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Exhibit 10.1
EXECUTION VERSION
United States Cellular
Corporation
c/o Telephone and Data Systems, Inc.
30 North LaSalle, Suite 4000
Chicago, IL 60602
April
4, 2007
Re: Accelerated Share
Repurchase
Ladies and Gentlemen:
This
letter (the “ Letter Agreement ”) sets forth the
agreement we have reached with respect to a transaction between
Citigroup Global Markets Limited (“ Citigroup
”), acting through Citigroup Global Markets Inc. (“
CGMI ”) as agent, and United States Cellular
Corporation (the “ Company ”) in relation to
shares of the Company’s Common Shares, par value $1.00 (the
“ Common Stock ”).
Citigroup is authorized and
regulated by the Financial Services Authority. Citigroup is
entering into this Transaction as principal and not as an agent for
any other party.
CGMI MAY HAVE ACTED AS AGENT IN
CONNECTION WITH THIS TRANSACTION. CITIGROUP IS NOT REGISTERED AS A
BROKER-DEALER UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED. CITIGROUP IS YOUR COUNTERPARTY TO THIS TRANSACTION. IF
CGMI ACTS AS AGENT, ITS OBLIGATIONS ARE STRICTLY LIMITED TO THE
DELIVERY OF ANY CASH AND SECURITIES THAT IT ACTUALLY RECEIVES FROM
CITIGROUP OR COMPANY, AS THE CASE MAY BE, OR DELIVERS TO CITIGROUP
OR COMPANY. IN TRANSMISSION OF THE LETTER AGREEMENT, CGMI DOES NOT
GUARANTEE EITHER PARTY’S OBLIGATIONS NOR IS IT PROVIDING
INVESTMENT ADVICE OR OTHER SERVICES.
I. Definitions
As
used in this Letter Agreement, the following terms shall have the
following meanings:
“
Cash Tender Termination ” has the meaning specified in
Section VIII(a).
“
Corporate Event Termination ” has the meaning
specified in Section VIII(b).
“
Cut-Off Event ” means that, on April 4, 2009, the
Remaining Share Amount with respect to this Transaction is greater
than zero (0).
“
Defaulting Party ” has the meaning specified in
Section IX.
“
Delisting Termination ” has the meaning specified in
Section VIII(c).
“
Discount Per Share ” means $0.62.
“
Disrupted Day ” means a Trading Day on which a Market
Disruption Event occurs.
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“
Dividend Amount ” means, subject to adjustment in
accordance with Section VII, an amount equal to the sum, for each
ex-date for dividends on the Common Stock that occurs during the
Pricing Period, of the Expected Dividend Amount multiplied by the
Remaining Share Amount on such ex-date.
“
Dividend Event Termination ” has the meaning specified
in Section VII(b).
“
Exchange ” means American Stock Exchange or any
successor exchange.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
“
Expected Dividend Amount ” has the meaning specified
in Section VII(a).
“
Final Notice Date ” means January 4, 2009.
“
Final Notice Event ” means the occurrence of the
failure by the Company to provide Citigroup with the Pricing Period
Notice by the Final Notice Date.
“
Indemnified Party ” has the meaning specified in
Section XIV.
“
Initial Settlement Date ” has the meaning specified in
Section II(b).
“
Initial Share Price ” has the meaning specified in
Section II(a).
“
Loss ” has the meaning specified in Section
X(a).
“
Loss Notice ” has the meaning specified in Section
X(a).
“
Loss of Borrow Termination ” has the meaning specified
in Section VI(b).
“
Make-Whole Amount ” has the meaning specified in
Section III(d).
“
Market Disruption Event ” means any (i) suspension of
or limitation imposed on trading by any exchange or market on which
the Common Stock is listed for trading, (ii) event that disrupts or
impairs (in the reasonable business judgment of Citigroup) the
ability of market participants in general to effect transactions
in, or obtain market values for, the shares of Common Stock or
futures or options contracts relating to the Common Stock or (iii)
material decrease, on any Trading Day, in the trading volume for
the Common Stock such that in the reasonable business judgment of
Citigroup it cannot purchase the contemplated number of shares for
such Trading Day.
“
Maximum Borrow Cost ” means 25 basis points per annum
based on the closing price per share of Common Stock on the Trading
Day immediately preceding the relevant day.
“
Non-Defaulting Party ” has the meaning specified in
Section IX.
“
Number of Initial Shares ” has the meaning specified
in Section II(a).
“
Payment Shares ” has the meaning specified in Section
III(b).
