Exhibit
4.3
EXECUTION COPY
$750,000,000
AMENDED AND RESTATED FIVE-YEAR REVOLVING CREDIT
AGREEMENT
Dated as of
December 14, 2006
among
CENTURYTEL, INC.,
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
WACHOVIA BANK, N.A.,
as Syndication Agent,
BANK OF AMERICA, N.A., BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY,
SUNTRUST BANK, COBANK, ACB, LEHMAN BROTHERS BANK,
FSB,
REGIONS BANK and WILLIAM STREET COMMITMENT
CORPORATION,
as Co-Documentation Agents
|
J.P. MORGAN SECURITIES INC.
|
WACHOVIA CAPITAL MARKETS LLC
|
As Joint Bookrunners and Co-Lead Arrangers
Table of Contents
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SECTION
1 DEFINITIONS.
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1
|
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1.1.
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Certain
Defined Terms.
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1
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1.2.
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Accounting
Principles.
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16
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1.3.
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Other
Definitional Provisions.
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16
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SECTION
2 FACILITIES.
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17
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2.1.
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Commitments.
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17
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2.2.
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Procedure
for Loan Borrowing.
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18
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2.3.
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Conversion
and Continuation Options.
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18
|
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2.4.
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Fees.
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19
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2.5.
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Optional
Termination and Reduction of Commitments.
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19
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2.6.
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Limitations
on Eurodollar Tranches.
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20
|
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2.7.
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Interest
Rates and Payment Dates.
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20
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2.8.
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Alternate
Rate of Interest for Eurodollar Loans.
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21
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2.9.
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Mandatory
and Optional Prepayment of Loans.
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21
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2.10.
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Reserve
Requirements; Change in Circumstances.
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21
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2.11.
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Change
in Legality.
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23
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2.12.
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Indemnity.
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24
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2.13.
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Pro
Rata Treatment.
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24
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2.14.
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Sharing
of Setoffs.
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24
|
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2.15.
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Payments.
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25
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2.16.
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Calculation
of Eurodollar Rate.
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26
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2.17.
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Computation
of Interest and Fees.
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26
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2.18.
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Booking
Loans.
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26
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2.19.
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Quotation
of Rates.
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26
|
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2.20.
|
Taxes
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26
|
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|
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SECTION
3 LETTERS OF CREDIT
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28
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3.1.
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L/C
Commitment
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28
|
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3.2.
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Procedure
for Issuance of Letter of Credit
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29
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3.3.
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Fees
and Other Charges
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29
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3.4.
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L/C
Participations
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29
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3.5.
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Reimbursement
Obligation of the Borrower
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30
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3.6.
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Obligations
Absolute
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30
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3.7.
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Letter
of Credit Payments
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31
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3.8.
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Applications
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31
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SECTION
4 REPRESENTATIONS AND WARRANTIES.
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31
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4.1.
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Purpose
of Credit Facility.
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31
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4.2.
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Corporate
Existence, Good Standing, and Authority.
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31
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4.3.
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Significant
Subsidiaries.
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31
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4.4.
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Financial
Statements.
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32
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4.5.
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Compliance
with Laws, Charter, and Agreements.
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32
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4.6.
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Litigation.
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32
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4.7.
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Taxes.
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32
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4.8.
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Environmental
Matters.
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32
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4.9.
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Employee
Benefit Plans.
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33
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4.10.
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Properties;
Liens.
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33
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4.11.
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Holding
Company and Investment Company Status.
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33
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4.12.
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Transactions
with Affiliates.
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33
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4.13.
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Leases.
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33
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4.14.
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Labor
Matters.
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34
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4.15.
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Insurance.
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34
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4.16.
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Solvency.
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34
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4.17.
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Business.
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34
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4.18.
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General.
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34
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SECTION
5 CONDITIONS PRECEDENT.
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34
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5.1.
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Initial
Loan.
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34
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5.2.
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Each
Revolving Extension of Credit.
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35
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5.3.
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Materiality
of Conditions.
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36
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5.4.
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Waiver
of Conditions.
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36
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SECTION
6 AFFIRMATIVE COVENANTS.
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36
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6.1.
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Use
of Proceeds.
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36
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6.2.
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Books
and Records.
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36
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6.3.
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Items
to be Furnished.
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36
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6.4.
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Inspection.
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37
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6.5.
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Taxes.
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37
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6.6.
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Payment
of Obligations.
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38
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6.7.
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Expenses.
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38
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6.8.
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Maintenance
of Existence, Assets, Business, and Insurance.
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38
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6.9.
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Preservation
and Protection of Rights.
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38
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6.10.
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Environmental
Laws.
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38
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6.11.
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Environmental
Indemnification.
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39
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SECTION
7 NEGATIVE COVENANTS.
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39
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7.1.
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Employee
Benefit Plans.
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39
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7.2.
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Liens.
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39
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7.3.
|
Restricted
Payments.
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39
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| |
7.4.
|
Mergers
and Consolidations.
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39
|
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7.5.
|
Loans,
Advances, and Investments.
|
40
|
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7.6.
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Transactions
with Affiliates.
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41
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7.7.
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Sale
of Assets.
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41
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7.8.
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Compliance
with Laws and Documents.
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42
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7.9.
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New
Businesses.
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42
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7.10.
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Assignment.
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42
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7.11.
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Fiscal
Year.
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42
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7.12.
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Holding
Company and Investment Company Status.
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42
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7.13.
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Amendments
to Equity Units Documentation.
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42
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7.14.
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Financial
Covenants.
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43
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SECTION
8 DEFAULT
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44
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8.1.
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Payment
of Obligation.
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44
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8.2.
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Covenants.
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44
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8.3.
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Debtor
Relief.
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44
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8.4.
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Attachment.
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44
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8.5.
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Payment
of Judgments.
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45
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8.6.
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Default
Under Other Agreements.
|
45
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8.7.
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Misrepresentation.
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45
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8.8.
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Change
in Control.
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45
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8.9.
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ERISA.
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46
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8.10.
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Validity
and Enforceability of Loan Papers.
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46
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SECTION
9 RIGHTS AND REMEDIES
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46
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9.1.
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Remedies
Upon Event of Default.
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46
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9.2.
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Waivers.
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47
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9.3.
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Performance
by Administrative Agent.
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47
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9.4.
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Delegation
of Duties and Rights.
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47
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9.5.
|
Lenders
Not in Control.
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47
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9.6.
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Waivers
by Lenders.
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47
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9.7.
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Cumulative
Rights.
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48
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9.8.
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Application
of Proceeds.
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48
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9.9.
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Certain
Proceedings.
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48
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9.10.
|
Setoff.
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48
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SECTION
10 THE AGENTS.
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48
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10.1.
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Appointment.
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48
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10.2.
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Delegation
of Duties.
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49
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10.3.
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Exculpatory
Provisions.
|
49
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10.4.
|
Reliance
of Administrative Agent.
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49
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10.5.
|
Notice
of Default.
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50
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10.6.
|
Non-Reliance
on Agents and Other Lenders.
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50
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10.7.
|
Indemnification.
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50
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10.8.
|
Agent
in its Individual Capacity.
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51
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10.9.
|
Successor
Administrative Agent.
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51
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10.10.
|
Co-Documentation
Agents and Syndication Agent.
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51
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SECTION
11 MISCELLANEOUS.
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51
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11.1.
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Changes
in GAAP.
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51
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11.2.
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Money
and Interest.
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52
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11.3.
|
Number
and Gender of Words.
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52
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11.4.
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Headings.
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52
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11.5.
|
Exhibits.
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52
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11.6.
|
Notices.
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52
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| |
11.7.
|
Exceptions
to Covenants.
|
53
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11.8.
|
Survival.
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54
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11.9.
|
Governing
Law.
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54
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11.10.
|
Submission
to Jurisdiction; Waivers.
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54
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11.11.
