UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended September 30, 1997
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission File Number: 1-7784
CENTURY TELEPHONE ENTERPRISES, INC.
A Louisiana Corporation I.R.S. Employer Identification
No. 72-0651161
100 Century Park Drive, Monroe, Louisiana 71203
Telephone number (318) 388-9500
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [X] Yes [ ] No
As of October 31, 1997, there were 60,616,838 shares of common stock
outstanding.
CENTURY TELEPHONE ENTERPRISES, INC.
TABLE OF CONTENTS
Page No.
--------
Part I. Financial Information:
Item 1. Financial Statements
Consolidated Statements of Income--Three Months and Nine
Months Ended September 30, 1997 and 1996 3
Consolidated Balance Sheets--September 30, 1997 and
December 31, 1996 4
Consolidated Statements of Stockholders' Equity--
Nine Months Ended September 30, 1997 and 1996 5
Consolidated Statements of Cash Flows--
Nine Months Ended September 30, 1997 and 1996 6
Notes to Consolidated Financial Statements 7-8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9-20
Part II. Other Information:
Item 2. Changes in Securities 21
Item 5. Other Information 21
Item 6. Exhibits and Reports on Form 8-K 21
Signature 22
PART I. FINANCIAL INFORMATION
CENTURY TELEPHONE ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
Three months Nine months
ended September 30 ended September 30
- --------------------------------------------------------------------------
1997 1996 1997 1996
- --------------------------------------------------------------------------
(Dollars,except per share amounts,
and shares in thousands)
OPERATING REVENUES
Telephone $121,934 113,785 359,454 335,819
Mobile communications 80,163 66,694 220,472 185,286
Other 16,254 12,617 47,986 34,343
- -------------------------------------------------------------------------
Total operating revenues 218,351 193,096 627,912 555,448
- -------------------------------------------------------------------------
OPERATING EXPENSES
Cost of sales and
operating expenses 111,462 100,783 329,254 286,764
Depreciation and
amortization 37,074 33,297 108,740 96,456
- -------------------------------------------------------------------------
Total operating expenses 148,536 134,080 437,994 383,220
- -------------------------------------------------------------------------
OPERATING INCOME 69,815 59,016 189,918 172,228
- -------------------------------------------------------------------------
OTHER INCOME (EXPENSE)
Gain on sales of assets - 815 70,121 815
Interest expense (11,175) (11,023) (33,539) (33,972)
Income from unconsolidated
cellular entities 8,371 8,990 21,750 21,584
Minority interest (1,817) (1,418) (3,722) (5,947)
Other income and expense 1,174 1,544 3,467 2,601
- -------------------------------------------------------------------------
Total other income
(expense) (3,447) (1,092) 58,077 (14,919)
- -------------------------------------------------------------------------
INCOME BEFORE INCOME TAX
EXPENSE 66,368 57,924 247,995 157,309
Income tax expense 24,935 21,574 90,251 58,353
- -------------------------------------------------------------------------
NET INCOME $ 41,433 36,350 157,744 98,956
=========================================================================
Primary earnings per share $ .68 .60 2.61 1.65
=========================================================================
Fully diluted earnings
per share $ .67 .60 2.58 1.64
=========================================================================
Dividends per common share $ .0925 .09 .2775 .27
=========================================================================
Average primary shares
outstanding 60,887 60,111 60,510 59,853
=========================================================================
Average fully diluted shares
outstanding 61,615 60,881 61,198 60,593
=========================================================================
See accompanying notes to consolidated financial statements.
CENTURY TELEPHONE ENTERPRISES, INC.
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
September 30, December 31,
1997 1996
- -------------------------------------------------------------------------
(Dollars in thousands)
ASSETS
- ------
CURRENT ASSETS
Cash and cash equivalents $ 11,283 8,402
Accounts receivable
Customers, less allowance
of $4,188 and $3,327 70,383 60,181
Other 29,757 26,263
Materials and supplies, at average cost 9,139 8,222
Other 3,351 6,166
- -------------------------------------------------------------------------
123,913 109,234
- -------------------------------------------------------------------------
NET PROPERTY, PLANT AND EQUIPMENT 1,145,557 1,149,012
- -------------------------------------------------------------------------
INVESTMENTS AND OTHER ASSETS
Excess cost of net assets acquired,
less accumulated amortization
of $78,617 and $67,061 545,683 532,410
Other 458,551 237,849
- -------------------------------------------------------------------------
1,004,234 770,259
- -------------------------------------------------------------------------
$ 2,273,704 2,028,505
=========================================================================
LIABILITIES AND EQUITY
- ----------------------
CURRENT LIABILITIES
Current maturities of long-term debt $ 19,013 19,919
Accounts payable 53,273 60,548
Accrued expenses and other liabilities
Salaries and benefits 19,150 20,224
Taxes 21,118 13,913
Interest 10,157 5,581
Other 12,867 8,837
Advance billings and customer deposits 16,705 15,122
- -------------------------------------------------------------------------
152,283 144,144
- -------------------------------------------------------------------------
LONG-TERM DEBT 565,633 625,930
- -------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES 308,173 230,278
- -------------------------------------------------------------------------
STOCKHOLDERS' EQUITY
Common stock, $1.00 par value,
authorized 175,000,000 shares,
issued and outstanding 60,519,391
and 59,858,540 shares 60,519 59,859
Paid-in capital 490,661 474,607
Unrealized holding gain on investments,
net of taxes 62,038 -
Retained earnings 635,491 494,726
Unearned ESOP shares (9,200) (11,080)
Preferred stock - non-redeemable 8,106 10,041
- -------------------------------------------------------------------------
1,247,615 1,028,153
- -------------------------------------------------------------------------
$ 2,273,704 2,028,505
=========================================================================
See accompanying notes to consolidated financial statements.
CENTURY TELEPHONE ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(UNAUDITED)
Nine months
ended September 30
- -------------------------------------------------------------------------
1997 1996
- -------------------------------------------------------------------------
(Dollars in thousands)
COMMON STOCK
Balance at beginning of period $ 59,859 59,114
Issuance of common stock for acquisitions - 257
Conversion of convertible securities into
common stock 113 -
Issuance of common stock through dividend
reinvestment, incentive and benefit plans 423 406
Conversion of preferred stock into
common stock 124 32
- ------------------------------------------------------------------------
Balance at end of period 60,519 59,809
- ------------------------------------------------------------------------
PAID-IN CAPITAL
Balance at beginning of period 474,607 453,584
Issuance of common stock for acquisitions - 8,201
Conversion of convertible securities
into common stock 3,187 -
Issuance of common stock through dividend
reinvestment, incentive and benefit plans 10,448 8,436
Amortization of unearned compensation
and other 608 973
Conversion of preferred stock into
common stock 1,811 130
- ------------------------------------------------------------------------
Balance at end of period 490,661 471,324
- ------------------------------------------------------------------------
UNREALIZED HOLDING GAIN ON INVESTMENTS,
NET OF TAXES
Balance at beginning of period - -
Change in unrealized holding gain on
investments, net of taxes 62,038 -
- ------------------------------------------------------------------------
Balance at end of period 62,038 -
- ------------------------------------------------------------------------
RETAINED EARNINGS
Balance at beginning of period 494,726 387,424
Net income 157,744 98,956
Cash dividends declared
Common stock - $.2775 and $.27 per share (16,622) (15,999)
Preferred stock (357) (292)
- ------------------------------------------------------------------------
Balance at end of period 635,491 470,089
- ------------------------------------------------------------------------
UNEARNED ESOP SHARES
Balance at beginning of period (11,080) (13,960)
Release of ESOP shares 1,880 2,130
- ------------------------------------------------------------------------
Balance at end of period (9,200) (11,830)
- ------------------------------------------------------------------------
PREFERRED STOCK - NON-REDEEMABLE
Balance at beginning of period 10,041 2,262
Issuance of preferred stock for acquisition - 7,975
Conversion of preferred stock into
common stock (1,935) (162)
- ------------------------------------------------------------------------
Balance at end of period 8,106 10,075
- ------------------------------------------------------------------------
TOTAL STOCKHOLDERS' EQUITY $1,247,615 999,467
========================================================================
See accompanying notes to consolidated financial statements.
CENTURY TELEPHONE ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Nine months
ended September 30
- ---------------------------------------------------------------------------
1997 1996
- ---------------------------------------------------------------------------
(Dollars in thousands)
OPERATING ACTIVITIES
Net income $ 157,744 98,956
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 108,740 96,456
Deferred income taxes 31,667 4,644
Income from unconsolidated cellular entities (21,750) (21,584)
Minority interest 3,722 5,947
Loss on investment in unconsolidated
personal communications services entity - 1,100
Gain on sales of assets (70,121) (815)
Changes in current assets and current
liabilities:
Accounts receivable (12,170) (726)
Accounts payable (6,110) (5,386)
Other accrued taxes 8,624 11,767
Other current assets and other current
liabilities, net 9,853 11,984
Increase in other noncurrent liabilities 3,259 3,850
Other, net 4,040 5,275
- --------------------------------------------------------------------------
Net cash provided by operating activities 217,498 211,468
- --------------------------------------------------------------------------
INVESTING ACTIVITIES
Payments for property, plant and equipment (123,344) (153,892)
Acquisitions, net of cash acquired (30,398) (17,022)
Reimbursement of investment in unconsolidated
personal communications services entity - 18,900
Distributions from unconsolidated
cellular entities 9,173 9,464
Purchase of life insurance investment (12,936) (5,944)
Proceeds from note receivable 22,500 1,250
Other, net (4,320) (3,091)
- --------------------------------------------------------------------------
Net cash used in investing activities (139,325) (150,335)
- --------------------------------------------------------------------------
FINANCING ACTIVITIES
Proceeds from issuance of long-term debt 12,151 22,285
Payments of long-term debt (78,377) (54,969)
Notes payable, net - (14,199)
Proceeds from issuance of common stock 10,860 8,801
Cash dividends (16,979) (16,291)
Other, net (2,947) 178
- --------------------------------------------------------------------------
Net cash used in financing activities (75,292) (54,195)
- --------------------------------------------------------------------------
Net increase in cash and cash equivalents 2,881 6,938
Cash and cash equivalents at beginning of period 8,402 8,540
- --------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 11,283 15,478
==========================================================================
Supplemental cash flow information:
Income taxes paid $ 53,978 42,446
Interest paid $ 28,963 29,135
- --------------------------------------------------------------------------
See accompanying notes to consolidated financial statements.
CENTURY TELEPHONE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1997
(UNAUDITED)
(1) Basis of Financial Reporting
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to rules and regulations of the
Securities and Exchange Commission; however, the Company believes the
disclosures which are made are adequate to make the information presented not
misleading. The financial statements and footnotes included in this Form 10-Q
should be read in conjunction with the financial statements and notes thereto
included in the Company's annual report on Form 10-K for the year ended December
31, 1996. Certain 1996 amounts have been reclassified to be consistent with the
1997 presentation.
The unaudited financial information for the three months and nine months
ended September 30, 1997 and 1996 has not been audited by independent public
accountants; however, in the opinion of management, all adjustments (which
include only normal recurring adjustments) necessary to present fairly the
results of operations for the three-month and nine-month periods have been
included therein. The results of operations for the first nine months of the
year are not necessarily indicative of the results of operations which might be
expected for the entire year.
