|
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
DATED
AS OF FEBRUARY 13, 2008
among
SUREWEST
COMMUNICATIONS
as
Borrower,
COBANK,
ACB,
as
Administrative Agent, Lead Arranger, Issuing Lender, Swingline
Lender and a Lender
and
the
other Lenders referred to herein
TABLE OF CONTENTS
|
SECTION
1 AMOUNTS AND TERMS OF LOANS
|
2
|
|
1.1
|
.
|
Loans
|
|
2
|
| |
|
(A)
|
Term
Loan A Facility
|
2
|
| |
|
(B)
|
Term
Loan B Facility
|
2
|
| |
|
(C)
|
Revolving
Loan Facility
|
2
|
| |
|
(D)
|
Swingline
Loan Facility
|
2
|
| |
|
(E)
|
Letters
of Credit
|
3
|
| |
|
(F)
|
Notes
|
6
|
| |
|
(G)
|
Loans
|
6
|
|
1.2
|
.
|
Interest
|
|
6
|
| |
|
(A)
|
Interest
Options
|
7
|
| |
|
(B)
|
Applicable
Margins
|
7
|
| |
|
(C)
|
Interest
Periods
|
8
|
| |
|
(D)
|
Calculation
and Payment
|
8
|
| |
|
(E)
|
Default
Rate of Interest
|
9
|
| |
|
(F)
|
Excess
Interest
|
9
|
| |
|
(G)
|
Selection,
Conversion or Continuation of Loans; LIBOR Availability
|
9
|
|
1.3
|
.
|
Notice
of Borrowing, Conversion or Continuation of Loans
|
10
|
|
1.4
|
.
|
Fees
and Expenses
|
10
|
| |
|
(A)
|
Commitment
Fees
|
10
|
| |
|
(B)
|
Certain
Other Fees
|
11
|
| |
|
(C)
|
Breakage
Fee
|
11
|
| |
|
(D)
|
Expenses
and Attorneys Fees
|
11
|
| |
|
(E)
|
Letter
of Credit Fees
|
11
|
|
1.5
|
.
|
Payments
|
12
|
|
1.6
|
.
|
Repayments
and Reduction of Term Loan Commitments and
|
|
| |
|
Revolving
Loan Commitment and Related Mandatory
|
|
| |
|
Repayments
|
13
|
| |
|
(A)
|
Scheduled
Repayments and Reductions of Term Loan
|
|
| |
|
|
Commitments,
Revolving Loan Commitment and Swingline
|
|
| |
|
|
Loan
Commitment
|
13
|
| |
|
(B)
|
Voluntary
Reduction of Loan Commitments
|
13
|
| |
|
(C)
|
Mandatory
Repayments
|
14
|
|
1.7
|
.
|
Voluntary
Prepayments and Other Mandatory Repayments
|
14
|
| |
|
(A)
|
Voluntary
Prepayment of Loans
|
14
|
| |
|
(B)
|
Repayments
from Insurance Proceeds
|
14
|
| |
|
(C)
|
Repayments
from Asset Dispositions
|
14
|
|
1.8
|
.
|
Application
of Prepayments and Repayments; Payment of
|
|
| |
|
Breakage
Fees, Etc
|
15
|
|
1.9
|
.
|
Loan
Accounts
|
15
|
|
1.10
|
.
|
Changes
in LIBOR Rate Availability
|
15
|
|
1.11
|
.
|
Capital
Adequacy and Other Adjustments
|
16
|
|
1.12
|
.
|
Optional
Prepayment/Replacement of Lender in Respect of
|
|
| |
|
Increased
Costs
|
17
|
|
1.13
|
.
|
Taxes:
No Deductions
|
18
|
| |
|
(A)
|
No
Deductions
|
18
|
| |
|
(B)
|
Foreign
Lenders
|
18
|
|
1.14
|
.
|
Changes
in Tax Laws
|
19
|
|
1.15
|
.
|
Treatment
of Certain Refunds
|
19
|
|
1.16
|
.
|
Mitigation
Obligations
|
20
|
|
1.17
|
.
|
Term
of This Agreement
|
20
|
|
1.18
|
.
|
Letter
of Credit Liability
|
20
|
| |
|
|
|
|
SECTION
2 AFFIRMATIVE
COVENANTS
|
21
|
|
2.1
|
.
|
Compliance
With Laws
|
21
|
|
2.2
|
.
|
Maintenance
of Books and Records; Properties; Insurance
|
21
|
|
2.3
|
.
|
Inspection
|
22
|
|
2.4
|
.
|
Legal
Existence, Etc
|
22
|
|
2.5
|
.
|
Use
of Proceeds
|
22
|
|
2.6
|
.
|
Further
Assurances
|
22
|
|
2.7
|
.
|
CoBank
Patronage Capital
|
22
|
|
2.8
|
.
|
Investment
Company Act
|
23
|
|
2.9
|
.
|
Payment
of Obligations
|
23
|
|
2.10
|
.
|
Environmental
Laws
|
23
|
|
2.11
|
.
|
ERISA
Compliance
|
24
|
| |
|
|
|
|
SECTION
3 NEGATIVE
COVENANTS
|
24
|
|
3.1
|
.
|
Indebtedness
|
24
|
|
3.2
|
.
|
Liens
and Related Matters
|
25
|
|
3.3
|
.
|
Investments
|
25
|
|
3.4
|
.
|
Restricted
Junior Payments
|
25
|
|
3.5
|
.
|
Restriction
on Fundamental Changes
|
25
|
|
3.6
|
.
|
Disposal
of Assets or Subsidiary Stock
|
26
|
|
3.7
|
.
|
Transactions
with Affiliates
|
27
|
|
3.8
|
.
|
Conduct
of Business
|
27
|
|
3.9
|
.
|
Fiscal
Year
|
27
|
|
3.10
|
.
|
Inconsistent
Agreements
|
27
|
| |
|
|
|
|
SECTION
4 FINANCIAL
COVENANTS AND REPORTING
|
27
|
|
4.1
|
.
|
Leverage
Ratio
|
28
|
|
4.2
|
.
|
Interest
Coverage Ratio
|
28
|
|
4.3
|
.
|
Net
Worth
|
28
|
|
4.4
|
.
|
Financial
Statements and Other Reports
|
28
|
| |
|
(A)
|
Quarterly
Financials
|
28
|
| |
|
(B)
|
Year-End
Financials
|
28
|
| |
|
(C)
|
Borrower
Compliance Certificate
|
28
|
| |
|
(D)
|
Budgets
|
29
|
| |
|
(E)
|
SEC
Filings
|
29
|
| |
|
(F)
|
Events
of Default, Etc
|
29
|
| |
|
(G)
|
Litigation
|
29
|
| |
|
(H)
|
Environmental
Notices
|
29
|
| |
|
(I)
|
ERISA
Events
|
29
|
| |
|
(J)
|
Other
Information
|
30
|
|
4.5
|
.
|
Accounting
Terms; Utilization of GAAP for Purposes of
|
|
| |
|
Calculations
Under Agreement
|
30
|
| |
|
|
|
|
SECTION
5 REPRESENTATIONS
AND WARRANTIES
|
30
|
|
5.1
|
.
|
Disclosure
|
30
|
|
5.2
|
.
|
No
Material Adverse Effect
|
31
|
|
5.3
|
.
|
Organization,
Powers, Authorization and Good Standing
|
31
|
| |
|
(A)
|
Organization
and Powers
|
31
|
| |
|
(B)
|
Authorization;
Binding Obligation
|
31
|
| |
|
(C)
|
Qualification
|
31
|
|
5.4
|
.
|
Compliance
of Agreement, Loan Documents and Borrowings with
|
|
| |
|
Applicable
Law
|
31
|
|
5.5
|
.
|
Compliance
with Law; Governmental Approvals
|
32
|
|
5.6
|
.
|
Tax
Returns and Payments
|
32
|
|
5.7
|
.
|
Environmental
Matters
|
32
|
|
5.8
|
.
|
Financial
Statements
|
33
|
|
5.9
|
.
|
Intellectual
Property
|
33
|
|
5.10
|
.
|
Litigation,
Investigations, Audits, Etc
|
33
|
|
5.11
|
.
|
Employee
Labor Matters
|
33
|
|
5.12
|
.
|
ERISA
Compliance
|
34
|
|
5.13
|
.
|
Communications
Regulatory Matters
|
34
|
|
5.14
|
.
|
Solvency
|
35
|
|
5.15
|
.
|
Investment
Company Act
|
35
|
|
5.16
|
.
|
Certain
Agreements and Material Contracts
|
35
|
|
5.17
|
.
|
Title
to Properties
|
35
|
|
5.18
|
.
|
Transactions
with Affiliates
|
35
|
|
5.19
|
.
|
OFAC
|
36
|
|
5.20
|
.
|
Patriot
Act
|
36
|
| |
|
|
|
|
SECTION
6 EVENTS
OF DEFAULT AND RIGHTS AND REMEDIES
|
36
|
|
6.1
|
.
|
Event
of Default
|
36
|
| |
|
(A)
|
Payment
|
36
|
| |
|
(B)
|
Default
in Other Agreements
|
36
|
| |
|
(C)
|
Breach
of Certain Provisions
|
36
|
| |
|
(D)
|
Breach
of Warranty
|
37
|
| |
|
(E)
|
Other
Defaults Under Loan Documents
|
37
|
| |
|
(F)
|
Involuntary
Bankruptcy; Appointment of Receiver; Etc
|
37
|
| |
|
(G)
|
Voluntary
Bankruptcy; Appointment of Receiver; Etc
|
37
|
| |
|
(H)
|
Judgment
and Attachments
|
37
|
| |
|
(I)
|
Dissolution
|
38
|
| |
|
(J)
|
Solvency
|
38
|
| |
|
(K)
|
Injunction
|
38
|
| |
|
(L)
|
ERISA;
Pension Plans
|
38
|
| |
|
(M)
|
Invalidity
of Loan Documents
|
38
|
| |
|
(N)
|
Licenses
and Permits
|
38
|
| |
|
(O)
|
Change
in Control
|
38
|
|
6.2
|
.