“
Pricing Period ” means the period of Trading Days
commencing on the Pricing Period Commencement Date and ending on
the Trading Day, on which the Remaining Share Amount is equal to
zero.
“
Pricing Period Commencement Date ” has the meaning set
forth in Annex C hereto.
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“
Pricing Period Notice ” has the meaning specified in
Section IV(b)(1).
“
Private Placement Agreement ” has the meaning set
forth in Annex B hereto.
“
Private Placement Price ” has the meaning set forth in
Annex B hereto.
“
Private Placement Settlement ” has the meaning set
forth in Section III(b).
“
Private Securities ” has the meaning set forth in
Annex B hereto.
“
Prospectus ” has the meaning specified in Annex A
hereto.
“
Purchase Date ” has the meaning specified in Section
II(a).
“
Purchase Price ” has the meaning specified in Section
II(a).
“
Refund Shares ” has the meaning specified in Section
III(a).
“
Registered Settlement ” has the meaning set forth in
Section III(b).
“
Registration Statement ” has the meaning specified in
Annex A hereto.
“
Regulation M ” means Regulation M under the Exchange
Act.
“
Remaining Share Amount ” for any Trading Day equals
(i) the Number of Initial Shares, minus (ii) the cumulative
number of shares of Common Stock that Citigroup has repurchased to
cover its short position in respect of this Transaction. For the
avoidance of doubt, such shares shall be considered repurchased by
Citigroup as of the Trading Day on which such transactions
settle.
“
Repurchase Procedures ” has the meaning specified in
Section IV(b).
“
Rule 10b-18 ” means Rule 10b-18 under the Exchange
Act.
“
SEC ” has the meaning specified in Annex A
hereto.
“
Securities Act ” means the Securities Act of 1933, as
amended.
“
Settlement Amount ” means (a) the Purchase Price
minus (b) the product of (i) the Number of Initial Shares
and (ii) the Settlement Price, minus (c) the Dividend Amount
hereunder.
“
Settlement Date ” means the fourth Trading Day
immediately following the last day of the Pricing
Period.
“
Settlement Price ” means the average price per share
of Common Stock paid by Citigroup to purchase the Number of Initial
Shares during the Pricing Period.
“
Share Cap ” means, as of any date of determination,
two (2) times the Number of Initial Shares minus the number of
shares of Common Stock delivered by the Company to Citigroup on or
prior to such date hereunder (in each case subject to adjustment
pursuant to Section VI(b) and VIII).
“
Trading Day ” means any day (i) other than a Saturday,
a Sunday or a Disrupted Day, and (ii) on which the Exchange is open
for trading during its regular trading session, notwithstanding the
Exchange closing prior to its scheduled closing time.
“
Transaction ” means the transaction contemplated by
this Letter Agreement.
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“
Transfer Agreement ” has the meaning specified in
Annex A hereto.
“
Valuation Period ” means a period commencing on the
first Trading Day immediately following the last Trading Day of the
Pricing Period and ending on the Trading Day, on which Citigroup
completes its purchase of Refund Shares or sale of Payment Shares,
as the case may be, and as determined in good faith by Citigroup in
consultation with the Company.
“
Valuation Share Amount ” means, for any Trading Day
during the Valuation Period, the quotient of (i) the absolute value
of a portion of the Settlement Amount elected by the Company for
such Trading Day to be paid in shares of Common Stock, divided
by (ii) the closing price for the immediately preceding Trading
Day.
II. Initial
Shares
(a)
Purchase. Subject to the terms and conditions of this Letter
Agreement, the Company agrees to purchase from Citigroup, and
Citigroup will sell to the Company, on the date hereof or on such
other Trading Day as the Company and Citigroup shall otherwise
agree (the “ Purchase Date ”), 670,000 shares of
Common Stock (“ Number of Initial Shares ”) at a
price equal to the product of (i) such Number of Initial Shares and
(ii) the amount equal to (A) closing price per share of the Common
Stock on the date hereof (the “ Initial Share Price
”) minus (B) the Discount Per Share (such product, the
“ Purchase Price ”) and the Company shall pay
Citigroup an additional amount equal to the product of the Number
of Initial Shares and the commission of $0.02 per share. Such
purchase and sale shall be effected in accordance with
Citigroup’s customary procedures.
(b)
Initial Settlement. On the third Trading Day immediately
following the Purchase Date (the “Initial Settlement
Date ”), Citigroup shall deliver the Number of Initial
Shares to the Company, upon payment by the Company of the Purchase
Price in U.S. dollars.
