such Lender) or any Lender’s holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such
authority, central bank, or comparable agency, has or would have the effect
of
reducing the rate of return on such Lender’s capital or on the capital of such
Lender’s holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender pursuant hereto, to a level below that which such
Lender or such Lender’s holding company, as the case may be, could have achieved
but for such adoption, change, or compliance (taking into consideration such
Lender’s policies and the policies of such Lender’s holding company with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
from time to time the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.
(d) A
certificate of a Lender setting forth such amount or amounts as shall be
necessary to compensate such Lender or its holding company as specified in
paragraph (a), (b), or (c) above, as the case may be, and all of the relevant
factors and the calculations supporting such amount or amounts, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
The
Borrower shall pay each Lender the amount shown as due on any such certificate
delivered by it within 10 days after the receipt of the same.
(e) Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided
that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 45 days prior to
the
date that such Lender, notifies the Borrower of the occurrence of the event
entitling such Lender to such compensation and of such Lender’s intention to
claim compensation therefor; provided
further
that, if
the occurrence of the event entitling such Lender to such compensation is
retroactive, then the 45-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(f) If
any
Lender shall have delivered a notice or certificate pursuant to paragraph
(d)
above, the Borrower shall have the right, at its own expense, upon notice
to
such Lender and the Administrative Agent, to require such Lender to (i)
terminate its Commitment or (ii) transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04)
all or
a portion of its interest, rights and obligations under this Agreement to
another financial institution which shall assume such obligations; provided
that
(A)
no such termination or assignment shall conflict with any law, rule, or
regulation or order of any Governmental Authority and (B) the Borrower or
the
assignee, as the case may be, shall pay to the affected Lender in immediately
available funds on the date of such termination or assignment the principal
of
and interest accrued to the date of payment on the Loans made by it hereunder
and all other amounts accrued for its account or owed to it hereunder (other
than any amounts owed to such Lender pursuant to Section 2.15(c)
in
connection with such principal payment).
SECTION
2.14. Change
in Legality.
(a) Notwithstanding
any other provision herein, if any change in any law or regulation or in
the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations
as
contemplated hereby with respect to any Eurodollar Loan, then, by written
notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare
that Eurodollar Loans will not thereafter be made by such Lender hereunder,
and
any request by the Borrower for a Eurodollar Borrowing shall, as to such
Lender
only, be deemed a request for an ABR Loan (or for a Conversion thereto pursuant
to Section 2.05)
unless
such declaration shall be subsequently withdrawn; and
(ii) require
that all outstanding Eurodollar Loans made by it be Converted to ABR Loans,
in
which event all such Eurodollar Loans shall be automatically Converted to
ABR
Loans as of the effective date of such notice as provided in paragraph (b)
below.
In
the
event any Lender shall exercise its rights under (i) or (ii) above, all payments
and prepayments of principal which would otherwise have been applied to repay
the Eurodollar Loans that would have been made by such Lender or the Converted
Eurodollar Loans of such Lender shall instead be applied to repay the ABR
Loans
made by such Lender in lieu of, or resulting from the Conversion of, such
Eurodollar Loans.
(b) For
purposes of this Section 2.14,
a
notice to the Borrower by any Lender shall be effective as to each Eurodollar
Loan, if lawful, on the last day of the Interest Period currently applicable
to
such Eurodollar Loan; in all other cases such notice shall be effective on
the
date of receipt by the Borrower.
SECTION
2.15. Indemnity.
The
Borrower shall indemnify each Lender against any loss or expense which such
Lender may sustain or incur as a consequence of (a) any failure by the Borrower
to fulfill on the date of any Borrowing hereunder the applicable conditions
set
forth in Article
IV,
(b) any
failure by the Borrower to borrow or to Convert any Loan hereunder after
irrevocable notice of such Borrowing or Conversion has been given pursuant
to
Section 2.04
or
2.05,
(c) any
payment, prepayment or Conversion of a Eurodollar Loan required by any other
provision of this Agreement or otherwise made or deemed made on a date other
than the last day of the Interest Period applicable thereto, (d) any default
in
payment or prepayment of the principal amount of any Loan or any part thereof
or
interest accrued thereon, as and when due and payable (at the due date thereof,
whether by scheduled maturity, acceleration, irrevocable notice of prepayment
or
otherwise), or (e) the occurrence of any Event of Default, including, in
each
such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurodollar
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably demonstrated by such Lender, of (i) its cost
of
obtaining the funds for the Loan being paid, prepaid, Converted, or not borrowed
(assumed to be the LIBO Rate) for the period from the date of such payment,
prepayment, or failure to borrow to the last day of the Interest Period for
such
Loan (or, in the case of a failure to borrow, the Interest Period for such
Loan
which would have commenced on the date of such failure) over (ii) the amount
of
interest (as reasonably demonstrated by such Lender) that would be realized
by
such Lender in redeploying the funds so paid, prepaid, or not borrowed for
such
period or Interest Period, as the case may be. A certificate of any Lender
setting forth the factors and calculations supporting any amount or amounts
which such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower no later than 30 days following the incurrence
of any
loss or expense for which such Lender is seeking indemnification under this
Section 2.15
and
shall be conclusive absent manifest error.
SECTION
2.16. Pro
Rata Treatment.
Except
as
required or otherwise permitted under Sections 2.13(f)
and
2.14,
each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each reduction of the Commitments and each
Conversion of any Borrowing with a Borrowing of any Type, shall be allocated
pro
rata among
the
Lenders in accordance with their respective Commitment (as if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Lender agrees that, in
computing such Lender’s portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender’s percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION
2.17. Sharing
of Setoffs.
Each
Lender agrees that if it shall, through the exercise of a right of banker’s
lien, setoff, or counterclaim against the Borrower, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency, or other similar
law
or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in respect of any Loan as a result of which the unpaid principal portion
of the
Loans of such Lender shall be proportionately less than the unpaid principal
portion of the Loans of any other Lender, it shall be deemed simultaneously
to
have purchased from such other Lender at face value, and shall promptly pay
to
such other Lender the purchase price for, a participation in the Loans of
such
other Lender, so that the aggregate unpaid principal amount of the Loans
and
participations in the Loans held by each Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Loans then outstanding as
the
principal amount of its Loans prior to such exercise of banker’s lien, setoff,
or counterclaim or other event was to the principal amount of all Loans
outstanding prior to such exercise of banker’s lien, setoff,
or
counterclaim or other event; provided,
however,
that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.17
and the
payment giving rise thereto shall thereafter be recovered, such purchase
or
purchases or adjustments shall be rescinded to the extent of such recovery
and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that,
to
the maximum extent permitted by law, any Lender holding a participation in
a
Loan deemed to have been so purchased may exercise any and all rights of
banker’s lien, setoff, or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender by reason thereof as fully as if such Lender
had
made a Loan directly to the Borrower in the amount of such
participation.
SECTION
2.18. Payments;
Administrative Agent’s
Clawback.
(a) The
Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder not later than 12:00 P.M.
on
the date when due in Dollars to the Administrative Agent at the Administrative
Agent’s Office in immediately available funds. All payments by the Borrower
shall be made without deduction for any counterclaim, defense, recoupment
or
setoff.
(b) Whenever
any payment (including principal of or interest on any Borrowing or any Fees
or
other amounts) hereunder shall become due, or otherwise would occur, on a
day
that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in
the
computation of interest or Fees, if applicable.
(c) (i) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing (or in the case of any Borrowings consisting
of
ABR Loans, prior to 1:00 P.M. on the proposed date of such ABR Borrowing)
that
such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section
2.02
and may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount
is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such
Lender,
the greater of the Federal Funds Effective Rate and a rate determined by
the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower,
the
interest rate applicable to ABR Loans. If the Borrower and such Lender shall
pay
such interest to the Administrative Agent for the same or an overlapping
period,
the Administrative Agent shall promptly remit to the Borrower the amount
of such
interest paid by the Borrower for such period. If such Lender pays its share
of
the applicable Borrowing to the Administrative Agent, then the amount so
paid
shall constitute such Lender’s Loan included in such Borrowing. Any payment by
the Borrower shall be without prejudice to any claim the Borrower may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments
by Borrower; Presumptions by Administrative Agent.
Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for the
account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on
such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower
has not
in fact made such payment, then each of the Lenders severally agrees to repay
to
the Administrative Agent forthwith on demand the amount so distributed to
such
Lender, in immediately available funds with interest thereon, for each day
from
and including the date such amount is distributed to it to but excluding
the
date of payment to the Administrative Agent, at the greater of the Federal
Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
A
notice
of the Administrative Agent to any Lender or the Borrower with respect to
any
amount owing under this subsection (c)
shall be
conclusive, absent manifest error.