|
Suspension
of Commitments
|
38
|
|
6.3
|
.
|
Acceleration
|
39
|
|
6.4
|
.
|
Rights
of Collection
|
39
|
|
6.5
|
.
|
Consents
|
39
|
|
6.6
|
.
|
Performance
by Administrative Agent
|
39
|
|
6.7
|
.
|
Set
Off and Sharing of Payments
|
40
|
|
6.8
|
.
|
Application
of Payments
|
40
|
|
6.9
|
.
|
Adjustments
|
41
|
| |
|
|
|
|
SECTION
7 CONDITIONS
TO LOANS
|
41
|
|
7.1
|
.
|
Conditions
to the Loan on the Amendment Date
|
41
|
| |
|
(A)
|
Executed
Loan and Other Documents
|
41
|
| |
|
(B)
|
Closing
Certificates; Opinions
|
41
|
| |
|
(C)
|
Consents
|
42
|
| |
|
(D)
|
Fees,
Expenses, Taxes, Etc
|
42
|
| |
|
(E)
|
Miscellaneous
|
43
|
|
7.2
|
.
|
Conditions
to All Loans
|
43
|
| |
|
|
|
|
SECTION
8 ASSIGNMENT
AND PARTICIPATION
|
44
|
|
8.1
|
.
|
Assignments
and Participations in Loans and Notes
|
44
|
| |
|
(A)
|
General
|
44
|
| |
|
(B)
|
Assignments
by the Lenders
|
44
|
| |
|
(C)
|
Register
|
46
|
| |
|
(D)
|
Participations
|
46
|
| |
|
(E)
|
Limitations
upon Participant Rights
|
47
|
| |
|
(F)
|
Certain
Pledges
|
47
|
|
8.2
|
.
|
Administrative
Agent
|
47
|
| |
|
(A)
|
Appointment
|
47
|
| |
|
(B)
|
Nature
of Duties
|
48
|
| |
|
(C)
|
Rights,
Exculpation, Etc
|
48
|
| |
|
(D)
|
Reliance
|
49
|
| |
|
(E)
|
Indemnification
|
49
|
| |
|
(F)
|
Administrative
Agent Individually
|
50
|
| |
|
(G)
|
Notice
of Default
|
50
|
| |
|
(H)
|
Successor
Administrative Agent
|
50
|
| |
|
(I)
|
Dissemination
of Information
|
51
|
|
8.3
|
.
|
Consents;
Notices
|
51
|
|
8.4
|
.
|
Disbursement
of Funds
|
51
|
|
8.5
|
.
|
Disbursements
of Loans; Payments
|
52
|
| |
|
(A)
|
Pro
Rata Treatment; Application
|
52
|
| |
|
(B)
|
Availability
of Lender’s Pro Rata Share
|
52
|
| |
|
(C)
|
Return
of Payments
|
52
|
| |
|
|
|
|
|
SECTION
9 MISCELLANEOUS
|
53
|
|
9.1
|
.
|
Indemnities
|
53
|
|
9.2
|
.
|
Amendments
and Waivers
|
53
|
|
9.3
|
.
|
Notices
|
54
|
|
9.4
|
.
|
Failure
or Indulgence Not Waiver; Remedies Cumulative
|
55
|
|
9.5
|
.
|
Payments
Set Aside
|
55
|
|
9.6
|
.
|
Severability
|
55
|
|
9.7
|
.
|
Lenders’
Obligations Several; Independent Nature of
Lenders’
|
|
| |
|
Rights
|
55
|
|
9.8
|
.
|
Headings
|
56
|
|
9.9
|
.
|
Governing
Law
|
56
|
|
9.10
|
.
|
Successors
and Assigns
|
56
|
|
9.11
|
.
|
No
Fiduciary Relationship
|
56
|
|
9.12
|
.
|
Construction
|
56
|
|
9.13
|
.
|
Confidentiality
|
56
|
|
9.14
|
.
|
Consent
to Jurisdiction and Service of Process
|
57
|
|
9.15
|
.
|
Waiver
of Jury Trial
|
57
|
|
9.16
|
.
|
Survival
of Warranties and Certain Agreements
|
58
|
|
9.17
|
.
|
Entire
Agreement
|
58
|
|
9.18
|
.
|
Counterparts;
Effectiveness
|
58
|
|
9.19
|
.
|
Patriot
Act
|
58
|
|
9.20
|
.
|
Effectiveness
of Amendment and Restatement; No Novation
|
58
|
| |
|
|
|
|
SECTION
10 DEFINITIONS
|
59
|
|
10.1
|
.
|
Certain
Defined Terms
|
59
|
|
10.2
|
.
|
Other
Definitional Provisions
|
73
|
SCHEDULES
|
Schedule
3.7
|
Transactions
with Affiliates
|
|
Schedule
5.3(A)
|
Jurisdiction
of Organization
|
|
Schedule
5.3(C)
|
Qualification
to Transact Business
|
|
Schedule
5.4
|
Governmental
Approvals
|
|
Schedule
5.6
|
Tax
Returns and Payments
|
|
Schedule
5.10
|
Litigation,
Etc.
|
|
Schedule
5.11
|
Employee
Labor Matters
|
EXHIBITS
|
Exhibit
1.3
|
Form
of Notice of Borrowing/Conversion/Continuation
|
|
Exhibit
4.4(C)
|
Form
of Compliance Certificate
|
|
Exhibit
10.1(A)
|
Form
of Assignment and Assumption
|
|
Exhibit
10.1(B)
|
Form
of Second Amended and Restated Revolving Loan
|
|
|
Promissory
Note
|
|
Exhibit
10.1(C)
|
Form
of Second Amended and Restated Term Loan A Note
|
|
Exhibit
10.1(D)
|
Form
of Term Loan B Note
|
|
Exhibit
10.1(E)
|
Form
of Swingline Promissory Note
|
INDEX
OF DEFINED TERMS
|
Defined Term
|
Defined in Section
|
| |
|
|
Accounting
Changes
|
§4.5
|
|
Acquired
Indebtedness
|
§10.1
|
|
Adjusted
Consolidated Net Worth
|
§10.1
|
|
Adjustment
Date
|
§10.1
|
|
Administrative
Agent
|
§10.1
|
|
Affected
Lender
|
§1.12
|
|
Affiliate
|
§10.1
|
|
Agreement
|
Preamble
|
|
Amendment
Date
|
§10.1
|
|
Applicable
Law
|
§10.1
|
|
Asset
Disposition
|
§10.1
|
|
Available
Revolving Loan Commitment
|
§10.1
|
|
Banking
Day
|
§10.1
|
|
Bankruptcy
Code
|
§10.1
|
|
Base
Rate
|
§10.1
|
|
Base
Rate Loan
|
§10.1
|
|
Base
Rate Margin
|
§10.1
|
|
Borrower
|
Preamble
|
|
Breakage
Fees
|
§1.4(C)
|
|
Budget
|
§10.1
|
|
Business
Day
|
§10.1
|
|
Calculation
Period
|
§10.1
|
|
Capital
Leases
|
§10.1
|
|
Cash
Equivalents
|
§10.1
|
|
Change
of Law
|
§1.10
|
|
Closing
Date
|
§10.1
|
|
CoBank
|
Preamble
|
|
Communications
Act
|
§10.1
|
|
Compliance
Certificate
|
§4.4(C)
|
|
Consolidated
Net Assets
|
§10.1
|
|
Consolidated
Net Worth
|
§10.1
|
|
Contingent
Obligation
|
§10.1
|
|
Default
|
§10.1
|
|
Defaulting
Lender
|
§10.1
|
|
Directories
Sale
|
§10.1
|
|
EBITDA
|
§10.1
|
|
Electing
Lenders
|
§1.8
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Environmental
Laws
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§10.1
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ERISA
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§10.1
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ERISA
Affiliate
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§10.1
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ERISA
Event
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§10.1
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Event
of Default
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§6.1
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Everest
Acquisition
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§10.1
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Everest
Material Adverse Change
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§10.1
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Evergreen
Letter of Credit
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§1.1(E)(8)
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Excluded
Taxes
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§1.13(A)
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Existing
Credit Agreement
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Preamble
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Facility(ies)
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§10.1
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FCC
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§10.1
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Fixed
Rate Loan
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§1.2(B)
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Fixed
Rate Period
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§1.2(B)
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Foreign
Lender
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§1.13(A)
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Funding
Date
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§7.2
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GAAP
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§10.1
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Governmental
Approvals
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§10.1
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Governmental
Authority
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§10.1
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Incremental
Increase
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Recitals
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Indebtedness
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§10.1
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Indemnitees
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§9.1
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Intellectual
Property Rights
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§5.9
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Interest
Coverage Ratio
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§10.1
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Interest
Period
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§1.2(C)
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Interest
Rate Agreement
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§10.1
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Investment
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§10.1
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Issuing
Lender
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§10.1
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Lender(s)
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§10.1
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Assignment
and Assumption
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§10.1
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IRC
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§10.1
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ISP
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§1.1(E)(7)
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Letter
of Credit Liability
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§10.1
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Letter(s)
of Credit
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§1.1(D)
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Leverage
Ratio
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§10.1
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LIBOR
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§10.1
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LIBOR
Loans
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§10.1
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LIBOR
Margin
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§10.1
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Licenses
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§10.1
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Lien
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§10.1
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Loan(s)
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§10.1
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Loan
Commitment(s)
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§10.1
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Loan
Documents
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§10.1
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Material
Adverse Effect
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§10.1
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Material
Contracts
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§10.1
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Multi-employer
Plan
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§10.1
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Net
Proceeds
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§10.1
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Non-Consenting
Lender
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§9.2
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Nonrenewal
Notice Date
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§1.1(E)(8)
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Note(s)
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§10.1
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Note
Purchase Agreement
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§10.1
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Notice
of Borrowing/Conversion/Continuation
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§1.3
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Obligations
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§10.1
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Overnight
LIBOR
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§10.1
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Patriot
Act
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§9.16
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PBGC
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§10.1
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Permitted
Acquisitions
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§3.5
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Permitted
Encumbrances
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§10.1
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Person
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§10.1
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Plan
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§10.1
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Priority
Debt
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§10.1
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Pro
Rata Share
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§10.1
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Proposed
Change
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§9.2
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PUC
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§10.1