III. Pricing Adjustment and
Settlement
(a)
Citigroup Settlement Obligation. If, following the
expiration of the Pricing Period, the Settlement Amount is greater
than zero, as an adjustment to the Purchase Price, on the
Settlement Date (i) Citigroup shall make a cash payment to the
Company in an amount equal to the Settlement Amount or, (ii) if the
Company so elects pursuant to this paragraph, in lieu of such cash
payment, Citigroup shall (A) transfer to the Company through its
agent, for no additional consideration, a number of shares of
Common Stock equal to the portion of the Settlement Amount elected
by the Company to be paid in shares of Common Stock divided
by the weighted average price at which Citigroup purchases
shares of Common Stock during the Valuation Period (the
“Refund Shares ”) and (B) make a cash payment to
the Company in an amount equal to the portion of the Settlement
Amount elected by the Company to be paid in cash, if any. The
Company shall notify Citigroup in writing of its election to
receive the Settlement Amount as (A) Refund Shares or (B) a
combination of Refund Shares and cash at least ten scheduled
Trading Days prior to the final Trading Day of the Pricing Period;
provided that the failure to make such election and notify
Citigroup in accordance with this sentence shall constitute an
irrevocable election by the Company to receive a cash
payment.
(b)
Company Settlement Obligation. If, following the expiration
of the Pricing Period, the Settlement Amount is less than zero, as
an adjustment to the Purchase Price, on the Settlement Date (i) the
Company shall make a cash payment to Citigroup in an amount equal
to the absolute value of the Settlement Amount or, (ii) if the
Company so elects pursuant to this paragraph, in lieu of such full
cash payment, the Company shall either (A) transfer to
Citigroup, through its agent, for no additional consideration, a
number of shares of Common Stock equal to the sum of the Valuation
Share Amounts for each of the Trading Days in the Valuation Period
(the “ Payment Shares ”); provided that
in no event shall the Company be required to deliver a number of
shares of Common Stock that exceeds the Share Cap. The Company
shall notify Citigroup in writing of its election (i) to pay
the absolute value of the Settlement Amount by delivery
of
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(A) Payment Shares or
(B) a combination of Payment Shares and cash, and, (ii) if
applicable, to effect such delivery of Payment Shares in accordance
with Annex A (“Registered Settlement ”) or Annex
B (“ Private Placement Settlement ”) to this
Letter Agreement; provided that (A) the failure to make an
election and notify Citigroup in accordance with the preceding
sentence with respect to matters described in clause (i), shall
constitute an irrevocable election by the Company to make a cash
payment, and, (B) the failure to make an election and notify
Citigroup with respect to matters described in clause (ii), shall
constitute an election of “Private Placement
Settlement”.
(c)
Refund Shares Transfer. If Refund Shares are to be
transferred to the Company, Citigroup shall deliver the Refund
Shares to the Company on the fourth Trading Day following the last
day of the Valuation Period.
(d)
Payment Shares Transfer. If Payment Shares are to be
transferred to Citigroup, such Payment Shares shall be transferred
to Citigroup in a manner contemplated by paragraph (b). Citigroup
may, but shall not be obligated to, resell Payment Shares during
the Valuation Period. In the event, and only in the event, that
Citigroup chooses to resell the Payment Shares during the Valuation
Period and the proceeds of such sales (net of brokerage costs) are
less than the absolute value of the Settlement Amount elected by
the Company to be paid in Payment Shares (or if less than all of
the Payment Shares are resold, the applicable pro rata portion
thereof), Citigroup shall provide notice thereof to the Company and
the Company shall, by the close of business on the third Trading
Day following the last day of the applicable Valuation Period, at
the Company’s option, either (A) pay in cash an amount
equal to such deficit (the “ Make-Whole Amount”
) or (B) deliver to Citigroup a number of additional Payment
Shares equal to (x) the Make-Whole Amount divided by
(y) the closing price of the Common Stock on the Exchange on the
final day of the applicable Valuation Period; provided ,
however , that in no event shall the Company be required to
deliver a number of shares of Common Stock that exceeds the Share
Cap. The provisions of this paragraph shall be applied successively
until the aggregate proceeds (net of brokerage costs) received by
Citigroup equal the Make-Whole Amount (or the applicable pro rata
portion thereof).