SECTION
2.19. Taxes.
(a) Any
and
all payments by the Borrower hereunder shall be made, in accordance with
Section 2.18,
free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges, or withholdings, and all liabilities
with
respect thereto, excluding taxes imposed on the Administrative Agent’s or any
Lender’s (or any Transferee’s) net income and franchise taxes imposed on the
Administrative Agent or any Lender (or Transferee) by the United States or
any
jurisdiction under the laws of which it is organized or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
“Taxes”).
If
the Borrower shall be required by law to deduct any Taxes from or in respect
of
any sum payable hereunder to the Lenders (or any Transferee) or the
Administrative Agent, (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.19)
such
Lender (or Transferee) or the Administrative Agent (as the case may be) shall
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions, and (iii) the Borrower
shall pay the full amount deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law; provided,
however,
that
the Borrower shall not be required to increase any such amounts payable to
any
Lender or the Administrative Agent with respect to any withholding tax that
is
imposed or amounts payable to any Lender or the Administrative Agent at the
time
such Lender or Administrative Agent becomes a party to this Agreement (or
designates a new lending office).
(b) In
addition, the Borrower agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges, or similar levies which
arise from any payment made hereunder or from the execution, delivery, or
registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as “Other
Taxes”);
(c) The
Borrower will indemnify each Lender (or Transferee) and the Administrative
Agent
for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes
imposed by any jurisdiction on amounts payable under this Section 2.19)
paid by
such Lender (or Transferee) or the Administrative Agent, as the case may
be, and
any liability (including penalties, interest and expenses) arising therefrom
or
with respect thereto, whether or not such Taxes or Other Taxes were correctly
or
legally asserted by the relevant taxing authority or other Governmental
Authority. Payment of such indemnification shall be made within 30 days after
the date any Lender (or Transferee) or the Administrative Agent, as the case
may
be, makes written demand therefor. If any Lender (or Transferee) or the
Administrative Agent determines in its sole discretion (exercised in good
faith)
that it has received a refund in respect of any Taxes or Other Taxes for
which
such
Lender
(or Transferee) or the Administrative Agent has received payment from the
Borrower hereunder, it shall promptly notify the Borrower of such refund
and
shall, within 15 days after receipt of such refund, repay such refund to
the
Borrower, net of all out-of-pocket expenses (including taxes) of such Lender
(or
Transferee) or the Administrative Agent, as the case may be, and only with
interest received, if any, from the relevant taxing authority or Governmental
Authority; provided
that the
Borrower, upon the request of such Lender (or Transferee) or the Administrative
Agent, agrees to return such refund (plus penalties, interest, or other charges)
to such Lender (or Transferee) or the Administrative Agent, as the case may
be,
in the event such Lender (or Transferee) or the Administrative Agent is required
to repay such refund; provided further that nothing in this Section
2.19
shall
obligate any Lender (or Transferee) or the Administrative Agent to apply
for any
such refund. This subsection shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or
any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.
(d) Within
30
days after the date of any payment of Taxes or Other Taxes withheld by the
Borrower in respect of any payment to any Lender (or Transferee) or the
Administrative Agent, the Borrower will furnish to the Administrative Agent,
at
its address referred to in Section 9.01,
the
original or a certified copy of a receipt evidencing payment
thereof.
(e) Without
prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section 2.19
shall
survive the payment in full of the principal of and interest on all Loans
made
hereunder.
(f) Each
Lender represents and warrants that either (i) it is organized under the
laws of
a jurisdiction within the United States or (ii) it has delivered to the Borrower
and the Administrative Agent duly completed copies of such form or forms
prescribed by the Internal Revenue Service indicating that such Lender is
entitled to receive payments without deduction or withholding of any United
States federal income taxes, as permitted by the Code. Each Transferee agrees
that, on or prior to the date upon which it shall become a party hereto or
obtain a participation herein, and upon the reasonable request from time
to time
of the Borrower or the Administrative Agent, it will deliver to the Borrower
and
the Administrative Agent either (A) a statement that it is organized under
the
laws of a jurisdiction within the United States or (B) duly completed copies
of
such form or forms as may from time to time be prescribed by the United States
Internal Revenue Service, indicating that such Transferee is entitled to
receive
payments without deduction or withholding of any United States federal income
taxes, as permitted by the Code. Each Lender that has delivered, and each
Transferee that hereafter delivers, to the Borrower and the Administrative
Agent
the form or forms referred to in the two preceding sentences further undertakes
to deliver to the Borrower and the Administrative Agent, so far as it may
legally do so, further copies of such form or forms, or successor applicable
form or forms, as the case may be, as and when any previous form filed by
it
hereunder shall expire or shall become incomplete or inaccurate in any
respect.
(g) The
Borrower shall not be required to pay any additional amounts to any Lender
(or
Transferee) in respect of United States withholding tax pursuant to paragraph
(a) above if the obligation to pay such additional amounts would not have
arisen
but for a failure by such Lender (or Transferee) to comply with the provisions
of paragraph (f) above, unless such failure results from (i) a change in
applicable law, regulation, or official interpretation thereof, or (ii) an
amendment, modification, or revocation of any applicable tax treaty or a
change
in official position regarding the application or interpretation thereof,
in
each case after the date hereof (and, in the case of a Transferee, after
the
date of assignment or transfer); provided,
however,
that
the Borrower shall be required to pay those amounts to any Lender (or
Transferee) which it was required to pay hereunder prior to the failure of
such
Lender (or Transferee) to comply with the provisions of paragraph (f).
(h) Any
Lender (or Transferee) claiming any additional amounts payable pursuant to
this
Section 2.19
shall
use reasonable efforts (consistent with legal and regulatory restrictions)
to
file any certificate or document requested by the Borrower or to change the
jurisdiction of its applicable lending office if the making of such a filing
or
change would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue and would not, in the sole determination
of
such Lender (or Transferee), be otherwise disadvantageous to such Lender
(or
Transferee).
(i) If
any
Lender shall request compensation under this Section 2.19,
the
Borrower shall have the right, at its own expense, upon notice to such Lender
and the Administrative Agent, to require such Lender to (i) terminate its
Commitment or (ii) transfer and assign without recourse (in accordance with
and
subject to the restrictions contained in Section 9.04
but with
the assignment fee in such instance to be paid by the Borrower) all or a
portion
of its interest, rights and obligations under this Agreement to another
financial institution which shall assume such obligations; provided
that
(A) no
such termination or assignment shall conflict with any law, rule, or regulation
or order of any Governmental Authority and (B) the Borrower or the assignee,
as
the case may be, shall pay to the affected Lender in immediately available
funds
on the date of such termination or assignment the principal of and interest
accrued to the date of payment on the Loans made by it hereunder and all
other
amounts accrued for its account or owed to it hereunder.
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants to the Administrative Agent and each of
the
Lenders that:
SECTION
3.01. Organization;
Powers; Governmental Approvals.
(a) The
Borrower and each Principal Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its
organization, (ii) has all requisite power and authority to own its property
and
assets and to carry on its business as now conducted and (iii) is qualified
to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not have a Material Adverse Effect.
The
Borrower’s execution, delivery and performance of the Loan Documents are within
its corporate powers, have been duly authorized by all necessary action and
do
not violate or create a default under (A) law, (B) its constituent
documents, or (C) any contractual provision binding upon it, except to the
extent (in the case of violations or defaults described under clauses (A)
or
(C)) where such violation or default would not reasonably be expected to
result
in a Material Adverse Effect. Each of the Loan Documents constitutes the
legal,
valid and binding obligation of the Borrower enforceable against it in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally and general principles of equity,
including an implied covenant of good faith and fair dealing).
(b) Except
for (i) any Governmental Approvals required in connection with any Borrowings
(such approvals being “Borrowing
Approvals”)
and
(ii) any Governmental Approvals the failure to obtain which could not reasonably
be expected to result in a Material Adverse Effect or affect the validity
or
enforceability of this Agreement or any other Loan Document, all Governmental
Approvals required in connection with the execution and delivery by the Borrower
of this Agreement and the other Loan Documents and the performance by the
Borrower of its obligations hereunder and thereunder have been, and, prior
to
the time of any Borrowing, all Borrowing Approvals will be, duly obtained,
are
(or, in the case of Borrowing Approvals, will be) in full force and effect
without having been amended or modified in any manner that may impair the
ability of the Borrower to perform its obligations under this Agreement,
and are
not (or, in the case of Borrowing Approvals, will not be) the subject of
any
pending appeal, stay or other challenge.
SECTION
3.02. Financial
Statements.
The
Borrower has furnished to the Lenders, for itself and its Subsidiaries, its
most
recent filings with the Securities and Exchange Commission on Forms 10-K
and
10-Q. Such Forms 10-K and 10-Q do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make any statement therein,
in light of the circumstances under which it was made, not misleading. Each
of
the financial statements in such Forms 10-K and 10-Q has been, and each of
the
financial statements to be furnished pursuant to Section 5.02
will
be,
prepared in accordance with GAAP applied consistently with prior periods,
except
as therein noted, and fairly presents or will fairly present in all material
respects the consolidated financial position of the Borrower and its
Subsidiaries as of the date thereof and the results of the operations of
the
Borrower and its Subsidiaries for the period then ended.