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WAIVERS
OF JURY TRIAL.
|
54
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11.12.
|
Severability.
|
55
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11.13.
|
Integration.
|
55
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11.14.
|
Amendments,
Etc.
|
55
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| |
11.15.
|
Waivers.
|
56
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| |
11.16.
|
Governmental
Regulation.
|
56
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11.17.
|
Multiple
Counterparts.
|
56
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| |
11.18.
|
Successors
and Assigns; Participations; Assignments.
|
56
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| |
11.19.
|
Confidentiality.
|
59
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| |
11.20.
|
Patriot
Act.
|
60
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| |
11.21.
|
Conflicts
and Ambiguities.
|
60
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11.22.
|
GENERAL
INDEMNIFICATION.
|
60
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SCHEDULES
|
Commitments
|
Schedule 1
|
|
Transactions
with Affiliates
|
Schedule 4.12
|
|
Business
of Companies
|
Schedule 4.17
|
EXHIBITS
|
Revolving
Note
|
Exhibit
A
|
|
Opinion
of Borrower’s Counsel
|
Exhibit
B
|
|
Financial
Report Certificate
|
Exhibit
C
|
|
Assignment
and Assumption
|
Exhibit
D
|
|
Increased
Facility Activation Notice
|
Exhibit
E
|
|
New
Lender Supplement
|
Exhibit
F
|
AMENDED
AND RESTATED CREDIT AGREEMENT (this “
Agreement ”),
dated as of December 14, 2006, among CENTURYTEL, INC., a Louisiana
corporation (the “
Borrower ”),
the several banks and other financial institutions or entities from
time to time parties to this Agreement (the “
Lenders ”),
WACHOVIA BANK, N.A., as syndication agent (in such capacity, the
“
Syndication Agent ”),
BANK OF AMERICA, N.A., BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY,
SUNTRUST BANK, COBANK, ACB, LEHMAN BROTHERS BANK, FSB, REGIONS BANK
and WILLIAM STREET COMMITMENT CORPORATION, as co-documentation
agents (in such capacity, the “
Co-Documentation Agents ”),
and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
capacity, the “
Administrative Agent ”).
W
I
T
N
E
S
S
E
T
H :
WHEREAS,
the Borrower entered into the Credit Agreement, dated as of
March 7, 2005 (the “
Existing Credit Agreement ”),
with the several banks and other financial institutions or entities
parties thereto, the syndication agent and co-documentation agents
named therein and JPMorgan Chase Bank, N.A., as administrative
agent;
WHEREAS,
the parties hereto have agreed to amend and restate the
Existing Credit Agreement as provided in this Agreement, which
Agreement shall become effective upon the satisfaction of the
conditions precedent set forth in Section 5.1 hereof;
and
WHEREAS,
it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities
existing under the Existing Credit Agreement and which remain
outstanding or evidence repayment of any of such obligations
and liabilities and that this Agreement amend and restate in
its entirety the Existing Credit Agreement and re-evidence the
obligations of the Borrower outstanding
thereunder;
NOW,
THEREFORE, in consideration of the above premises, the parties
hereto hereby agree that, effective on the Effective Date (as
defined below), the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
SECTION 1
DEFINITIONS
| |
1.1
|
Certain
Defined Terms.
|
As
used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms
defined):
“ABR” means,
for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus ½ of 1%. For purposes hereof:
“Prime Rate” shall mean the rate of interest per annum
publicly announced from time to time by JPMorgan Chase Bank as its
prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest
charged by JPMorgan Chase Bank in connection with extensions of
credit to debtors). Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change
in the Prime Rate or the Federal Funds Effective Rate,
respectively.
“ABR Loan” means
any Loan the rate of interest applicable to which is based upon the
ABR.
“Acquisitions” means
the acquisition by the Borrower or its Subsidiaries of at least a
majority of the capital stock or all or substantially all of the
Property of another Person, division of another Person or other
business unit of another Person, whether or not involving a merger
or consolidation of such Person, provided that such Person or
Property is used or useful in the same or a similar line of
business as set forth on Schedule 4.17 hereto (or any reasonable
extensions or expansions thereof). “Adjusted
Consolidated Net Worth” means, as of the date of
determination, Consolidated Net Worth minus (i) deferred
assets other than prepaid insurance, prepaid taxes, prepaid
interest, extraordinary retirements, and deferred charges where
such deferred charges are considered by Tribunals when setting
rates, (ii) patents, copyrights, trademarks, trade names,
franchises, experimental expense, goodwill (other than goodwill
arising from the purchase of capital stock or assets of a Person
engaged in the business described on Schedule 4.17) and similar
intangible or intellectual property, and (iii) unamortized
debt discount and expense (other than debt discount and expense of
the Companies located in jurisdictions where such items are
considered by Tribunals when setting rates).
“Administrative Agent” is
defined in the introduction to this Agreement. “Affiliate”
of any Person means any other individual or entity that directly or
indirectly controls, or is controlled by, or is under common
control with, such Person, and, for purposes of this definition
only, “control,” “controlled by,” and
“under common control with” mean possession, directly
or indirectly, of the power to direct or cause the direction of the
management or policies of such Person (whether through ownership of
Voting Stock, by contract, or otherwise).
“Agents” means
the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents.
“Agreement” means
this Five-Year Revolving Credit Agreement, as the same may be
amended, supplemented, modified or restated from time to
time.
“Applicable Margin” means,
at the time of any determination thereof, for purposes of all
Eurodollar Loans, the margin of interest over the Eurodollar Rate
which is applicable at the time of any determination of interest
rates under this Agreement, which Applicable Margin shall be
adjusted based on the Senior Unsecured Long-Term Debt Rating, as
determined as of the last day of the immediately preceding fiscal
quarter of the Borrower, as follows:
|
Senior
Unsecured Long-Term Debt Rating
|
Applicable
Margin
|
|
A-
or A3 or better
|
25.0
basis points
|
|
BBB+
or Baal
|
35.0
basis points
|
|
BBB
or Baa2
|
45.0
basis points
|
|
BBB-
or Baa3
|
55.0
basis points
|
|
Below
BBB- or Baa3
|
75.0
basis points
|
“
Application ”
means an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
“
Approved Fund ”
is defined in Section 11.18(b)(ii).
“
Assignee ”
is defined in Section 11.18(b)(i).
“
Assignment and Assumption ”
means an Assignment and Assumption, substantially in the form of
Exhibit D.
“
Attributable Debt ”
means, in respect of any sale and leaseback transaction, at the
time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the
lease included in such sale and leaseback transaction including any
period for which such lease has been extended or may, at the sole
option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with
GAAP.
“
Available Commitment ”
means as to any Lender at any time, an amount equal to the excess,
if any, of (a) such Lender’s Commitment then in effect
over (b)
the aggregate principal amount of Revolving Extensions of Credit
made by such Lender.
“
Board ”
means the Board of Governors of the Federal Reserve System of the
United States.
“
Borrower ”
is defined in the introduction to this Agreement.
“
Borrowing
” means
a borrowing consisting of simultaneous Loans from each of the
Lenders distributed ratably among the Lenders in accordance with
their respective Commitments.
“
Borrowing Date ”
means the Business Day upon which the proceeds of any Borrowing are
to be made available to the Borrower.
“
Business Day ”
means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law
to close,
provided ,
that with respect to notices and determinations in connection with,
and payments of principal and interest on, Eurodollar Loans, such
day is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.
“
Capital Stock ”
means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
“
Cash Equivalents ”
means,
as
at any date, (a) securities
issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (
provided that
the full faith and credit of the United States is pledged in
support thereof) having maturities of not more than twelve months
from the date of acquisition, (b) dollar denominated time
deposits and certificates of deposit of (i) any Lender,
(ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from
S&P is at least A-1 or the equivalent thereof or from Moody's
is at least P-1 or the equivalent thereof (any such bank being
an “
Approved
Bank ”
),
in each case with maturities of not more than 270 days from the
date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of the
date of acquisition, (d) repurchase agreements entered into by
any Person with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations
and (e) investments, classified in accordance with GAAP as
current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of
at least $500,000,000 and the portfolios of which are limited to
investments of the character described in the foregoing
subdivisions (a) through (d).
“
CLO ”
is
defined in Section 11.18(b)(ii).
“
Code ”
means the Internal Revenue Code of 1986, as amended, together with
rules and regulations promulgated thereunder.
“
Co-Documentation Agents ”
is defined in the introduction to this Agreement.
“
Commitment ”
means, as to any Lender, the obligation of such Lender to make
Loans and participate in Letters of Credit in an aggregate
principal amount not to exceed the amount set forth under the
heading “Commitment” opposite such Lender’s name
on Schedule 1 or in the Assignment and Assumption pursuant to which
such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original amount of
the Total Commitments is $750,000,000.
“
Commitment Fee ”
is defined in Section 2.4(a).