(e)
Delivery Limitation. Notwithstanding anything to the
contrary in this Letter Agreement, the Company acknowledges and
agrees that, on any day, Citigroup (or its agent or affiliate)
shall not be obligated to deliver or receive any shares of Common
Stock to or from the Company and the Company shall not be entitled
to receive any shares of Common Stock if such receipt or delivery
would result in Citigroup directly or indirectly beneficially
owning (as such term is defined for purposes of Section 13(d) of
the Exchange Act) at any time in excess of 4.9% of the outstanding
shares of Common Stock. Any purported receipt or delivery of shares
of Common Stock shall be void and have no effect to the extent (but
only to the extent) that any receipt or delivery of such shares of
Common Stock would result in Citigroup directly or indirectly so
beneficially owning in excess of 4.9% of the outstanding shares of
Common Stock. If, on any day, any delivery or receipt of shares of
Common Stock by Citigroup (or its agent or affiliate) is not
effected, in whole or in part, as a result of this provision,
Citigroup’s and the Company’s respective obligations to
make or accept such receipt or delivery shall not be extinguished
and such receipt or delivery shall be effected over time as
promptly as Citigroup reasonably determines that such receipt or
delivery would not result in Citigroup directly or indirectly
beneficially owning in excess of 4.9% of the outstanding shares of
Common Stock.
(f)
Company Settlement Representations. The Company represents
and warrants, as of each Trading Day in a Valuation Period for
which the Company has elected to receive Refund Shares, that each
of its filings under the Securities Act, the Exchange Act or other
applicable securities laws that are required to be filed have been
filed and that, as of the date of this representation, there is no
misstatement of material fact contained therein or omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading in the circumstances under
which they were made; provided that, if the Company is
unable to make such representations on any such Trading Day, the
parties agree that Citigroup shall refrain from purchasing Refund
Shares until the Company is able to make such
representations.
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IV. Citigroup Purchases and
the Pricing Period
(a)
Citigroup Repurchases . The parties acknowledge and agree
that, during the Pricing Period, Citigroup may purchase shares of
Common Stock in connection with the transactions contemplated by
this Letter Agreement. Citigroup will conduct such purchases in
accordance with the Repurchase Procedures described in Section
IV(b) below.
(b)
Repurchase Procedures . If on any Trading Day following the
Purchase Date, the Company intends to cause Citigroup to effect any
purchases of shares of Common Stock contemplated by this Section
IV(b), then prior to, and as a condition, to Citigroup’s
complying with such instructions, the Company shall comply with the
procedures described in this paragraph (b) (such procedures,
“ Repurchase Procedures ”), in the following
manner:
(i)
On or prior to the third Trading Day immediately preceding the
first scheduled Trading Day of a proposed Pricing Period, the
Company shall deliver to Citigroup an irrevocable written notice
(facsimile notices shall be acceptable for that purpose)
substantially in a form of an Annex C attached hereto (the “
Pricing Period Notice ”) and instructing Citigroup to
commence its purchasing activities during such Pricing Period, it
being understood that the Company may deliver one or more Pricing
Period Notices from time to time prior to the Final Notice Date and
that such notices may be one-day market orders or longer term
orders.
(ii)
By delivering such Pricing Period Notice, in addition to the
representations specifically made in such notice, the Company shall
be deemed to repeat, as of such Trading Day, the representations,
warranties and agreements by the Company contained in Section XII
(a), (e), (f), (h) and (i) of this Letter Agreement.
(iii)
If, with respect to any Trading Day in the Pricing Period, the
Company fails to provide Citigroup with a Pricing Period Notice, in
the manner and form contemplated in paragraphs (i) and (ii) above,
Citigroup shall not be obligated to follow any instructions of the
Company and shall not make any purchases of Common Stock on such
Trading Day in connection with the transactions contemplated by
this Letter Agreement.
(c)
Manner of Repurchases . To the extent the Company has
provided any instructions to Citigroup in the Pricing Period
Notice, Citigroup shall use its good faith efforts to follow such
instructions; provided , that, in the event that the Company
has not provided any relevant instructions in such Pricing Period
Notice, Citigroup shall determine, in its sole discretion, the
timing, amount, prices and manner of such purchases of the shares
of Common Stock on any Trading Day, including without limitation
whether such purchases are made on any securities exchange or
privately; provided that, in connection with such purchases,
Citigroup shall use good faith efforts to make all purchases of
Common Stock in a manner that would comply with the limitations set
forth in clauses (b)(2), (b)(3), (b)(4) and (c) of Rule 10b-18 as
if such rule were applicable to such purchases.