(2) Net Property, Plant and Equipment
Net property, plant and equipment is composed of the following:
September 30, December 31,
1997 1996
- --------------------------------------------------------------------------
(Dollars in thousands)
Telephone, at original cost $ 1,372,946 1,290,289
Accumulated depreciation (486,257) (417,497)
- ------------------------------------------------------------------------
886,689 872,792
- ------------------------------------------------------------------------
Mobile communications, at cost 304,178 269,389
Accumulated depreciation (99,024) (75,666)
- ------------------------------------------------------------------------
205,154 193,723
- ------------------------------------------------------------------------
Corporate and other, at cost 104,046 126,015
Accumulated depreciation (50,332) (43,518)
- ------------------------------------------------------------------------
53,714 82,497
- ------------------------------------------------------------------------
$ 1,145,557 1,149,012
========================================================================
(3) Earnings from Unconsolidated Cellular Entities
The following summarizes the unaudited combined results of operations of
the cellular entities in which the Company's investments (as of September 30,
1997 and 1996) were accounted for by the equity method.
Nine months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Results of operations
Revenues $ 930,860 722,424
Operating income $ 310,236 250,839
Net income $ 277,464 251,193
- ------------------------------------------------------------------------
(4) Accounting Pronouncement
In March 1997 the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128 ("SFAS 128"), "Earnings per Share." SFAS
128 establishes requirements for the computation of basic earnings per share and
diluted earnings per share and is effective for financial statements issued for
periods ending after December 15, 1997. The effect of adoption of SFAS 128 will
not materially impact the calculation of the Company's diluted earnings per
share.
(5) Gain on Sales of Assets
In May 1997 the Company sold its majority-owned competitive access
subsidiary to Brooks Fiber Properties, Inc. ("Brooks") in exchange for 4.3
million shares of Brooks' common stock. The Company recorded a pre-tax gain in
the second quarter of 1997 of approximately $71 million ($46 million after-tax;
$.75 per fully diluted share).
(6) Investments in Marketable Equity Securities
Marketable equity securities owned by the Company, substantially all of
which were received as proceeds from the sale of the Company's competitive
access subsidiary to Brooks in May 1997, are classified as available-for-sale
and are reported at fair value, with unrealized holding gains and losses
reported, net of tax, as a separate component of stockholders' equity. As of
September 30, 1997, gross unrealized holding gains of the Company's marketable
equity securities were $95.4 million.
(7) Pending Acquisition
On June 11, 1997, the Company signed a definitive purchase agreement with
PacifiCorp Holdings, Inc. ("Holdings") to acquire the stock of Holdings'
wholly-owned telecommunications subsidiary, Pacific Telecom, Inc. ("PTI"). PTI
provides local exchange telephone service in four midwestern states, seven
western states and Alaska. PTI also has cellular ownership interests in six
states.
The Company has agreed to pay $1.523 billion cash for the stock of PTI.
It is currently estimated that PTI's debt at closing will approximate $725
million. The Company anticipates financing the acquisition initially with
5-year senior unsecured floating-rate bank debt under a $1.6 billion committed
credit facility with NationsBank and a syndicate of other lenders.
The Company anticipates completing the transaction in the fourth quarter of
1997 subject to the receipt of various regulatory approvals and certain other
closing conditions.
CENTURY TELEPHONE ENTERPRISES, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations ("MD&A") included below should be read in conjunction with MD&A and
other information included in the Company's annual report on Form 10-K for the
year ended December 31, 1996. The results of operations for the three months and
nine months ended September 30, 1997 are not necessarily indicative of the
results of operations which might be expected for the entire year.
Century Telephone Enterprises, Inc. (the "Company") is a regional
diversified telecommunications company that is primarily engaged in providing
local telephone services and cellular telephone communications services. At
September 30, 1997, the Company's local exchange telephone subsidiaries operated
over 530,000 telephone access lines primarily in rural, suburban and small urban
areas in 14 states, and the Company's majority-owned and operated cellular
entities had more than 429,000 cellular subscribers. In June 1997 Century agreed
to purchase Pacific Telecom, Inc. ("PTI") in exchange for $1.523 billion cash.
PTI provides local exchange telephone services to approximately 650,000
telephone access lines and operates cellular entities that serve more than
100,000 subscribers.
In addition to historical information, management's discussion and analysis
includes certain forward-looking statements regarding events and financial
trends that may affect the Company's future operating results and financial
position. Such forward-looking statements are subject to uncertainties that
could cause the Company's actual results to differ materially from such
statements. Such uncertainties include but are not limited to: the effects of
ongoing deregulation in the telecommunications industry; the effects of greater
than anticipated competition in the Company's markets; possible changes in the
demand for the Company's products and services; the Company's ability to
successfully introduce new offerings on a timely and cost-effective basis; the
risks inherent in rapid technological change; the Company's ability to
effectively manage its growth; and the effects of more general factors such as
changes in general market or economic conditions or in legislation, regulation
or public policy. These and other uncertainties related to the business are
described in detail in Item 5 to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997. You are cautioned not to place undue reliance
on these forward-looking statements, which speak only as of the date hereof. The
Company undertakes no obligation to update any of its forward-looking statements
for any reason.
RESULTS OF OPERATIONS
Three Months Ended September 30, 1997 Compared
to Three Months Ended September 30, 1996
Net income for the third quarter of 1997 increased $5.1 million (14.0%) to
$41.4 million from $36.4 million during the third quarter of 1996. Fully diluted
earnings per share increased to $.67 during the third quarter of 1997 compared
to $.60 during the third quarter of 1996, an 11.7% increase. The third quarter
of 1996 included an $815,000 pre-tax gain on the sale of certain assets ($.01
per fully diluted share).
Three months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars, except per share
amounts, and shares in thousands)
Operating income (loss)
Telephone $ 40,114 38,933
Mobile communications 27,403 20,153
Other 2,298 (70)
- ------------------------------------------------------------------------
69,815 59,016
Interest expense (11,175) (11,023)
Income from unconsolidated cellular entities 8,371 8,990
Gain on sales of assets - 815
Minority interest (1,817) (1,418)
Other income and expense 1,174 1,544
Income taxes (24,935) (21,574)
- ------------------------------------------------------------------------
Net income $ 41,433 36,350
========================================================================
Fully diluted earnings per share $ .67 .60
========================================================================
Average fully diluted shares outstanding 61,615 60,881
========================================================================
Contributions to operating revenues and operating income by the Company's
telephone, mobile communications, and other operations for the three months
ended September 30, 1997 and 1996 were as follows:
Three months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
Operating revenues
Telephone operations 55.8% 58.9
Mobile communications operations 36.7% 34.5
Other operations 7.5% 6.6
Operating income (loss)
Telephone operations 57.5% 66.0
Mobile communications operations 39.2% 34.1
Other operations 3.3% ( .1)
- ------------------------------------------------------------------------
Telephone Operations
Three months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Operating revenues
Local service $ 33,443 31,248
Network access 73,385 68,433
Other 15,106 14,104
- ------------------------------------------------------------------------
121,934 113,785
- ------------------------------------------------------------------------
Operating expenses
Plant operations 24,971 22,885
Customer operations 11,931 10,936
Corporate and other 18,679 17,252
Depreciation and amortization 26,239 23,779
- ------------------------------------------------------------------------
81,820 74,852
- ------------------------------------------------------------------------
Operating income $ 40,114 38,933
========================================================================
Telephone operating income for the third quarter of 1997 increased $1.2
million (3.0%) due to an increase in operating revenues of $8.1 million (7.2%)
which more than offset an increase in operating expenses of $7.0 million (9.3%).
The increase in revenues was substantially due to a $2.3 million increase
in amounts received from the federal Universal Service Fund; a $1.6 million
increase due to acquisitions consummated since the third quarter of 1996; a $1.2
million increase resulting from an increase in the number of access lines
served; a $1.7 million increase in the partial recovery of increased operating
expenses through revenue pools in which the Company participates with other
telephone companies; a $1.4 million increase due to increased minutes of use; a
$542,000 increase due to increased demand for custom calling features; and a
$584,000 increase in Internet access revenues attributable to growth in the
number of customers. These increases were partially offset by a reduction of
$1.1 million in access revenues due to the reduction in intrastate switched
access rates mandated by the Louisiana Public Service Commission; the last
portion of such reduction went into effect in July 1997. See Nine Months Ended
September 30, 1997 Compared to Nine Months Ended September 30, 1996 - Telephone
Operations for additional information.
During the third quarter of 1997, operating expenses, exclusive of
depreciation and amortization, increased $4.5 million (8.8%), substantially due
to an $834,000 increase in sales and marketing expenses; a $793,000 increase in
expenses (exclusive of sales and marketing expenses) related to providing
Internet access services; $672,000 of expenses of companies acquired since the
third quarter of 1996; and a $617,000 increase in operating taxes. The remainder
of the increase was due to increases in general operating expenses.
Depreciation and amortization increased $2.5 million (10.3%) primarily due
to higher levels of plant in service.
Cellular Operations and Investments
Three months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Operating income - mobile
communications segment $ 27,403 20,153
Minority interest - cellular operations (2,044) (1,534)
Income from unconsolidated
cellular entities 8,371 8,990
- ------------------------------------------------------------------------
$ 33,730 27,609
========================================================================
The Company's mobile communications operations (discussed below) reflects
100% of the results of operations of the cellular entities in which the Company
has a majority ownership interest. The minority interest owners' share of the
income of such entities is reflected in the Company's Consolidated Statements of
Income as an expense in "Minority interest." See Minority Interest for
additional information. The Company's share of earnings from the cellular
entities in which it has less than a majority interest is accounted for using
the equity method and is reflected in the Company's Consolidated Statements of
Income as "Income from unconsolidated cellular entities." See Income From
Unconsolidated Cellular Entities for additional information.
Mobile Communications Operations
Three months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Operating revenues
Service revenues $ 78,839 65,621
Equipment sales 1,324 1,073
- ------------------------------------------------------------------------
80,163 66,694
- ------------------------------------------------------------------------
Operating expenses
Cost of equipment sold 2,987 3,167
System operations 12,549 10,279
General, administrative and customer service 15,090 13,529
Sales and marketing 11,918 10,805
Depreciation and amortization 10,216 8,761
- ------------------------------------------------------------------------
52,760 46,541
- ------------------------------------------------------------------------
Operating income $ 27,403 20,153
========================================================================
Mobile communications operating income increased $7.3 million (36.0%) to
$27.4 million in the third quarter of 1997 from $20.2 million in the third
quarter of 1996. Mobile communications operating revenues increased $13.5
million (20.2%) while operating expenses increased $6.2 million (13.4%).
The increase in cellular service revenues was primarily due to the increase
in the number of cellular customers. The average number of cellular units in
service in the Company's majority-owned markets during the third quarter of 1997
and 1996 was 411,300 and 331,000, respectively. Exclusive of acquisitions,
access and usage revenues increased $7.3 million (16.2%) in the third quarter of
1997 and roaming and toll revenues increased $4.8 million (25.5%). Companies
acquired since the third quarter of 1996 contributed $1.8 million of service
revenues.
The average monthly cellular service revenue per customer declined to $64
during the third quarter of 1997 from $66 during the third quarter of 1996. It
has been an industry-wide trend that early subscribers have normally been the
heaviest users and that a higher percentage of new subscribers tend to be lower
usage customers. The average monthly service revenue per customer may further
decline (i) as market penetration increases and additional lower usage customers
are activated and (ii) as competitive pressures from current and future wireless
communications providers intensify and place additional pressure on rates. The
Company is responding to such competitive pressures by, among other things,
modifying certain of its price plans and implementing certain other plans and
promotions, all of which are likely to result in lower average revenue per
customer. The Company will continue to focus on customer service and attempt to
stimulate cellular usage by promoting the availability of certain enhanced
services and by improving the quality of its service through the construction of
additional cell sites and other enhancements to its system.