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Register
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§8.1(C)
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Related
Interest Rate Agreement
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§10.1
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Replacement
Lender
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§1.12
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Reportable
Event
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§10.1
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Requisite
Lenders
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§10.1
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Restricted
Investments
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§10.1
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Restricted
Junior Payment
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§10.1
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Revolving
Loan(s)
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§10.1
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Revolving
Loan Commitment
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§10.1
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Revolving
Loan Expiration Date
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§10.1
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Revolving
Loan Facility
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§10.1
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Revolving
Note(s)
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§10.1
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SEC
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§4.4(A)
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Statement
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§4.4(B)
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Swingline
Facility
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§10.1
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Swingline
Funding Date
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§7.3
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Swingline
Lender
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§10.1
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Swingline
Loan Commitment
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§10.1
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Swingline
Loans
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§10.1
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Swingline
Note(s)
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§10.1
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Subsidiary
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§10.1
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Tax
Liabilities
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§1.13(A)
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Telecommunications
System
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§10.1
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Term
Loan A
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§10.1
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Term
Loan A Availability Period
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§10.1
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Term
Loan A Commitment
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§10.1
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Term
Loan A Facility
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§10.1
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Term
Loan A Maturity Date
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§10.1
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Term
Loan A Note(s)
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§10.1
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Term
Loan B
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§10.1
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Term
Loan B Commitment
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§10.1
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Term
Loan B Facility
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§10.1
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Term
Loan B Maturity Date
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§10.1
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Term
Loan B Note(s)
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§10.1
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Term
Loan Commitments
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§10.1
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Term
Loan Facilities
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§10.1
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Term
Loan Note(s)
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§10.1
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Term
Loans
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§10.1
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Total
Lender Loan Commitment
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§10.1
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Loan
Commitment(s)
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§10.1
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Wireless
Sale
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§10.1
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SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
This
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT (as
amended, supplemented, modified, extended or restated as permitted
herein from time to time, and including all schedules and exhibits
hereto, this “
Agreement ”)
is entered into as of February 13, 2008, among
SUREWEST COMMUNICATIONS ,
a California corporation (“
Borrower ”),
COBANK, ACB (individually,
“
CoBank ”
and, as Administrative Agent, “
Administrative Agent ”),
in its capacity as Administrative Agent, as Lead Arranger, as
Issuing Lender, as Swingline Lender and as a Lender, and each such
other Lender as may from time to time become a party to this
Agreement. Capitalized terms used and not otherwise defined herein
shall have the meanings given to them in
Subsection 10.1 of
this Agreement.
RECITALS :
WHEREAS, Borrower
and CoBank previously entered into a Credit Agreement, dated as of
May 1, 2006 (the “
Original Credit Agreement ”),
pursuant to which CoBank extended certain financial accommodations
to Borrower consisting of a revolving loan facility and a term loan
facility; and
WHEREAS ,
Borrower and CoBank entered into an Amended and Restated Credit
Agreement, dated as of May 14, 2007 (the “
Existing Credit Agreement
”),
pursuant to which Borrower and CoBank amended and restated the
Original Credit Agreement as described therein; and
WHEREAS ,
Borrower, CoBank, Administrative Agent and Lenders have agreed to
amend and restate the Existing Credit Agreement as described
herein, including, without limitation, to increase
the amount of the Term Loan A Facility by $80,000,000 (such
increase, the “
Incremental Increase ”)
and to add a new Term Loan B Facility ,
the proceeds of the which together with the proceeds of the
Revolver will be used to provide funds for (a) the Everest
Acquisition, (b) general corporate purposes of Borrower and its
Subsidiaries, including, without limitation, capital expenditures,
permitted acquisitions, working capital needs and the issuance of
Letters of Credit, and (c) costs associated with the Loans, and to
provide for certain other amendments described herein; provided
that the proceeds of the new Term Loan B Facility will be used
solely for the Everest Acquisition.
NOW, THEREFORE ,
in consideration of the premises and the agreements, provisions and
covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree, and amend and restate the Existing
Credit Agreement in its entirety, as follows:
Second
Amended and Restated Credit Agreement/SureWest
Communications
SECTION
1
AMOUNTS
AND TERMS OF LOANS
1.1.
Loans .
Subject to the terms and conditions of this Agreement and in
reliance upon the representations, warranties and covenants of
Borrower contained herein and in the other Loan
Documents:
(A)
Term Loan A Facility .
CoBank has previously lent to Borrower $40,000,000 under the Term
Loan A Facility. Each Lender, severally and not jointly, agrees to
lend to the Borrower, in one or more advances during the Term Loan
A Availability Period, a portion of the additional $80,000,000 of
the Term Loan A Commitment as increased on the Amendment Date such
that each Lender shall have advanced to Borrower its Pro Rata Share
of the Term Loan A Commitment;
provided all
conditions precedent set forth in
Subsections 7.1 and
7.2 are
satisfied or waived by the Administrative Agent as provided herein.
Amounts borrowed under this
Subsection 1.1(A) that
are repaid or prepaid may not be reborrowed.
(B)
Term Loan B Facility .
Each Lender, severally and not jointly, agrees to lend to Borrower,
in a single advance on the Amendment Date, its Pro Rata Share of
the Term Loan B Commitment;
provided all
conditions precedent set forth in
Subsections 7.1 and
7.2 are
satisfied or waived by Administrative Agent as provided herein.
Amounts borrowed under this
Subsection 1.1(B) that
are repaid or prepaid may not be reborrowed.
(C)
Revolving Loan Facility .
Each Lender, severally and not jointly, agrees to lend to Borrower,
from time to time during the period commencing on the date all
conditions precedent set forth in
Subsections 7.1 and
7.2 are
satisfied or waived as provided herein and ending on the Business
Day immediately preceding the Revolving Loan Expiration Date, its
Pro Rata Share of each Revolving Loan;
provided that
no Lender shall be required at any time to lend more than its
respective Pro Rata Share of the Available Revolving Loan
Commitment; and
provided ,
further ,
that at any one time the aggregate principal amount of all
Revolving Loans outstanding may not exceed the Revolving Loan
Commitment
less the
sum of (i) the outstanding Letter of Credit Liability and (ii) the
aggregate principal amount of the Swingline Loans then outstanding.
Within the limits of the Revolving Loan Commitment and this
Subsection 1.1(C) and
Subsections 1.6 ,
1.7 and
1.8 ,
amounts borrowed under this
Subsection 1.1(C) may
be prepaid and reborrowed at any time prior to the Revolving Loan
Expiration Date.
(D)
Swingline Loan Facility .
The Swingline Lender agrees to lend to Borrower, during the period
commencing on the date all conditions precedent set forth in
Subsections 7.1 and
7.2 are
satisfied or waived and ending on the Business Day immediately
preceding the Revolving Loan Expiration Date, Swingline
Loans;
provided ,
that the aggregate principal amount of all Swingline Loans
outstanding may not exceed the Swingline Loan Commitment and
provided ,
further ,
that the Swingline Lender shall not be required at any time to lend
more than the Revolving Loan Commitment
less the
sum of (i) the outstanding Letter of Credit Liability and (ii) the
aggregate principal amount of the Revolving Loans and Swingline
Loans then outstanding. Within the limits of the Swingline Loan
Commitment and this
Subsection 1.1(D) and
Subsections 1.6 ,
1.7 and
1.8 ,
amounts borrowed under this
Subsection 1.1(D) may
be prepaid and reborrowed at any time prior to the Revolving Loan
Expiration Date.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(E)
Letters of Credit .
The Revolving Loan Commitment may, in addition to advances as
Revolving Loans, be utilized, upon the request of Borrower, for the
issuance of irrevocable letters of credit (individually, a
“
Letter of Credit ”
and, collectively, the “
Letters of Credit ”)
by Issuing Lender for the account of Borrower or any of its
Subsidiaries. Immediately upon the issuance by Issuing Lender of a
Letter of Credit, and without further action on the part of
Administrative Agent or any Lender with a Pro Rata Share of the
Revolving Loan Commitment, each such Lender shall be deemed to have
purchased from Issuing Lender a participation in such Letter of
Credit equal to such Lender’s Pro Rata Share of the Revolving
Loan Commitment of the aggregate amount available to be drawn under
such Letter of Credit. Each Letter of Credit shall reduce the
amount available under the Revolving Loan Commitment by the maximum
amount capable of being drawn under such Letter of
Credit.
(1)
Maximum Amount .
The aggregate amount of Letter of Credit Liability with respect to
all Letters of Credit outstanding at any time for the account of
Borrower or any of its Subsidiaries may not exceed $25,000,000, and
the aggregate amount of Letter of Credit Liability with respect to
all Letters of Credit outstanding for the account of Borrower or
any of its Subsidiaries
plus the
aggregate principal amount of Revolving Loans and Swingline Loans
outstanding at any time may not exceed the Revolving Loan
Commitment.
(2)
Reimbursement .