SECTION
3.03. [Reserved].
SECTION
3.04. Title
to Properties; Possession Under Leases.
(a) To
the
best of the Borrower’s knowledge, each of the Borrower and the Principal
Subsidiaries has good and marketable title to, or valid leasehold interests
in,
or other rights to use or occupy, all its material properties and assets,
except
for minor defects in title that do not interfere with its ability to conduct
its
business as currently conducted or to utilize such properties and assets
for
their intended purposes. All such material properties and assets are free
and
clear of Liens, other than Liens expressly permitted by Section 6.01.
(b) Each
of
the Borrower and the Principal Subsidiaries has complied with all obligations
under all material leases to which it is a party and all such leases are
in full
force and effect, except where such failure to comply or maintain such leases
in
full force and effect would not have a Material Adverse Effect. Each of the
Borrower and the Subsidiaries enjoys peaceful and undisturbed possession
under
all such material leases except where such failure would not have a Material
Adverse Effect.
SECTION
3.05. Ownership
of Subsidiaries.
The
Borrower owns, free and clear of any Lien (other than Liens expressly permitted
by Section 6.01),
all of
the issued and outstanding shares of common stock of each of the Principal
Subsidiaries.
SECTION
3.06. Litigation;
Compliance with Laws.
(a) There
is
no action, suit, or proceeding, or any governmental investigation or any
arbitration, in each case pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of the Subsidiaries or any material
property of any thereof before any court or arbitrator or any governmental
or
administrative body, agency, or official which (i) challenges the validity
of
this Agreement or any other Loan Document, (ii) may reasonably be expected
to
have a material adverse effect on the ability of the Borrower to perform
any of
its obligations under this Agreement or any other Loan Document or on the
rights
of or benefits available to the Lenders under this Agreement or any other
Loan
Document or (iii) except as disclosed in the Borrower’s Annual Report on Form
10-K for the fiscal year ended December 31, 2006, may reasonably be expected
to
have a Material Adverse Effect.
(b) Neither
the Borrower nor any of the Subsidiaries is in violation of any law, rule,
or
regulation, or in default with respect to any judgment, writ, injunction
or
decree of any Governmental Authority, where such violation or default could
reasonably be anticipated to result in a Material Adverse Effect.
(c) Except
as
set forth in or contemplated by the financial statements or other reports
referred to in Section 3.02
hereof
and which have been delivered to the Lenders on or prior to the date hereof,
(i)
the Borrower and each of its Subsidiaries have complied with all Environmental
Laws, except to the extent that failure to so comply is not reasonably likely
to
have a Material Adverse Effect, (ii) neither the Borrower nor any of its
Subsidiaries has failed to obtain, maintain or comply with any permit, license
or other approval under any Environmental Law, except where such failure
is not
reasonably likely to have a Material Adverse Effect, (iii) neither the Borrower
nor any of its Subsidiaries has received notice of any failure to comply
with
any Environmental Law or become subject to any liability under any Environmental
Law, except where such failure or liability is not reasonably likely to have
a
Material Adverse Effect, (iv) no facilities of the Borrower or any of its
Subsidiaries are used to manage any Specified Substance in violation of any
law,
except to the extent that such violations, individually or in the aggregate,
are
not reasonably likely to have a Material Adverse Effect, and (v) the Borrower
is
aware of no events, conditions or circumstances involving any Release of
a
Specified Substance that is reasonably likely to have a Material Adverse
Effect.
SECTION
3.07. Agreements.
(a) Neither
the Borrower nor any of the Subsidiaries is a party to any agreement or
instrument or subject to any corporate restriction that has resulted, or
could
reasonably be anticipated to result, in a Material Adverse Effect.
(b) Neither
the Borrower nor any of the Subsidiaries is in default in any manner under
any
provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is
a
party or by which it or any of its properties or assets are or may be bound,
where such default could reasonably be anticipated to result in a Material
Adverse Effect.
SECTION
3.08. Federal
Reserve Regulations.
No
part
of the proceeds of the Loans will be used, whether directly or indirectly,
and
whether immediately, incidentally, or ultimately, for any purpose which entails
a violation of, or which is inconsistent with, the provisions of the Margin
Regulations.
SECTION
3.09. Investment
Company Act; Public Utility Holding Company Act.
Neither
the Borrower nor any of the Subsidiaries is (a) an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of
1940
or (b) a “holding
company”
or
an
“affiliate”
of
a
“holding
company”
or
a
“subsidiary
company”
of
a
“holding
company,”
as
each
such term is defined and used in the Public Utility Holding Company Act of
1935,
as amended or repealed by the Public Utility Holding Company Act of 2005,
enacted as part of the Energy Policy Act of 2005, Pub. L. No. 109-58 as codified
at §§ 1261 et
seq.,
and
the regulations adopted thereunder, as amended.
SECTION
3.10. Use
of Proceeds.
The
Borrower will use the proceeds of the Loans solely to finance the Acquisition
and to refinance the Existing Target Debt, including to pay for costs, fees
and
expenses incurred in connection therewith.
SECTION
3.11. Tax
Returns.
Each
of
the Borrower and the Subsidiaries has filed or caused to be filed all Federal,
state, and local returns required to have been filed by it and has paid or
caused to be paid all taxes shown to be due and payable on such returns or
on
any assessments received by it, except (i) taxes that are being contested
in
good faith by appropriate proceedings and for which the Borrower shall have
set
aside on its books adequate reserves and (ii) where such failure to file or
pay would not reasonably be expected to result in a Material Adverse
Effect.
SECTION
3.12. No
Material Misstatements.
No
statement, information, report, financial statement, exhibit or schedule
furnished by or on behalf of the Borrower to the Administrative Agent or
any
Lender in connection with the syndication or negotiation of this Agreement
or
any other Loan Document or included herein or therein or delivered pursuant
hereto or thereto contained, contains, or will contain any material misstatement
of fact or intentionally omitted, omits, or will omit to state any material
fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are, or will be made, not misleading.
SECTION
3.13. Employee
Benefit Plans.
(a) Each
Plan
is in compliance with ERISA, except for such noncompliance that has not
resulted, and could not reasonably be anticipated to result, in a Material
Adverse Effect.
(b) No
Plan
has an accumulated or waived funding deficiency within the meaning of Section
412 or Section 418B of the Code or, upon the effectiveness of Title I of
the
Pension Protection Act, a “funding shortfall” within the meaning of Section 430
of the Code, except for any such deficiency that has not resulted, and could
not
reasonably be anticipated to result, in a Material Adverse Effect.
(c) No
proceedings have been instituted to terminate any Plan, except for such
proceedings where the termination of a Plan has not resulted, and could not
reasonably be anticipated to result, in a Material Adverse Effect.
(d) Neither
the Borrower nor any Subsidiary or ERISA Affiliate has incurred any liability
to
or on account of a Plan under ERISA (other than obligations to make
contributions in accordance with such Plan), and no condition exists which
presents a material risk to the Borrower or any Subsidiary of incurring such
a
liability, except for such liabilities that have not resulted, and could
not
reasonably be anticipated to result, in a Material Adverse Effect.
SECTION
3.14. Insurance.
Each
of
the Borrower and the Principal Subsidiaries maintains insurance with financially
sound and reputable insurers, or self-insurance, with respect to its properties
and business against loss or damage of the kind customarily insured against
by
reputable companies in the same or similar business and of such types and
in
such amounts (with such deductible amounts) as is customary for such companies
under similar circumstances.
SECTION
3.15. Senior
Debt.
The
Obligations constitute and have been designated as “Senior
lndebtedness”,
“Senior
Debt,” “Designated
Senior Indebtedness”
or any
equivalent term, however defined, in each document or instrument governing
subordinated Indebtedness of the Borrower.
CONDITIONS
OF LENDING
SECTION
4.01. Each
Borrowing.
