Exhibit 10.1
THIRD AMENDED AND RESTATED CREDIT
AGREEMENT
DATED AS OF SEPTEMBER 19, 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
|
2
|
|
|
|
(F)
|
Notes
|
6
|
|
|
|
(G)
|
Loans
|
6
|
|
|
1.2.
|
Interest
|
6
|
|
|
|
(A)
|
Interest Options
|
6
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|
|
|
(B)
|
Applicable Margins
|
7
|
|
|
|
(C)
|
Interest Periods
|
7
|
|
|
|
(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
|
11
|
|
|
|
(A)
|
Commitment Fees
|
11
|
|
|
|
(B)
|
Certain Other Fees
|
11
|
|
|
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(C)
|
Breakage Fee
|
11
|
|
|
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(D)
|
Expenses and Attorneys Fees
|
11
|
|
|
|
(E)
|
Letter of Credit Fees
|
12
|
|
|
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
|
14
|
|
|
|
(C)
|
Mandatory Repayments
|
14
|
|
|
1.7.
|
Voluntary Prepayments and Other Mandatory
Repayments
|
14
|
|
|
|
(A)
|
Voluntary Prepayment of Loans
|
14
|
|
|
|
(B)
|
Repayments from Insurance Proceeds
|
15
|
|
|
|
(C)
|
Repayments from Asset Dispositions
|
15
|
|
|
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
|
16
|
|
|
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
|
i
|
|
|
(A)
|
No Deductions
|
18
|
|
|
|
(B)
|
Foreign Lenders
|
18
|
|
|
1.14.
|
Changes in Tax Laws
|
19
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|
|
1.15.
|
Treatment of Certain Refunds
|
20
|
|
|
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
|
|
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2.5.
|
Use of Proceeds
|
22
|
|
|
2.6.
|
Further Assurances
|
22
|
|
|
2.7.
|
CoBank Patronage Capital
|
23
|
|
|
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
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|
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
|
28
|
|
|
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
|
29
|
|
|
|
(D)
|
Budgets
|
29
|
|
|
|
(E)
|
SEC Filings
|
29
|
|
|
|
(F)
|
Events of Default, Etc.
|
29
|
|
|
|
(G)
|
Litigation
|
29
|
|
|
|
(H)
|
Environmental Notices
|
30
|
ii
|
|
|
(I)
|
ERISA Events
|
30
|
|
|
|
(J)
|
Other Information
|
30
|
|
|
4.5.
|
Accounting Terms; Utilization of
GAAP for Purposes of Calculations Under Agreement
|
30
|
|
|
|
|
|
|
SECTION 5 REPRESENTATIONS AND
WARRANTIES
|
31
|
|
|
5.1.
|
Disclosure
|
31
|
|
|
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
|
32
|
|
|
5.4.
|
Compliance of Agreement, Loan
Documents and Borrowings with Applicable Law
|
32
|
|
|
5.5.
|
Compliance with Law; Governmental
Approvals
|
32
|
|
|
5.6.
|
Tax Returns and Payments
|
32
|
|
|
5.7.
|
Environmental Matters
|
33
|
|
|
5.8.
|
Financial Statements
|
33
|
|
|
5.9.
|
Intellectual Property
|
33
|
|
|
5.10.
|
Litigation, Investigations, Audits,
Etc.
|
33
|
|
|
5.11.
|
Employee Labor Matters
|
34
|
|
|
5.12.
|
ERISA Compliance
|
34
|
|
|
5.13.
|
Communications Regulatory
Matters
|
35
|
|
|
5.14.
|
Solvency
|
35
|
|
|
5.15.
|
Investment Company Act
|
35
|
|
|
5.16.
|
Certain Agreements and Material
Contracts
|
35
|
|
|
5.17.
|
Title to Properties
|
36
|
|
|
5.18.
|
Transactions with
Affiliates
|
36
|
|
|
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
|
37
|
|
|
|
(C)
|
Breach of Certain
Provisions
|
37
|
|
|
|
(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
|
38
|
|
|
|
(I)
|
Dissolution
|
38
|
|
|
|
(J)
|
Solvency
|
38
|
|
|
|
(K)
|
Injunction
|
38
|
|
|
|
(L)
|
ERISA; Pension Plans
|
38
|
|
|
|
(M)
|
Invalidity of Loan
Documents
|
38
|
iii
|
|
|
(N)
|
Licenses and Permits
|
38
|
|
|
|
(O)
|
Change in Control
|
39
|
|
|
6.2.
|
Suspension of Commitments
|
39
|
|
|
6.3.
|
Acceleration
|
39
|
|
|
6.4.
|
Rights of Collection
|
39
|
|
|
6.5.
|
Consents
|
39
|
|
|
6.6.
|
Performance by Administrative
Agent
|
40
|
|
|
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
|
42
|
|
|
|
(C)
|
Consents
|
42
|
|
|
|
(D)
|
Fees, Expenses, Taxes,
Etc.
|
43
|
|
|
|
(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
|
45
|
|
|
|
(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
|
iv
|
|
9.1.
|
Indemnities
|
53
|
|
|
9.2.