Borrower is irrevocably and unconditionally obligated without
presentment, demand, protest or other formalities of any kind to
reimburse Issuing Lender in immediately available funds for any
amounts paid by Issuing Lender with respect to a Letter of Credit
issued hereunder for the account of Borrower or any of its
Subsidiaries. Borrower hereby authorizes and directs Administrative
Agent, at Administrative Agent’s option, to make a Revolving
Loan in the amount of any payment made by Issuing Lender with
respect to any Letter of Credit issued for the account of Borrower
or any of its Subsidiaries. If the Letter of Credit is payable in a
foreign currency, the amount owed by Borrower in connection with
such Letter of Credit shall equal an amount in United States
Dollars equivalent to Issuing Lender’s actual cost of
settling its obligation under such Letter of Credit in such foreign
currency. All amounts paid by Issuing Lender with respect to any
Letter of Credit that are not immediately repaid by Borrower or
that are not repaid with a Revolving Loan shall bear interest at
the sum of the Base Rate
plus the
Base Rate Margin applicable from time to time as provided in
Subsection 1.2(B) .
Each Lender agrees to fund its Pro Rata Share of any Revolving Loan
made pursuant to this
Subsection 1.1(E)(2) .
In the event Administrative Agent elects not to debit Borrower's
account and Borrower fails to reimburse Issuing Lender in full on
the date of any payment in respect of a Letter of Credit issued for
the account of Borrower or any of its Subsidiaries, Administrative
Agent shall promptly notify each Lender the amount of such
unreimbursed payment and the accrued interest thereon and each such
Lender, on the next Business Day, shall deliver to Administrative
Agent an amount equal to its Pro Rata Share thereof in same day
funds. Each Lender hereby absolutely and unconditionally agrees to
pay to Issuing Lender upon demand by Issuing Lender such Lender's
Pro Rata Share of each payment made by Issuing Lender in respect of
a Letter of Credit and not immediately reimbursed by Borrower. Each
Lender acknowledges and agrees that its obligations to acquire
participations pursuant to this
Subsection 1.1(E)(2) in
respect of Letters of Credit and to make the payments to Issuing
Lender required by the preceding sentence are absolute and
unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, the occurrence and
continuance of a Default or an Event of Default or any failure by
Borrower to satisfy any of the conditions set forth in
Subsection 7.2 .
If any Lender fails to make available to Issuing Lender the amount
of such Lender's Pro Rata Share of any payments made by Issuing
Lender in respect of a Letter of Credit as provided in this
Subsection 1.1(E)(2) ,
Issuing Lender shall be entitled to recover such amount on demand
from such Lender together with interest at the Base
Rate.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(3)
Conditions of Issuance of Letters of Credit .
In addition to all other terms and conditions set forth in this
Agreement, the issuance by the Issuing Lender of any Letter of
Credit shall be subject to the conditions precedent that the Letter
of Credit shall support a transaction entered into in the ordinary
course of Borrower’s or any of its Subsidiaries’
businesses, shall be in an amount equal to or greater than $50,000
and shall be in such form and contain such terms and conditions as
are reasonably satisfactory to the Administrative Agent and the
Issuing Lender. The expiration date of each Letter of Credit must
be on a date which is the earlier of one year from its date of
issuance or the 30th day before the date set forth in
clause (iii) of the definition of the term Revolving Loan
Expiration Date, or such other date as agreed to by both
Administrative Agent and Issuing Lender, in their sole
discretion.
(4)
Request for Letters of Credit .
Borrower must give Administrative Agent and Issuing Lender at least
three Business Days’ prior written notice specifying the date
a Letter of Credit is requested to be issued and the amount and the
currency in which such Letter of Credit is payable, identifying the
beneficiary and describing the nature of the transactions proposed
to be supported thereby. Any notice requesting the issuance of a
Letter of Credit shall be accompanied by the form of the Letter of
Credit to be provided by Issuing Lender. Borrower must also
complete any application procedures and documents required by
Issuing Lender in connection with the issuance of any Letter of
Credit, including a certificate regarding Borrower’s
compliance with the provisions of
Subsection 7.2 of
this Agreement.
(5)
Borrower Obligations Absolute .
The obligations of Borrower under this
Subsection 1.1(E) are
irrevocable, will remain in full force and effect until Issuing
Lender and the Lenders have no further obligations to make any
payments or disbursements under any circumstances with respect to
any Letter of Credit, shall be absolute and unconditional, shall
not be subject to counterclaim, setoff or other defense or any
other qualification or exception whatsoever and shall be paid in
accordance with the terms and conditions of this Agreement under
all circumstances, including, without limitation, any of the
following circumstances:
(a)
Any
lack of validity or enforceability of this Agreement, any of
the other Loan Documents or any documents or instruments
relating to any Letter of Credit;
(b)
Any
change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations in respect of any
Letter of Credit or any other amendment, modification or
waiver of or any consent to or departure from any Letter of
Credit, any documents or instruments relating thereto, or any
Loan Document in each case whether or not Borrower or its
Subsidiaries has notice or knowledge thereof;
Second
Amended and Restated Credit Agreement/SureWest
Communications
(c)
The
existence of any claim, setoff, defense or other right that
Borrower or its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee
may be acting), Administrative Agent, Issuing Lender, any
Lender or any other Person, whether in connection with this
Agreement, any other Loan Document, any Letter of Credit, the
transactions contemplated hereby or any other related or
unrelated transaction or transactions (including any
underlying transaction between Borrower or its Subsidiaries
and the beneficiary named in any such Letter of
Credit);
(d)
Any
draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being
untrue or inaccurate in any respect, any errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, telecopier or otherwise, or any errors in
translation or in interpretation of technical
terms;
(e)
Payment
under any Letter of Credit against presentation of a demand,
draft or certificate or other document which does not comply
with the terms of such Letter of Credit;
(f)
Any
defense based upon the failure of any drawing under any Letter
of Credit to conform to the terms of such Letter of Credit
(
provided that
any draft, certificate or other document presented pursuant to such
Letter of Credit appears on its face to comply with the terms
thereof), any nonapplication or misapplication by the beneficiary
or any transferee of the proceeds of such drawing or any other act
or omission of such beneficiary or transferee in connection with
such Letter of Credit;
(g)
The
exchange, release, surrender or impairment of any collateral
or other security for the obligations;
(h)
The
occurrence of any Default or Event of Default; or
(i)
Any
other circumstance or event whatsoever, including, without
limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, Borrower
or any Subsidiary.
Any
action taken or omitted to be taken by the Issuing Lender
under or in connection with any Letter of Credit, if taken or
omitted in the absence of negligence or willful misconduct, is
binding upon Borrower and its Subsidiaries and shall not
create or result in any liability of the Issuing Lender to
Borrower or any of its Subsidiaries. It is expressly agreed
that, for purposes of determining whether a wrongful payment
under a Letter of Credit resulted from the Issuing
Lender’s negligence or willful misconduct, none of the
following shall be deemed to constitute negligence or willful
misconduct by the Issuing Lender: (i) Issuing
Lender’s acceptance of documents that appear on their
face to comply with the terms of such Letter of Credit,
without responsibility for further investigation, (ii)
Issuing Lender’s exclusive reliance on the documents
presented to it under such Letter of Credit as to any and all
matters set forth therein, including the amount of any draft
presented under such Letter of Credit, whether or not the
amount due to the beneficiary thereunder equals the amount of
such draft and whether or not any document presented pursuant
to such Letter of Credit proves to be insufficient in any
respect (so long as such document appears on its face to
comply with the terms of such Letter of Credit), and whether
or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or
untrue in any respect whatsoever, and (iii) any
noncompliance in any immaterial respect of the documents
presented under such Letter of Credit with the terms
thereof.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(6)
Obligations of Issuing Lender .
Issuing Lender (if other than Administrative Agent) hereby agrees
that it will not issue a Letter of Credit hereunder until it has
provided Administrative Agent with written notice specifying the
amount and intended issuance date of such Letter of Credit and
Administrative Agent has returned a written acknowledgment of such
notice to Issuing Lender. Issuing Lender (if other than
Administrative Agent) further agrees to provide to Administrative
Agent: (i) a copy of each Letter of Credit issued by Issuing Lender
promptly after its issuance; (ii) a monthly report summarizing
available amounts under Letters of Credit issued by Issuing Lender,
the dates and amounts of any draws under such Letters of Credit,
the effective date of any increase or decrease in the face amount
of any Letters of Credit during such month and the amount of any
unreimbursed draws under such Letters of Credit; and (iii) such
additional information reasonably requested by Administrative Agent
from time to time with respect to the Letters of Credit issued by
Issuing Lender.
(7)
ISP .
Unless
otherwise expressly agreed by Issuing Lender and the Borrower when
a Letter of Credit is issued, the rules of the “International
Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance)
(“
ISP ”)
shall apply to each Letter of Credit.
(8)
Evergreen Letters of Credit .
If Borrower so requests in any applicable Letter of Credit
application, the Issuing Lender agrees to issue a Letter of Credit
that has automatic renewal provisions (each, an “
Evergreen Letter of Credit ”);
provided that any such Evergreen Letter of Credit must permit the
Issuing Lender to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “
Nonrenewal Notice Date ”)
in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the
Issuing Lender, Borrower shall not be required to make a specific
request to the Issuing Lender for any such renewal. Notwithstanding
anything to the contrary contained herein, the Issuing Lender shall
have no obligation to permit the renewal of any Evergreen Letter of
Credit at any time.
(F)
Notes .
Borrower shall execute and deliver to each requesting Lender a
Revolving Note, a Term Loan A Note, a Term Loan B Note and a
Swingline Note, each dated the Amendment Date, in the principal
amount of such Lender’s Pro Rata Share of the Revolving Loan
Commitment, the Term Loan A Commitment, the Term Loan B Commitment
and the Swingline Loan Commitment, respectively.
(G)
Loans .