“
Commitment Fee Percentage ”
is defined in Section 2.4(a).
“
Commitment Period ”
means the period from and including the Effective Date to the
Termination Date.
"
Commitment Utilization Percentage "
means on any day the percentage equivalent of a fraction (a) the
numerator of which is the Used Commitment and (b) the
denominator of which is the aggregate amount of the Total
Commitments. Notwithstanding the foregoing, the Commitment
Utilization Percentage shall be deemed to be 100% if any Loans or
Letters of Credit remain outstanding after the Commitments
hereunder have been terminated.
“
Companies ”
means, collectively, the Borrower and its Subsidiaries and
“Company” means any of the same.
“
Conduit Lender ”
means any special purpose corporation organized and administered by
any Lender for the purpose of making Loans otherwise required to be
made by such Lender and designated by such Lender in a written
instrument;
provided ,
that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender
fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this
Agreement with respect to its Conduit Lender, and
provided ,
further ,
that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.10, 2.12, 2.20, 6.7 or 11.21 than the
designating Lender would have been entitled to receive in respect
of the extensions of credit made by such Conduit Lender or (b) be
deemed to have any Commitment.
“
Confidential Information Memorandum ”
means the Confidential Information Memorandum dated November 2006
and furnished to certain Lenders.
“
Consolidated Net Worth ”
means, as of the date of determination, the amount of stated
capital plus (or minus, in the case of a deficit) the capital
surplus and earned surplus of the Companies, as calculated in
accordance with GAAP (but treating Minority Interests in
Subsidiaries as liabilities and excluding the contra-equity account
resulting from the Borrower’s obligations under its employee
stock ownership plan commitments). For purposes of this Agreement,
Consolidated Net Worth shall exclude the effect of FASB Statements
No. 101 (“Regulated Enterprises-Accounting for the
Discontinuation of Application of FASB Statement No. 71”),
106 (“'Employers' Accounting for Postretirement Benefits
Other than Pensions”), 142 (“Goodwill and Other
Intangible Assets”) and 144 (“Accounting for the
Impairment or Disposal of Long-Lived Assets”) of the
Financial Accounting Standards Board.
“
Consolidated Total Funded Debt ”
means, as of the date of determination, the aggregate principal
amount of all Funded Debt of the Borrower and its Subsidiaries at
such date, determined on a consolidated basis in accordance with
GAAP.
“
Current Date ”
means any date after November 15, 2006.
“
Current Financials ”
means the consolidated Financial Statements of the Companies for
the fiscal year ended December 31, 2005, and the nine months
ended September 30, 2006.
“
Debt ”
means (without duplication), for any Person, all obligations,
contingent or otherwise (including, without limitation, contingent
obligations in connection with letters of credit), which in
accordance with GAAP should be classified upon such Person’s
balance sheet as liabilities, but in any event including, without
limitation, whether or not such obligations in accordance with GAAP
should be classified as liabilities, (a) liabilities secured
(or for which the holder of such Debt has an existing Right,
contingent or otherwise, to be so secured) by any Lien existing on
property owned or acquired by such Person or a Subsidiary thereof
(whether or not the liability secured thereby shall have been
assumed), (b) obligations which have been or under GAAP should
be capitalized for financial reporting purposes, (c) all
guaranties, endorsements, and other contingent obligations with
respect to Debt of others, including, but not limited to, any
obligations to purchase, sell, or furnish property or services
intended by a Company primarily for the purpose of enabling such
other Person to make payment of any of such Person’s Debt, or
to otherwise assure the holder of any of such Debt against loss
with respect thereto, and (d) liabilities under any Swap
Agreement.
“
Debt Rating ”
means the public debt rating by S&P and Moody’s for that
class of non-credit enhanced, senior unsecured debt with an
original term of longer than one year issued by the Borrower which
has the lowest rating of all classes of non-credit enhanced, senior
unsecured debt with an original term of longer than one year issued
by the Borrower.
“
Debtor Relief Laws ”
means the Bankruptcy Code of the United States of America and all
other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency,
reorganization, fraudulent transfer or conveyance, suspension of
payments, or similar Laws from time to time in effect affecting the
Rights of creditors generally.
“
Default ”
means the occurrence of any event which with the giving of notice
or the passage of time or both would become an Event of
Default.
“
Dollars ”
and “
$ ”
means dollars in lawful currency of the United States.
“
EBITDA ”
means for any period, consolidated net income of the Companies for
such period
plus ,
without duplication and to the extent reflected as a charge in the
statement of such consolidated net income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or
write-off of debt discount and debt issuance costs and commissions,
discounts and other fees and charges associated with indebtedness
(including the Loans), (c) depreciation and amortization, (d) any
extraordinary or nonrecurring non-cash expenses or losses, (e) any
non-cash charges resulting from requirements to mark-to-market Swap
Agreements and (f) non-cash expenses or losses which result from
the implementation of FASB statement of Financial Accounting
Standards No. 142 (“Goodwill and Other Intangible
Assets”) and 144 (“Accounting for the Impairment or
Disposal of Long-Lived Assets”), and
minus ,
(a) to the extent included in the statement of such consolidated
net income for such period, any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such consolidated
net income for such period, gains on the sales of assets outside of
the ordinary course of business) and (b) any cash payments made
during such period in respect of items described in clause (d), (e)
or (f) above subsequent to the fiscal quarter in which the relevant
non-cash expenses or losses were reflected as a charge in the
statement of consolidated net income, all as determined on a
consolidated basis.
“
Effective Date ”
means the date on which the conditions set forth in Section 5.1
shall have been satisfied, which date is December 14,
2006.
“
Eligible Reinvestment ”
means (i) any acquisition (whether or not constituting a
capital expenditure, but not constituting an Acquisition) of assets
or any business (or any substantial part thereof) used or useful in
the same or a similar line of business as set forth on Schedule
4.17 hereto (or any reasonable extensions or expansions thereof)
and (ii) any Acquisition.
“
Environmental Law ”
means any Law that relates to the environment or handling or
control of Hazardous Substances.
“
Equity Units ”
means (i) the $500,000,000 aggregate principal amount of equity
units issued by the Borrower on April 29, 2002 and (ii) any
subsequent offering of equity units issued by the Borrower the
structure, terms and conditions of which are substantially similar
to the offering referred to in clause (i) above.
“
ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated
thereunder.
“
ERISA Affiliate ”
means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is a
member of a group of which Borrower is a member and which is under
common control with Borrower within the meaning of section 414
of the Code.
“
Eurocurrency Reserve Requirements ”
mean, for any day as applied to a Eurodollar Loan, the aggregate
(without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Tribunal having jurisdiction with
respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
“
Eurodollar Base Rate ”
means, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00
A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such screen), the
“
Eurodollar Base Rate ”
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be
selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative
Agent is offered Dollar deposits at or about 11:00 A.M., New York
City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its
eurodollar and foreign currency and exchange operations are then
being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein.
“
Eurodollar Loan ”
means any Loan the rate of interest applicable to which is based
upon the Eurodollar Rate.
“
Eurodollar Rate ”
means, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
|
Eurodollar
Base Rate
|
|
1.00
- Eurocurrency Reserve Requirements
|
“
Eurodollar Tranche ”
means the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
“
Event of Default ”
means any of the events described in Section 8,
provided there
has been satisfied any requirement in connection therewith for the
giving of notice, lapse of time, or happening of any further
condition, event, or act.
"
Excess Utilization Day "
means each day on which the Commitment Utilization Percentage
equals or exceeds 50%.
“
Existing Credit Agreement ”
is defined in the recitals to this Agreement.
“
Federal Funds Effective Rate ”
means, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for the day
of such transactions received by JPMorgan Chase Bank from three
federal funds brokers of recognized standing selected by
it.
“
Financial Officer ”
means the chief financial officer, treasurer or controller of the
Borrower.
“
Financial Report Certificate ”
means a certificate substantially in the form of Exhibit
C.
“
Financial Statements ”
means balance sheets, income statements, statements of
stockholders’ equity, and statements of cash flow prepared in
comparative form to the corresponding period of the preceding
fiscal year.