(d)
Notifications . Citigroup (or its agent or affiliate) shall
use its good faith efforts to regularly provide confirmations of
purchases of shares of Common Stock contemplated in paragraph (b)
of this Section IV to the Company and to such other persons or
agents of the Company as the Company shall designate in
writing.
(e)
Regulatory Suspension . In the event that Citigroup
reasonably concludes in good faith, that it is appropriate with
respect to any legal, regulatory or self-regulatory requirements or
related policies and procedures (whether or not such requirements,
policies or procedures are imposed by law or have been voluntarily
adopted by Citigroup), or due to any Market Disruption Event, for
it to refrain from purchasing Common Stock on any Trading Day
during the Pricing Period, the Pricing Period shall be suspended
for such day. Citigroup shall promptly notify the Company upon
exercising its rights pursuant to this Section IV(e) and shall
subsequently notify the Company in writing on the day Citigroup
believes that it may
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resume purchasing Common Stock.
Citigroup shall not be required to communicate to the Company the
reason for Citigroup’s exercise of its rights pursuant to
this Section IV(e) if Citigroup reasonably determines in good faith
that disclosing such reason may result in a violation of any legal,
regulatory, or self-regulatory requirements or related policies and
procedures.
V. Company
Purchases
During
the Pricing Period and the Valuation Period, the Company shall not,
and shall cause its affiliated purchasers (as defined in Rule
10b-18) not to, directly or indirectly (including, without
limitation, by means of a derivative instrument) purchase, offer to
purchase, place any bid or limit order that would effect a purchase
of, or commence any tender offer relating to, any shares of Common
Stock (or equivalent interest, including a unit of beneficial
interest in a trust or limited partnership or a depository share)
or any security convertible into or exchangeable for shares of
Common Stock during the Pricing Period and the Valuation Period and
thereafter until all payments or deliveries of shares pursuant to
Section III have been made. During such time, any purchases of
Common Stock by the Company shall be made through Citigroup or its
affiliates, subject to such reasonable conditions as Citigroup or
such affiliate shall impose, and in compliance with Rule 10b-18 or
otherwise in a manner that the Company and Citigroup believe is in
compliance with applicable requirements.
VI. Borrow
Events
(a)
Borrow Cost Increase . If at any time during this
Transaction, Citigroup does not, after using commercially
reasonable efforts, successfully borrow Common Stock (up to a
number equal to the Remaining Share Amount) on terms that require
Citigroup to pay or bear costs in connection with such borrow in an
amount less than or equal to the Maximum Borrow Cost, then
Citigroup will act in good faith and in a commercially reasonable
manner (and in consultation with the Company) to (a) make the
corresponding adjustment(s), if any, to any variable relevant to
the exercise, valuation, settlement or payment terms as Citigroup
determines appropriate to account for any excess borrowing costs
and (b) determine the effective date(s) of the
adjustment(s).
(b)
Loss of Borrow Termination . On any Trading Day, Citigroup
may elect to terminate (“ Loss of Borrow Termination
”) this Transaction, in whole or in part, as the case may be,
in the event and pro rata to the extent it is no longer able, after
commercially reasonable efforts, to borrow (or maintain a borrowing
of) shares of Common Stock in an amount equal to the Remaining
Share Amount. Upon the occurrence of a Loss of Borrow Termination,
an Event of Default shall be deemed to have occurred with the
Company deemed the Defaulting Party and Citigroup, the
Non-Defaulting Party.
VII. Dividend
Event
(a)
Dividend Amount . If 100% of the aggregate gross cash
dividends per share of Common Stock (including any cash
extraordinary dividends) declared by the Company and for which the
ex-date occurs at any time during the Pricing Period exceeds $0.00
per share of Common Stock (subject to adjustment in accordance with
Section VIII) (the “ Expected Dividend Amount ”)
per calendar quarter, a Dividend Event shall be deemed to have
occurred.
(b)
Dividend Event Termination . Upon the occurrence of a
Dividend Event, on any Trading Day on or after the occurrence of
such Dividend Event, Citigroup may elect to terminate this
Transaction (a “ Dividend Event Termination ”).
Upon the occurrence of a Dividend Event Termination, an Event of
Default shall be deemed to have occurred with the Company deemed
the Defaulting Party and Citigroup, the Non-Defaulting
Party.