Loans will be made available by wire transfer of immediately
available funds. Wire transfers will be made to such account or
accounts as may be authorized by Borrower.
Second
Amended and Restated Credit Agreement/SureWest
Communications
1.2.
Interest .
(A)
Interest Options .
From the date each Loan is made, based upon Borrower’s
election at such time and from time to time thereafter (as provided
in
Subsection 1.3 and
subject to the conditions set forth in such
Subsection 1.3 and
Subsection 1.2 (C) ),
each Loan shall accrue interest as follows:
(1)
as
a portion of the Base Rate Loan, at the sum of the Base
Rate
plus the
Base Rate Margin applicable from time to time as provided in
Subsection 1.2(B) ;
or
(2)
as
a LIBOR Loan, for the applicable Interest Period, at the sum
of LIBOR
plus the
LIBOR Margin applicable from time to time as provided in
Subsection 1.2(B) ;
provided ,
further ,
that for each Swingline Loan, such Swingline Loan shall accrue
interest at the sum of the Overnight LIBOR Rate applicable from
time to time
plus the
LIBOR Margin applicable from time to time as provided in
Subsection 1.2(B) ;
and
provided ,
further ,
that $40,000,000 of the principal amount of the Term Loan A (the
“
Fixed Rate Loan ”)
shall be subject to a fixed rate of 6.2860% for the period from and
including the Amendment Date through and including May 31, 2011
(the “
Fixed Rate Period ”).
Except
as otherwise provided in
Subsections 1.2(E) and
6.6 ,
interest on all Obligations (other than the interest payments
required pursuant to this
Subsection 1.2(A) )
not paid when due will accrue interest at the Base Rate
plus 0.75%
per annum.
(B)
Applicable Margins .
Initially, and continuing through the day immediately preceding the
first Adjustment Date, the applicable Base Rate Margin and LIBOR
Margin shall be 0.75%
and
1.75% per annum, respectively. Commencing on such Adjustment Date,
the applicable Base Rate Margin and LIBOR Margin shall be for each
Calculation Period the applicable per annum percentage set forth in
the pricing table below opposite the applicable Leverage Ratio of
Borrower;
provided ,
that at the election of Requisite Lenders, effective upon the
occurrence of an Event of Default pursuant to
Subsection 6.1(A) or
Subsection 6.1(C) with
respect to failure to comply with a financial covenant in
Section 4 and
for so long as it continues the applicable Base Rate Margin and
LIBOR Margin shall be 0.75% and 1.75% per annum,
respectively.
Second
Amended and Restated Credit Agreement/SureWest
Communications
TERM LOAN A, TERM LOAN B AND REVOLVING LOAN PRICING
TABLE
|
Leverage Ratio
|
Base
Rate Margin
|
LIBOR
Margin
|
|
≥
3.00:1
|
0.75%
|
1.75%
|
|
≥
2.00:1 < 3.00:1
|
0.50%
|
1.50%
|
|
≥
1.00:1< 2.00:1
|
0.25%
|
1.25%
|
|
<
1.00:1
|
0.00%
|
1.00%
|
;
provided ,
that
with respect to Term Loan B outstanding on and after May 13, 2008,
the applicable Base Rate Margin and LIBOR Margin shall be the Base
Rate Margin and LIBOR Margin set forth in the pricing table
above
plus an
additional 0.25% ;
provided ,
further ,
that unless the outstanding principal amount of the Term Loan B has
been reduced to $30,000,000 or less from the proceeds of the
Wireless Sale on or before May 31, 2008, then with respect to Term
Loan B outstanding on and after such date the applicable Base Rate
Margin and LIBOR Margin shall be the Base Rate Margin and LIBOR
Margin set forth in the pricing table above
plus an
additional 3.00%; and
provided ,
further ,
that if the outstanding principal amount of the Term Loan B has
been reduced to $30,000,000 or less from the proceeds of the
Wireless Sale on or before May 31, 2008, then with respect to Term
Loan B outstanding on and after August 12, 2008, the applicable
Base Rate Margin and LIBOR Margin shall be the Base Rate Margin and
LIBOR Margin set forth in the pricing table above
plus an
additional 0.75%.
(C)
Interest Periods .
Each LIBOR Loan may be obtained for a one, two, three, six, nine or
12 month period (each such period being an “
Interest Period ”).
With respect to all LIBOR Loans:
(1)
the
Interest Period will commence on the date that any LIBOR Loan
is made or the date on which any portion of the Base Rate Loan
is converted into a LIBOR Loan, or, in the case of immediately
successive Interest Periods, each successive Interest Period
shall commence on the day on which the immediately preceding
Interest Period expires;
(2)
if
the Interest Period would otherwise expire on a day that is
not a Business Day, then it will expire on the next Business
Day,
provided ,
that if any Interest Period would otherwise expire on a day that is
not a Business Day and such day is a day of a calendar month after
which no further Business Day occurs in such month, such Interest
Period shall expire on the Business Day next preceding such
day;
(3)
any
Interest Period that begins on the last Business Day of a
calendar month or on a day for which there is no numerically
corresponding day in the last calendar month in such Interest
Period shall end on the last Business Day of the last calendar
month in such Interest Period; and
Second
Amended and Restated Credit Agreement/SureWest
Communications
(4)
no
Interest Period shall be selected for any LIBOR Loan if, in
order to make repayments required pursuant to
Subsection 1.6 in
connection with scheduled installments on either Term Loan or
scheduled reductions of the Revolving Loan Commitment pursuant
to
Subsection 1.6 ,
repayment of all or any portion of a Loan prior to the expiration
of such Interest Period would be necessary.
(D)
Calculation and Payment .
Interest on all Loans and all other Obligations and the amount of
any fees set forth in
Subsection 1.4 shall
be calculated on the basis of a 360-day year (of twelve 30-day
months) for the actual number of days elapsed. The date of funding
or conversion to the Base Rate Loan or a Swingline Loan and the
first day of an Interest Period with respect to a LIBOR Loan shall
be included in the calculation of interest. The date of payment of
any Loan, the last day of an Interest Period with respect to a
LIBOR Loan and the last day of the Fixed Rate Period shall be
excluded from the calculation of interest;
provided ,
if a Loan is repaid on the same day that it is made, one
day’s interest shall be charged.
Interest
accruing on each Base Rate Loan and Swingline Loan and on the
Fixed Rate Loan is payable in arrears on each of the following
dates or events: (i) the last day of each calendar quarter,
(ii) the prepayment of such Loan (or portion thereof) and
(iii) the Term Loan A Maturity Date, the Term Loan B Maturity
Date or the Revolving Loan Expiration Date, as applicable,
whether by acceleration or otherwise. Interest accruing on
each LIBOR Loan is payable in arrears on each of the following
dates or events: (i) the last day of each applicable Interest
Period, (ii) if the Interest Period is longer than three
months, on each three-month anniversary of the commencement
date of such Interest Period, (iii) the prepayment of such
Loan (or portion thereof) and (iv) the Term Loan A Maturity
Date, the Term Loan B Maturity Date or the Revolving Loan
Expiration Date, as applicable, whether by acceleration or
otherwise.
Interest
accruing pursuant to
Subsection 1.2(E) is
payable on demand.
(E)
Default Rate of Interest .
At the election of Requisite Lenders, after the occurrence of an
Event of Default pursuant to
Subsection 6.1(A) or
Subsection 6.1(C) with
respect to failure to comply with a financial covenant in
Section 4 and
for so long as it continues, all Loans and other Obligations shall
bear interest at rates that are 2.00% in excess of the rates
otherwise in effect, including, without limitation, rates in effect
pursuant to the proviso in the second sentence of
Subsection 1.2(B) ,
with respect to such Loans and other Obligations.
(F)
Excess Interest .
Notwithstanding anything to the contrary set forth herein, the
aggregate interest, fees and other amounts required to be paid by
Borrower to Lenders or any Lender hereunder are hereby expressly
limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the Indebtedness evidenced
hereby or otherwise, shall the amount paid or agreed to be paid to
Lenders or any Lender for the use or the forbearance of the
Indebtedness or Obligations evidenced hereby exceed the maximum
permissible under Applicable Law. If under or from any
circumstances whatsoever, fulfillment of any provision hereof or of
any of the other Loan Documents at the time of performance of such
provision shall be due, shall involve exceeding the limit of such
as is validity prescribed by Applicable Law then the obligation to
be fulfilled shall automatically be reduced to the limit of such
validity and if under or from any circumstances whatsoever Lenders
or any Lender should ever receive as interest any amount which
would exceed the highest lawful rate, the amount of such interest
that is excessive shall be applied to the reduction of the
principal balance of the Obligations evidenced hereby and not to
the payment of interest. Additionally, should the method used for
calculating interest (i.e., using a 360-day year) be unlawful, such
calculation method shall be automatically changed to a 365-6-day
year or such other lawful calculation method as is reasonably
acceptable to Administrative Agent. This provision shall control
every other provision of this Agreement and all provisions of every
other Loan Document.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(G)
Selection, Conversion or Continuation of Loans; LIBOR
Availability .
Borrower shall have the option to (i) select all or any part of a
new borrowing to be (a) a portion of the Base Rate Loan in a
principal amount equal to $100,000 or any whole multiple of $5,000
in excess thereof, (b) a LIBOR Loan in a principal amount equal to
$500,000 or any whole multiple of $100,000 in excess thereof or (c)
a Swingline Loan in a principal amount equal to $50,000 or any
whole multiple of $5,000 in excess thereof, (ii) convert at
any time all or any portion of the Base Rate Loan or of the Fixed
Rate Loan in a principal amount equal to $500,000 or any whole
multiple of $100,000 in excess thereof into a LIBOR Loan, and (iii)
upon the expiration of its Interest Period, continue any LIBOR Loan
in a principal amount equal to $500,000 or any whole multiple of
$100,000 in excess thereof into one or more LIBOR Loans for such
new Interest Period(s) as selected by Borrower. During any period
in which any Event of Default is continuing, as the Interest
Periods for LIBOR Loans then in effect expire, such Loans shall be
converted into the Base Rate Loan and the LIBOR option will not be
available to Borrower until all Events of Default are cured or
waived. Each LIBOR Loan must be made under a single Facility. In
the event Borrower fails to elect a LIBOR Loan upon any advance
hereunder or upon the termination of any Interest Period or of the
Fixed Rate Period, Borrower shall be deemed to have elected to have
such amount constitute a portion of the Base Rate Loan.