“
Funded Debt ”
with respect to any Person, shall mean and include, as of any date
as of which the amount thereof is to be determined,
(a) indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of
property or services (other than current trade payables incurred in
the ordinary course of such Person’s business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property), (e) liabilities secured (or for which the holder thereof
has an existing Right, contingent or otherwise, to be so secured)
by any Lien existing on property owned or acquired by such Person
or a Subsidiary thereof (whether or not the liability secured
thereby shall have been assumed), (f) obligations of such
Person which have been or under GAAP should be capitalized for
financial reporting purposes, and (g) Attributable Debt of such
Person, but excluding (i) indebtedness secured by or borrowed
against the cash surrender value of life insurance policies up to
the amount of such cash surrender value and (ii) an amount equal to
80% of the outstanding principal amount of indebtedness under the
Equity Units.
“
Funding Office ”
means the office of the Administrative Agent specified in Section
11.6 or such other office as may be specified from time to time by
the Administrative Agent as its funding office by written notice to
the Borrower and the Lenders.
“
GAAP ”
means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board which are
applicable as of the date of the Financial Statements in
question.
“
Guaranty ”
means by any particular Person, all obligations of such Person
guaranteeing or in effect guaranteeing any Debt, dividend or other
obligation of any other Person (the “primary obligor”)
in any manner whether directly or indirectly, including, without
limitation of the generality of the foregoing, obligations incurred
through an agreement, contingent or otherwise, by such particular
Person (i) to purchase such Debt or obligation or any property
or assets constituting security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of such Debt or
obligation or (y) to maintain working capital or equity
capital or otherwise to advance or make available funds for the
purchase or payment of such Debt or obligation, (iii) to
purchase property, securities or services primarily for the purpose
of assuring the owner of such Debt or obligation of the ability of
the primary obligor to make payment of the Debt or obligation or
(iv) otherwise to assure the owner of the Debt or obligation
of the primary obligor against loss in respect
thereof.
“
Hazardous Substance ”
means any hazardous or toxic waste, pollutant, contaminant, or
substance.
“
Increased Facility Activation Notice ”
means a notice substantially in the form of Exhibit E.
“
Increased Facility Closing Date ”
means any Business Day designated as such in an Increased Facility
Activation Notice.
“
Indemnified Parties ”
is defined in Section 11.21.
“
Interest Payment Date ”
means (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan
having an Interest Period of three months or less, the last day of
such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period (d) as to
any Loan (other than any Loan that is an ABR Loan), the date of any
repayment or optional prepayment made in respect thereof and (e) as
to any Loan, the date of any mandatory prepayment in respect
thereof.
“
Interest Period ”
means, as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day
of the then current Interest Period with respect thereto;
provided that,
all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i)
if
any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(ii)
the
Borrower may not select an Interest Period that would extend
beyond the Termination Date unless the Borrower acknowledges
that it will be responsible for any breakage costs owing under
Section 2.12 resulting from repayment on the Termination
Date;
(iii)
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 calendar month at the end of such
Interest Period) shall end on the last Business Day of a
calendar month; and
(iv)
subject
to clause (ii) above, the Borrower shall select Interest
Periods so as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such
Loan.
“
Issuing Lenders ”
means JPMorgan Chase Bank, N.A. and Wachovia Bank, N.A. or any
respective affiliate thereof, in its capacity as issuer of any
Letter of Credit. Each reference herein to “the Issuing
Lender” shall be deemed to be a reference to the relevant
Issuing Lender with respect to the relevant Letter of
Credit.
“
Laws ”
means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, or
opinions of any Tribunal.
“
L/C Commitment ”
is $150,000,000.
“
L/C Obligations ”
means, at any time, an amount equal to the sum of (a) the aggregate
then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section
3.5.
“
L/C Participants ”
means the collective reference to all Lenders other than the
Issuing Lenders.
“
Lenders ”
means those lenders signatory hereto and other financial
institutions which from time to time become party hereto pursuant
to the provisions of this Agreement.
“
Letters of Credit ”
is defined in Section 3.1(a).
“
Lien ”
means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and
any other Right of or arrangement with any creditor to have his
claim satisfied out of any property or assets, or the proceeds
therefrom, prior to the general creditors of the owner
thereof.
“
Litigation ”
means any action conducted, pending, or threatened by or before any
Tribunal.
“
Loan Papers ”
means (i) this Agreement, certificates delivered pursuant to
this Agreement, and exhibits and schedules hereto, (ii) any
notes, security documents, guaranties, and other agreements in
favor of the Agents and the Lenders, or any or some of them, ever
delivered in connection with this Agreement, and (iii) all
renewals, extensions, or restatements of, or amendments or
supplements to, any of the foregoing.
“
Loans ”
is defined in Section 2.1(a).
“
Majority Lenders ”
means at any time the Lenders holding at least 51% of the then
aggregate Revolving Extensions of Credit or, if no Revolving
Extensions of Credit are outstanding, the Lenders having at least
51% of the Available Commitments.
“
Margin Stock ”
means “margin stock” within the meaning of Regulations
T, U, or X of the Board.
“
Material Adverse Effect ”
means any set of one or more circumstances or events which,
individually or collectively, will result in any of the following:
(a) a material and adverse effect upon the validity or
enforceability of any Loan Paper, (b) a material and adverse
effect on the consolidated financial condition of the Companies
represented in the later of the Current Financials or the most
recent audited consolidated Financial Statements, (c) a
Default or (d) the issuance of an accountant’s report on
the Companies’ consolidated Financial Statements containing
an explanatory paragraph about the entity’s ability to
continue as a going concern (as defined in accordance with
Generally Accepted Auditing Standards).
“
Material Agreement ”
of any Person means any material written or oral agreement,
contract, commitment, or understanding to which such Person is a
party, by which such Person is directly or indirectly bound, or to
which any assets of such Person may be subject, and which is not
cancelable by such Person upon 30 days or less notice without
liability for further payment other than nominal penalty, and which
requires such Person to pay more than 1 percent of Consolidated Net
Worth during any 12-month period.
“
Minority Interest ”
means, with respect to any Subsidiary, an amount determined by
valuing preferred stock held by Persons other than the Borrower and
its wholly-owned Subsidiaries at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater,
and by valuing common stock or partnership interests held by
Persons other than the Borrower and its wholly-owned Subsidiaries
at the book value of capital and surplus applicable thereto on the
books of such Subsidiary adjusted, if necessary, to reflect any
changes from the book value of common stock required by the
foregoing method of valuing Minority Interest attributable to
preferred stock.
“
Moody’s ”
means Moody’s Investors Service, Inc.
“
Multiemployer Plan ”
means a multiemployer plan as defined in sections 3(37) or
4001(a)(3) of ERISA or section 414 of the Code to which any
Company or any ERISA Affiliate is making, or has made, or is
accruing, or has accrued, an obligation to make
contributions.
“
Net Cash Proceeds ”
means
the aggregate cash or Cash Equivalents proceeds received by the
Company in respect of any disposition of assets as contemplated by
Section 7.7(g), net of (a) direct costs (including,
without limitation, legal, accounting and investment banking fees,
and sales commissions), (b) taxes paid or payable as a result
thereof and (c) the amount necessary to retire any Debt
secured by a Permitted Lien on the related Property
(unless the purchaser of the assets has assumed the obligations to
repay such Debt) ;
it being understood that “
Net
Cash Proceeds ”
shall
include, without limitation, any cash or Cash Equivalents received
upon the sale or other disposition of any non-cash consideration
received by any such Company in any disposition of
assets.
“
New Lender ”
is defined in Section 2.1(c).
“
New Lender Supplement ”
is defined in Section 2.1(c).
“
Non-Excluded Taxes ”
is defined in Section 2.20(a).
“
Non-U.S. Lender ”
is defined in Section 2.20(d).
“
Note ”
means a promissory note of the Borrower, in substantially the form
of Exhibit A hereto, with the blanks appropriately completed,
evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Loans made by such Lender to the
Borrower, together with all modifications, extensions, renewals,
and rearrangements thereof.
“
Obligation ”
means all present and future indebtedness, obligations, and
liabilities, and all renewals, extensions, and modifications
thereof, owed to the Agents and the Lenders, or any or some of
them, by the Borrower, arising pursuant to any Loan Paper, together
with all interest thereon and costs, expenses, and attorneys’
fees incurred in the enforcement or collection
thereof.
“
Other Taxes ”
means any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Paper.
“
Participant ”
is defined in Section 11.18(b).