System operations expenses increased $2.3 million (22.1%) in the third
quarter of 1997 primarily due to (i) a $1.0 million increase in the net cost
paid to other carriers for cellular service provided to the Company's customers
who roam in the other carriers' service areas in excess of the amounts the
Company bills its customers and (ii) a $431,000 increase in cell site expenses
associated with a higher number of cell sites in service.
General, administrative and customer service expenses increased $1.6
million (11.5%) primarily due to increased expenses resulting from a larger
customer base, such as customer service ($453,000) and billing costs ($623,000).
During the third quarter of 1997, sales and marketing expenses increased
$1.1 million (10.3%) primarily due to a $732,000 increase in costs incurred in
selling products and services in retail locations.
Depreciation and amortization increased $1.5 million (16.6%) due primarily
to a higher level of plant in service.
The Company's average monthly churn rate (the percentage of cellular
customers that terminate service) was 2.24% for the third quarter of 1997 and
2.61% for the third quarter of 1996.
Other Operations
Other operations include the results of operations of subsidiaries of the
Company which are not included in the telephone or mobile communications
segments, including, but not limited to, the Company's nonregulated long
distance and operator services operations. Operating revenues of the long
distance and operator services operations increased $3.3 million during the
third quarter of 1997 while operating expenses of such operations increased $2.9
million.
In May 1997 the Company sold its majority-owned competitive access
subsidiary to Brooks Fiber Properties, Inc. ("Brooks") in exchange for 4.3
million shares of Brooks' publicly-traded common stock. Operating revenues and
expenses in the third quarter of 1996 applicable to the competitive access
subsidiary were $597,000 and $2.3 million, respectively.
Income From Unconsolidated Cellular Partnerships
Earnings from unconsolidated cellular entities, net of the amortization of
associated goodwill, decreased $619,000 (6.9%) in the third quarter of 1997
compared to the third quarter of 1996 due to a $1.7 million decrease in the
Company's share of earnings in two cellular entities in which the Company owns
less than a majority interest. Such decrease was partially offset by increased
profitability of other cellular entities in which the Company owns less than a
majority interest.
Minority Interest
Minority interest is the expense recorded by the Company to reflect the
minority interest owners' share of the earnings or loss of the Company's
majority-owned and operated cellular entities and majority-owned subsidiaries.
Minority interest increased $399,000 (28.1%) due primarily to an increase in the
earnings of the Company's majority-owned and operated cellular entities.
Income Tax Expense
Income tax expense increased $3.4 million in the third quarter of 1997
compared to the third quarter of 1996 primarily due to the increase in income
before taxes. The effective income tax rate was 37.6% and 37.2% for the three
months ended September 1997 and 1996, respectively.
Nine Months Ended September 30, 1997 Compared
to Nine Months Ended September 30, 1996
Net income for the first nine months of 1997, exclusive of gain on sales of
assets, increased $13.7 million (13.9%) to $112.2 million from $98.4 million
during the first nine months of 1996. Excluding gain on sales of assets, fully
diluted earnings per share increased to $1.84 for the nine months ended
September 30, 1997 from $1.63 during the nine months ended September 30, 1996, a
12.9% increase.
Nine months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars, except per
share amounts, and
shares in thousands)
Operating income
Telephone $ 119,610 115,348
Mobile communications 65,752 56,105
Other 4,556 775
- ------------------------------------------------------------------------
189,918 172,228
Gain on sales of assets 70,121 815
Interest expense (33,539) (33,972)
Income from unconsolidated cellular entities 21,750 21,584
Minority interest (3,722) (5,947)
Other income and expense 3,467 2,601
Income tax expense (90,251) (58,353)
- ------------------------------------------------------------------------
Net income $ 157,744 98,956
========================================================================
Fully diluted earnings per share $ 2.58 1.64
========================================================================
Average fully diluted shares outstanding 61,198 60,593
========================================================================
Contributions to operating revenues and operating income by the Company's
telephone, mobile communications, and other operations for the nine months ended
September 30, 1997 and 1996 were as follows:
Nine months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
Operating revenues
Telephone operations 57.2% 60.5
Mobile communications operations 35.1% 33.3
Other operations 7.7% 6.2
Operating income
Telephone operations 63.0% 67.0
Mobile communications operations 34.6% 32.6
Other operations 2.4% .4
- ------------------------------------------------------------------------
Telephone Operations
Nine months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Operating revenues
Local service $ 98,749 90,542
Network access 217,407 205,134
Other 43,298 40,143
- ------------------------------------------------------------------------
359,454 335,819
- ------------------------------------------------------------------------
Operating expenses
Plant operations 73,013 67,582
Customer operations 34,674 31,761
Corporate and other 54,916 50,669
Depreciation and amortization 77,241 70,459
- ------------------------------------------------------------------------
239,844 220,471
- ------------------------------------------------------------------------
Operating income $ 119,610 115,348
========================================================================
Telephone operating income for the first nine months of 1997 increased $4.3
million (3.7%) due to an increase in operating revenues of $23.6 million (7.0%)
which more than offset an increase in operating expenses of $19.4 million
(8.8%).
The increase in revenues was primarily due to a $6.8 million increase in
amounts received from the federal Universal Service Fund; a $5.3 million
increase due to acquisitions consummated since the first quarter of 1996; a $4.0
million increase resulting from an increase in the number of access lines
served; a $3.3 million increase in revenues due to an increase in minutes of
use; a $3.5 million increase in the partial recovery of increased operating
expenses through revenue pools in which the Company participates with other
telephone companies; a $2.1 million increase due to the increased demand for
custom calling features; and a $1.8 million increase in Internet access revenues
attributable to growth in the number of customers. Such increases in revenues
were partially offset by a $3.1 million reduction in the Company's access
revenues due to the reduction in intrastate switched access rates mandated by
the Louisiana Public Service Commission ("LPSC"); the last portion of such
reduction went into effect in July 1997. In addition, billing and collection
revenues decreased $1.1 million during the nine months ended September 30, 1997
compared to the nine months ended September 30, 1996.
In June 1997 the LPSC adopted a Consumer Price Protection Plan (the
"Plan"), effective July 1997, for Century's telephone subsidiaries operating in
Louisiana. The new form of regulation will focus primarily on price and quality
of service. Under the Plan, Century's Louisiana telephone subsidiaries' local
rates will be frozen for a period of three years and access rates will be frozen
for a period of two years. Although the Plan has no specified term, the LPSC is
required to review it by mid-2000. Century's Louisiana telephone subsidiaries
have the option to propose a new plan at any time if the LPSC determines that
(i) effective competition exists or (ii) unforeseen events threaten the
subsidiary's ability to provide adequate service or impair its financial health.
During the first nine months of 1997, operating expenses, exclusive of
depreciation and amortization, increased $12.6 million (8.4%) primarily due to
$2.3 million of expenses of companies acquired; a $2.3 million increase in
expenses (exclusive of sales and marketing expenses) related to providing
Internet access services; a $2.0 million increase in sales and marketing
expenses; a $1.2 million increase in advalorem taxes; and a $723,000 increase in
the provision for doubtful accounts. The remainder of the increase was due to
increases in general operating expenses.
Depreciation and amortization increased $6.8 million (9.6%) primarily due
to higher levels of plant in service ($4.5 million) and acquisitions ($1.3
million).
Cellular Operations and Investments
Nine months
ended September 30
- ------------------------------------------------------------------------
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Operating income - mobile
communications segment $ 65,752 56,105
Minority interest - cellular operations (5,140) (6,141)
Income from unconsolidated
cellular entities 21,750 21,584
- ------------------------------------------------------------------------
$ 82,362 71,548
========================================================================
The Company's mobile communications operations (discussed below) reflects
100% of the results of operations of the cellular entities in which the Company
has a majority ownership interest. The minority interest owners' share of the
income of such entities is reflected in the Company's Consolidated Statements of
Income as an expense in "Minority interest." See Minority Interest for
additional information. The Company's share of earnings from the cellular
entities in which it has less than a majority interest is accounted for using
the equity method and is reflected in the Company's Consolidated Statements of
Income as "Income from unconsolidated cellular entities."
Mobile Communications Operations
Nine months
ended September 30
1997 1996
- ------------------------------------------------------------------------
(Dollars in thousands)
Operating revenues
Service revenues $ 216,476 182,218
Equipment sales 3,996 3,068
- ------------------------------------------------------------------------
220,472 185,286
- ------------------------------------------------------------------------
Operating expenses
Cost of equipment sold 10,373 8,889
System operations 33,946 26,632
General, administrative and
customer service 43,568 38,626
Sales and marketing 37,345 31,012
Depreciation and amortization 29,488 24,022
- ------------------------------------------------------------------------
154,720 129,181
- ------------------------------------------------------------------------
Operating income $ 65,752 56,105
========================================================================
Mobile communications operating income increased $9.6 million (17.2%) to
$65.8 million in the first nine months of 1997 from $56.1 million in the first
nine months of 1996. Mobile communications operating revenues increased $35.2
million (19.0%) which more than offset an increase in operating expenses of
$25.5 million (19.8%).
The increase in cellular service revenues was primarily due to the increase
in the number of cellular customers. The average number of cellular units in
service in the Company's majority-owned markets during the first nine months of
1997 and 1996 was 391,000 and 314,700, respectively. Exclusive of acquisitions,
access and usage revenues increased $22.1 million (17.1%) in the first nine
months of 1997 and roaming and toll revenues increased $10.6 million (21.4%).
Companies acquired since the third quarter of 1996 contributed $3.3 million of
service revenues.
The average monthly cellular service revenue per customer declined to $62
during the first nine months of 1997 from $64 during the first nine months of
1996. It has been an industry-wide trend that early subscribers have normally
been the heaviest users and that a higher percentage of new subscribers tend to
be lower usage customers. The average monthly service revenue per customer may
further decline (i) as market penetration increases and additional lower usage
customers are activated and (ii) as competitive pressures from current and
future wireless communications providers intensify and place additional pressure
on rates. The Company is responding to such competitive pressures by, among
other things, modifying certain of its price plans and implementing certain
other plans and promotions, all of which are likely to result in lower average
revenue per customer. The Company will continue to focus on customer service and
attempt to stimulate cellular usage by promoting the availability of certain
enhanced services and by improving the quality of its service through the
construction of additional cell sites and other enhancements to its system.
System operations expenses increased $7.3 million (27.5%) during the nine
months ended September 30, 1997 primarily due to (i) a $3.5 million increase in
the net cost paid to other carriers for cellular service provided to the
Company's customers who roam in the other carriers' service areas in excess of
the amounts the Company bills its customers and (ii) a $1.5 million increase in
cell site expenses associated with a higher number of cell sites in service.
General, administrative and customer service expenses increased $4.9
million (12.8%) primarily due to increased expenses resulting from a larger
customer base, such as customer service and retention costs ($2.6 million) and
billing costs ($1.7 million).
Sales and marketing expenses increased $6.3 million (20.4%) primarily due
to a $2.9 million increase in costs incurred in selling products and services in
retail locations and a $2.1 million increase in advertising expense.
Depreciation and amortization increased $5.5 million (22.8%) due primarily
to a higher level of plant in service.
The Company's average monthly churn rate (the percentage of cellular
customers that terminate service) was 2.30% for the first nine months of 1997
and 2.34% for the first nine months of 1996.
Other Operations
Other operations include the results of operations of subsidiaries of the
Company which are not included in the telephone or mobile communications
segments, including, but not limited to, the Company's competitive access
subsidiary (which was sold to Brooks in May 1997) and the Company's nonregulated
long distance and operator services operations. Of the $13.6 million (39.7%)
increase in operating revenues during the nine months ended September 30, 1997
compared to the nine months ended September 30, 1996, $12.0 million was
applicable to the long distance and operator services operations. Of the $9.9
million (29.4%) increase in operating expenses, $9.7 million was incurred by the
long distance and operator services operations. The operating loss of the
Company's competitive access subsidiary in 1997 was $2.4 million compared to
$4.2 million during the first nine months of 1996.