The
obligation of each Lender to make a Loan on the occasion of any Borrowing,
including any Conversion pursuant to Section
2.05,
is
subject to the satisfaction of the following conditions:
(a) The
Administrative Agent shall have received a notice of such Borrowing as required
by Section 2.04
or
2.05,
as
applicable;
(b) The
representations and warranties set forth in Sections
3.01(a),
3.08,
3.09, 3.10, and
3.15
herein
(except, in the case of a Conversion, the representations set forth in
Section
3.06(a))
shall
be true and correct in all material respects on and as of the date of such
Borrowing;
(c) The
representations and warranties that are set forth in Article
III hereof
(other than the representations and warranties referred to in clause
(b) above),
and each other Loan Document and the representations and warranties relating
to
the Target in the Acquisition Agreement (disregarding, in each case, all
exceptions in such representations and warranties for “materiality” or “Material
Adverse Effect”), shall be true and correct on and as of the date of such
Borrowing, before and after giving effect to the making of the Loans and
the
application of proceeds therefrom, except to the extent the failure of such
representations and warranties to be true and correct would not, individually
or
in the aggregate, have an Acquisition Material Adverse Effect (it being
understood that the only representations and warranties relating to the Target
that shall be taken into account for purposes of determining whether such
failure to be true and correct would have an Acquisition Material Adverse
Effect
are such of the representations and warranties made by the Target in the
Acquisition Agreement as are material to the interests of the Lenders, but
only
to the extent that the Borrower has the right to terminate its obligations
under
the Acquisition Agreement as a result of the breach of such representations
and
warranties in the Acquisition Agreement); and
(d) At
the
time of, and immediately after such Borrowing, no Event of Default or Default
that is set forth in Sections
7.01(b),
(c),
(f)
or
(g)
shall
have occurred and be continuing;
each
Borrowing shall be deemed to constitute a representation and warranty by
the
Borrower on the date of such Borrowing as to the matters specified in paragraphs
(b)
and
(c)
of
this
Section 4.01.
SECTION
4.02. Term
Loan.
The
obligations of the Lenders to make the Term Loan hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.08):
(a) The
Administrative Agent shall have received favorable written opinions of counsel
to the Borrower and of the general counsel of the Borrower, each dated the
Effective Date and addressed to the Lenders, in form and substance satisfactory
to the Administrative Agent, and the Borrower hereby instructs each such
counsel
to deliver such opinions to the Administrative Agent;
(b) All
legal
matters incident to this Agreement and the borrowings hereunder shall be
satisfactory to the Administrative Agent and the Lenders;
(c) The
Administrative Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of the Borrower,
certified as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of the Borrower as
of a
recent date, from such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of the Borrower dated the Effective Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of the
Borrower as in effect on the Effective Date and at all times since a date
prior
to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board
of
Directors of the Borrower authorizing the execution, delivery and performance
of
this Agreement and the borrowings hereunder, and that such resolutions have
not
been modified, rescinded, or amended and are in full force and effect, (C)
that
the certificate or articles of incorporation of the Borrower have not been
amended since the date of the last amendment thereto shown on the certificate
of
good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing this Agreement
or
any other document delivered in connection herewith on behalf of the Borrower;
(iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to clause (ii) above; and (iv) such other documents as the
Administrative Agent or the Lenders may reasonably request;
(d) The
Administrative Agent shall have received a certificate, dated the Effective
Date
and signed by a Financial Officer of the Borrower, confirming compliance
with
the conditions precedent set forth in paragraphs (b)
and
(d)
of
Section 4.01;
(e) The
Administrative Agent shall have received all Fees and other amounts due and
payable on or prior to the Effective Date;
(f) The
Administrative Agent shall have received evidence satisfactory that the
Acquisition shall be consummated substantially simultaneously with or
immediately following the Effective Date in accordance with the Acquisition
Agreement and in all material respects in accordance with all material related
documentation (in each case, without any waiver, amendment or modification
of
any material provision thereof in a manner adverse to the interests of the
Lenders in any material respect without the consent of each of the Arrangers
(with such consent not to be unreasonably withheld or delayed));
and
(g) The
Administrative Agent shall have received a certificate of a Financial Officer
accompanied by customary supporting schedules and other customary data that
the
Leverage Ratio, calculated as of the last day of the most recent fiscal quarter
ending more than 45 days before the Effective Date after giving pro
forma
effect
to the Acquisition, the incurrence of Indebtedness hereunder (including the
Loans) and the application of proceeds as contemplated hereby, of the Borrower
and its Subsidiaries was not greater than 4.5 to 1.
AFFIRMATIVE
COVENANTS
The
Borrower covenants and agrees with the Administrative Agent and each Lender
that, so long as this Agreement shall remain in effect or the principal of
or
interest on any Loan (or any portion thereof), or any other expenses or amounts
payable hereunder, shall be unpaid, the Borrower will:
SECTION
5.01. Existence;
Businesses and Properties.
(a) Preserve
and maintain, cause each of the Principal Subsidiaries to preserve and maintain,
and cause each other Subsidiary to preserve and maintain (where the failure
by
any such other Subsidiary to so preserve and maintain would likely result
in a
Material Adverse Effect), its corporate existence, rights and franchises,
except
in connection with an Asset Exchange, provided,
however,
that
the corporate existence of any Principal Subsidiary may be terminated if
such
termination is not disadvantageous to the Administrative Agent or any
Lender;
(b) continue
to own all of the outstanding shares of common stock of each Principal
Subsidiary, except in connection with an Asset Exchange;
(c) comply,
and cause each of the Subsidiaries to comply, in all material respects, with
all
applicable laws, rules, regulations and orders, including, without limitation,
all Environmental Laws;
(d) pay,
and
cause each of the Subsidiaries to pay, before any such amounts become
delinquent, (i) all taxes, assessments and governmental charges imposed upon
it
or upon its property, and (ii) all claims (including without limitation,
claims
for labor, materials, supplies, or services) which might, if unpaid, become
a
Lien upon its property, unless, in each case, the validity or amount thereof
is
being disputed in good faith, and the Borrower has maintained adequate reserves
with respect thereto, in each case where the failure to so pay would be
reasonably expected to cause a Material Adverse Effect;
(e) keep,
and
cause each of the Subsidiaries to keep, proper books of record and account,
containing complete and accurate entries of all financial and business
transactions of the Borrower and such Subsidiary in all material
respects;
(f) continue
to carry on, and cause each Principal Subsidiary to continue to carry on,
substantially the same type of business as the Borrower or such Principal
Subsidiary conducted as of the date hereof and business reasonably related
thereto, except for changes in such business that result from an Asset Exchange;
and
(g) maintain
or cause to be maintained insurance with financially sound and reputable
insurers, or self-insurance, with respect to its properties and business
and the
properties and business of the Subsidiaries against loss or damage of the
kinds
customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts (with
such
deductible amounts) as is customary for such companies under similar
circumstances;
provided,
however,
that
the foregoing shall not limit the right of the Borrower or any of its
Subsidiaries to engage in any transaction not otherwise prohibited by
Section 6.02,
6.03
or
6.04.
SECTION
5.02. Financial
Statements, Reports, etc.
In
the
case of the Borrower, furnish to the Administrative Agent and each
Lender:
(a) as
soon as
available and in any event within 90 days after the end of each fiscal year,
consolidated balance sheets and the related statements of income and cash
flows
of the Borrower and its Subsidiaries (the Borrower and its Subsidiaries being
collectively referred to as the “Companies”)
as of
the close of such fiscal year (which requirement shall be deemed satisfied
by
the delivery of the Borrower’s Annual Report on Form 10-K (or any successor
form) for such year), all audited by KPMG LLP or other independent public
accountants of recognized national standing and accompanied by an opinion
of
such accountants to the effect that such consolidated financial statements
fairly present in all material respects the financial condition and results
of
operations of the Companies on a consolidated basis in accordance with GAAP
consistently applied;
(b) within
45
days after the end of the first three fiscal quarters of each fiscal year
(commencing with March 31, 2007), consolidated balance sheets and related
statements of income and cash flows of the Companies as of the close of such
fiscal quarter and the then elapsed portion of the fiscal year (which
requirement shall be deemed satisfied by the delivery of the Borrower’s
Quarterly Report on Form 10-Q (or any successor form) for such quarter),
each
certified by a Financial Officer as fairly presenting the financial condition
and results of operations of the Companies on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments;
(c) concurrently
with any delivery of financial statements under paragraph (a) or (b) of this
Section, a certificate of a Financial Officer of the Borrower (i) certifying
as
to whether a Default has occurred and, if a Default has occurred, specifying
the
details thereof and any action taken or proposed to be taken with respect
thereto and (ii) setting forth reasonably detailed calculations (including
with
respect to any pro forma effect given to a Material Transaction) demonstrating
compliance with Section
6.07
as of
the last day of the most recent fiscal quarter covered by such financial
statements;
(d) promptly
upon the mailing or filing thereof, copies of all financial statements, reports
and proxy statements mailed to the Borrower’s public shareholders, and copies of
all registration statements (other than those on Form S-8) and Form 8-K’s (to
the extent that such Form 8-K’s disclose actual or potential adverse
developments with respect to the Borrower or any of its Subsidiaries that
constitute, or could reasonably be anticipated to constitute, a Material
Adverse
Effect) filed with the Securities and Exchange Commission (or any successor
thereto) or any national securities exchange;
(e) promptly
after (i) the occurrence thereof, notice of any ERISA Termination Event or
“prohibited transaction”, as such term is defined in Section 4975 of the Code,
with respect to any Plan that results, or could reasonably be anticipated
to
result, in a Material Adverse Effect, which notice shall specify the nature
thereof and the Borrower’s proposed response thereto, and (ii) actual knowledge
thereof, copies of any notice of PBGC’s intention to terminate or to have a
trustee appointed to administer any Plan; and
(f) promptly,
from time to time, such other information, regarding its operations, business
affairs and financial condition, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request.