“
PBGC ”
means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
“
Permitted Liens ”
means (a) any Lien securing Debt incurred for the purchase or
capital lease of one or more assets, if such Lien encumbers only
the assets so purchased or leased; (b) pledges or deposits made to
secure payment of workers’ compensation, or to participate in
any fund in connection with workers’ compensation,
unemployment insurance, pensions, or other social security
programs; (c) good-faith pledges or deposits made to secure
performance of bids, tenders, contracts (other than for the
repayment of borrowed money), or leases, or to secure statutory
obligations, surety or appeal bonds, or indemnity, performance, or
other similar bonds in the ordinary course of business; (d)
encumbrances and restrictions on the use of real property which do
not materially impair such property; (e) (i) Liens for Taxes, (ii)
Liens upon, and defects of title to, property, including any
attachment of property or other legal process prior to adjudication
of a dispute on the merits, (iii) Liens of mechanics, materialmen,
warehousemen, carriers, and landlords, and similar Liens, and (iv)
adverse judgments on appeal, in each case, with respect to this
clause (e), if either (x) no amounts are due and payable and no
Lien has been filed or agreed to or (y) the validity or amount
thereof is being contested in good faith by the lawful proceedings
diligently conducted, reserve or other provision required by GAAP
has been made, levy and execution thereon have been (and continue
to be) stayed, and neither the value nor use of the property in
question are materially affected; (f) Liens in favor of the United
States Department of Agriculture, Rural Electrification
Administration, the Rural Utilities Service or Rural Telephone Bank
or similar lenders such as the Rural Telephone Finance Cooperative;
(g) Liens on equity investments in CoBank or any other equity
investments in a financial institution which requires any Company
to make an equity investment in such institution in order to borrow
money; (h) Liens existing on any property of a Subsidiary existing
at the time when it became such, which were not created with a view
of its becoming a Subsidiary,
provided that
(i) the principal amount of the Debt secured by each such Lien
shall not exceed the cost (which shall be deemed to include the
amount of all Debt secured by Liens, including existing Liens, on
such property) of such property to such Subsidiary, or the fair
value of such property (without deduction of the Debt secured by
Liens on such property) at the time of its becoming a Subsidiary,
whichever is the lesser, and (ii) the Debt secured by such Liens
may not be increased, extended, renewed or continued beyond its
original stated maturity if such increase, extensions or renewal
would result in a Default under Section 7.14; (i) Liens either on
shares of stock of a corporation which, when such Liens arise,
concurrently becomes a Subsidiary or on all or substantially all of
the assets of a corporation arising in connection with the purchase
or acquisition thereof by the Company,
provided that
the Debt secured by such Liens may not be increased or extended,
renewed or continued beyond its original stated maturity if such
increase, extensions or renewal would result in a Default under
Section 7.14; (j) Liens on property of a Subsidiary (other than on
the stock of Subsidiary except to the extent permitted in clause
(i) above) securing obligations owing to the Borrower or a
wholly-owned Subsidiary or securing indebtedness of such Subsidiary
created, assumed or incurred after the date hereof, the creation,
assumption or incurrence of which would not create a Default under
Section 7.14; (k) except as otherwise prohibited in clause (h) or
(i) above, Liens securing extensions and renewals of the Debt
originally secured thereby; (l) Liens on accounts receivables and
related assets (including without limitation, all collateral,
guaranties and contracts associated with such accounts receivables,
all of the Receivables Entity’s interest in the inventory and
goods the sale of which gave rise to the accounts receivable, all
lockbox or collection accounts related thereto, all records related
thereto, and all proceeds of the foregoing) securing indebtedness
incurred pursuant to a Qualified Receivables Transaction; and (m)
Liens on assets subject to any sale and leaseback transaction
consummated pursuant to Section 7.7(g).
“
Person ”
means and includes an individual, partnership, joint venture,
corporation, trust, limited liability company, limited liability
partnership, or other entity, Tribunal, unincorporated
organization, or government, or any department, agency, or
political subdivision thereof.
“
Plan ”
means any plan defined in Section 4021(a) of ERISA in respect
of which the Borrower is an “employer” or a
“substantial employer” as such terms are defined in
ERISA.
“
Property ”
means
any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.
“
Purchaser ”
is defined in Section 11.18(c).
“
Qualified Receivables Transaction ”
means any transaction or series of transactions that may be entered
into by the Borrower or any of its Subsidiaries pursuant to which
the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Borrower or any of its Subsidiaries) or (b) any
other Person (in the case of a transfer by a Receivables Entity),
or may grant a security interest in, any accounts receivable
(whether now existing or arising in the future) of the Borrower or
any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations
in respect of such accounts receivable, the proceeds of such
receivables and other assets which are customarily transferred, or
in respect of which security interests are customarily granted, in
connection with asset securitization involving accounts
receivable.
“
Quarterly Payment Date ”
means (a) the third Business Day following the last day of each
March, June, September and December and (b) the last day of the
Commitment Period.
“
Receivables Entity ”
means a Wholly Owned Subsidiary of the Borrower (to which the
Borrower or any Subsidiary transfers accounts receivable and
related assets pursuant to a Qualified Receivables Transaction)
which engages in no activities other than in connection with the
financing of accounts receivable and whose assets consist solely of
receivables and related assets transferred to such entity in
connection with a Qualified Receivables Transaction:
(a)
no
portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(i)
is
guaranteed by the Borrower or any Subsidiary (excluding
guarantees of obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Securitization
Undertakings);
(ii)
is
recourse to or obligates the Borrower or any Subsidiary in any
way other than pursuant to Standard Securitization
Undertakings; or
(iii)
subjects
any property or asset of the Borrower or any Subsidiary,
directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard
Securitization Undertakings;
(b)
with
which neither the Borrower nor any Subsidiary has any material
contract, agreement, arrangement or understanding (except in
connection with a Qualified Receivables Transaction) other
than on terms no less favorable to the Borrower or such
Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower, other than
fees payable in the ordinary course of business in connection
with servicing accounts receivable; and
(c)
to
which neither the Borrower nor any Subsidiary has any
obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain
levels of operating results (except pursuant to Standard
Securitization Undertakings).
Any
designation by the Borrower of a Wholly Owned Subsidiary as a
Receivables Entity shall be evidenced to the Administrative
Agent by delivering to the Administrative Agent a certificate
from a Financial Officer of the Borrower certifying that such
designation complied with the foregoing
conditions.
“
Register ”
is defined in Section 11.18(b)(iv).
“
Regulation D ”
means Regulation D of the Board, as the same is from time to
time in effect, and all official rulings and interpretations
thereunder or thereof.
“
Regulatory Change ”
means, with respect to any Lender, (a) any adoption or change
after the date hereof of or in United States federal, state or
foreign Laws (including Regulation D) or guidelines applying
to a class of banks including such Lender, (b) the adoption or
making after the date hereof of any interpretations, directives or
requests applying to a class of banks including such Lender of or
under any United States federal, state or foreign Laws or
guidelines (whether or not having the force of law) by any
Tribunal, monetary authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or
(c) any change in the interpretation or administration of any
United States federal, state or foreign Laws or guidelines applying
to a class of banks including such Lender by any Tribunal, monetary
authority, central bank, or comparable agency charged with the
interpretation or administration thereof.
“
Reimbursement Obligation ”
means the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section 3.5 for amounts drawn under the Letters
of Credit.
“
Restricted Payment ”
means
(
a
)
the
declaration or payment of dividends by the Borrower, or
distribution (in cash, property, obligations or other
securities or any combination thereof) on account of any
shares of any class of capital stock of the Borrower,
or
(
b
)
other
payments or distributions by the Borrower whether by reduction
of capital or otherwise on account of any shares of any class
of capital stock of the Borrower, or
(
c
)
the
setting apart of money for a sinking or other analogous fund
by the Borrower for the purchase, redemption, retirement or
other acquisition of any shares of any class of capital stock
of the Borrower, or any warrant, option or other right to
acquire any capital stock of the Borrower;
but
in each case in (a), (b) and (c) above, excluding dividends or
other distributions payable solely in common stock of the
Borrower.
“
Revolving Extensions of Credit ”
means, as to any Lender, an amount equal to the sum of (a) the
aggregate principal amount of all Loans held by such Lender then
outstanding and (b) such Lender’s Revolving Percentage of the
L/C Obligations then outstanding.