Gain on Sales of Assets
Gain on sales of assets included a pre-tax gain of $71 million ($46 million
after-tax: $.75 per fully diluted share) as a result of the sale of the
Company's competitive access subsidiary to Brooks in May 1997. For additional
information, see Note 5 of Notes to Consolidated Financial Statements.
Minority Interest
Minority interest is the expense recorded by the Company to reflect the
minority interest owners' share of the earnings or loss of the Company's
majority-owned and operated cellular entities and majority-owned subsidiaries.
Minority interest decreased $2.2 million (37.4%), of which $2.1 million was due
to the effect of the Company's acquisition, during the second quarter of 1996,
of an additional 25% interest in a Louisiana cellular partnership which
decreased the minority interest owners' share of such partnership. In addition,
minority interest decreased $756,000 during 1997 as a result of allocating
thereto a portion of the loss of the Company's majority-owned competitive access
subsidiary to the minority shareholders. In the first nine months of 1996, no
portion of the loss of such subsidiary was allocated to minority interest. Such
decreases were partially offset by increased minority interest expense due to
increased profitability of the Company's majority-owned and operated cellular
entities.
Other Income and Expense
Other income and expense for the first nine months of 1997 was $3.5 million
compared to $2.6 million during the first nine months of 1996. The first quarter
of 1996 included a non-recurring charge of $1.1 million which related to the
Company's withdrawal of its investment in an entity formed to bid on Personal
Communications Services ("PCS") licenses after such entity withdrew from the
federal auction in 1996.
Income Tax Expense
Income tax expense increased $31.9 million (54.7%) in the first nine months
of 1997 compared to the first nine months of 1996 substantially due to the
second quarter 1997 gain on sales of assets. The effective income tax rate was
36.4% and 37.1% for the nine months ended September 30, 1997 and 1996,
respectively.
LIQUIDITY AND CAPITAL RESOURCES
Excluding cash used for acquisitions, the Company relies on cash provided
by operations to provide a substantial portion of its cash needs. The Company's
telephone operations have historically provided a stable source of cash flow
which has helped the Company continue its long-term program of capital
improvements. Cash provided by the Company's mobile communications operations
has continued to increase as the cellular industry has matured.
Net cash provided by operating activities was $217.5 million during the
first nine months of 1997 compared to $211.5 million during the first nine
months of 1996. The Company's accompanying consolidated statements of cash flows
identify major differences between net income and net cash provided by operating
activities for each of these periods. For additional information relating to the
telephone operations, mobile communications operations, and other operations of
the Company, see Results of Operations.
Net cash used in investing activities was $139.3 million and $150.3 million
for the nine months ended September 30, 1997 and 1996, respectively. Payments
for property, plant and equipment were $30.5 million less in the first nine
months of 1997 than in the comparable period during 1996. Capital expenditures
for the nine months ended September 30, 1997 were $77.3 million for telephone,
$30.4 million for mobile communications and $15.6 million for other operations.
Cash used in connection with acquisitions was $13.4 million more in the first
nine months of 1997 compared to the first nine months of 1996. A note receivable
with an outstanding balance of $22.5 million was collected during the nine
months ended September 30, 1997. The $150.3 million of net cash used in
investing activities in 1996 was net of the reimbursement of $18.9 million
related to the Company's withdrawal of its equity investment in an entity formed
for the purpose of participating in the FCC auction of 30MHz PCS licenses.
Net cash used in financing activities was $75.3 million during the first
nine months of 1997 compared to $54.2 million during the first nine months of
1996. Net payments, including notes payable and long-term debt, were $19.3
million more during the first nine months of 1997.
Budgeted capital expenditures for 1997 total $102 million for telephone
operations. Revised budgeted capital expenditures for 1997 total $60 million for
mobile communications operations and $25 million for corporate and other
operations.
As of September 30, 1997, Century's telephone subsidiaries had available
for use $126.7 million of commitments for long-term financing from the Rural
Utilities Service and the Company had $1.615 billion of undrawn committed bank
lines of credit. In addition, approximately $95.0 million of uncommitted credit
facilities were available to Century at September 30, 1997. The Company has
experienced no significant problems in obtaining funds through the issuance of
debt or equity for capital expenditures or other purposes.
In June 1997 the Company signed a definitive purchase agreement to acquire
PTI in exchange for $1.523 billion cash. The Company anticipates financing the
acquisition initially with 5-year senior unsecured floating-rate bank debt under
a $1.6 billion committed credit facility agreement dated August 28, 1997 with
NationsBank and a syndicate of other lenders. In June 1997 both Standard &
Poor's and Moody's placed the Company's debt ratings (A- and Baa1, respectively)
under review; neither rating agency has completed its review process in order to
assign ratings that consider the PTI acquisition. Assuming a Standard & Poor's
rating of BBB or BBB+ or a Moody's rating of Baa2 or Baa1, the Company will be
able to borrow funds at 35 or 27.5 basis points, respectively, over the London
InterBank Offered Rate for periods ranging up to six months. The Company's
common stockholders' equity as a percentage of total capitalization was 67.6% at
September 30, 1997. Assuming the PTI acquisition had been consummated as of
September 30, 1997, common stockholders' equity as a percentage of total
capitalization would have been approximately 30%.
OTHER MATTERS
The Company currently accounts for its regulated telephone operations in
accordance with the provisions of Statement of Financial Accounting Standards
No. 71 ("SFAS 71"), "Accounting for the Effects of Certain Types of Regulation."
While the ongoing applicability of SFAS 71 to the Company's telephone operations
is being monitored due to changing regulatory, competitive and legislative
environments, the Company believes that SFAS 71 still applies. However, it is
possible that changes in regulation or legislation or anticipated changes in
competition or in the demand for regulated services or products could result in
the Company's telephone operations not being subject to SFAS 71 in the near
future. In that event, implementation of Statement of Financial Accounting
Standards No. 101 ("SFAS 101"), "Regulated Enterprises - Accounting for the
Discontinuance of Application of FASB Statement No. 71," would require the
write-off of previously established regulatory assets and liabilities, along
with an adjustment of certain accumulated depreciation accounts to reflect the
difference between recorded depreciation and the amount of depreciation that
would have been recorded had the Company's telephone operations not been subject
to rate regulation. Such discontinuance of the application of SFAS 71 would
result in a material, noncash charge against earnings which would be reported as
an extraordinary item. While the effect of implementing SFAS 101 cannot be
precisely estimated at this time, management believes that, without giving
consideration to the PTI acquisition, the noncash, after-tax, extraordinary
charge would be between $100 million and $130 million.
In May 1997 the Federal Communications Commission ("FCC") adopted orders on
universal service and access charges, as mandated by the Telecommunications Act
of 1996 (the "1996 Act"). In the universal service order, the FCC ruled that
rural telephone companies, which are defined to include each of Century's local
exchange carriers ("LEC"), will continue to receive payments under the support
mechanisms currently in effect and that the funding of these mechanisms will not
be frozen. This status quo will continue under the order until January 2001, at
which time rural telephone companies will begin to receive payments under new,
yet to be developed support mechanisms which will be based on forward-looking
economic costs.
As part of the universal service order, the FCC also established a new
program to provide up to $2.25 billion of discounted telecommunications services
annually to schools and libraries, commencing January 1998. In addition, the FCC
established a $400 million annual fund to provide discounted telecommunications
services for rural health care providers. All telecommunications carriers
providing interstate telecommunications services, including the Company's LECs
and its cellular and long distance operations, are required to contribute to
these programs. The FCC stated that local telephone companies will recover their
funding contributions in their rates for interstate services. Assuming the
programs are fully funded, the Company estimates that the contribution by its
cellular and long distance operations for 1998 will increase approximately $4.8
million.
In the access charge reform order, the FCC changed its system of interstate
access charges to make them compatible with the deregulatory framework
established by the 1996 Act. Such changes are only applicable to price-cap
companies. Century's telephone subsidiaries determine interstate revenues under
rate of return regulation and are, therefore, only minimally impacted by the
access charge reform order. The FCC stated that a separate access charge reform
proceeding would be initiated for rate of return companies.
Numerous petitions for reconsideration or clarification have been filed
with the FCC regarding these two orders.
In July 1997 the United States Court of Appeals for the Eighth Circuit
overturned several provisions of the local competition regulations in the
interconnection order promulgated by the FCC under the 1996 Act, including rules
regarding the pricing of interconnection services and rules placing the burden
of proof on rural LECs to retain their rural exemption. The FCC is expected to
appeal the decision to the United States Supreme Court.
In October 1997 the FCC issued a Notice of Proposed Rulemaking which
provides, among other things, that a federal-state joint board review
jurisdictional separations procedures through which the costs of regulated
telecommunications services are allocated to the interstate and intrastate
jurisdictions. Comments on the notice of proposed rulemaking are due in December
1997 with replies due in January 1998.
PART II. OTHER INFORMATION
CENTURY TELEPHONE ENTERPRISES, INC.
Item 2. Changes in Securities
- ------- ---------------------
In October 1997, in exchange for 100% of the capital stock of a
security alarm business, the Company issued 74,929 shares of unregistered
Century common stock to Vernon and Dorothy Henson, the sole owners of such
business. The Company believes such issuance is exempt from the
registration requirements of the Securities Act of 1933 pursuant to Section
4(2) thereof.
Item 5. Other Information
- ------- -----------------
On November 7, 1997, in exchange for aggregate net sales proceeds of
approximately $202.7 million, Century sold 3,784,450 of the 4,336,226 shares of
common stock of Brooks issued to Century in May 1997 in connection with the
business combination of Brooks and Century's majority-owned subsidiary,
Metro Access Networks, Inc.
Item 6. Exhibits and Reports on Form 8-K
- ------- --------------------------------
A. Exhibits
--------
4.1 Competitive Advance and Revolving Credit Facility Agreement,
dated as of August 28, 1997, among Registrant,
the lenders named therein, and NationsBank of Texas, N.A.
10.1 Amendment, dated June 26, 1997 to Registrant's Dollars and
Sense Plan and Trust
11 Computations of Earnings per Share
27 Financial Data Schedule
B. Reports on Form 8-K
-------------------
There were no reports on Form 8-K filed during the quarter ended
September 30, 1997.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTURY TELEPHONE ENTERPRISES, INC.