Documents
required to be delivered pursuant to Section
5.02(a), (b) or
(d)
(to the
extent any such documents are included in materials otherwise filed with
the
Securities and Exchange Commission (or any successor thereto)) may be delivered
electronically and if so delivered, shall be deemed to have been delivered
on
the date (i) on which the Borrower posts such documents, or provides a link
thereto on the Borrower’s on the Internet at the website address listed in
Schedule
9.01;
or
(ii)
on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have
access (whether a commercial, third-party website or whether sponsored by
the
Administrative Agent); provided
that:
(i) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of
the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e.,
soft
copies) of such documents. Notwithstanding anything contained herein, in
every
instance the Borrower shall be required to provide paper copies of the
compliance certificates required by Section
5.02(c) to
the
Administrative Agent. Except for such compliance certificates, the
Administrative Agent shall have no obligation to request the delivery or
to
maintain copies of the documents referred to above, and in any event shall
have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
SECTION
5.03. Litigation
and Other Notices.
Furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) any
Event
of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect
thereto;
(b) the
filing or commencement of, or any written notice of intention of any Person
to
file or commence, any action, suit or proceeding, whether at law or in equity
or
by or before any Governmental Authority, against the Borrower or any of the
Subsidiaries which is reasonably likely to be adversely determined and which,
if
adversely determined, could reasonably be anticipated to result in a Material
Adverse Effect; and
(c) any
development with respect to the Borrower or any Subsidiary that has resulted
in,
or could reasonably be anticipated to result in, a Material Adverse
Effect.
SECTION
5.04. Maintaining
Records.
Maintain
all financial records in accordance with GAAP and, upon reasonable notice,
permit the Administrative Agent and each Lender to visit and inspect the
financial records of the Borrower at reasonable times and as often as requested
and to make extracts from and copies of such financial records, and permit
any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of the Borrower with the appropriate
officers thereof and, with the Borrower’s consent (which shall not be
unreasonably withheld), the independent accountants therefor; provided,
however,
that if
the Borrower shall so require, a single representative shall be appointed
by
Lenders holding at least 50% of the aggregate outstanding principal balance
of
the Loans to exercise the rights granted to the Lenders under this Section 5.04;
provided,
further,
that
when an Event of Default exists the Administrative Agent or any Lender may
do
any of the foregoing, upon reasonable notice, at any time during normal business
hours (without appointment of a single representative by the
Lenders).
SECTION
5.05. Use
of Proceeds.
Use
the
proceeds of the Loans solely for the purposes specified in Section
3.10
hereof.
NEGATIVE
COVENANTS
The
Borrower covenants and agrees with each Lender and the Administrative Agent
that, so long as this Agreement shall remain in effect or the principal of
or
interest on any Loan (or any portion thereof), or any other expenses or amounts
payable hereunder, shall be unpaid, it will not:
SECTION
6.01. Liens;
Restrictions on Sales of Receivables.
Create,
incur, assume, or suffer to exist, or permit any of the Principal Subsidiaries
to create, incur, assume, or suffer to exist, any Lien on any of its property
now owned or hereafter acquired to secure any Indebtedness of the Borrower
or
any such Principal Subsidiary, or sell or assign any accounts receivable
(other
than in the ordinary course of business substantially in accordance with
the
Borrower’s past practice), other than: (a) Liens incurred or deposits made
in the ordinary course of business to secure surety and appeal bonds, leases,
return-of-money bonds and other similar obligations (exclusive of obligations
of
the payment of borrowed money); (b) pledges or deposits to secure the
utility obligations of the Borrower incurred in the ordinary course of business;
(c) Liens upon or in property now owned or hereafter acquired to secure
Indebtedness incurred solely for the purpose of financing the acquisition,
construction or improvement of any property, provided
that
such
Indebtedness shall not exceed the fair market value of the property being
acquired, constructed or improved; (d) Liens on the assets of any Principal
Subsidiary to secure the repayment of project financing for such Principal
Subsidiary; (e) Liens on the assets of any Person merged or consolidated
with or into (in accordance with Section 6.04)
the
Borrower or any Principal Subsidiary that were in effect at the time of such
merger or consolidation; (f) Liens for taxes, assessments and governmental
charges or levies, which are not yet due or are which are being contested
in
good faith by appropriate proceedings; (g) Liens securing Indebtedness of
the Borrower or any Principal Subsidiary to the Rural Electrification
Administration, the Rural Utilities Service or the Rural Telephone Bank (or
any
successor to any such agency); (h) carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, suppliers or other like Liens arising in the
ordinary course of business relating to obligations not overdue for a period
of
more than 60 days or which are bonded or being contested in good faith by
appropriate proceedings; (i) pledges or deposits in connection with
workers’ compensation laws or similar legislation or to secure public or
statutory obligations; (j) Liens incurred on deposits to secure the
performance of bids, trade contracts, leases, statutory obligations, surety
and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business; (k) easements, rights of way, restrictions
and other encumbrances incurred which, in the aggregate, do not materially
interfere with the ordinary conduct of business; (l) restrictions by
Governmental Authorities on the operations, business or assets of the Borrower
or its Subsidiaries that are customary in the Borrower’s and its Subsidiaries’
businesses; (m) sales of accounts receivable pursuant to, and Liens
existing or deemed to exist in connection with, any Securitization Transactions,
provided
the
aggregate amount of all such Securitization Transactions shall not at any
time
exceed $150,000,000; and (n) other Liens securing Indebtedness outstanding
in an
aggregate principal amount not to exceed $25,000,000; provided,
however,
that
the Borrower or any Principal Subsidiary may create, incur, assume or suffer
to
exist other Liens (in addition to Liens excepted by the foregoing clauses
(a)
through (n)) on its assets so long as such Liens equally and ratably secure
the
Obligations pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION
6.02. Ownership
of the Principal Subsidiaries.
Sell,
assign, pledge, or otherwise transfer or dispose of any shares of common
stock,
voting stock, or stock convertible into voting or common stock of any Principal
Subsidiary, except (a) to another Subsidiary, (b) in connection with
an Asset Exchange; provided,
however,
that
the Borrower may pledge any shares of common stock, voting stock, or stock
convertible into voting or common stock of any Principal Subsidiary so long
as
such pledge equally and ratably secures the Obligations pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION
6.03. [Reserved].
SECTION
6.04. Mergers.
Merge
or
consolidate with, or sell, assign, lease, or otherwise dispose of (whether
in
one transaction or a series of transactions) all or substantially all of
its
assets (whether now owned or hereafter acquired), except in connection with
an
Asset Exchange, to any Person, or permit any Principal Subsidiary to do so,
except that any Subsidiary may merge into or, subject to Section 6.03,
transfer assets to the Borrower or any other Subsidiary and the Borrower
may
merge with any Person; provided
that,
immediately thereafter and after giving effect thereto, no event shall occur
or
be continuing which constitutes an Event of Default or a Default and, in
the
case of any such merger to which the Borrower is a party, either the Borrower
is
the surviving corporation or the surviving entity (if not the Borrower) has
a
consolidated net worth (as determined in accordance with GAAP) immediately
subsequent to such merger at least equal to the Consolidated Net Worth of
the
Borrower immediately prior to such merger and expressly assumes the obligations
of the Borrower hereunder; provided,
however,
that,
notwithstanding the foregoing, the Borrower and any of the Principal
Subsidiaries may sell assets in the ordinary course of its business and may
sell
or otherwise dispose of worn out or obsolete equipment on a basis consistent
with good business practices.
SECTION
6.05. Restrictions
on Dividends.
(a) Enter
into or permit any Principal Subsidiary to enter into, any contract or agreement
(other than with a governmental regulatory authority having jurisdiction
over
the Borrower or such Principal Subsidiary) restricting the ability of such
Principal Subsidiary to pay dividends or make distributions to the Borrower
in
any manner that would impair the ability of the Borrower to meet its present
and
future obligations hereunder.
(b) In
the
case of the Borrower only, declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to
do so,
in each case if any Event of Default has occurred and is continuing at the
time
of such action or will result therefrom (but excluding the payment of dividends
declared and announced by the Board of Directors at a time when no Event
of
Default existed).
SECTION
6.06. Transactions
with Affiliates.
Except
in
connection with an Asset Exchange, sell or transfer any property or assets
to,
or purchase or acquire any property or assets from, or otherwise engage in
any
other transactions with, any of its Affiliates, except that as long as no
Default or Event of Default shall have occurred and be continuing, the Borrower
or any Subsidiary may engage in any of the foregoing transactions (i) in
the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (ii) as otherwise may be
required by any Federal or state Governmental Authority, or (iii) so long
as
such transactions are not materially disadvantageous to the
Borrower.
