Exhibit 4.4
EXECUTION COPY
$750,000,000
FIVE-YEAR REVOLVING CREDIT AGREEMENT
Dated as of
March 7, 2005
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.,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
COBANK, ACB
and
SUNTRUST BANK,
as Co-Documentation Agents
--------------------------------------------------------------------------------
J.P. MORGAN SECURITIES INC.
WACHOVIA SECURITIES, INC.
As Joint Bookrunners and Co-Lead Arrangers
--------------------------------------------------------------------------------
<PAGE>
Table of Contents
Page
SECTION 1
DEFINITIONS....................................................1
1.1.
Certain Defined Terms.....................................1
1.2.
Accounting Principles....................................16
1.3.
Other Definitional Provisions............................16
SECTION 2
FACILITIES....................................................17
2.1.
Commitments..............................................17
2.2.
Procedure for Loan Borrowing.............................17
2.3.
Conversion and Continuation Options......................18
2.4.
Fees.....................................................18
2.5.
Optional Termination and Reduction of Commitments........19
2.6.
Limitations on Eurodollar Tranches.......................20
2.7.
Interest Rates and Payment Dates.........................20
2.8.
Alternate Rate of Interest for Eurodollar Loans..........20
2.9.
Mandatory and Optional Prepayment of Loans...............21
2.10.
Reserve Requirements; Change in Circumstances............21
2.11.
Change in Legality.......................................23
2.12.
Indemnity................................................23
2.13. Pro
Rata Treatment.......................................24
2.14.
Sharing of Setoffs.......................................24
2.15.
Payments.................................................24
2.16.
Calculation of Eurodollar Rate...........................25
2.17.
Computation of Interest and Fees.........................26
2.18.
Booking Loans............................................26
2.19.
Quotation of Rates.......................................26
2.20.
Taxes....................................................26
SECTION 3 LETTERS OF
CREDIT.............................................28
3.1.
L/C Commitment...........................................28
3.2.
Procedure for Issuance of Letter of Credit...............28
3.3.
Fees and Other Charges...................................29
3.4.
L/C Participations.......................................29
3.5.
Reimbursement Obligation of the Borrower.................30
3.6.
Obligations Absolute.....................................30
3.7.
Letter of Credit Payments................................30
3.8.
Applications.............................................31
SECTION 4 REPRESENTATIONS AND
WARRANTIES................................31
4.1.
Purpose of Credit Facility...............................31
4.2.
Corporate Existence, Good Standing, and Authority........31
4.3.
Significant Subsidiaries.................................31
4.4.
Financial Statements.....................................31
4.5.
Compliance with Laws, Charter, and Agreements............32
4.6.
Litigation...............................................32
4.7.
Taxes....................................................32
4.8.
Environmental Matters....................................32
4.9.
Employee Benefit
Plans...................................32
4.10.
Properties; Liens........................................33
4.11.
Holding Company and Investment Company Status............33
4.12.
Transactions with Affiliates.............................33
4.13.
Leases...................................................33
4.14.
Labor Matters............................................33
4.15.
Insurance................................................33
4.16.
Solvency.................................................34
4.17.
Business.................................................34
4.18.
General..................................................34
SECTION 5 CONDITIONS
PRECEDENT..........................................34
5.1.
Initial Loan.............................................34
5.2.
Each Revolving Extension of Credit.......................35
5.3.
Materiality of Conditions................................35
5.4.
Waiver of Conditions.....................................36
SECTION 6 AFFIRMATIVE
COVENANTS.........................................36
6.1.
Use of Proceeds..........................................36
6.2.
Books and Records........................................36
6.3.
Items to be Furnished....................................36
6.4.
Inspection...............................................37
6.5.
Taxes....................................................37
6.6.
Payment of Obligations...................................37
6.7.
Expenses.................................................38
6.8.
Maintenance of Existence, Assets, Business,
and Insurance............................................38
6.9.
Preservation and Protection of Rights....................38
6.10.
Environmental Laws.......................................38
6.11.
Environmental Indemnification............................38
SECTION 7 NEGATIVE
COVENANTS............................................39
7.1.
Employee Benefit Plans...................................39
7.2.
Liens....................................................39
7.3.
Restricted Payments......................................39
7.4.
Mergers and Consolidations...............................39
7.5.
Loans, Advances, and Investments.........................40
7.6.
Transactions with Affiliates.............................41
7.7.
Sale of Assets...........................................41
7.8.
Compliance with Laws and Documents.......................42
7.9.
New Businesses...........................................42
7.10.
Assignment...............................................42
7.11.
Fiscal Year..............................................42
7.12.
Holding Company and Investment Company Status............42
7.13.
Amendments to Equity Units Documentation.................42
7.14.
Financial Covenants......................................42
SECTION 8
DEFAULT.......................................................43
8.1.
Payment of Obligation....................................44
8.2.
Covenants................................................44
8.3.
Debtor Relief............................................44
8.4.
Attachment...............................................44
8.5.
Payment of Judgments.....................................44
8.6.
Default Under Other Agreements...........................44
8.7.
Misrepresentation........................................45
8.8.
Change in Control........................................45
8.9.
ERISA....................................................45
8.10.
Validity and Enforceability of Loan Papers...............45
SECTION 9 RIGHTS AND
REMEDIES...........................................46
9.1.