|
Amendments and Waivers
|
53
|
|
|
9.3.
|
Notices
|
55
|
|
|
9.4.
|
Failure or Indulgence Not Waiver;
Remedies Cumulative
|
55
|
|
|
9.5.
|
Payments Set Aside
|
55
|
|
|
9.6.
|
Severability
|
56
|
|
|
9.7.
|
Lenders’ Obligations Several;
Independent Nature of Lenders’ Rights
|
56
|
|
|
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
|
59
|
|
|
9.20.
|
Effectiveness of Amendment and
Restatement; No Novation
|
59
|
|
|
|
|
|
|
SECTION 10
DEFINITIONS
|
59
|
|
|
10.1.
|
Certain Defined Terms
|
59
|
|
|
10.2.
|
Other Definitional
Provisions
|
73
|
v
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 5.8
|
Financial Statements
|
|
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 Third Amended and Restated
Revolving Loan Promissory Note
|
|
Exhibit 10.1(C)
|
Form of Third Amended and Restated Term
Loan A Note
|
|
Exhibit 10.1(D)
|
Form of Amended and Restated Term Loan B
Note
|
|
Exhibit 10.1(E)
|
Form of Amended and Restated Swingline
Promissory Note
|
vi
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
|
|
|
EBITDA
|
|
|
§10.1
|
|
|
Electing Lenders
|
|
|
§1.8
|
|
|
Environmental Laws
|
|
|
§10.1
|
|
|
ERISA
|
|
|
§10.1
|
|
|
ERISA Affiliate
|
|
|
§10.1
|
|
vii
|
ERISA Event
|
|
|
§10.1
|
|
|
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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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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First Amended Credit
Agreement
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Recitals
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Fixed Rate Loan
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§1.2(B)
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Fixed Rate Margin
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§10.1
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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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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(E)
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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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viii
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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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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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7-Day LIBOR Index Rate
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§10.1
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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 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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ix
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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 Maturity Date
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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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Verizon
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§10.1
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Wireless Sale
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§10.1
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x
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
This THIRD 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
September 19, 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.
R E C I T A
L S :
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
“ First Amended Credit Agreement ”),
pursuant to which Borrower and CoBank amended and restated the
Original Credit Agreement as described therein; and
WHEREAS , Borrower, Administrative Agent, Issuing Lender
and the other Lenders referred to therein entered into a Second
Amended and Restated Credit Agreement, dated as of
February 13, 2008 (the “ Existing Credit
Agreement ”), pursuant to which Borrower,
Administrative Agent, Issuing Lender and such other Lenders amended
and restated the First Amended Credit Agreement as described
therein; and
WHEREAS , Borrower, Administrative Agent, Issuing Lender
and the other Lenders have agreed to amend and restate the Existing
Credit Agreement as described herein, including, without
limitation, to extend the term of the Term Loan B Facility, to
modify the interest rate pricing on all Facilities, to provide for
certain scheduled reductions in the Revolving Loan Commitment and
to separate the Revolving Loan Facility and the Swingline
Facility.
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:
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 . Each Lender,
severally and not jointly, previously has lent to Borrower such
Lender’s Pro Rata Share of the Term Loan A Commitment.
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, previously has lent to Borrower such
Lender’s Pro Rata Share of the Term Loan B Commitment (as
such Commitment has been reduced and repaid prior to the Amendment
Date). 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
outstanding Letter of Credit Liability 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 Swingline Loan
Expiration Date, Swingline Loans; provided , that the
aggregate principal amount of all Swingline Loans outstanding may
not exceed the Swingline Loan Commitment. 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 Swingline Loan Expiration
Date.
(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
2
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
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.
(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
3
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;
(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
4
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.
(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
5
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.
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
6
(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 7-Day
LIBOR Index 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 for the period from and including
the Amendment Date through and including May 31, 2011 (the
“ Fixed Rate Period ”) of the sum of
6.2860% plus the Fixed Rate Margin applicable from time to
time as provided in Subsection 1.2(B) .
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 1.50% per
annum.
(B)
Applicable
Margins . Initially, and
continuing through the day immediately preceding the first
Adjustment Date that occurs on or after the date that is six months
after the Amendment Date, the applicable Base Rate Margin, LIBOR
Margin and Fixed Rate Margin shall be 1.50%, 2.50% and 0.75% per
annum, respectively. Commencing on such Adjustment Date, the
applicable Base Rate Margin, LIBOR Margin and Fixed Rate 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, LIBOR Margin and Fixed
Rate Margin shall be 1.50%, 2.50%, 0.75% per annum,
respectively.
TERM LOAN A, TERM LOAN B AND
REVOLVING LOAN PRICING TABLE
|
Leverage Ratio
|
|
Base Rate
Margin
|
|
LIBOR Margin
|
|
Fixed Rate
Margin
|
|
|
> 3.00:1
|
|
1.50
|
%
|
2.50
|
%
|
0.75
|
%
|
|
> 2.00:1 < 3.00:1
|
|
1.25
|
%
|
2.25
|
%
|
0.50
|
%
|
|
> 1.00:1 < 2.00:1
|
|
1.00
|
%
|
2.00
|
%
|
0.25
|
%
|
|
< 1.00:1
|
|
0.75
|
%
|
1.75
|
%
|
0.00
|
%
|
(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:
7
(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
(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 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, the Revolving Loan Expiration Date
or the Swingline 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, the Revolving Loan Expiration Date or the
Swingline Loan Expiration Date, as applicable, whether by
acceleration or otherwise.