SECTION
6.07. Financial
Ratio.
Permit
the Leverage Ratio on any date prior to the Maturity Date to be greater than
4.5:1.
SECTION
6.08. Guarantees.
Permit
any Subsidiary to enter into, directly or indirectly, any Guarantee of any
Indebtedness of the Borrower or any Subsidiary unless the Obligations are
Guaranteed on a pari passu basis pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent, except (i) any Guarantee
in
effect at the time such Subsidiary becomes a Subsidiary of the Borrower,
so long
as such Guarantee was not entered into solely in contemplation of such Person
becoming a Subsidiary of the Borrower, (ii) any Guarantee in effect as of
the
Effective Date that is listed on Schedule
6.08,
and
(iii) additional Guarantees aggregating not more than $25,000,000 at any
one
time outstanding.
EVENTS
OF DEFAULT
SECTION
7.01. Events
of Default.
In
case
of the happening of any of the following events (“Events
of Default”):
(a) any
representation or warranty made or deemed made in or in connection with this
Agreement or any Loan Document or the Borrowings hereunder or thereunder,
or any
representation, warranty, statement, or information contained in any written
report, certificate, financial statement, or other instrument furnished in
connection with or pursuant to this Agreement or any Loan Document, shall
prove
to have been false or misleading in any material respect when so made, deemed
made, or furnished;
(b) default
shall be made in the payment of any principal of any Loan (or any portion
thereof) when and as the same shall become due and payable, whether at the
due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan (or any portion
thereof), or any Fee or any other amount (other than an amount referred to
in
(b)
above)
due hereunder, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of five Business
Days;
(d) default
shall be made in the due observance or performance of any covenant, condition,
or agreement contained in Section 5.01(f)
or
Section 5.05
or in
Article
VI;
(e) default
shall be made in the due observance or performance of any covenant, condition,
or agreement contained herein or any other Loan Document (other than those
specified in (b),
(c), or
(d)
above)
and such default shall continue unremedied for a period of 30 days after
the
earlier to occur of (i) the Borrower obtaining knowledge thereof and (ii)
the
date that written notice thereof shall have been given to the Borrower by
the
Administrative Agent or any Lender;
(f) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect
of the
Borrower or any Principal Subsidiary, or of a substantial part of the property
or assets of the Borrower or a Principal Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership, or similar law, (ii)
the
appointment of a receiver, trustee, custodian, sequestrator, conservator,
or
similar official for the Borrower or any Principal Subsidiary or for a
substantial part of the property or assets of the Borrower or a Principal
Subsidiary, or (iii) the winding-up or liquidation of the Borrower or any
Principal Subsidiary; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(g) the
Borrower or any Principal Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal
or
state bankruptcy, insolvency, receivership, or similar law, (ii) consent
to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (f)
above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator, or similar official for the Borrower or any Principal
Subsidiary or for a substantial part of the property or assets of the Borrower
or any Principal Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a
general assignment for the benefit of creditors, (vi) become unable, admit
in
writing its inability, or fail generally to pay its debts as they become
due, or
(vii) take any action for the purpose of effecting any of the
foregoing;
(h) the
Borrower or any Principal Subsidiary, as the case may be, fails to pay when
due,
or within any grace period applicable thereto by the terms thereof, any
Indebtedness of the Borrower or any Principal Subsidiary aggregating $50,000,000
or more;
(i) the
Borrower or any Principal Subsidiary shall fail to observe or perform any
covenant or agreement contained in any single agreement or instrument relating
to any Indebtedness in excess of (x) $75,000,000 in the aggregate, with respect
to any Indebtedness issued on a tax-exempt basis, and (y) $50,000,000 in
the
aggregate, with respect to all other Indebtedness, in each case within any
applicable grace period, or any other event shall occur if the effect of
such
failure or other event is to accelerate, or to permit the holder of such
Indebtedness or any other Person to accelerate, the maturity of such
Indebtedness; or any such Indebtedness shall be required to be prepaid (other
than by a regularly scheduled required prepayment, pursuant to any put right
(or
similar right) of the holder thereof, or by the exercise by the Borrower
or such
Principal Subsidiary of its right to make a voluntary prepayment) in whole
or in
part prior to its stated maturity; or there occurs under any Swap Contract
an
Early Termination Date (as defined in such Swap Contract) resulting from
(A) any
event of default under such Swap Contract as to which the Borrower or any
Principal Subsidiary is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as
to
which the Borrower or any Principal Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than $50,000,000;
(j) a
judgment or order for the payment of money in excess of $50,000,000 and having
a
Material Adverse Effect shall be rendered against the Borrower or any of
the
Subsidiaries and such judgment or order shall continue unsatisfied (in the
case
of a money judgment) and in effect for a period of 30 days during which
execution shall not be effectively stayed or deferred (whether by action
of a
court, by agreement, or otherwise);
(k) a
Plan
shall fail to maintain the minimum funding standard required by Section 412(a)
of the Code for any plan year or a waiver of such standard is sought or granted
under Section 412(d), or, upon the effectiveness of Title I of the Pension
Protection Act, a “funding shortfall” within the meaning of Section 430 of the
Code has occurred, or a Plan is or shall have been terminated or the subject
of
termination proceedings under ERISA, or the Borrower or an ERISA Affiliate
has
incurred a liability to or on account of a Plan under Section 4062, 4063,
4064,
4201 or 4204 of ERISA, and there shall result from any such event or events
a
Material Adverse Effect; or
(l) there
shall have occurred a Change in Control;
then,
and
in every such event (other than an event with respect to the Borrower described
in paragraph (f)
or
(g)
above),
and at any time thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by notice
to the Borrower, take either or both of the following actions, at the same
or
different times: (i) terminate forthwith the Commitments, (ii) declare the
Loans
then outstanding to be forthwith due and payable in whole or in part, whereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder, shall become forthwith due and payable,
without presentment, demand, protest, or any other notice of any kind, all
of
which are hereby expressly waived by the Borrower, anything contained herein
to
the contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (f)
or
(g)
above,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder shall
automatically become due and payable, in each case without further act of
the
Administrative Agent or any Lender and without presentment, demand, protest,
or
any other notice of any kind, all of which are hereby expressly waived by
the
Borrower, anything contained herein to the contrary
notwithstanding.
SECTION
7.02. Application
of Funds.
After
the
exercise of remedies provided for in Section
7.01 (or
after
the Loans have automatically become immediately due and payable as set forth
in
Section
7.01,
any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
First,
to
payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of
counsel
to the Administrative Agent and amounts payable under Section
2.19)
payable
to the Administrative Agent in its capacity as such;
Second,
to
payment of that portion of the Obligations constituting fees, indemnities
and
other amounts (other than principal and interest) payable to the Lenders
(including fees, charges and disbursements of counsel to the respective Lenders
and amounts payable under Sections
2.15
and
2.19),
ratably among them in proportion to the amounts described in this clause
Second
payable
to them;
Third,
to
payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, and other Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause Third
payable
to them;
Fourth,
to
payment of that portion of the Obligations constituting unpaid principal
of the
Loans ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth
held by
them; and
Last,
the
balance, if any, after all of the Obligations have been paid in full, to
the
Borrower or as otherwise required by applicable law.
THE
ADMINISTRATIVE AGENT
In
order
to expedite the transactions contemplated by this Agreement, Citicorp is hereby
appointed to act as Administrative Agent on behalf of the Lenders. Each of
the
Lenders and each Transferee by its agreement to be bound hereby, irrevocably
authorizes the Administrative Agent to take such actions on behalf of such
Lender or Transferee and to exercise such powers as are specifically delegated
to the Administrative Agent by the terms and provisions hereof, together with
such actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting
any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to promptly give notice on behalf of each of the
Lenders to the Borrower of any Event of Default specified in this Agreement
of
which the Administrative Agent has actual knowledge acquired in connection
with
its agency hereunder; and (c) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Borrower
pursuant to this Agreement as received by the Administrative Agent.
Neither
the Administrative Agent nor any of its directors, officers, employees, or
agents shall be liable as such for any action taken or omitted by any of them,
except for its or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty, or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
the
Borrower of any of the terms, conditions, covenants, or agreements contained
herein. The Administrative Agent shall not be responsible to the Lenders or
any
Transferee for the due execution, genuineness, validity, enforceability, or
effectiveness of this Agreement or any other instruments or agreements. The
Administrative Agent may deem and treat each Lender party hereto as a “Lender”
hereunder and for all purposes hereof until it shall have received notice,
given
as provided herein, of the assignment of all of such Lender’s rights and
obligations hereunder. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders (or such other number of Lenders
as
is expressly required hereby with respect to such action or inaction) and,
except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders and
each
Transferee. The Administrative Agent shall, in the absence of knowledge to
the
contrary, be entitled to rely on any instrument or document believed by it
in
good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees, or agents shall have any responsibility to
the
Borrower on account of the failure of or delay in performance or breach by
any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the Borrower
of any of their respective obligations hereunder or in connection herewith.