Notwithstanding the foregoing, there may be no more than a total of
ten LIBOR Loans outstanding under the Facilities at any one
time.
1.3.
Notice of Borrowing, Conversion or Continuation of Loans
.
Whenever
Borrower desires to request a Loan pursuant to
Subsection 1.1 or
to convert or continue Base Rate or LIBOR Loans pursuant to
Subsection 1.2(G) ,
Borrower shall give Administrative Agent irrevocable prior written
notice in the form attached hereto as
Exhibit 1.3 (a
“
Notice of Borrowing/Conversion/Continuation
”),
(i) if requesting a borrowing of, conversion to or continuation of
the Base Rate Loan (or any portion thereof), not later than 11:00
a.m. (Denver, Colorado time), one Business Day before the proposed
borrowing, conversion or continuation is to be effective, (ii) if
requesting a borrowing of a Swingline Loan, not later than 2:00
p.m. (Denver, Colorado time) on the date the proposed borrowing is
to be effective or (iii) if requesting a borrowing of, a conversion
to or a continuation of a LIBOR Loan, not later than 11:00 a.m.
(Denver, Colorado time), three Banking Days before the proposed
borrowing, conversion or continuation is to be effective. Each
Notice of Borrowing/Conversion/Continuation shall specify (a) the
Loan (or portion thereof) to be converted or continued and, with
respect to any LIBOR Loan to be converted or continued, the last
day of the current Interest Period therefore, (b) the
effective date of such borrowing, conversion or continuation (which
shall be a Business Day, and in the case of a LIBOR Loan, also a
Banking Day), (c) the principal amount of such Loan to be
borrowed, converted or continued, (d) the Interest Period to be
applicable to any new LIBOR Loan, and (e) the Facility under
which such borrowing, conversion or continuation is to be made.
Upon satisfaction of the notice requirement set forth in
this
Subsection 1.3 ,
and the other applicable conditions set forth in this Agreement,
Administrative Agent shall make the Loan, or requested conversion
or continuation, on the requested effective date.
Second
Amended and Restated Credit Agreement/SureWest
Communications
1.4.
Fees and Expenses .
(A)
Commitment Fees.
(1)
Revolving Loan Commitment Fee .
From the Amendment Date through the Revolving Loan Expiration Date,
Borrower shall pay to Administrative Agent, for the benefit of all
Lenders that are not Defaulting Lenders (based upon their
respective Pro Rata Shares of the Revolving Loan Commitment) a fee
in an amount equal to (i) the Revolving Loan Commitment
less the
sum of (a) the average daily outstanding balance of Revolving
Loans
plus (b) the
average daily outstanding balance of Swingline Loans plus (c) the
average daily outstanding Letter of Credit Liability, in each case
during the preceding calendar quarter
multiplied
by 0.375%
per annum. Such fee is to be paid quarterly in arrears on the last
day of each calendar quarter for such calendar quarter (or portion
thereof) ,
with the final such payment due on the Revolving Loan Expiration
Date .
(2)
Term Loan A Commitment Fee .
Borrower shall pay to Administrative Agent, for the benefit of all
Lenders that are not Defaulting Lenders (based upon their
respective Pro Rata Shares of the Term Loan A Commitment) a fee in
an amount equal to the average daily
unused portion of the Term Loan A Commitment during the Term Loan A
Availability Period at the rate of 0.50% per annum
.
Such fee is to be paid quarterly in arrears on the last day of each
calendar quarter for such calendar quarter (or portion thereof),
with the final such payment due on the last day of the calendar
quarter end immediately following the last day of the Term Loan A
Availability Period.
(B)
Certain Other Fees .
Borrower shall pay to Administrative Agent the fees specified in
that certain letter agreement, dated February 6, 2008, from
Administrative Agent to Borrower, in such amounts and at such times
as specified in such letter agreement.
(C)
Breakage Fee .
Upon any repayment or payment of a LIBOR Loan or the Fixed Rate
Loan on any day that is not the last day of the Interest Period or
the Fixed Rate Period applicable thereto (regardless of the source
of such repayment or prepayment and whether voluntary, mandatory,
by acceleration or otherwise), Borrower shall pay to Administrative
Agent, for the benefit of all affected Lenders, an amount (the
“
Breakage Fee ”)
equal to the greater of (i) $300 or (ii) the sum of (a) present
value of any losses, expenses and liabilities (including any loss
(including interest paid but excluding the loss of any applicable
margin) sustained by each such affected Lender in connection with
the good faith re-employment of such funds) that any such affected
Lender may sustain as a result of the payment of such LIBOR Loan or
the Fixed Rate Loan on such day
plus (b)
in the case of the Fixed Rate Loan only, a per annum yield of
½ of 1 percent (0.50%) on the amount of the Fixed Rate Loan
for the remaining Fixed Rate Period.
(D)
Expenses and Attorneys Fees .
Borrower agrees to pay promptly all reasonable out-of-pocket fees,
costs and expenses (including those of external attorneys) incurred
by Administrative Agent and Lead Arranger in connection with any
matters contemplated by or arising out of the Loan Documents. In
addition to fees due under
Subsections 1.4(A) and
(B) ,
Borrower shall also reimburse on demand Administrative Agent for
its out-of-pocket expenses (including reasonable attorneys’
fees and expenses and expenses) incurred in connection with the
transactions contemplated herein. In addition to fees due
under
Subsections 1.4(A) and
(B) ,
Borrower agrees to pay promptly (i) all reasonable fees, costs and
expenses incurred by Administrative Agent in connection with any
amendment, supplement, waiver or modification of any of the Loan
Documents and (ii) all reasonable out-of-pocket fees, costs and
expenses incurred by each of Administrative Agent and Lenders in
connection with any Default or Event of Default and any enforcement
of collection proceeding resulting therefrom or any workout or
restructuring of any of the transactions hereunder or contemplated
thereby or any action to enforce any Loan Document or to collect
any payments due from Borrower. All fees, costs and expenses for
which Borrower is responsible under this
Subsection 1.4(D) shall
be deemed part of the Obligations when incurred, payable upon
demand and in accordance with the second paragraph of
Subsection 1.5 .
Second
Amended and Restated Credit Agreement/SureWest
Communications
(E)
Letter of Credit Fees .
Borrower shall pay Administrative Agent for the account of all
Lenders (other than Defaulting Lenders) committed to make Revolving
Loans (based upon their respective Pro Rata Shares) an annual fee
for each Letter of Credit from the date of issuance to the date of
termination in an amount equal to the applicable LIBOR
Margin
multiplied
by the
face amount of such Letter of Credit. Such fee shall be payable to
Administrative Agent for the benefit of all Lenders committed to
make Revolving Loans (based upon their respective Pro Rata Shares).
Such fee is to be paid quarterly in arrears on the last day of each
calendar quarter and upon the termination of the Letter of Credit.
With respect to each Letter of Credit, Borrower shall also pay
Administrative Agent, for the benefit of Issuing Lender issuing
such Letter of Credit an issuance fee equal to 0.125% of the face
amount of such Letter of Credit, which amount shall be paid upon
the date of issuance and, if the expiration date of such Letter of
Credit is later than one year from its date of issuance, upon each
anniversary of the date of issuance during the term of such Letter
of Credit.
1.5.
Payments .
All payments by Borrower of the Obligations shall be made in same
day funds and delivered to Administrative Agent, for the benefit of
Administrative Agent and Lenders, as applicable, by wire transfer
to the following account or such other place as Administrative
Agent may from time to time designate:
CoBank,
ACB
Greenwood
Village, Colorado
ABA
Number 3070-8875-4
Account
No. 00039293 (indicate whether a payment on
Term
Loan A Facility, Term Loan B Facility, Swingline Facility or
the Revolving Loan Facility)
Reference:
CoBank for the benefit of SureWest Communications
Borrower
shall receive credit on the day of receipt for funds received
by Administrative Agent by 11:00 a.m. (Denver, Colorado
time) on any Business Day. Funds received on any Business Day
after such time shall be deemed to have been paid on the next
Business Day. Whenever any payment to be made hereunder shall
be stated to be due on a day that is not a Business Day, the
payment shall be due on the next succeeding Business Day and
such extension of time shall be included in the computation of
the amount of interest and fees due hereunder.
Second
Amended and Restated Credit Agreement/SureWest
Communications
At
any time that funds have been drawn thereunder, Borrower
authorizes Lenders to make (but the Lenders shall not be
obligated to make) a Loan constituting a portion of the Base
Rate Loan under the Revolving Loan Facility, on the basis of
their respective Pro Rata Shares of the Revolving Loan
Commitment, for Letter of Credit Liability payments. Following
an Event of Default, Borrower authorizes Lenders to make (but
the Lenders shall not be obligated to make) a Loan
constituting a portion of the Base Rate Loan under the
Revolving Loan Facility for the payment of interest,
commitment fees and Breakage Fees. Prior to an Event of
Default, other fees, costs and expenses (including those of
attorneys) reimbursable pursuant to
Subsections 1.4(A) ,
1.4(B) ,
1.4(D) and
1.4(E) or
elsewhere in any Loan Document may be debited to the Base Rate Loan
under the Revolving Loan Facility after 15 days’ notice.