Interest accruing pursuant to
Subsection 1.2(E) is payable on demand.
8
(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.
(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 (except
in connection with a borrowing made pursuant to Subsection 1.3(B) , in which case no minimums
or multiples shall apply), (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.
9
1.3.
Notice of
Borrowing, Conversion or Continuation of Loans
.
(A)
Except to the
extent provided in Subsection
1.3(B) ,
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.
(B)
Swingline Loans
also will be made automatically under the Swingline Loan Facility
(subject to the limitations set forth in Subsection 1.1(D) ), (i) on any day that
the balance held in the account of Borrower deposited with Wachovia
Bank, National Association [(Acct.# 2079900434077)] , or any successor account
designated by CoBank, is less than the amount of items presented
for payment in such account on such date, as provided more fully in
the cash management or similar agreement between CoBank and
Borrower and (ii) upon request telephonic, electronic (CoLink)
or other method in each case approved in advance by CoBank provided
such request is made by an employee or representative of Borrower
designated in writing by Borrower as authorized to make such a
request. The representations and warranties contained
in Section 5
and elsewhere in
this Agreement and in the Loan Documents shall be (and each advance
under this Subsection
1.3(B) shall constitute a
representation and warranty by Borrower that such representations
and warranties are) true, correct and complete in all material
respects on and as of such date to the same extent as though made
on and as of that date, except for any representation or warranty
limited by its terms to a specific date and taking into account any
amendments to the Schedules or Exhibits as a result of any
disclosures made in writing by Borrower to the Administrative Agent
after the Amendment Date so long as what is being disclosed does
not give rise to a Default or an Event of Default. It shall
be a condition precedent to any advance under this
Subsection 1.3(B)
that (i) no
event shall have occurred and be continuing or would result from
the consummation of the advance that would constitute an Event of
Default or a Default, (ii) no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport to enjoin
or restrain CoBank from making the advance, (iii) since
December 31, 2007, there shall not have occurred any event or
condition that has had or could reasonably be expected to have a
Material Adverse Effect, and (iv) all Loan Documents shall be
in
10
full force and effect.
The requirements of Subsection 7.2 shall not be applicable to
advances under this Subsection 1.3(B) .
1.4.
Fees and
Expenses .
(A)
Loan
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 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)
Swingline Loan
Commitment Fee . From the Amendment
Date through the Swingline Loan Expiration Date, Borrower shall pay
to Administrative Agent, for the benefit of the Swingline Lender,
if the Swingline Lender is not a Defaulting Lender, a fee in an
amount equal to (i) the Swingline Loan Commitment less
the the average daily outstanding balance of Swingline Loans 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 Swingline
Loan Expiration Date.
(B)
Certain Other
Fees . Borrower shall pay to
Administrative Agent the fees specified in that certain letter
agreement, dated September 11, 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
11
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 .
(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.
12
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 . The Revolving Loan
Commitment shall be permanently reduced in the amount of $7,500,000
on each of December 31, 2009 and on December 31, 2010, in
each case, less all voluntary reductions of the Revolving Loan
Commitment pursuant to Subsection 1.6(B) and all voluntary
prepayments and mandatory repayments of the Term Loan Facilities
pursuant to Subsection
1.7 during the applicable year,
and the Revolving Loan Commitment shall be terminated in full on
the Revolving Loan Expiration Date. Any
outstanding
13
principal balance of the
Revolving Loans not sooner due and payable will become due and
payable on the Revolving Loan Expiration Date.
(3)
Swingline Loan
Commitment . The Swingline Loan
Commitment shall be permanently reduced and terminated in full on
the Swingline Loan Expiration Date. Any outstanding principal
balance of the Swingline Loans not sooner due and payable will
become due and payable on the Swingline Loan Expiration
Date.
(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 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 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 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 plus the
amount of the Letter of Credit Liability then outstanding exceeds
the Revolving Loan Commitment, Borrower shall repay Revolving 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 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. 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, Lenders,
including the Swingline Line Lender, shall not be obligated to make
any Loans, including the Swingline Loans. 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 any Base Rate Loan and any Swingline
Loan, in whole or in part, without penalty. Subject to the
provisions of Subsection 1.8 , payment of applicable
Breakage Fees
14
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.
(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. 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 pro rata to the Term Loans. All other
prepayments and repayments made pursuant to Subsections 1.6 and 1.7 shall be applied as directed
in writing by Borrower (in the absence of such direction, such
prepayments and repayments shall first be applied to the Swingline
Loan Facility until paid in full, then to the Revolving Loan
Facility until paid in full, and then to the Term Loan Facilities
on a pro rata basis). 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
15
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.
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.
16
(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
17
(“
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.
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
18
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 ”
). Pr |