“
Revolving Percentage ”
means, as to any Lender at any time, the percentage which such
Lender’s Commitment then constitutes of the Total Commitments
or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of
such Lender’s Loans then outstanding constitutes of the
aggregate principal amount of the Loans then outstanding, provided,
that, in the event that the Loans are paid in full prior to the
reduction to zero of the Revolving Extensions of Credit, the
Revolving Percentages shall be determined in a manner designed to
ensure that the other outstanding Revolving Extensions of Credit
shall be held by the Lenders on a comparable basis.
“
Rights ”
means rights, remedies, powers, and privileges.
“
S&P ”
means Standard and Poor’s Ratings Services, Inc., a division
of The McGraw Hill Companies, Inc.
“
Senior Unsecured Long-Term Debt Rating ”
means, as of any date, the Debt Rating that has been most recently
announced by S&P and Moody’s. In connection with any
determination of the Senior Unsecured Long-Term Debt Rating
pursuant to the immediately preceding sentence:
(i)for
purposes of determining the Applicable Margin or the
Commitment Fee Percentage, (a) if only one of S&P and
Moody’s shall have in effect a public debt rating, the
Applicable Margin and the Commitment Fee Percentage (as set
forth in Section 2.4(a)) shall be determined by reference
to the available rating; (b) if the ratings established
by S&P and Moody’s shall fall within different
levels, the Applicable Margin and the Commitment Fee
Percentage shall be based upon the higher rating, except that
if the difference is two or more levels, the Applicable Margin
and the Commitment Fee Percentage shall be based on the rating
that is one level below the higher rating; (c) if any
rating established by S&P or Moody’s shall be
changed, such change shall be effective as of the date on
which such change is first announced publicly by the rating
agency making such change; (d) if S&P or
Moody’s shall change the basis on which ratings are
established, each reference to the public debt rating
announced by S&P or Moody’s, as the case may be,
shall refer to the then equivalent rating by S&P or
Moody’s, as the case may be; (e) if neither S&P
nor Moody’s shall have in effect a public debt rating
but at least one of S&P and Moody’s has in effect a
rating for any class of senior secured debt with an original
term of longer than one year issued by the Borrower, the
Applicable Margin and Commitment Fee Percentage shall be
determined by reference to a rating that is one level lower
than the rating that has been most recently announced by
S&P and Moody’s for such class of debt; and
(f) if neither S&P nor Moody’s shall have in
effect either a public debt rating or a rating for any class
of senior secured debt with an original term of longer than
one year issued by the Borrower, the Applicable Margin and
Commitment Fee Percentage shall be set in accordance with the
lowest level rating and highest percentage rate set forth in
the respective tables relating to “Applicable
Margin” and “Commitment Fee Percentage”, as
the case may be; and
(ii)for
purposes of Section 7.7(f), (a) if only one of
S&P and Moody’s shall have in effect a public debt
rating, the Senior Unsecured Long-Term Debt Rating shall be
determined by reference to the available rating; (b) if
the ratings established by S&P and Moody’s shall
fall within different levels, the Senior Unsecured Long-Term
Debt Rating shall be based upon the lower rating; (c) if
any rating established by S&P or Moody’s shall be
changed, such change shall be effective as of the date on
which such change is first announced publicly by the rating
agency making such change; (d) if S&P or
Moody’s shall change the basis on which ratings are
established, each reference to the public debt rating
announced by S&P or Moody’s, as the case may be,
shall refer to the then equivalent rating by S&P or
Moody’s, as the case may be; (e) if neither S&P
nor Moody’s shall have in effect a public debt rating
but at least one of S&P and Moody’s has in effect a
rating for any class of senior secured debt with an original
term of longer than one year issued by the Borrower, the
Senior Unsecured Long-Term Debt Rating shall be deemed to be
the rating that is one level lower than the rating that has
been most recently announced by S&P and Moody’s for
such class of debt; and (f) if neither S&P nor
Moody’s shall have in effect either a public debt rating
or a rating for any class of senior secured debt with an
original term of longer than one year issued by the Borrower,
the Debt Rating by S&P shall be deemed to be less than BBB
and the Debt Rating by Moody's shall be deemed to be less than
Baa2.
“
Significant Subsidiary ”
means a Subsidiary of the Borrower (i) the assets of which
equal or exceed 5% of all assets of the Borrower and its
Subsidiaries as shown on a consolidated balance sheet of the
Borrower and its Subsidiaries, (ii) the operating revenue of
which, for the most recently ended period of twelve consecutive
months, equals or exceeds 5% of the operating revenues of the
Borrower and its Subsidiaries for such period, or (iii) the
net income from recurring operations of which, for the most
recently ended period of twelve consecutive months, equals or
exceeds 5% of the net income from recurring operations of the
Borrower and its Subsidiaries for such period.
“
Solvent ”
means, as to any Person at the time of determination, that
(a) the aggregate fair value of such Person’s assets
exceeds the present value of its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), and
(b) such Person has sufficient cash flow to enable it to pay
its Debts as they mature.
“
Standard Securitization Undertakings ”
means representations, warranties, covenants and indemnities
entered into by the Borrower or any Subsidiary which are reasonably
customary in securitization of accounts receivables transactions
(it being understood that in no event shall Standard Securitization
Undertakings include any Guaranty in respect of principal or
interest on the financing for any Qualified Receivables
Transaction).
“
Subsidiary ”
means any Person with respect to which Borrower or any one or more
Subsidiaries owns directly or indirectly 50% or more of the issued
and outstanding voting stock (or equivalent
interests).
“
Swap Agreement ”
means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination
of these transactions.
“
Syndication Agent ”
is defined in the introduction to this Agreement.
“
Taxes ”
means all taxes, assessments, fees, or other charges at any time
imposed by any Laws or Tribunal.
“
Termination Date ”
means December 14, 2011, subject, however, to termination in whole
of the Total Commitments pursuant to Section 2.5.
“
Total Commitments ”
means, at any time, the aggregate amount of the Commitments then in
effect.
“
Tribunal ”
means any municipal, state, commonwealth, federal, foreign,
territorial, or other court, governmental body, subdivision,
agency, department, commission, board, bureau, or
instrumentality.
“
Type ”
shall mean any type of Loan (i.e., an ABR Loan or Eurodollar
Loan).
“
United States ”
and “
U.S. ”
each means United States of America.
“
Used Commitment ”
means the aggregate outstanding principal amount of the Revolving
Extensions of Credit.
"
Utilization Fee "
is defined in Section 2.4(b).
“
Voting Stock ”
shall mean securities (as such term is defined in Section 2(1)
of the Securities Act of 1933, as amended) of any class or classes,
the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate
directors (or Persons performing similar functions).
“
Wholly Owned Subsidiary ”
means, as to any Person, any other Person all of the Capital Stock
of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
All
accounting and financial terms used in the Loan Papers and the
compliance with each financial covenant therein shall be
determined in accordance with GAAP as in effect on the date of
this Agreement, and all accounting principles shall be applied
on a consistent basis so that the accounting principles in a
current period are comparable in all material respects to
those applied in the consolidated Financial Statements for the
Companies for the twelve months ended December 31,
2005.
| |
1.3
|
Other Definitional Provisions.
|
As
used herein and in the other Loan Papers, (i) the words
“include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”, (ii) the word
“incur” shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist
(and the words “incurred” and
“incurrence” shall have correlative meanings),
(iii) the words “asset” and “property”
shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and
properties, including cash, capital stock, securities,
revenues, accounts, leasehold interests and contract rights,
and (iv) references to agreements or other contractual
obligations shall, unless otherwise specified, be deemed to
refer to such agreements or contractual obligations as
amended, supplemented, restated or otherwise modified from
time to time.
SECTION 2
FACILITIES.
(a)
Subject
to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans (“
Loans ”)
to the Borrower from time to time during the Commitment Period in
an aggregate principal amount at any one time outstanding which,
when added to such Lender’s Revolving Percentage of the L/C
Obligations, does not exceed the amount of such Lender’s
Commitment. During the Commitment Period, the Borrower may use the
Commitments by borrowing, repaying the Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions
hereof. The Loans may from time to time be Eurodollar Loans or ABR
Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and
2.3.
(b)
The
Borrower and any one or more Lenders (including New Lenders)
may agree that each such Lender shall obtain a Commitment or
increase the amount of its existing Commitment, as applicable,
in each case by executing and delivering to the Administrative
Agent an Increased Facility Activation Notice specifying
(i) the amount of such increase and (ii) the
Increased Facility Closing Date. No Lender shall have any
obligation to participate in any increase described in this
paragraph unless it agrees to do so in its sole
discretion.