After the occurrence of an Event of Default, any such other fees,
costs and expenses may be debited to the Base Rate Loan under the
Revolving Loan Facility without notice.
To
the extent Borrower makes a payment or payments to
Administrative Agent for the ratable benefit of Lenders or for
the benefit of Administrative Agent in its individual
capacity, which payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of
such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment or
proceeds had not been received by Administrative
Agent.
Each
payment received by Administrative Agent under this Agreement
or any Note for the account of any Lender shall be remitted by
Administrative Agent to such Lender promptly after
Administrative Agent’s receipt thereof, and such
remittance shall be made in immediately available funds for
the account of such Lender for the Loans or other obligation
in respect of which such payment is made.
1.6.
Repayments and Reduction of Term Loan Commitments and Revolving
Loan Commitment and Related Mandatory Repayments
.
(A)
Scheduled Repayments and Reductions of Term Loan Commitments,
Revolving Loan Commitment and Swingline Loan Commitment
.
(1)
Term Loans .
In addition to any prepayments or repayments made or required
pursuant to
Subsection 1.7 ,
the outstanding principal balance of Term Loan A and Term Loan B
not sooner due and payable shall become due and payable on the Term
Loan A Maturity Date and Term Loan B Maturity Date,
respectively.
(2)
Revolving Loan Commitment and Swingline Loan Commitment
.
In addition to any reductions pursuant to
Subsection 1.6(B) ,
the Revolving Loan Commitment and the Swingline Loan Commitment
shall be permanently reduced and terminated in full on the
Revolving Loan Expiration Date, and any outstanding principal
balance of the Revolving Loans and the Swingline Loans not sooner
due and payable will become due and payable on the Revolving Loan
Expiration Date.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(B)
Voluntary Reduction of Loan Commitments .
Borrower shall have the right, upon at least three Business
Days’ notice to Administrative Agent, to permanently reduce
the then unused portion of the Revolving Loan Commitment or the
Swingline Loan Commitment. Each reduction shall be in a minimum
amount of at least $1,000,000, or any whole multiple of $250,000 in
excess thereof, and shall be applied as to each Lender based upon
its Pro Rata Share. Notwithstanding the foregoing, no reduction of
the Revolving Loan Commitment shall be permitted if, after giving
effect thereto and to any prepayment made therewith, the aggregate
principal balance of the Revolving Loans and the Swingline Loans
then outstanding plus the amount of the Letter of Credit Liability
then outstanding, would exceed the Revolving Loan Commitment, as so
reduced. Notwithstanding the foregoing, no reduction of the
Swingline Loan Commitment shall be permitted if, after giving
effect thereto and to any prepayment made therewith, the aggregate
principal balance of the Swingline Loans then outstanding would
exceed the Swingline Loan Commitment, as applicable as so
reduced.
(C)
Mandatory Repayments .
On the date of any Revolving Loan Commitment reduction provided for
in this
Subsection 1.6 ,
Borrower shall repay Revolving Loans and the Swingline Loans or
reduce the Letter of Credit Liability pursuant to
Subsection 1.18 in
an amount at least sufficient to reduce the aggregate principal
balance of Revolving Loans and the Swingline Loans then
outstanding
plus the
amount of the Letter of Credit Liability then outstanding to the
amount of the Revolving Loan Commitment as so reduced. If at any
time the aggregate outstanding amount of Revolving Loans and the
Swingline Loans
plus the
amount of the Letter of Credit Liability then outstanding exceeds
the Revolving Loan Commitment, Borrower shall repay Revolving Loans
and Swingline Loans or reduce the Letter of Credit Liability
pursuant to
Subsection 1.18 in
an amount at least sufficient to reduce the aggregate principal
balance of Revolving Loans and Swingline Loans then
outstanding
plus the
amount of the Letter of Credit Liability then outstanding to the
amount of the Revolving Loan Commitment, and until such repayment
is made, Lenders shall not be obligated to make any Loans or issue
any Letters of Credit. Any repayments pursuant to this
Subsection 1.6(C) shall
be applied in accordance with
Subsection 1.8 ,
and shall be accompanied by accrued interest on the amount repaid
and any applicable Breakage Fees. If at any time the aggregate
outstanding amount of the Swingline Loans outstanding exceeds the
Swingline Loan Commitment, Borrower shall repay Swingline Loans in
an amount at least sufficient to reduce the aggregate principal
balance of Swingline Loans then outstanding to the amount of the
Swingline Loan Commitment, and until such repayment is made,
Administrative Agent shall not be obligated to make any Loans or
issue any Letters of Credit. Any repayments pursuant to this
Subsection 1.6(C) shall
be applied in accordance with
Subsection 1.8 ,
and shall be accompanied by accrued interest on the amount repaid
and any applicable Breakage Fees.
1.7.
Voluntary Prepayments and Other Mandatory Repayments
.
(A)
Voluntary Prepayment of Loans. Subject
to the provisions of
Subsection 1.8 ,
at any time, Borrower may prepay the Base Rate Loan, in whole or in
part, without penalty. Subject to the provisions of
Subsection 1.8 ,
payment of applicable Breakage Fees and the notice requirement in
the following sentence, at any time Borrower may prepay any LIBOR
Loan or the Fixed Rate Loan, in whole or in part. Notice of any
prepayment of a LIBOR Loan or of the Fixed Rate Loan shall be given
not later than 11:00 a.m. (Denver, Colorado time) on the third
Business Day preceding the date of prepayment. All prepayment
notices shall be irrevocable. All prepayments shall be accompanied
by accrued interest on the amount prepaid and any applicable
Breakage Fees.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(B)
Repayments from Insurance Proceeds .
Borrower shall repay the Term Loans in an amount equal to the Net
Proceeds received by Borrower or any of its Subsidiaries which are
insurance proceeds from any Asset Disposition to the extent that
such proceeds are not reinvested in equipment or other assets that
are used or useful in the business of Borrower or any of its
Subsidiaries within 180 days of receipt by Borrower or such
Subsidiary of such proceeds. All such repayments shall be applied
in accordance with
Subsection 1.8 .
All such repayments shall be accompanied by accrued interest on the
amount repaid and any applicable Breakage Fees.
(C)
Repayments from Asset Dispositions .
Promptly upon receipt by Borrower or any of its Subsidiaries of Net
Proceeds of an Asset Disposition, other than insurance proceeds
reinvested pursuant to
Subsection 1.7(B) or
Net Proceeds of Asset Dispositions permitted pursuant to
Subsection 3.6 ,
without the consent of Administrative Agent (unless pursuant
to
Subsection 3.6(vi) Borrower
is required to apply such proceeds to the repayment of the Term
Loans pursuant to this
Subsection 1.7(C) ),
Borrower shall repay the Term Loans in an amount equal to the Net
Proceeds received by Borrower or any of its Subsidiaries;
provided ,
however ,
the Net Proceeds of the Wireless Sale shall be used to reduce the
outstanding principal amount of Term Loan B to $30,000,000, unless
at the time of the receipt of such Net Proceeds the outstanding
principal amount of Term Loan B has previously been reduced to
$30,000,000 or less in which case such Net Proceeds shall be used
solely to repay Term Loan B in full, and to the extent the Net
Proceeds therefrom exceed the amount required to be applied to Term
Loan B pursuant to this proviso, such Net Proceeds shall be not be
required to be applied to repay Term Loan A. All such repayments
shall be applied in accordance with
Subsection 1.8 .
All such repayments shall be accompanied by accrued interest on the
amount repaid and any applicable Breakage Fees.
1.8.
Application of Prepayments and Repayments; Payment of Breakage
Fees, Etc .
All prepayments
and repayments made pursuant to
Subsection 1.7 with
respect to the Term Loans shall applied
to the Term Loan A and then to the Term Loan B, with the exception
of the application of the Net Proceeds of the Wireless Sale which
shall be used solely to repay Term Loan B (as and to the extent
expressly provided in
Subsection 1.7) but
shall be not be required to be applied to repay Term Loan A. All
other prepayments and repayments made pursuant to
Subsections 1.6 and
1.7 shall
be applied as directed in writing by Borrower. All prepayment and
repayments made pursuant to
Subsections 1.6 and
1.7 shall
first be applied to such of the applicable type of Loans of a
Facility as Borrower shall direct in writing and, in the absence of
such direction, shall first be applied to the Base Rate Loan and
then to such LIBOR Loans or the Fixed Rate Loan as Borrower and
CoBank shall agree (in the absence of agreement, such prepayments
and repayments shall be applied to the LIBOR Loans and the Fixed
Rate Loan on which the lowest amount of Breakage Fees would be
due).
1.9.
Loan Accounts .
Administrative Agent will maintain loan account records for (i) all
Loans, interest charges and payments thereof, (ii) all Letter
of Credit Liability, (iii) the charging and payment of all
fees, costs and expenses and (iv) all other debits and credits
pursuant to this Agreement. Absent manifest error, the balance in
the loan accounts shall be presumptive evidence of the amounts due
and owing to Lenders,
provided that
any failure by Administrative Agent to maintain such records shall
not limit or affect Borrower’s obligation to pay. During the
continuance of an Event of Default, Borrower irrevocably waives the
right to direct the application of any and all payments and
Borrower hereby irrevocably agrees that Administrative Agent shall
have the continuing exclusive right to apply and reapply payments
in any manner it deems appropriate.
Second
Amended and Restated Credit Agreement/SureWest
Communications
1.10.
Changes in LIBOR Rate Availability .