Date: November 10, 1997 /s/ Murray H. Greer
-------------------
Murray H. Greer
Controller
(Principal Accounting Officer)
Exhibit 4.1
$1,600,000,000
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of
August 28, 1997
among
CENTURY TELEPHONE ENTERPRISES, INC.,
THE LENDERS NAMED HEREIN,
and
NATIONSBANK OF TEXAS, N.A.,
as Agent
and
as Auction Administration Agent
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.......................................... 1
1.1 Certain Defined Terms................................ 1
1.2 Number and Gender of Words........................... 15
1.3 Accounting Principles................................ 15
SECTION 2. FACILITIES........................................... 16
2.1 Facility A Commitments............................... 16
2.2 Facility B Commitments............................... 16
2.3 Competitive Bid Procedure............................ 17
2.4 Committed Borrowing Procedure........................ 20
2.5 Refinancings; Conversions............................ 20
2.6 Commitment Fees...................................... 21
2.7 Optional Termination and Reduction of Commitments.... 22
2.8 Loans................................................ 23
2.9 Notes................................................ 24
2.10 Interest on Loans.................................... 25
2.11 Interest on Overdue Amounts.......................... 25
2.12 Alternate Rate of Interest for Eurodollar Loans...... 25
2.13 Mandatory and Optional Prepayment of Loans........... 26
2.14 Reserve Requirements; Change in Circumstances........ 27
2.15 Change in Legality................................... 29
2.16 Indemnity............................................ 30
2.17 Pro Rata Treatment................................... 31
2.18 Sharing of Setoffs................................... 31
2.19 Payments............................................. 32
2.20 Calculation of Eurodollar Rate....................... 33
2.21 Booking Loans........................................ 34
2.22 Quotation of Rates................................... 34
SECTION 3. REPRESENTATIONS AND WARRANTIES....................... 34
3.1 Purpose of Credit Facility........................... 34
3.2 Corporate Existence, Good Standing, and Authority.... 34
3.3 Subsidiaries......................................... 34
3.4 Financial Statements................................. 35
3.5 Compliance with Laws, Charter, and Agreements........ 35
3.6 Litigation........................................... 35
3.7 Taxes................................................ 35
3.8 Environmental Matters................................ 35
3.9 Employee Benefit Plans............................... 36
3.10 Properties; Liens.................................... 36
3.11 Holding Company and Investment Company Status........ 36
3.12 Transactions with Affiliates......................... 36
3.13 Leases............................................... 36
3.14 Labor Matters........................................ 36
3.15 Insurance............................................ 37
3.16 Solvency............................................. 37
3.17 Business............................................. 37
3.18 General.............................................. 37
SECTION 4. CONDITIONS PRECEDENT................................. 37
4.1 Initial Loan......................................... 37
4.2 Initial Facility B Loan.............................. 38
4.3 Each Loan............................................ 38
4.4 Materiality of Conditions............................ 38
4.5 Waiver of Conditions................................. 38
SECTION 5. COVENANTS............................................ 39
5.1 Use of Proceeds...................................... 39
5.2 Books and Records.................................... 39
5.3 Items to be Furnished................................ 39
5.4 Inspection........................................... 40
5.5 Taxes................................................ 40
5.6 Payment of Obligations............................... 40
5.7 Expenses of Agent.................................... 40
5.8 Maintenance of Existence, Assets, Business, and
Insurance............................................ 41
5.9 Preservation and Protection of Rights................ 41
5.10 Employee Benefit Plans............................... 41
5.11 Liens................................................ 41
5.12 Restricted Payments.................................. 41
5.13 Refinancing of PTI Debt.............................. 41
5.14 Acquisitions, Mergers, and Dissolutions.............. 42
5.15 Loans, Advances, and Investments..................... 42
5.16 Transactions with Affiliates......................... 43
5.17 Sale of Assets....................................... 43
5.18 Compliance with Laws and Documents................... 43
5.19 New Businesses....................................... 43
5.20 Assignment........................................... 43
5.21 Fiscal Year and Accounting Methods................... 43
5.22 Holding Company and Investment Company Status........ 43
5.23 Environmental Laws................................... 44
5.24 Environmental Indemnification........................ 44
5.25 Financial Covenants.................................. 44
SECTION 6. DEFAULT.............................................. 45
6.1 Payment of Obligation................................ 46
6.2 Covenants............................................ 46
6.3 Debtor Relief........................................ 46
6.4 Attachment........................................... 46
6.5 Payment of Judgments................................. 46
6.6 Default Under Other Agreements....................... 46
6.7 Antitrust Proceedings................................ 47
6.8 Misrepresentation.................................... 47
6.9 Change in Control.................................... 47
6.10 ERISA................................................ 48
6.11 Validity and Enforceability of Loan Documents........ 48
SECTION 7. RIGHTS AND REMEDIES.................................. 48
7.1 Remedies Upon Event of Default....................... 48
7.2 Waivers.............................................. 48
7.3 Performance by Agent................................. 49
7.4 Delegation of Duties and Rights...................... 49
7.5 Lenders Not in Control............................... 49
7.6 Waivers by Lenders................................... 49
7.7 Cumulative Rights.................................... 49
7.8 Application of Proceeds.............................. 49
7.9 Certain Proceedings.................................. 49
SECTION 8. AGREEMENT AMONG LENDERS.............................. 50
8.1 Agents............................................... 50
8.2 Expenses............................................. 52
8.3 Proportionate Absorption of Losses................... 52
8.4 Delegation of Duties; Reliance....................... 52
8.5 Limitation of Agents' Liability...................... 53
8.6 Default.............................................. 54
8.7 Limitation of Liability of Lenders................... 54
8.8 Relationship of Lenders.............................. 54
8.9 Foreign Lenders...................................... 54
8.10 Benefits of Agreement................................ 54
SECTION 9. MISCELLANEOUS........................................ 55
9.1 Changes in GAAP...................................... 55
9.2 Money and Interest................................... 55
9.3 Number and Gender of Words........................... 55
9.4 Headings............................................. 55
9.5 Exhibits............................................. 55
9.6 Communications....................................... 55
9.7 Form and Number of Documents......................... 56
9.8 Exceptions to Covenants.............................. 56
9.9 Survival............................................. 56
9.10 Governing Law........................................ 56
9.11 Venue; Service of Process; Jury Trial................ 56
9.12 Maximum Interest Rate................................ 57
9.13 Invalid Provisions................................... 57
9.14 Entire Agreement..................................... 57
9.15 Amendments, Etc...................................... 58
9.16 Waivers.............................................. 58
9.17 Taxes................................................ 58
9.18 Governmental Regulation.............................. 58
9.19 Multiple Counterparts................................ 58
9.20 Successors and Assigns; Participations; Assignments.. 59
9.21 Confidentiality...................................... 62
9.22 Conflicts and Ambiguities............................ 62
9.23 General Indemnification.............................. 62
9.24 Investment Representation............................ 63
SCHEDULES
Parties, Addresses, Commitments, Wiring Information Schedule 1
Permitted Liens Schedule 2
Material Litigation Schedule 3.6
Transactions with Affiliates Schedule 3.12
Business of Companies Schedule 3.17
EXHIBITS
Competitive Bid Request Exhibit A-1
Notice of Committed Borrowing Exhibit A-2
Notice of Conversion Exhibit A-3
Notice to Lenders of Competitive Bid Request Exhibit B
Competitive Bid Exhibit C
Competitive Note Exhibit D-1
Facility A Committed Note Exhibit D-2
Facility B Committed Note Exhibit D-3
Opinion of Borrower's Counsel Exhibit E
Financial Report Certificate Exhibit F
Designation Agreement Exhibit G
Assignment and Acceptance Exhibit H
COMPETITIVE ADVANCE
AND REVOLVING CREDIT FACILITY AGREEMENT
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT dated as of
August 28, 1997, among CENTURY TELEPHONE ENTERPRISES, INC., a Louisiana
corporation (the "Borrower"), the lenders listed on the signature pages hereof
(the "Lenders"), NATIONSBANK OF TEXAS, N.A., a national banking association, as
agent for the Lenders (in such capacity, the "Agent"), and as auction
administration agent (in such capacity, the "Auction Administration Agent").
The Borrower has requested the Lenders to extend credit to the Borrower in
order to enable it to borrow on a revolving credit basis a principal amount not
in excess of $1,600,000,000 at any time outstanding. The Borrower has also
requested the Lenders to provide a procedure pursuant to which the Borrower may
designate that all of the Lenders be invited to bid on an uncommitted basis on
borrowings to mature on or prior to the Termination Date (as hereinafter
defined).
The Lenders are willing to extend such credit to the Borrower on the terms
and conditions herein set forth. Accordingly, the Borrower, the Agents, and the
Lenders 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):
"Acquisition" means the acquisition by the Borrower of all
of the stock of PTI, Pacific Telecom Cellular, Inc. and Pacific
Telecom Cellular of Alaska, Inc. pursuant to the provisions of the
Stock Purchase Agreement.
"Acquisition Documents" means the Stock Purchase Agreement and any and all
other documents and instruments executed in connection with the Acquisition.
"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 telephone or cellular mobile communications
business) 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).
"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).
"Agent" is defined in the introduction to this Agreement.
"Agents" means the Agent and the Auction Administration
Agent.
"Agreement" means this Competitive Advance and Revolving Credit Facility
Agreement, as the same may be amended, supplemented, modified or restated from
time to time.
"Alternate Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the greater of (a)
the Federal Funds Rate for such day plus one-half of one percent (0.5%) and (b)
the Prime Rate for such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
"Applicable Lending Office" means, with respect to each Lender, and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such Type of Loan on the signature pages hereof or
such other office of such Lender (or an Affiliate of such Lender) as such Lender
may from time to time specify to the Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Margin" means
(a) as to any Competitive Bid relating to a Eurodollar Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal
to no more than four decimal places) to be added to or subtracted from the
Eurodollar Rate in order to determine the interest rate acceptable to such
Lender with respect to such Eurodollar Loan; and
(b) at the time of any determination thereof, for purposes of all
Committed Loans, the margin of interest over the Alternate Base Rate 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 Borrower's Senior
Unsecured Long-Term Debt Rating (as hereinafter defined), as determined as
of the last day of the immediately preceding fiscal quarter of the
Borrower, as follows:
===============================================================
Borrower's Senior Eurodollar Loan Base Rate
Unsecured Long-Term Margin Loan Margin
Debt Rating
- ---------------------------------------------------------------
BBB+ or Baal or better 27.5 basis 0 basis points
points
- ---------------------------------------------------------------
BBB or Baa2 35 basis points 0 basis points
- ---------------------------------------------------------------
BBB- or Baa3 45 basis points 0 basis points
- ---------------------------------------------------------------
BB+ or Ba1 62.5 basis 0 basis points
points
- ---------------------------------------------------------------
BB or Ba2 or below 75 basis points 0 basis points
===============================================================
Notwithstanding the foregoing, the Applicable Margin from the date hereof until
September 30, 1997 shall be based on a Senior Unsecured Long-Term Debt Rating of
BBB+, unless a different actual rating has been assigned by Moody's or S&P that
takes into account the Acquisition, in which case such actual rating shall
apply.
"Auction Administration Agent" is defined in the
introduction to this Agreement.
"Base Rate Loan" means any Committed Loan with respect to which the
Borrower shall have selected an interest rate based on the Alternate Base Rate
in accordance with the provisions of Section 2.
"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 Competitive Borrowing or a Committed
Borrowing.
"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 when the Agents and each Lender's Applicable
Lending Office are open for business, other than a Saturday or Sunday, and if
the applicable Business Day relates to any Eurodollar Loan, a day on which
dealings in dollar deposits are carried on in the London interbank market and
commercial banks are open for domestic or international business in London,
England, in New York, New York, and in Dallas, Texas.
"Code" means the Internal Revenue Code of 1986, as amended, together with
rules and regulations promulgated thereunder.
"Commitment" means, with respect to any Lender, collectively, its Facility
A Commitment and Facility B Commitment.
"Committed Borrowing" means either a Facility A Committed
Borrowing or a Facility B Committed Borrowing.
"Committed Loan" means either a Facility A Committed Loan or a Facility B
Committed Loan made by a Lender to the Borrower pursuant to Section 2.4.
"Committed Note" means either a Facility A Committed Note or
a Facility B Committed Note.
"Commitment Fee" is defined in Section 2.6.
"Commitment Fee Percentage" is defined in Section 2.6.
"Companies" means, collectively, Borrower and its
Subsidiaries and "Company" means any of the same.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
pursuant to Section 2.3.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Lender
pursuant to Section 2.3(b), (i) in the case of a Eurodollar Loan, the Applicable
Margin (which will be added to or subtracted from the Eurodollar Rate), and (ii)
in the case of a Fixed Rate Loan, the fixed rate of interest, in each case,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids made
pursuant to Section 2.3(a) substantially in the form of Exhibit A-1.