The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
The
Lenders hereby acknowledge that the Administrative Agent shall be under no
duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do
so by
the Required Lenders.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Lenders and the Borrower, provided,
however,
such
resignation shall not become effective until a successor Administrative Agent
has been appointed as set forth below. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent. If
no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent’s giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, selected from among the Lenders. In either case, such
appointment shall be subject to the prior written approval of the Borrower
(which approval may not be unreasonably withheld and shall not be required
upon
the occurrence and during the continuance of an Event of Default). Upon the
acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to,
and
become vested with, all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall
be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. Prior to any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the retiring Administrative Agent shall
take
such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article
VIII
as to
any actions taken or omitted to be taken by it while it was Administrative
Agent
under this Agreement and the other Loan Documents.
With
respect to the Loans made by it hereunder, the Administrative Agent in its
individual capacity and not as Administrative Agent shall have the same rights
and powers as any other Lender and may exercise the same as though it were
not
the Administrative Agent, and the Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were
not
the Administrative Agent.
Each
Lender agrees (i) to reimburse the Administrative Agent, on demand, in the
amount of its pro
rata share
(based on its Commitment hereunder or, if the Commitments shall have terminated,
based on its outstanding Loans hereunder) of any expenses incurred for the
benefit of the Lenders by the Administrative Agent, including reasonable counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Lenders, which shall not have been reimbursed by the Borrower,
and
(ii) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees, or agents, on demand, in the amount of such
pro
rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, cost, expenses, or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against it in its capacity as the Administrative Agent or any of them in any
way
relating to or arising out of this Agreement or any action taken or omitted
by
it or any of them under this Agreement, to the extent the same shall not have
been indemnified by the Borrower; provided
that no
Lender shall be liable to the Administrative Agent or any of them for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent or any of its
directors, officers, employees, or agents.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or
any
document furnished hereunder or thereunder.
None
of
the Lenders identified on the facing page or signature pages of this Agreement,
if any, as a “syndication agent” or “co-documentation agent” shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified, if any, as a “syndication agent”
or “documentation agent” shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter
into
this Agreement or in taking or not taking action hereunder.
MISCELLANEOUS
SECTION
9.01. Notices.
(a) Notices
Generally.
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in subsection (b)
below),
all notices and other communications provided for herein shall be in writing
and
shall be delivered by hand or overnight courier service, mailed by certified
or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to the
Borrower or the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on
Schedule
9.01;
and
(ii) if
to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b)
below,
shall be effective as provided in such subsection (b).
(b) Electronic
Communications.
(i) The
Borrower and each Lender agree, and the Borrower shall cause each Subsidiary
who
executes a Guaranty Agreement to agree, that the Administrative Agent may,
but
shall not be obligated to, make the Approved Electronic Communications and
any
other notices excluded from the definition of “Approved
Electronic Communications”
available to the Lenders by posting such Approved Electronic Communications
on
IntraLinks™ or a substantially similar electronic platform chosen by the
Administrative Agent to be its electronic transmission system (the “Approved
Electronic Platform”).
(ii) Although
the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified
by
the Administrative Agent from time to time (including, as of the Effective
Date,
a dual firewall and a User ID/Password Authorization System) and the Approved
Electronic Platform is secured through a single-user-per-deal authorization
method whereby each user may access the Approved Electronic Platform only on
a
deal-by-deal basis, the Borrower and each Lender acknowledges and agrees, and
the Borrower shall cause each Subsidiary that executes a Guaranty Agreement
to
acknowledge and agree, that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution. In consideration for the convenience
and other benefits afforded by such distribution and for the other consideration
provided hereunder, the receipt and sufficiency of which is hereby acknowledged,
the Borrower and each Lender hereby approves, and the Borrower shall cause
each
Subsidiary that executes a Guaranty Agreement to approve, distribution of the
Approved Electronic Communications through the Approved Electronic
Platform.
(b) THE
APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE
PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF THE ADMINISTRATIVE AGENT OR ANY OF
ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ADVISORS OR REPRESENTATIVES (THE “AGENT
AFFILIATES”)
WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC
COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS
LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE
APPROVED ELECTRONIC COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT AFFILIATES
IN
CONNECTION WITH THE APPROVED ELECTRONIC PLATFORM OR THE APPROVED ELECTRONIC
COMMUNICATIONS.
(c) The
Borrower and each Lender agrees, and the Borrower shall cause each Subsidiary
that executes a Guaranty Agreement to agree, that the Administrative Agent
may,
but (except as may be required by applicable law) shall not be obligated to,
store the Approved Electronic Communications on the Approved Electronic Platform
in accordance with the Administrative Agent’s generally-applicable document
retention procedures and policies.
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided
that
if such
notice or other communication is not sent during the normal business hours
of
the recipient, such notice or communication shall be deemed to have been sent
at
the opening of business on the next business day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
(c) Change
of Address, Etc.
Each of
the Borrower and the Administrative Agent may change its address, telecopier
or
telephone number for notices and other communications hereunder by notice to
the
other parties hereto. Each other Lender may change its address, telecopier
or
telephone number for notices and other communications hereunder by notice to
the
Borrower and the Administrative Agent.
(d) Reliance
by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon
any
notices (including telephonic Borrowing Requests) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by
the
recipient, varied from any confirmation thereof. The Borrower shall indemnify
the Administrative Agent, each Lender, their Affiliates and each of their
respective partners, directors, officers, employees, agents and advisors from
all losses, costs, expenses and liabilities resulting from the reliance by
such
Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each
of
the parties hereto hereby consents to such recording.
SECTION
9.02. Survival
of Agreement.
All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the Lenders and shall survive the making by the Lenders of the
Loans, regardless of any investigation made by the Lenders or on their behalf,
and shall continue in full force and effect as long as the principal of or
any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement is outstanding and unpaid or so long as the Commitments have not
been
terminated.
SECTION
9.03. Binding
Effect.
This
Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall
have received copies hereof which, when taken together, bear the signatures
of
each Lender, and thereafter shall be binding upon and inure to the benefit
of
the Borrower, the Administrative Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior consent
of
all the Lenders.
SECTION
9.04. Successors
and Assigns.
(a) Whenever
in this Agreement any of the parties hereto is referred to, such reference
shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrower, the
Administrative Agent or the Lenders that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent
of
the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b)
of this
Section, (ii)
by way
of participation in accordance with the provisions of subsection (d)
of this
Section, or (iii)
by
way of
pledge or assignment of a security interest subject to the restrictions of
subsection (f)
of
this
Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d)
of this
Section and, to the extent expressly contemplated hereby, the Administrative
Agent, the Lenders and each of their respective Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any
Lender may at any time assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans); provided
that
(i) except
in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender, (x) the aggregate amount
of
the available Commitment and the principal outstanding balance of the Loans
of
the assigning Lender subject to each such assignment, determined as of the
date
the Assignment and Assumption with respect to such assignment is delivered
to
the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $1,000,000, and (y)
the
aggregate amount of the available Commitment and the principal outstanding
balance of the Loans of the assigning Lender immediately after the effectiveness
of such assignment, shall not be less than $1,000,000;
(ii) each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender’s rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned;
(iii) any
assignment of a Commitment must be approved by the Administrative Agent unless
the Person that is the proposed assignee is itself a Lender (whether or not
the
proposed assignee would otherwise qualify as an Eligible Assignee);
and
(iv) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
of
$3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver
to
the Administrative Agent an Administrative Questionnaire.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c)
of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of
the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections
2.13,
2.15,
2.19,
and
9.05
with
respect to facts and circumstances occurring prior to the effective date of
such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender
of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d)
of this
Section.
(c) The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time
to time (the “Register”).
The
Administrative Agent shall also record in the Register the then scheduled
Maturity Date and shall update the Register from time to time upon any change
in
a Lender’s Commitment and Loans pursuant to the terms of this Agreement. The
entries in the Register shall be conclusive in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Any
Lender may at any time, without the consent of, or notice to, the Borrower
or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided
that
(i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent
and the Lenders shall continue to deal solely and directly with such Lender
in
connection with such Lender’s rights and obligations under this
Agreement.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided
that
such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section
9.08(b)
that
affects such Participant. Subject to subsection (e)
of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections
2.13,
2.15
and
2.19
to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection
(b)
of
this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section
9.05 as
though
it were a Lender, provided
such
Participant agrees to be subject to Section
2.16
as
though it were a Lender.