VIII. Extraordinary
Events
(a)
Tender Offers . In the event an offer is made to the holders
of Common Stock to tender in excess of 10% of the outstanding
shares of Common Stock for cash, Citigroup may, in its
reasonable
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discretion, (i) adjust the terms
of this Transaction, so that (x) the final day of the Pricing
Period shall be the earlier of the scheduled final Trading Day of
the Pricing Period and the date the tender offer is consummated and
(y) for each of the Trading Days in the Pricing Period following
the date on which the offer is made, the price used in computing
the Settlement Price shall equal the price per share of Common
Stock at which the tender offer is to be consummated, where
Citigroup shall notify the Company in writing as to the terms of
any adjustment made pursuant to this Section VIII(a) no later than
5 days after the tender offer is made or (ii) elect to terminate
this Transaction (a “ Cash Tender Termination
”). Upon the occurrence of a Cash Tender Termination, an
Event of Default shall be deemed to have occurred with the Company
deemed the Defaulting Party and Citigroup, the Non-Defaulting
Party.
(b)
Corporate Events . In the event of any corporate event
involving the Company or the Common Stock not specifically
addressed in subsection (a) of this Section VIII (including,
without limitation, the announcement of a non-cash dividend, stock
split, reorganization, merger, offer to tender Common Stock for
consideration other than cash, rights offering, recapitalization or
spin-off) or in the event that Citigroup, in its reasonable good
faith judgment, determines that the adjustments described in
subsection (a) of this Section VIII will not result in an equitable
adjustment of the terms of this Transaction, Citigroup may (i)
adjust the terms of this Transaction (including, without
limitation, with respect to the Expected Dividend Amount and the
number of Trading Days in the Pricing Period) as in the exercise of
its good faith judgment it deems appropriate under the
circumstances or (ii) elect to terminate this Transaction (a
“ Corporate Event Termination ”). Upon the
occurrence of a Corporate Event Termination, an Event of Default
shall be deemed to have occurred with the Company deemed the
Defaulting Party and Citigroup, the Non-Defaulting
Party.
(c)
Delisting . In the event that the Exchange announces that
pursuant to the rules of such Exchange, the Common Stock ceases (or
will cease) to be listed, traded or publicly quoted on the Exchange
for any reason (other than the occurrence of an event addressed in
subsections (a) or (b) of this Section VIII) and are not
immediately re-listed, re-traded or re-quoted on an exchange or
quotation system located in the same country as the Exchange (or,
where the Exchange is within the European Union, in any member
state of the European Union), Citigroup may (i) adjust the terms of
this Transaction or (ii) elect to terminate this Transaction (a
“ Delisting Termination ”). Upon the occurrence
of a Delisting Termination, an Event of Default shall be deemed to
have occurred with the Company deemed the Defaulting Party and
Citigroup, the Non-Defaulting Party.
IX. Events of
Default
In
addition to events contemplated by Sections VI(b), VII(b) and VIII,
the occurrence of any of the following events with respect to a
party (such party, the “ Defaulting Party ” with
respect to such event, and the other party, the “
Non-Defaulting Party ”) shall be an Event of
Default:
(a)
Payment . The failure to make any payment or any delivery of
shares pursuant to the terms of the Letter Agreement.
(b)
Breach . Any representation or warranty made in this Letter
Agreement shall prove to have been false in any material respect at
the time it was made, given or reaffirmed.
(c)
Performance . The failure to perform or comply in any
material respect with any other obligation in this Letter Agreement
which failure shall continue for 5 business days after written
notice of such failure has been sent to the Defaulting
Party.
(d)
Insolvency . (A) The initiation of any case, proceeding or
other action (1) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or other relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
have itself adjudicated as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution or composition or other relief under bankruptcy or
insolvency law with respect to it or its debts or (2) which seeks
appointment of a receiver, trustee,
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custodian, conservator or other
similar official for it or for all or any substantial part of its
assets; (B) a general assignment for the benefit of its creditors;
(C) the initiation of any case, proceeding or other action of a
nature referred to in clause (A) hereof which (1) results in the
entry of an order for relief or any such adjudication or
appointment with respect to the party or any of its assets or (2)
is not dismissed, stayed, discharged or bonded for a period of 5
days; (D) the initiation of any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, or similar
process against all or any substantial part of its assets, which
case, proceeding or other action results in the entry of an order
for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 30 days from the entry
thereof; (E) a party shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clauses (A) — (D) hereof; or (F) either
party shall generally not, or shall admit in writing its inability
to, pay its debts as they become due.
(e)
Cut-Off . A Cut-Off Event shall occur.
(f)
Final Notice . A Final Notice Event shall occur.
(g)
Cross-Default . Any loan or other obligation in respect of
borrowed money (whether present or future, contingent or otherwise,
as principal or surety or otherwise) of a party in an
amount,
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