"Competitive Borrowing" means a borrowing consisting of a single
Competitive Loan from a Lender or simultaneous Competitive Loans from more than
one Lender, in each case, whose Competitive Bid as all or as a part of such
Borrowing, as the case may be, has been accepted by the Borrower under the
bidding procedure described in Section2.3.
"Competitive Loan" means a Loan from a Lender to the Borrower pursuant to
the bidding procedure described in Section 2.3, and shall be either a Eurodollar
Loan or a Fixed Rate Loan.
"Competitive Note" means a promissory note of the Borrower payable to the
order of each Lender, in substantially the form of Exhibit D-1 hereto, with the
blanks appropriately completed, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Competitive Loans made by such Lender
to the Borrower, together with all modifications, extensions, renewals, and
rearrangements thereof.
"Competitive Reduction" is defined in Section 2.1.
"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 Statements No. 101
and 106 of the Financial Accounting Standards Board.
"Current Date" means any date after July 31, 1997.
"Current Financials" means the consolidated Financial Statements of the
Companies for the fiscal year ended December 31, 1996, and the fiscal quarter
ended June 30, 1997.
"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 interest rate swap, collar, floor, cap or similar
contract.
"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.
"Default Rate" means an annual interest rate equal to the lesser of (a) 2%
plus the greater of (i) the Alternate Base Rate and (ii) the Eurodollar Rate and
(b) the Highest Lawful Rate.
"Designated Lender" means a special purpose corporation which is an
Affiliate of a Lender, that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and that
issues (or the parent of which issues) commercial paper rated at least "Prime-1"
(or the then equivalent grade) by Moody's Investors Service, Inc. ("Moody's") or
"A-1" (or the then equivalent grade) by Standard and Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc. ("S&P") that, in either case, (i) is
organized under the Laws of the United States or any state thereof, (ii) shall
have become a party to this Agreement pursuant to Section 9.20(d) and (iii) is
not otherwise a Lender.
"Designation Agreement" means a designation agreement entered into by a
Lender (other than a Designated Lender), a Designated Lender, and the Borrower,
and accepted by the Agent and the Auction Administration Agent, in substantially
the form of Exhibit G hereto.
"EBIT" means, for any period, net income before income Tax expense and
interest expense and excluding the effects of nonrecurring and/or unusual
non-cash transactions that reduce net income and items that do not reduce the
cash flow of the Companies (e.g., write-off of intangibles, write-down of
assets, effect of new accounting pronouncements, etc.).
"EBITDA" means, for any period, the sum of (a) EBIT, plus
(b) depreciation and amortization.
"Eligible Assignee" means (a) any Lender and any Affiliate of any Lender
so long as such Affiliate directly or through one or more of its Subsidiaries
engages in commercial financing transactions in the ordinary course of its
business, and (b) any other commercial bank, savings and loan association,
savings bank, finance company, insurance company, mutual fund or other financial
institution, fund or investor which has been approved in writing by the Borrower
and the Agent as an Eligible Assignee for purposes of this Agreement, provided
that in each such case such approval shall not be unreasonably withheld.
"Environmental Law" means any Law that relates to the environment or
handling or control of Hazardous Substances.
"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 Liabilities" is defined in Regulation D.
"Eurodollar Loan" means any Loan with respect to which the Borrower shall
have selected an interest rate based on the Eurodollar Rate in accordance with
the provisions of Section 2.
"Eurodollar Rate" means, for any Interest Period for any Eurodollar Loan,
an interest rate per annum (rounded upward to the nearest whole multiple of
0.01% per annum) obtained by dividing (a) the rate per annum appearing on the
Dow Jones Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
If for any reason the rate specified in subsection (a) above is not
available, the applicable rate for purposes of subsection (a) shall be the rate
per annum appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest
1/100 of 1%).
"Eurodollar Rate Reserve Percentage" for any Interest Period for any
Eurodollar Loan means the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Loans is determined) having a term equal to such
Interest Period.
"Event of Default" means any of the events described in Section 6,
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.
"Existing Credit Agreement" means that certain Competitive Advance and
Revolving Credit Facility Agreement dated as of February 7, 1992, executed by
and among the Borrower, the Agent, and the banks listed on the signature pages
thereof, as amended.
"Facility A Commitment" means, with respect to each Lender, the amount set
forth opposite the name of such Lender on Schedule 1, as amended from time to
time.
"Facility A Committed Borrowing" means a borrowing consisting of
simultaneous Facility A Committed Loans from each of the Lenders distributed
ratably among the Lenders in accordance with their respective Facility A
Commitments.
"Facility A Committed Loan" means a Loan by a Lender to the Borrower under
Facility A pursuant to Section 2.1, and shall be either a Eurodollar Loan or a
Base Rate Loan.
"Facility A Committed Note" means a promissory note of the Borrower
payable to the order of each Lender, in substantially the form of Exhibit D-2
hereto, with the blanks appropriately completed, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Facility A
Committed Loans made by such Lender to the Borrower, together with all
modifications, extensions, renewals, and rearrangements thereof.
"Facility B Commitment" means, with respect to each Lender, the amount set
forth opposite the name of such Lender on Schedule 1, as amended from time to
time.
"Facility B Committed Borrowing" means a borrowing consisting of
simultaneous Facility B Committed Loans from each of the Lenders distributed
ratably among the Lenders in accordance with their respective Facility B
Commitments.
"Facility B Committed Loan" means a Loan by a Lender to the Borrower under
Facility B pursuant to Section 2.2, and shall be either a Eurodollar Loan or a
Base Rate Loan.
"Facility B Committed Note" means a promissory note of the Borrower
payable to the order of each Lender, in substantially the form of Exhibit D-3
hereto, with the blanks appropriately completed, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Facility B
Committed Loans made by such Lender to the Borrower, together with all
modifications, extensions, renewals, and rearrangements thereof.
"Facility B Conversion" is defined in Section 2.2(c).
"Facility B Termination Date" means, at any time, August 27, 1998, or the
earlier date of termination in whole of the Total Commitments pursuant to
Section 2.7.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Lender of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Agent (in its
individual capacity) on such day on such transactions as determined by the
Agent.
"Financial Report Certificate" means a certificate
substantially in the form of Exhibit F.
"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.
"Fixed Rate Loan" means any Competitive Loan made by a Lender pursuant to
Section 2.3 based upon an actual percentage rate per annum offered by such
Lender, expressed as a decimal (to no more than four decimal places), and
accepted by the Borrower.
"Funded Debt" shall mean and include, as of any date as of which the
amount thereof is to be determined, (i) all funded indebtedness of the
Companies, (ii) all funded indebtedness of any Subsidiary (other than funded
indebtedness of such Subsidiary owing to the Borrower or another Subsidiary),
and (iii) all indebtedness for borrowed money, but not (iv) indebtedness secured
by or borrowed against the cash surrender value of life insurance policies up to
the amount of such cash surrender value.
"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.
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under applicable Laws, the Lenders are then permitted to
charge the Borrower on the Obligation. If the maximum rate of interest which,
under applicable Laws, the Lenders are permitted to charge the Borrower on the
Obligation shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, as of the effective
time of such change without notice to the Borrower.
"Interest Payment Date" means (i) with respect to any Base Rate Loan, each
Quarterly Payment Date, or if earlier the Termination Date or the Facility B
Termination Date, as applicable, or the date of prepayment of such Loan or
conversion of such Loan to a Eurodollar Loan, (ii) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable thereto and, in
addition in the case of a Eurodollar Loan with an Interest Period longer than
three months, each day that would have been the Interest Payment Date for such
Loan had an Interest Period of three months, been applicable to such Loan, and
(iii) in the case of a Fixed Rate Loan, the last day of the Interest Period
applicable thereto and, in the case of a Fixed Rate Loan with an Interest Period
of more than 90 days, on the numerically corresponding day which occurs during
such Interest Period every three months from the first day of such Interest
Period (or, if there is no such corresponding day in any such month, the last
day of such month).
"Interest Period" means, with respect to each Loan, the duration of such
Loan and:
(i) as to any Eurodollar Loan, the period commencing on the date of
such Loan and ending on the numerically corresponding day (or if there is
no corresponding day, the last day) in the calendar month that is one,
two, three, or six months thereafter, as the Borrower may elect; provided,
however, that the Interest Period for a Eurodollar Loan subject to a
Competitive Bid shall not exceed 3 months; and
(ii) as to any Fixed Rate Loan, the period commencing on the date of
such Loan and ending on the date specified in the Competitive Bid in which
the offer to make the Fixed Rate Loan was extended; provided, however,
that each such period shall have a duration of not less than seven
calendar days nor more than 90 calendar days;
provided, further, that (x) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (y) no
Interest Period may be selected that ends later than the Termination Date.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Laws" means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, or opinions of any
Tribunal.
"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, and, except when used in reference to a Committed
Loan, a Committed Borrowing, a Committed Note, the Commitment of any Lender or a
related term, each Designated Lender.
"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" means a Competitive Loan, a Committed Loan, a
Eurodollar Loan, a Fixed Rate Loan, or a Base Rate Loan.
"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.
"Majority Lenders" means at any time (a) the Majority Committed Lenders
and (b) Lenders holding at least 51% of the then aggregate unpaid principal
amount of the Competitive Loans.
"Majority Committed Lenders" means the Lenders holding at least 51% of the
then aggregate unpaid principal amount of the Committed Loans or if no Committed
Loans are outstanding, the Lenders having at least 51% of the available
Commitments (determined without considering the effect of any Competitive
Reduction).
"Margin Stock" means "margin stock" within the meaning of Regulations G,
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 latter 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" is defined in the definition of Designated Lender.
"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.
"NationsBank" means NationsBank of Texas, N.A., a national
banking association.
"Net Cash Proceeds" means the cash proceeds received by the Borrower from
(a) a sale of its assets (including, without limitation, all cash proceeds
received by way of (i) deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received and (ii)
receivables and other assets retained by the Borrower as part of the sales
consideration, minus payments made to retire Debt secured by such assets being
sold or otherwise disposed of where payment of such Debt is required in
connection with such sale or disposition) or (b) the issuance of any public or
privately placed Debt or equity, in either case net of all ordinary reasonable
legal expenses, commissions and other fees and expenses paid or to be paid to
Persons not Affiliates of the Companies and all Taxes assessed in connection
therewith.
"Note" means a Competitive Note or a Committed Note.
"Notice of Committed Borrowing" is defined in Section 2.4.
"Notice of Conversion" is defined in Section 2.2(c).
"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.
"Participant" is defined in Section 9.20(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"Permitted Liens" means the Liens described on Schedule 2.
"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.
"Prime Rate" means the per annum rate of interest established from time to
time by NationsBank as its prime rate, which rate may not be the lowest rate of
interest charged by NationsBank to its customers.
"PTI" means Pacific Telecom, Inc., a Washington corporation.
"Purchaser" is defined in Section 9.20(c).
"Quarterly Payment Date" means the last Business Day of each March, June,
September and December of each year, the first of which shall be the first such
day after the date of this Agreement.
"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.
"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.
"Rights" means rights, remedies, powers, and privileges.
"S&P" is defined in the definition of Designated Lender.
"Senior Unsecured Long-Term Debt Rating" means, as of any date, the public
debt rating that has been most recently announced 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. For purposes of the foregoing, (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
2.6) 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 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
the Commitment Fee Percentage shall be set in accordance with the lowest level
rating and highest percentage rate set forth in the respective tables in the
definitions of "Applicable Margin" and "Commitment Fee Percentage", as the case
may be.
"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.