If with respect to any proposed Interest Period, Administrative
Agent or any Lender (after consultation with Administrative Agent)
determines that deposits in dollars (in the applicable amount) are
not being offered in the relevant market for such Interest Period,
or Lenders having a Pro Rata Share of more than 50% under a
Facility determine (and notify Administrative Agent) that the LIBOR
Rate applicable pursuant to
Subsection 1.2(A) for
any requested Interest Period with respect to a proposed LIBOR Loan
under such Facility does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, Administrative Agent shall
forthwith give notice thereof to Borrower and Lenders, whereupon
and until such affected Lender or Lenders notifies Administrative
Agent, and Administrative Agent notifies Borrower and the other
Lenders that the circumstances giving rise to such situation no
longer exist, the obligations of any affected Lender to make its
portion of such type of LIBOR Loan shall be suspended and such
affected Lender shall make its Pro Rata Share of such type of LIBOR
Loans as a Base Rate Loan or such other type of Loan as permitted
by Administrative Agent. Any Lender may, in its sole discretion,
waive the benefits and provisions of this Subsection with respect
to any proposed Interest Period.
If
the introduction of, or any change in, any Applicable Law or
treaty or any change in the interpretation or administration
thereof by any Governmental Authority, central bank,
quasi-governmental entity or comparable agency charged with
the interpretation or administration thereof or compliance by
any Lender with any request or directive (whether or not
having the force of law) of any such Governmental Authority,
central bank, quasi-governmental agency or comparable agency
(collectively, a “
Change of Law ”),
shall make it unlawful or impossible for one or more Lenders to
honor its obligations hereunder to make or maintain any LIBOR Loan,
such Lender shall promptly give notice thereof to Administrative
Agent, and Administrative Agent shall promptly give notice thereof
to Borrower and all other Lenders. Thereafter, until such Lender or
Lenders notifies Administrative Agent, and Administrative Agent
notifies Borrower and the other Lenders that such circumstances no
longer exist, (i) the obligations of such Lender or Lenders to make
LIBOR Loans and the right of Borrower to convert any Loan of such
Lender or Lenders to a LIBOR Loan or continue any Loan of such
Lender or Lenders as a LIBOR Loan shall be suspended and (ii) if
any Lender may not lawfully continue to maintain a LIBOR Loan to
the end of the then current Interest Period applicable thereto,
such Lender’s Loan shall immediately be converted to the Base
Rate Loan.
1.11.
Capital Adequacy and Other Adjustments .
(A)
If
any Change of Law would increase the reserve requirement or
otherwise increase the cost to Administrative Agent of making
or maintaining a LIBOR Loan, then Administrative Agent, on
behalf of all affected Lenders, shall submit a certificate to
Borrower setting forth the amount and demonstrating the
calculation of such increased cost. Administrative Agent may
seek recovery of such additional amounts from Borrower only to
the extent it seeks recovery for such amounts from similarly
situated borrowers. Borrower shall pay the amount of such
increased cost to Administrative Agent for the benefit of the
affected Lenders within 15 days after receipt of such
certificate. Such certificate shall, absent manifest error, be
final, conclusive and binding for all purposes. There is no
limitation on the number of times such a certificate may be
submitted.
Second
Amended and Restated Credit Agreement/SureWest
Communications
(B)
In
the event that any Lender shall have determined that any
Change of Law regarding capital adequacy, reserve requirements
or similar requirements or compliance by any Lender or any
entity controlling such Lender with any request or directive
regarding capital adequacy, reserve requirements or similar
requirements (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful)
from any central bank or governmental agency or body having
jurisdiction does or shall have the effect of increasing the
amount of capital, reserves or other funds required to be
maintained by such Lender or any entity controlling such
Lender and thereby reducing the rate of return on such
Lender’s or such entity’s capital as a consequence
of its obligations hereunder, then Borrower shall from time to
time within 15 days after notice and demand from such Lender
(together with the certificate referred to in the next
sentence and with a copy to Administrative Agent), pay to
Administrative Agent, for the account of such Lender,
additional amounts sufficient to compensate such Lender for
such reduction. A Lender may seek recovery of such additional
amounts from Borrower only to the extent it seeks recovery for
such amounts from similarly situated borrowers. A certificate
as to the amount of such cost and showing the basis of the
computation of such cost submitted by such Lender to Borrower
and Administrative Agent shall, absent manifest error, be
final, conclusive and binding for all purposes. There shall be
no limitation on the number of times such a certificate may be
submitted.
(C)
Notwithstanding
any other provision of this Agreement, Borrower shall not be
obligated to pay any increased costs suffered or incurred by a
Lender under this
Subsection 1.11 more
than 180 days prior to the date that such Lender obtained knowledge
of the circumstances giving rise to such increased costs. Any
Lender which becomes aware of (i) any Change of Law that will make
it unlawful or impossible for such Lender to make or maintain any
LIBOR Loan or (ii) any Change of Law or other event or condition
that will obligate Borrower to pay any amount pursuant to
this
Subsection 1.11 shall
notify Borrower and Administrative Agent thereof as promptly as
practical. If any Lender has given notice of any such Change of Law
or other event or condition and thereafter becomes aware that such
Change of Law or other event or condition has ceased to exist, such
Lender shall notify Borrower and Administrative Agent thereof as
promptly as practical. Each Lender affected by any Change of Law
which makes it unlawful or impossible for such Lender to make or
maintain any LIBOR Loan or to which Borrower is obligated to pay
any amount pursuant to this
Subsection 1.11 shall
use reasonable commercial efforts (including changing the
jurisdiction of its applicable lending office) to avoid the effect
of such Change of Law or to avoid or materially reduce any amounts
which Borrower is obligated to pay pursuant to this
Subsection 1.11 if,
in the reasonable opinion of such Lender, such efforts would not be
disadvantageous to such Lender or contrary to such Lender’s
normal lending practices.
1.12.
Optional Prepayment/Replacement of Lender in Respect of Increased
Costs .
If (a) any Lender shall become a Defaulting Lender at any time, (b)
any Lender shall suspend its obligation to make or maintain LIBOR
Loans pursuant to
Subsection 1.11 for
a reason which is not applicable to any other Lender, or (c) any
Lender shall demand any payment under
Subsection 1.11 ,
1.13 or
1.14 for
a reason which is not applicable to any other Lender, then, unless
such Lender (an “
Affected Lender ”)
has theretofore taken steps to remove or cure, and has removed or
cured, the conditions creating the cause for such obligation to pay
such additional amounts or for such illegality or impossibility,
Borrower may, at its option, notify Administrative Agent and such
Affected Lender of its intention to do the following: Borrower may
obtain, at Borrower’s expense, a replacement Lender
(“
Replacement Lender ”)
for such Affected Lender, which Replacement Lender shall be
reasonably satisfactory to Administrative Agent. In the event
Borrower obtains a Replacement Lender within 180 days following
notice of its intention to do so, the Affected Lender shall sell
and assign its Loans and its obligations under the Loan Commitments
to such Replacement Lender at a price of par plus accrued interest
and other amounts due to such Affected Lender, provided that
Borrower has reimbursed such Affected Lender for its increased
costs for which it is entitled to reimbursement under this
Agreement through the date of such sale and
assignment.
Second
Amended and Restated Credit Agreement/SureWest
Communications
1.13.
Taxes: No Deductions.
(A)
No Deductions .
Any and all payments or reimbursements made hereunder or under the
Notes shall be made free and clear of and without deduction for any
and all taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
provided ,
however ,
that Borrower shall not be required to make any additional payment
pursuant to this
Subsection 1.13 for
or on account of (all of the following in clauses (i) and (ii),
“
Excluded Taxes ”)
(i) taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto (a) which are payable
other than by withholding from payments or reimbursements made
hereunder or under the Notes, (b) which are imposed on the payments
to, or revenues, income or net income of, a Lender by its
jurisdiction of incorporation or by the federal, state, local or
foreign taxing authorities in the jurisdiction in which the
principal place of business of such Lender is located or in which
such Lender has or had a connection (other than a connection
arising solely as a result of such Lender having executed,
delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document), or by any
jurisdiction or taxing authority thereof or therein or (c) which
would not have been imposed but for the failure of the Lender to
comply with certification, information or other reporting
requirements concerning the nationality, residence, identity or
connection with the United States of the Lender if such compliance
is necessary by statute or by regulation of the United States
Treasury Department as a precondition to relief or exemption from
such taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, or (ii) in the case of a
Lender that is organized under the laws of a jurisdiction other
than the United States (a “
Foreign Lender ”),
any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new lending office), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such
withholding tax pursuant to this
Subsection 1.13 (all
such non-excluded taxes, levies, imposts, deductions or
withholdings, and all liabilities with respect thereto,
collectively, “
Tax Liabilities ”).
If Borrower shall be required by law to deduct any Tax Liabilities
from or in respect of any sum payable hereunder to any Lender, then
the sum payable hereunder shall be increased as may be necessary so
that, after making all required deductions, such Lender receives an
amount equal to the sum it would have received had no such
deductions been made.
(B)
Foreign Lenders .
Each
Foreign Lender as to which payments made under this Agreement or
under the Notes are exempt from withholding tax under the IRC or
other applicable tax law or are subject to withholding tax at a
reduced rate under an applicable statute or tax treaty shall
provide to Borrower and Administrative Agent a properly completed
and executed United States Internal Revenue Service Form W-8ECI or
W-8BEN or other applicable form, certificate or document prescribed
by the Internal Revenue Service of the United States or other
taxing authority certifying as to such Foreign Lender’s
entitlement to such exemption or reduced rate of withholding with
respect to payments to be made to such Foreign Lender under this
Agreement and under the Notes (a “
Certificate of Exemption
” ).
Prior to becoming a Lender under this Agreement and within 15
days after a reasonable written request of Borrower or
Administrative Agent from time to time thereafter, each Foreign
Lender that becomes a Lender under this Agreement shall provide a
Certificate of Exemption to Borrower and Administrative Agent. In
addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver a properly completed United
States Internal Revenue Service Form W-9 or other applicable form
as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup
withholding or information reporting requirements
.
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