(c)
Any
additional bank, financial institution or other entity which,
with the consent of the Borrower and the Administrative Agent
(which consent shall not be unreasonably withheld), elects to
become a “Lender” under this Agreement in
connection with any transaction described in Section 2.1(b)
shall execute a New Lender Supplement (each, a “
New Lender Supplement ”),
substantially in the form of Exhibit F, whereupon such bank,
financial institution or other entity (a “
New Lender ”)
shall become a Lender for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the
benefits of this Agreement.
(d)
For
the purpose of providing that the respective amounts of Loans
(and Interest Periods in respect of Eurodollar Loans) held by
the Lenders are held by them on a pro rata basis according to
their respective Revolving Percentages, unless otherwise
agreed by the Administrative Agent, on each Increased Facility
Closing Date (i) all outstanding Loans shall be converted
into a single Loan that is a Eurodollar Loan (with an
interest period to be selected by the Borrower), and upon such
conversion the Borrower shall pay any amounts owing pursuant
to Section 2.12, if any, (with such conversion being
treated as a prepayment of all outstanding Eurodollar Loans
for the purposes of Section 2.12), (ii) any new borrowings of
Loans on such date shall also be part of such single Loan
and (iii) all Lenders (including the New Lenders) shall
hold a portion of such single Loan equal to its Revolving
Percentage thereof and any fundings on such date shall be made
in such a manner so as to achieve the foregoing.
| |
2.2
|
Procedure
for Loan Borrowing .
|
The
Borrower may borrow under the Commitments during the
Commitment Period on any Business Day,
provided that
the Borrower shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to
11:00 A.M., New York City time, (a) three Business Days prior to
the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) on the requested Borrowing Date, in the case of ABR Loans),
specifying (i) the amount and Type of Loans to be borrowed, (ii)
the requested Borrowing Date and (iii) in the case of Eurodollar
Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Any
Loans made on the Closing Date shall initially be ABR Loans unless
the Borrower has provided the notice for Eurodollar Loans set forth
in clause (a) above and has entered into a pre-funding indemnity
agreement with respect to such borrowing of Eurodollar Loans on the
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent. Each borrowing under the Commitments shall be
in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a
whole multiple thereof (or, if the then aggregate Available
Commitments are less than $1,000,000, such lesser amount) and (y)
in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its
pro
rata share
of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent wiring the money in accordance with
instructions from the Borrower with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent.
| |
2.3
|
Conversion and Continuation Options.
|
(a)
The
Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the proposed conversion date,
provided that
any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar
Loans by giving the Administrative Agent prior irrevocable notice
of such election no later than 11:00 A.M., New York City time, on
the third Business Day preceding the proposed conversion date
(which notice shall specify the length of the initial Interest
Period therefor),
provided that
no ABR Loan may be converted into a Eurodollar Loan when any Event
of Default has occurred and is continuing and the Administrative
Agent or the Majority Lenders have determined in its or their sole
discretion not to permit such conversions. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b)
Any
Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by
the Borrower giving irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the
term “Interest Period” set forth in Section 1.1,
of the length of the next Interest Period to be applicable to
such Loans,
provided that
no Eurodollar Loan may be continued as such when any Event of
Default has occurred and is continuing and the Administrative Agent
has or the Majority Lenders have determined in its or their sole
discretion not to permit such continuations, and
provided ,
further ,
that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender
thereof.
(a)
Commitment Fees .
The Borrower agrees to pay to each Lender, through the
Administrative Agent, on each Quarterly Payment Date and on the
Termination Date, in immediately available funds, a commitment fee
(a “Commitment Fee”) calculated on the unused
Commitment by multiplying the applicable percentage (the
“Commitment Fee Percentage”) set forth below by the
average daily Available Commitment of such Lender during the
preceding quarter (or shorter period commencing with the date
hereof and/or ending with the Termination Date):
|
Senior Unsecured Long-Term Debt Rating
|
Commitment Fee Percentage
|
|
A-
or A3 or better
|
0.070
percent per annum
|
|
BBB+
or Baa1
|
0.080
percent per annum
|
|
BBB
or Baa2
|
0.100
percent per annum
|
|
BBB-
or Baa3
|
0.125
percent per annum
|
|
Below
BBB- or Baa3
|
0.150
percent per annum
|
(b)
Utilization Fees .
The
Borrower agrees to pay to each Lender, through the Administrative
Agent, on each Quarterly Payment Date and on the Termination Date,
in immediately available funds, a utilization fee (a “
Utilization Fee ”
) equal
to 10.0 basis points (0.100%) per annum for each day on which the
Commitment Utilization Percentage equals or exceeds 50%, which fee
shall accrue on the daily amount of the Used Commitment of such
Lender for each Excess Utilization Day during the period from and
including the Effective Date to but excluding the date on which
such Lender’s Commitment terminates;
provided that,
if such Lender continues to have any outstanding Loans after its
Commitment terminates, then such utilization fee shall continue to
accrue on the daily aggregate principal amount of such
Lender’s Loans for each Excess Utilization Day from and
including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any
outstanding Loans.
(c)
Other Fees .
The Borrower agrees to pay to the Administrative Agent the fees in
the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
| |
2.5
|
Optional Termination and Reduction of Commitments.
|
(a)
Subject
to Section 2.9(b), the Borrower may permanently
terminate, or from time to time in part permanently reduce,
the Total Commitments upon at least three Business Days prior
written notice to the Administrative Agent (who shall promptly
forward a copy thereof to each Lender and which notice may be
revocable; provided, that (i) such notice is only revocable
during the three Business Day period beginning on the date
that such notice is given to the Administrative Agent and
ending on the stated date of such Commitment reduction and
(ii) the Borrower shall indemnify the Lenders pursuant to
Section 2.12 as a result of the Borrower’s revocation of
such notice). Such notice shall specify the date and the
amount of the termination or reduction of the Total
Commitments. Each such partial reduction of the Total
Commitments shall be in a minimum aggregate principal amount
of $5,000,000 and in an integral multiple of
$1,000,000.
(b)
On
the Termination Date, the Total Commitments shall be
zero.
(c)
Each
reduction in the Total Commitments pursuant to this paragraph
shall be made ratably among the Lenders in accordance with
their respective Commitments.
(d)
Simultaneously
with any termination or reduction of the Commitments pursuant
to this paragraph, the Borrower shall pay to the
Administrative Agent for the accounts of the Lenders the
Commitment Fees on the amount of the Total Commitments, so
terminated or reduced, accrued through the date of such
termination or reduction.
| |
|
Limitations on Eurodollar Tranches .
|
Notwithstanding
anything to the contrary in this Agreement, all borrowings,
conversions and continuations of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be
made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Eurodollar Tranche shall be
equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (b) no more than ten Eurodollar Tranches
shall be outstanding at any one time.
| |
|
Interest Rates and Payment Dates .
|
(a)
Each
Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal
to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b)
Each
ABR Loan shall bear interest at a rate per annum equal to the
ABR.
(c)
If
all or a portion of the principal amount of any Loan shall not
be paid when due (whether at the stated maturity, by
acceleration or otherwise), all outstanding Loans shall bear
interest at a rate per annum equal to the rate that would
otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or any commitment
fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to ABR Loans plus
2%, in each case, with respect to clauses (i) and (ii) above,
from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d)
Interest
shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of
this Section shall be payable from time to time on
demand.
| |
|
Alternate Rate of Interest for Eurodollar Loans
.
|
In
the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a
Eurodollar Loan, the Administrative Agent shall have
determined that dollar deposits in the amount of the requested
principal amount of such Eurodollar Loan are not generally
available in the London interbank market, or that dollar
deposits are not generally available in the London interbank
market for the requested Interest Period, or that the rate at
which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making
or maintaining such Eurodollar Loan during such Interest
Period, or that reasonable means do not exist for ascertaining
the Eurodollar Rate, the Administrative Agent shall, as soon
as practicable thereafter, give telecopy notice of such
determination, stating the specific reasons therefor, to the
Borrower and the Lenders. In the event of any such
determination, any request by the Borrower for a Eurodollar
Loan shall, until the circumstances giving rise to such notice
no longer exist, be deemed to be a request for an ABR Loan.