Remedies Upon Event of Default...........................46
9.2.
Waivers..................................................46
9.3.
Performance by Administrative Agent......................47
9.4.
Delegation of Duties and Rights..........................47
9.5.
Lenders Not in Control...................................47
9.6.
Waivers by Lenders.......................................47
9.7.
Cumulative Rights........................................47
9.8.
Application of Proceeds..................................47
9.9.
Certain Proceedings......................................48
9.10.
Setoff...................................................48
SECTION 10 THE
AGENTS....................................................48
10.1.
Appointment..............................................48
10.2.
Delegation of Duties.....................................48
10.3.
Exculpatory Provisions...................................49
10.4.
Reliance of Administrative Agent.........................49
10.5.
Notice of Default........................................49
10.6.
Non-Reliance on Agents and Other Lenders.................50
10.7.
Indemnification..........................................50
10.8.
Agent in its Individual Capacity.........................50
10.9.
Successor Administrative Agent...........................50
10.10.
Co-Documentation Agents and Syndication Agent............51
SECTION 11
MISCELLANEOUS.................................................51
11.1.
Changes in GAAP..........................................51
11.2.
Money and Interest.......................................51
11.3.
Number and
Gender of Words...............................52
11.4.
Headings.................................................52
11.5.
Exhibits.................................................52
11.6.
Notices..................................................52
11.7.
Exceptions to Covenants..................................53
11.8.
Survival.................................................53
11.9.
Governing Law............................................53
11.10.
Submission to Jurisdiction; Waivers......................53
11.11. WAIVERS
OF JURY TRIAL....................................54
11.12.
Severability.............................................54
11.13.
Integration..............................................54
11.14.
Amendments, Etc..........................................54
11.15.
Waivers..................................................55
11.16.
Governmental Regulation..................................55
11.17. Multiple
Counterparts....................................55
11.18.
Successors and Assigns; Participations; Assignments......56
11.19.
Confidentiality..........................................58
11.20. Conflicts
and Ambiguities................................59
11.21. GENERAL
INDEMNIFICATION..................................59
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
<PAGE>
CREDIT AGREEMENT (this "Agreement"), dated as of March 7, 2005,
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., THE BANK OF
TOKYO-MITSUBISHI, LTD., COBANK, ACB and
SUNTRUST BANK, 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").
The parties hereto hereby agree 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 1/2 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 Loans, the margin of
interest over the ABR or the Eurodollar
Rate, as the case may be, 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
Eurodollar Loan Margin ABR Loan
Margin
Rating
---------------------------------
------------------------ -----------------
A- or A3 or better
37.5 basis points
0 basis points
---------------------------------
------------------------ -----------------
BBB+ or Baal
50.0 basis points
0 basis
points
---------------------------------
------------------------ -----------------
BBB or Baa2
62.5 basis points
0 basis points
---------------------------------
------------------------ -----------------
BBB- or Baa3
87.5 basis points
0 basis points
---------------------------------
------------------------ -----------------
Below BBB- or Baa3
100.0 basis points
0 basis points
=================================
======================== =================
Until the delivery to the Lenders of the
Borrower's audited financial statements
for the 2004 fiscal year, the Senior
Unsecured Long-Term Debt Rating shall be
deemed to be no higher than BBB+ and
Baa1.
"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).
"Closing Date" means March 7, 2005.
"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
Closing
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 February 23,
2005 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 February 1, 2005.
"Current Financials" means the consolidated Financial Statements of
the
Companies for the fiscal year ended
December 31, 2003, and the nine months ended
September 30, 2004.
"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.
"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" means that certain $533,333,333
Three-Year
Revolving Credit Agreement dated as of July
22, 2002, among the Borrower, the
lenders party thereto, JPMorgan Chase Bank,
as administrative agent, Wachovia
Bank, N.A., as syndication agent and Bank
of America, N.A., Bank One, NA and
SunTrust Bank, as co-documentation agents,
as amended, restated, supplemented or
modified from time to time.
"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 of which, for the most recently
ended period of twelve consecutive
months, equals or exceeds 5% of the net
income 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 March 7, 2010, 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.
1.2. Accounting
Principles.
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, 2003.
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.
----------
2.1.
Commitments.
(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
ggregate
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, inancial 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,
(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
Closing 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.
2.4. Fees.
(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
.10 percent per annum
----------------------------------------------------------------------
BBB+ or Baa1
.125 percent per annum
----------------------------------------------------------------------
BBB or Baa2
.150 percent per annum
----------------------------------------------------------------------
BBB- or Baa3
.175 percent per annum
----------------------------------------------------------------------
Below BBB- or Baa3
.200 percent per annum
======================================================================
Until the delivery to the Lenders of the Borrower's audited
financial
statements for the 2004 fiscal year, the Senior Unsecured
Long-Term
Debt Rating shall be deemed to be no higher than BBB+ and Baa1.
(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 12.5 basis
points
(.125%) 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 Closing
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.
2.6. 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.
2.7. 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 plus the Applicable Margin.
(c) (i)
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.
2.8. 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.
2.9. 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.
2.10. Reserve
Requirements; Change in Circumstances.
(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
ompensate 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 othe
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.
2.11. Change in
Legality.
(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 Lende
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