"Stock Purchase Agreement" means that certain stock purchase agreement
dated June 11, 1997, by and among the Borrower, PacifiCorp Holdings, Inc., PTI
and Century Cellunet, Inc.
"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).
"Taxes" means all taxes, assessments, fees, or other charges at any time
imposed by any Laws or Tribunal.
"Term Loan" is defined in Section 2.2(c).
"Termination Date" means, at any time, August 28, 2002, or the earlier
date of termination in whole of the Total Commitments pursuant to Section 2.7.
"Total Commitments" means, at any time the aggregate amount of the
Lenders' Facility A Commitments and Facility B Commitments, as in effect at such
time.
"Total Facility A Commitment" means at any time the aggregate amount of
the Lenders' Facility A Commitments, as in effect at such time.
"Total Facility B Commitment" means at any time the aggregate amount of
the Lenders' Facility B Commitments, as in effect at such time.
"Tranche B-1" is defined in Section 2.2.
"Tranche B-2" is defined in Section 2.2.
"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., a Base Rate Loan,
Fixed Rate Loan or Eurodollar Loan).
"United States" and "U.S." each means United States of
America.
"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).
1.2 Number and Gender of Words. Whenever in any Loan Paper the singular
number is used, the same shall include the plural where appropriate and vice
versa, and words of any gender shall include each other gender where
appropriate.
1.3 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, 1996.
SECTION 2. FACILITIES.
- ----------------------
2.1 Facility A Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender,
severally and not jointly, agrees to make revolving credit loans ("Facility A
Committed Loans") to the Borrower, at any time and from time to time on and
after the date hereof and until the Termination Date. Notwithstanding the
foregoing, (a) the aggregate principal amount of all Facility A Committed Loans
of a Lender shall not exceed at any time outstanding such Lender's Facility A
Commitment and (b) the Facility A Commitment of a Lender which makes a
Competitive Loan and the Total Facility A Commitment shall be deemed used from
time to time to the extent of the aggregate principal amount of the Competitive
Loans then outstanding from such Lender (such deemed use of such Lender's
Facility A Commitment and the Total Facility A Commitment being a "Competitive
Reduction"), subject, however, to the conditions that (i) at no time shall (A)
the sum of (x) the outstanding aggregate principal amount of all Facility A
Committed Loans made by all Lenders plus (y) the outstanding aggregate principal
amount of all Competitive Loans made by all Lenders exceed (B) the Total
Facility A Commitment and (ii) the principal amount of Facility A Committed
Loans to be made by a Lender pursuant to a Facility A Committed Borrowing
(whether pursuant to Section 2.4 or as part of a refinancing under Section 2.5)
shall equal the product of (x) the percentage which its Facility A Commitment
(after a Competitive Reduction for its Competitive Loans outstanding) represents
of the Total Facility A Commitment (after a Competitive Reduction for its
Competitive Loans) times (y) the outstanding aggregate principal amount of all
Facility A Committed Loans obligated to be made by all Lenders in connection
with such Facility A Committed Borrowing.
Within the foregoing limits, the Borrower may borrow, repay, prepay, and
reborrow hereunder, on and after the date hereof and prior to the Termination
Date, subject to the terms, provisions, and limitations set forth herein.
2.2 Facility B Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender,
severally and not jointly, agrees to make revolving credit loans ("Facility B
Committed Loans") to the Borrower, at any time and from time to time on and
after the date hereof and until the Facility B Termination Date. Notwithstanding
the foregoing, the aggregate principal amount of all Facility B Committed Loans
of a Lender shall not exceed at any time outstanding such Lender's Facility B
Commitment. The Total Facility B Commitment shall be divided into two tranches:
(i) the first tranche in the amount of $400,000,000 to be held entirely by
NationsBank ("Tranche B-1") and (ii) the second tranche in the amount of
$900,000,000 to be held by the Lenders as set forth on Schedule 1 hereto
("Tranche B-2").
(b) Within the foregoing limits, the Borrower may borrow, repay,
prepay, and reborrow hereunder, on and after the date hereof and prior to
the earlier of the Facility B Termination Date or the date of the Facility
B Conversion (as hereinafter defined), subject to the terms, provisions,
and limitations set forth herein.
(c) Provided there is no Default or Event of Default, no sooner than
90 days and not later than 15 days prior to the Facility B Termination
Date, the Borrower shall have the option to convert all outstanding
Facility B Committed Loans from revolving credit loans into a single term
loan maturing no later than the Termination Date. In order to effect such
conversion (the "Facility B Conversion"), the Borrower shall hand deliver
or telecopy to the Agent a duly completed request for Facility B
Conversion, substantially in the form of Exhibit A-3 hereto (a "Notice of
Conversion"), not later than 11:00 a.m., Dallas, Texas time, at least 15
days and no more than 90 days prior to the Facility B Termination Date.
Such notice shall be irrevocable, shall refer to this Agreement and shall
specify the aggregate outstanding principal balance of the Facility B
Committed Loans. Promptly, and in any event on the same day the Agent
receives a Notice of Conversion pursuant to this Section 2.2(c), the Agent
shall advise the other Lenders of such Notice of Conversion and of each
Lender's portion of the outstanding Facility B Committed Loans. The
Facility B Conversion shall then occur on or before the Facility B
Termination Date. The term loan resulting from a Facility B Conversion
(the "Term Loan") shall remain divided into two tranches as set forth in
Section 2.2(a) above, provided that, if the aggregate amount of Facility B
Committed Loans is less than the Total Facility B Commitment on the date
of conversion, the amount of each tranche shall be reduced to equal the
actual aggregate amount of Facility B Committed Loans outstanding under
such tranche on the date of the Facility B Conversion.
2.3 Competitive Bid Procedure. (a) In order to request Competitive Bids
under Facility A, the Borrower shall hand deliver or telecopy to the Agents a
duly completed Competitive Bid Request, to be received by the Agents (i) in the
case of Eurodollar Loans, not later than 10:00 a.m., Dallas, Texas time, four
Business Days before the Borrowing Date specified for a proposed Competitive
Borrowing and (ii) in the case of Fixed Rate Loans, not later than 10:00 a.m.,
Dallas, Texas time, two Business Days before the Borrowing Date specified for a
proposed Competitive Borrowing. No Base Rate Loan shall be requested in, or,
except pursuant to Section 2.12 or Section 2.15, made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform substantially to
the format of Exhibit A-1 may be rejected at the Auction Administration Agent's
sole discretion, and the Auction Administration Agent shall, not later than noon
on the date of delivery of the Competitive Bid Request, notify the Borrower of
such rejection by telecopier. Each Competitive Bid Request shall in each case
refer to this Agreement and specify (x) whether the Competitive Loans then being
requested are to be Eurodollar Loans or Fixed Rate Loans, or both, (y) the
Borrowing Date of such Competitive Loans (which shall be a Business Day) and the
aggregate principal amount thereof (which shall not be less than $5,000,000 or
greater than the unused Total Facility A Commitment on such Borrowing Date and
shall be an integral multiple of $1,000,000), and (z) the Interest Period with
respect thereto (which may not end after the Termination Date). Promptly after
its receipt of a Competitive Bid Request that is not rejected as aforesaid, the
Auction Administration Agent shall invite by telecopier (substantially in the
form set forth in Exhibit B hereto) the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Loans pursuant to such
Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to each Competitive Bid
Request. Each Competitive Bid by a Lender must be received by the Auction
Administration Agent via telecopier, substantially in the form of Exhibit
C hereto, (i) in the case of Eurodollar Loans, not later than 11:00 a.m.,
Dallas, Texas time, three Business Days before the Borrowing Date
specified for a proposed Competitive Borrowing and (ii) in the case of
Fixed Rate Loans, not later than 11:00 a.m., Dallas, Texas time, one
Business Day before the Borrowing Date of a proposed Competitive
Borrowing. Competitive Bids that do not conform substantially to the
format of Exhibit C may be rejected by the Auction Administration Agent
after conferring with, and upon the instruction of, the Borrower, and the
Auction Administration Agent shall notify the Lender that submitted the
non-conforming Competitive Bid of such rejection as soon as practicable.
Each Competitive Bid shall refer to this Agreement and (x) specify the
principal amount (which shall be in a minimum principal amount of
$5,000,000 and in an integral multiple of $1,000,000 and which may equal
the entire principal amount of the Competitive Borrowing requested by the
Borrower) of the Competitive Loan the Lender is willing to make to the
Borrower, (y) specify the Competitive Bid Rate(s) at which the Lender is
prepared to make the Competitive Loan, and (z) confirm the Interest Period
with respect thereto specified by the Borrower in its Competitive Bid
Request. If any Lender shall elect not to make a Competitive Bid, such
Lender shall so notify the Auction Administration Agent via telecopier (I)
in the case of Eurodollar Loans, not later than 11:00 a.m., Dallas, Texas
time, three Business Days before the Borrowing Date specified for a
proposed Competitive Borrowing, and (II) in the case of Fixed Rate Loans,
not later than 11:00 a.m., Dallas, Texas time, one Business Day before the
Borrowing Date of a proposed Competitive Borrowing; provided, however,
that failure by any Lender to give such notice shall not cause such Lender
to be obligated to make any Competitive Loan as part of such Competitive
Borrowing. A Competitive Bid submitted by a Lender pursuant to this
paragraph (b) shall be irrevocable.
(c) The Auction Administration Agent shall promptly notify the
Borrower by telecopier of all the Competitive Bids made, the Competitive
Bid Rate and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Lender that made
each bid on the date of delivery of Competitive Bids pursuant to Section
2.3(b). The Auction Administration Agent shall send a copy of all
Competitive Bids to the Borrower for its records as soon as practicable
after completion of the bidding process set forth in this Section 2.3.
(d) The Borrower may in its sole and absolute discretion, subject
only to the provisions of this Section 2.3(d), accept or reject any or all
of the Competitive Bids referred to in paragraph (c) above; provided,
however, that the aggregate amount of the Competitive Bids so accepted by
the Borrower may not exceed the principal amount of the Competitive
Borrowing requested by the Borrower. The Borrower shall notify the Auction
Administration Agent by telecopier whether and to what extent it has
decided to accept or reject any or all of the bids referred to in
paragraph (c) above, (i) in the case of Eurodollar Loans, not later than
11:00 a.m., Dallas, Texas time, two Business Days before the Borrowing
Date specified for a proposed Competitive Borrowing and (ii) in the case
of Fixed Rate Loans, not later than 11:00 a.m., Dallas, Texas time, on the
Borrowing Date specified for a proposed Competitive Borrowing; provided,
however, that (w) the failure by the Borrower to give such notice shall be
deemed to be a rejection of all the bids referred to in paragraph (c)
above, (x) the Borrower shall not accept a bid made at a particular
Competitive Bid Rate if the Borrower has decided to reject a bid made at a
lower Competitive Bid Rate, (y) if the Borrower shall accept bids made at
a particular Competitive Bid Rate but shall be restricted by other
conditions hereof from borrowing the full principal amount of Competitive
Loans in respect of which bids at such Competitive Bid Rate have been
made, then the Borrower shall accept a pro rata portion of each bid made
at such Competitive Bid Rate based as nearly as possible on the respective
principal amounts of Competitive Loans for which such bids were made, and
(z) no bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal amount of $5,000,000 and an
integral multiple of $1,000,000. Notwithstanding the foregoing clause (z),
if it is necessary for the Borrower to accept a pro rata allocation of the
bids made in response to a Competitive Bid Request (whether pursuant to
the events specified in clause (y) above or otherwise) and the available
principal amount of Competitive Loans to be allocated among the Lenders is
not sufficient to enable Competitive Loans to be allocated to each Lender
in a minimum principal amount of $5,000,000 and in integral multiples of
$1,000,000, then the Borrower shall select the Lenders to be allocated
such Competitive Loans and shall round allocations up or down to the next
higher or lower multiple of $1,000,000 as it shall deem appropriate. A
notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Auction Administration Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted (and
if so, in what amount and at what Competitive Bid Rate) by telecopier, and
each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted. After completing the notifications
referred to in the immediately preceding sentence, the Auction
Administration Agent shall (i) notify the Agent of each Competitive Bid
that has been accepted, the amount thereof, and the Competitive Bid Rate
therefor and (ii) notify each Lender of the aggregate principal amount of
all Competitive Bids accepted.