Each determination by the Administrative Agent hereunder shall
be conclusive absent manifest error.
| |
|
Mandatory and Optional Prepayment of Loans .
|
(a)
Prior
to the Termination Date, the Borrower shall have the right at
any time to prepay any Borrowing, in whole or in part, subject
to the requirements of Section 2.12 and Section 2.13
but otherwise without premium or penalty, but prepayment of
Eurodollar Loans shall require at least three Business Days
prior written notice to the Administrative Agent;
provided ,
however ,
that each such partial prepayment shall be in an integral multiple
of $1,000,000 and in a minimum aggregate principal amount of
$2,000,000. Each notice of prepayment shall specify the prepayment
date and the aggregate principal amount of each Borrowing to be
prepaid and may be revocable;
provided ,
that (i) such notice is only revocable during the three Business
Day period beginning on the date that such notice is given to the
Administrative Agent and ending on the stated date of such
prepayment and (ii) the Borrower shall indemnify the Lenders
pursuant to Section 2.12 as a result of the Borrower’s
revocation of such notice.
(b)
On
the date of any termination or reduction of the Total
Commitments pursuant to Section 2.5(a), the Borrower
shall pay or prepay the Loans or cash collateralize the
Letters of Credit in a manner satisfactory to the
Administrative Agent to the extent necessary in order that the
aggregate Revolving Extensions of Credit outstanding will not
exceed the Total Commitments following such termination or
reduction. Subject to the foregoing and the requirements of
Section 2.5, any such payment or prepayment shall be
applied to such Borrowing or Borrowings as the Borrower shall
select. All prepayments under this paragraph shall be subject
to Section 2.12 and Section 2.13.
(c)
All
Loans, together with accrued and unpaid interest thereon,
shall be due and payable in full on the Termination
Date.
(d)
All
prepayments of Loans (other than optional prepayments of ABR
Loans) under this Section 2.9 shall be accompanied by
accrued interest on the principal amount being prepaid to the
date of prepayment.
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Reserve Requirements; Change in Circumstances.
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(a)
Notwithstanding
any other provision herein, if after the date of this
Agreement any Regulatory Change (i) shall change the
basis of taxation of payments to any Lender of the principal
of or interest on any Eurodollar Loan made by such Lender or
any other fees or amounts payable hereunder (
other than (x) Taxes
imposed on or measured by the capital, receipts or franchises of
such Lender or the overall gross or net income of such Lender by
the jurisdiction in which such Lender has its principal office or
by any political subdivision or taxing authority therein (or any
Tax which is enacted or adopted by such jurisdiction, political
subdivision, or taxing authority as a direct substitute for any
such Taxes) or (y) any Tax, assessment, or other governmental
charge that would not have been imposed but for the failure of any
Lender to comply with any certification, information,
documentation, or other reporting requirement), (ii) shall
impose, modify, or deem applicable any reserve, special deposit, or
similar requirement with respect to any Eurodollar Loan or any
Letter of Credit (or participating interest therein), against
assets of, deposits with or for the account of, or credit extended
by, such Lender under this Agreement, or (iii) with respect to
any Eurodollar Loan, shall impose on such Lender or the London
interbank market any other condition affecting this Agreement or
any Eurodollar Loan made by such Lender, and the result of any of
the foregoing shall be to increase the cost to such Lender of
maintaining its Commitment or of making or maintaining any
Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal,
interest, or otherwise) in respect thereof by an amount deemed in
good faith by such Lender to be material, then the Borrower shall
pay to the Administrative Agent for the account of such Lender such
additional amount or amounts as will compensate such Lender for
such increase or reduction to such Lender, to the extent such
amounts have not been included in the calculation of the Eurodollar
Rate, upon demand by such Lender (through the Administrative
Agent).
(b)
If
any Lender shall have determined in good faith that any
Regulatory Change regarding capital adequacy or compliance by
any Lender (or its parent or any lending office of such
Lender) with any request or directive regarding capital
adequacy (whether or not having the force of Law) of any
Tribunal, monetary authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of
return on such Lender’s (or its parent’s) capital
as a consequence of its obligations hereunder to a level below
that which such Lender (or its parent) could have achieved but
for such Regulatory Change, or compliance (taking into
consideration such Lender’s policies with respect to
capital adequacy) by an amount deemed in good faith by such
Lender to be material, then from time to time, the Borrower
shall pay to the Administrative Agent for the account of such
Lender such additional amount or amounts as will compensate
such Lender for such reduction upon demand by such Lender
(through the Administrative Agent).
(c)
A
certificate of a Lender setting forth in reasonable detail
(i) the Regulatory Change or other event giving rise to
such costs, (ii) such amount or amounts as shall be
necessary to compensate such Lender as specified in
paragraph (a) or (b) above, as the case may be, and
(ii) the calculation of such amount or amounts under
clause (a)(i), shall be delivered to the Borrower (with a
copy to the Administrative Agent) promptly after such Lender
determines it is entitled to compensation under this
Section 2.10, and shall be conclusive and binding absent
manifest error. The Borrower shall pay to the Administrative
Agent for the account of such Lender the amount shown as due
on any such certificate within 15 days after its receipt of
the same. In preparing such certificate, such Lender may
employ such assumptions and allocations of costs and expenses
as it shall in good faith deem reasonable and may use any
reasonable averaging and attribution method.
(d)
Failure
on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable
or reduction in return on capital with respect to any Interest
Period shall not constitute a waiver of such Lender’s
rights to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in
return on capital with respect to such Interest Period or any
other Interest Period. The protection of this
Section 2.10 shall be available to each Lender regardless
of any possible contention of invalidity or inapplicability of
the law, regulation, or condition which shall have been
imposed.
(e)
In
the event any Lender shall seek compensation pursuant to this
Section 2.10, the Borrower may,
provided no
Event of Default has occurred and is continuing, give notice to
such Lender (with copies to the Agents) that it wishes to seek one
or more Persons (other than the Borrower or an Affiliate of the
Borrower) to assume the Commitment of such Lender and to purchase
its outstanding Loans and Notes (if any). Each Lender requesting
compensation pursuant to this Section 2.10 agrees to sell its
Commitment, Loans, Notes, and interest in this Agreement and the
other Loan Papers to any such Person for an amount equal to the sum
of the outstanding unpaid principal of and accrued interest on such
Loans and Notes
plus all
other fees and amounts (including, without limitation, any
compensation claimed by such Lender under this Section 2.10
and as to which such Lender has delivered the certificate required
by Section 2.10(c) on or before the date such Commitment,
Loans, and Notes are purchased) due such Lender hereunder
calculated, in each case, to the date such Commitment, Loans, Notes
(if any), and interest are purchased, whereupon such Lender shall
have no further Commitment or other obligation to the Borrower
hereunder or under any other Loan Paper.
(f)
If
the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 2.10,
then such Lender will agree to use reasonable efforts to
change the jurisdiction of its lending office so as to
eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such
Lender.
(g)
Without
prejudice to the survival of any other obligations of the
Borrower hereunder, the obligations of the Borrower under this
Section 2.10 shall survive for one year after the
termination of this Agreement and/or the payment or assignment
of any of the Loans or Notes.
(a)
Notwithstanding
anything to the contrary herein contained, if any Regulatory
Change shall make it unlawful for any Lender to make or
maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby, then, by written notice to
the Borrower and to the Administrative Agent, such Lender
may:
(i)
declare
that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon the Borrower shall be prohibited
from requesting Eurodollar Loans from such Lender hereunder
unless such declaration is subsequently withdrawn;
and
(ii)
if
such unlawfulness shall be effective prior to the end of any
Interest Period of an outstanding Eurodollar Loan, require
that all outstanding Eurodollar Loans with such Interest
Periods made by it be converted to ABR Loans, in which event
(A) all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice
as provided in paragraph (b) below and (B) all
payments and prepayments of principal which would otherwise
have been applied to repay the converted Eurodollar Loans
shall instead be applied to repay the ABR Loans resulting from
the conversion of such Eurodollar Loans.
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(b)
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For
purposes of this Section 2.11, a notice to the Borrower (with
a copy to the Administrative Agent) by any Lender pursuant to
paragraph (a) above shall be effective on the date of receipt
thereof by the Borrower.
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The
Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given
a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the
Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment
of Eurodollar Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the
date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if
any)
over (ii)
the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing
such