(e) A
Participant shall not be entitled to receive any greater payment under
Sections
2.13,
2.15
and
2.19
than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section
2.19
unless
the Borrower is notified of the participation sold to such Participant and
such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.19(f)
as
though
it were a Lender.
(f) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided
that
no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) The
words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
SECTION
9.05. Expenses;
Indemnity.
(a) The
Borrower agrees to pay (i) all reasonable legal fees and disbursements incurred
by the Administrative Agent in connection with the preparation of this Agreement
(including reasonable fees and disbursements of counsel subject to limits agreed
to by the Administrative Agent and the Borrower) and (ii) all out-of-pocket
expenses incurred by the Administrative Agent and any Lender in connection
with
any amendments, modifications or waivers of the provisions hereof or thereof
or
incurred by the Administrative Agent or any Lender in connection with the
enforcement or protection of their rights in connection with this
Agreement.
(b) The
Borrower agrees to indemnify the Administrative Agent, each Lender and each
of
their respective directors, officers, employees, Affiliates and agents (each
such Person being called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees
and
expenses, incurred by or asserted against any Indemnitee arising out of,
(i) any
Loan or the use or proposed use of the proceeds therefrom or (ii) any claim,
litigation, investigation, or proceeding relating to this Agreement, any
Loan or
the use or proposed use of the proceeds therefrom or the transactions
contemplated hereby, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities, or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or
willful
misconduct of such Indemnitee. Each Lender shall notify the Borrower promptly
after it determines that it will make a claim for indemnification under this
Section
9.05(b).
The
Borrower shall be entitled to participate in the defense of the litigation,
investigation, or proceeding giving rise to such claim with counsel satisfactory
to the applicable Indemnitee in the exercise of its reasonable
judgment;
provided,
however,
that
any such participation in such defense shall be conducted by the Borrower
and at
the Borrower’s expense and in a manner considered by such Indemnitee to be
satisfactory and effective to protect against such claim without causing
damage
to the conduct of, or affecting such Indemnitee’s control of, such Indemnitee’s
defense. The Borrower shall inform such Indemnitee of its intention to
participate in the defense of such claim within 15 days after receipt of
notice
thereof from such Indemnitee. In the case of an investigation, litigation
or
proceeding to which the indemnity in this section applies, such indemnity
shall
be effective whether or not such investigation, litigation or proceeding
is
brought by the Borrower, the Borrower’s equity holders or creditors or an
Indemnitee, whether or not an Indemnitee is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower further agrees that no Indemnitee shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Borrower or
its
Subsidiaries or Affiliates or their respective equity holders or creditors
arising out of, related to or in connection with any aspect of the transactions
contemplated hereby, except to the extent of direct, as opposed to special,
indirect, consequential or punitive, damages determined in a final nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnitee’s gross negligence or willful misconduct.
(c) The
provisions of this Section 9.05
shall
remain operative and in full force and effect regardless of the expiration
of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the invalidity or unenforceability
of
any term or provision of this Agreement, or any investigation made by or on
behalf of the Administrative Agent or any Lender. All amounts due under this
Section 9.05
shall be
payable on written demand therefor.
SECTION
9.06. Right
of Setoff.
If
an
Event of Default shall have occurred and be continuing, each Lender and each
Affiliate of a Lender is hereby authorized at any time and from time to time,
to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other indebtedness at any time owing by such Person to or for the credit or
the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement held by such Lender or its
Affiliates, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured.
The
rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may
have.
SECTION
9.07. Applicable
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE
STATE OF NEW YORK.
SECTION
9.08. Waivers;
Amendment.
(a) No
failure or delay of the Administrative Agent or any Lender in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or consent to
any
departure by the Borrower therefrom shall in any event be effective unless
the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended, or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders; provided,
however,
that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment
of
any interest on, any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each affected Lender, or (ii) amend or modify the provisions of
Section 2.16,
the
provisions of this Section or the definition of “Required Lenders”, without the
prior written consent of each Lender; (iii) change Section
2.16
or
Section
7.02
in a
manner that would alter the pro rata sharing of payments required thereby
without the written consent of each affected Lender; or (iv) release all or
substantially all of the Subsidiaries party to any Guaranty Agreement from
their
obligations thereunder (except as expressly provided therein), or limit the
liability of such Subsidiaries thereunder, without the written consent of each
Lender; provided
further
that (A)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and
(B)
the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove
any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without
the consent of such Lender. Each Lender shall be bound by any waiver, amendment,
or modification authorized by this Section, and any consent by any Lender
pursuant to this Section shall bind any Transferee of its rights and obligations
hereunder.
SECTION
9.09. Interest
Rate Limitation.
Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively, the “Charges”),
as
provided for herein or in any other document executed in connection herewith,
or
otherwise contracted for, charged, received, taken, or reserved by any Lender,
shall exceed the maximum lawful rate (the “Maximum
Rate”)
which
may be contracted for, charged, taken, received, or reserved by such Lender
in
accordance with applicable law, the rate of interest payable to such Lender,
together with all Charges payable to such Lender, shall be limited to the
Maximum Rate.
SECTION
9.10. Entire
Agreement.
This
Agreement constitutes the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect
to
the subject matter hereof is superseded by this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party other
than
the parties hereto and thereto any rights, remedies, obligations, or liabilities
under or by reason of this Agreement.
SECTION
9.11. Waiver
of Jury Trial.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR
ANY
OTHER AGREEMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH.
EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY
OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
AND
(b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER
INTO THIS AGREEMENT AND, IF APPLICABLE, ANY OTHER AGREEMENT OR INSTRUMENT
EXECUTED AND DELIVERED IN CONNECTION HEREWITH, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
9.11.
SECTION
9.12. Severability.
In
the
event any one or more of the provisions contained in this Agreement should
be
held invalid, illegal, or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in
any
way be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal, or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the invalid, illegal, or unenforceable provisions.
SECTION
9.13. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one contract, and shall become effective as provided in Section 9.03.
SECTION
9.14. Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION
9.15. Jurisdiction;
Consent to Service of Process.
(a) The
Borrower hereby irrevocably and unconditionally submits to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or
any
other agreement or instrument executed and delivered in connection herewith,
or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York State
or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Agreement shall affect
any
right that any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against the Borrower or its properties in the courts
of any jurisdiction.
(b) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action, or proceeding arising out
of or
relating to this Agreement or any other agreement or instrument executed and
delivered in connection herewith in any New York State court or Federal court
of
the United States of America sitting in New York City. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01.
Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION
9.16. USA
PATRIOT Act Notice.
Each
Lender and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Patriot
Act”),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Patriot
Act.
SECTION
9.17. Payments
Set Aside.
To
the
extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent
or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such Lender in its discretion)
to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent
of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to
the
date such payment is made at a rate per annum equal to the Federal Funds
Effective Rate from time to time in effect. The obligations of the Lenders
under
clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
SECTION
9.18. Treatment
of Certain Information; Confidentiality.
Each
of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed
of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c)
to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document
or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual
or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available
to
the Administrative Agent, any Lender or any of their respective Affiliates
on a
nonconfidential basis from a source other than the Borrower.
For
purposes of this Section, “Information”
means
all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or any of their respective businesses, other than
any
such information that is available to the Administrative Agent, or any Lender
on
a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided
that,
in the
case of information received from the Borrower or any Subsidiary after the
date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord
to
its own confidential information.
[Signature
pages follow]
IN
WITNESS WHEREOF,
the
Borrower, the Administrative Agent and the Lenders have caused this Agreement
to
be duly executed by their respective authorized officers as of the day and
year
first above written.
|
|
By:
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/s/ Xxxxxx X. Xxxxxxxx |
Name: Xxxxxx
X.
Xxxxxxxx
|
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Title: Chief
Financial Officer
|
SIGNATURE
PAGE TO
Lender:
CITICORP
NORTH AMERICA, INC.
|
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By:
|
/s/ Xxxxxx X. Xxxxxxx |
Name: Xxxxxx
X.
Xxxxxxx
|
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Title: Director
|
Lenders:
CREDIT SUISSE SECURITIES (USA) LLC
|
|
By:
|
/s/ XxXxxxx Day-Xxxxx |
Name: XxXxxxx
Day-Xxxxx
|
|
Title: Managing
Director
|
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH
|
|
By:
|
/s/ XxXxxxx Day-Xxxxx |
Name: XxXxxxx
Day-Xxxxx
|
|
Title: Managing
Director
|
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH |
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By:
|
/s/ Xxxxx Xxxxx |
Name: Xxxxx
Xxxxx
|
|
Title: Associate
|
SIGNATURE
PAGE TO
Lender:
JPMORGAN CHASE BANK, N.A.
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By:
|
/s/ Xxxx Xxxxxxxxx |
Name: Xxxx
Xxxxxxxxx
|
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Title: Vice
President
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