(f) Upon receipt from the Agent of the Eurodollar Rate applicable to
any Eurodollar Loan to be made by any Lender pursuant to a Competitive Bid
that has been accepted by the Borrower pursuant to Section 2.3(d), the
Auction Administration Agent shall notify such Lender of (i) the
applicable Eurodollar Rate and (ii) the sum of the applicable Eurodollar
Rate plus the Applicable Margin bid by such Lender.
(g) No Competitive Bid Request shall be made within three Business
Days of the date of any other Competitive Bid Request, unless the Borrower
and the Auction Administration Agent shall mutually agree otherwise.
(h) If the Auction Administration Agent shall at any time have a
Commitment hereunder and shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Borrower
one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Auction Administration
Agent pursuant to paragraph (b) above.
(i) All notices required by this Section 2.3 shall be made in
accordance with Section 9.6.
2.4 Committed Borrowing Procedure. In order to effect a Committed
Borrowing, the Borrower shall hand deliver or telecopy to the Agent a duly
completed request for Committed Borrowing, substantially in the form of Exhibit
A-2 hereto (a "Notice of Committed Borrowing"), (i) in the case of Eurodollar
Loans, not later than 11:00 a.m., Dallas, Texas time, three Business Days before
the Borrowing Date specified for a proposed Committed Borrowing, and (ii) in the
case of Base Rate Loans, not later than 11:00 a.m., Dallas, Texas time, on the
Business Day which is the Borrowing Date specified for a proposed Committed
Borrowing. No Fixed Rate Loan shall be requested or made pursuant to a Notice of
Committed Borrowing. Such notice shall be irrevocable and shall in each case
refer to this Agreement and specify (w) whether the Loans then being requested
are to be made as Facility A Committed Loans or Facility B Committed Loans, (x)
whether the Loans then being requested are to be Eurodollar Loans, or Base Rate
Loans, (y) the Borrowing Date of such Loans (which shall be a Business Day) and
the aggregate amount thereof (which shall not be less than $5,000,000 and shall
be an integral multiple of $1,000,000), and (z) in the case of a Eurodollar
Loan, the Interest Period with respect thereto (which shall not end later than
the Termination Date). If no Interest Period with respect to any Eurodollar Loan
is specified in any such Notice of Committed Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly,
and in any event on the same day the Agent receives a Notice of Committed
Borrowing pursuant to this Section 2.4, if such notice is received by 10:00
a.m., Dallas, Texas time on a Business Day and otherwise on the next succeeding
Business Day, the Agent shall advise the other Lenders of such Notice of
Committed Borrowing and of each Lender's portion of the requested Facility A or
Facility B Committed Borrowing by telecopier. Each Committed Borrowing shall
consist of Loans of the same Type made on the same day and having the same
Interest Period.
2.5 Refinancings; Conversions. (a) The Borrower may refinance all or any
part of any Loan with a Loan of the same or a different type made pursuant to
Section 2.3 or Section 2.4, subject to the conditions and limitations set forth
herein and elsewhere in this Agreement, including, without limitation,
refinancings of Competitive Loans with Committed Loans and Committed Loans with
Competitive Loans. Any Loan or part thereof so refinanced shall be deemed to be
repaid in accordance with Section 2.9 with the proceeds of a new Borrowing
hereunder and the proceeds of the new Loan, to the extent they do not exceed the
principal amount of the Loan being refinanced, shall not be paid by the Lenders
to the Agent or by the Agent to the Borrower pursuant to Section 2.8(c);
provided, however, that (i) if the principal amount extended by a Lender in a
refinancing is greater than the principal amount extended by such Lender in the
Borrowing being refinanced, then such Lender shall pay such difference to the
Agent for distribution to the Lenders described in (ii) below, (ii) if the
principal amount extended by a Lender in the Borrowing being refinanced is
greater than the principal amount being extended by such Lender in the
refinancing, the Agent shall return the difference to such Lender out of amounts
received pursuant to (i) above, (iii) to the extent any Lender fails to pay the
Agent amounts due from it pursuant to (i) above, any Loan or portion thereof
being refinanced shall not be deemed repaid in accordance with Section 2.9 to
the extent of such failure and the Borrower shall pay such amount to the Agent
pursuant to Section 2.9, and (iv) to the extent the Borrower fails to pay to the
Agent any amounts due in accordance with Section 2.9 as a result of the failure
of a Lender to pay the Agent any amounts due as described in (iii) above, the
portion of any refinanced Loan deemed not repaid shall be deemed to be
outstanding solely to the Lender which has failed to pay the Agent amounts due
from it pursuant to (i) above to the full extent of such Lender's portion of
such refinanced Loan.
(b) Subject to the conditions and limitations set forth in this Agreement,
the Borrower shall have the right from time to time to convert all or part of
one Type of Committed Loan into another Type of Committed Loan or to continue
all or a part of any Committed Loan that is a Eurodollar Loan from one Interest
Period to another Interest Period by giving the Agent written notice (by means
of a Notice of Committed Borrowing) (i) in the case of Eurodollar Loans, not
later than 10:00 a.m., Dallas, Texas time, three Business Days before the date
specified for such proposed conversion or continuation, and (ii) in the case of
Base Rate Loans, not later than 10:00 a.m., Dallas, Texas time, on the Business
Day which is the date specified for such proposed conversion or continuation.
Such notice shall specify (A) the proposed date for conversion or continuation,
(B) the amount of the Committed Loan to be converted or continued, (C) in the
case of conversions, the Type of Committed Loan to be converted into, and (D) in
the case of a continuation of or conversion into a Eurodollar Loan, the duration
of the Interest Period applicable thereto; provided that (1) Eurodollar Loans
may be converted only on the last day of the applicable Interest Period, (2)
except for conversions to Base Rate Loans, no conversion shall be made while a
Default or Event of Default has occurred and is continuing and no continuations
of any Eurodollar Loan from one Interest Period to another Interest Period shall
be made while a Default or Event of Default has occurred and is continuing,
unless such conversion or continuation has been approved by Majority Lenders,
and (3) each such conversion or continuation shall be in an amount not less than
$5,000,000 and shall be an integral multiple of $1,000,000. All notices given
under this Section shall be irrevocable. If the Borrower shall fail to give the
Agent the notice as specified above for continuation or conversion of a
Eurodollar Loan prior to the end of the Interest Period with respect thereto,
such Eurodollar Loan shall automatically be converted into a Base Rate Loan on
the last day of the Interest Period for such Eurodollar Loan.
2.6 Commitment Fees. The Borrower agrees to pay to each Lender, through
the Agent, on each Quarterly Payment Date and on the Termination Date or the
Facility B Termination Date, as applicable, in immediately available funds, a
commitment fee (a "Commitment Fee") calculated on both the unused (without
regard to any deemed usage pursuant to Section 2.1) Facility A Commitment and
the unused Facility B Commitment by multiplying the applicable percentage (the
"Commitment Fee Percentage") set forth below by (a) in the case of Facility A,
the sum (but not less than zero) of (i) the average daily unused (without regard
to any deemed usage pursuant to Section 2.1) portion of the Facility A
Commitment minus (ii) the amount of the average daily outstanding Competitive
Loans made by such Lender, and (b) in the case of Facility B, the average daily
unused portion of the Facility B Commitment of such Lender, as applicable,
during the preceding quarter (or shorter period commencing with the date hereof
and/or ending with the Termination Date or the Facility B Termination Date, as
applicable):
=============================================================
Applicable Applicable
Borrower's Senior Facility A Facility B
Unsecured Long-Term Debt Percentage Percentage
Rating
- -------------------------------------------------------------
BBB+ or Baa1 or better .10 percent .07 percent
- -------------------------------------------------------------
BBB or Baa2 .125 percent .09 percent
- -------------------------------------------------------------
BBB- or Baa3 .15 percent .12 percent
- -------------------------------------------------------------
BB+ or Ba1 .225 percent .20 percent
- -------------------------------------------------------------
BB or Ba2 or below .275 percent .25 percent
=============================================================
Notwithstanding the foregoing, the Commitment Fee Percentage from the date
hereof until September 30, 1997 shall be based on a Senior Unsecured Long-Term
Debt Rating of BBB+, unless a different actual rating has been assigned by
Moody's or S&P that takes into account the Acquisition, in which case such
actual rating shall apply.
All Commitment Fees shall be computed by the Agent on the basis of the
actual number of days elapsed in a year of 365 days, and shall be conclusive and
binding for all purposes, absent manifest error. The Commitment Fee due to each
Lender shall commence to accrue on the date hereof and shall cease to accrue on
the earlier of the Termination Date or the Facility B Termination Date, as
applicable, and the termination of the Facility A Commitment or Facility B
Commitment, as applicable, of such Lender as provided herein. No Commitment Fee
shall be payable on the Facility B Commitment after the Facility B Conversion.
Notwithstanding the foregoing, in no event shall any Lender be permitted to
receive any compensation hereunder constituting interest in excess of the
Highest Lawful Rate.
2.7 Optional Termination and Reduction of Commitments.(a) Subject to
Section 2.13(b), the Borrower may permanently terminate, or from time to time in
part permanently reduce, either or both of the Total Facility A Commitment or
the Total Facility B Commitment, in each case upon at least ten Business Days'
prior written notice to the Agent (who shall promptly forward a copy thereof to
each Lender and, if related to the Facility A Commitment, the Auction
Administration Agent). Such notice shall specify the date and the amount of the
termination or reduction of either or both of the Total Facility A Commitment or
the Total Facility B Commitment. Each such partial reduction of either or both
of the Total Facility A Commitment or the Total Facility B Commitment shall be
in a minimum aggregate principal amount of $5,000,000 and in an integral
multiple of $1,000,000.
(b) If the Total Facility B Commitment is being reduced pursuant to
subsection (a) above and no Default or Event of Default has occurred and
is continuing, the reduction shall apply first to Tranche B-1, with the
remainder to be applied to Tranche B-2.
(c) On the Termination Date the Total Facility A Commitment shall be
zero.
(d) On the Facility B Termination Date, the Total Facility B
Commitment shall be zero.
(e) Subject to the provisions of Section 2.7(b) above, each reduction
in the Total Facility A Commitment or the Total Facility B Commitment
pursuant to this paragraph shall be made ratably among the Lenders in
accordance with their respective Facility A Commitments or Facility B
Commitments, as applicable.
(f) Simultaneously with any termination or reduction of the Facility
A Commitments or Facility B Commitments pursuant to this paragraph, the
Borrower shall pay to the Agent for the accounts of the Lenders the
Commitment Fees on the amount of the Total Facility A or Facility B
Commitment, as applicable, so terminated or reduced, accrued through the
date of such termination or reduction.
2.8 Loans. (a) Each Borrowing made by the Borrower on any date shall be
(i) in the case of Competitive Loans, in an integral multiple of $1,000,000 and
in a minimum aggregate principal amount of $5,000,000 and (ii) in the case of
Committed Loans, in an integral multiple of $1,000,000 and in a minimum
aggregate principal amount of $5,000,000. Competitive Loans shall be made by the
Lenders in accordance with Section 2.3(d), and Committed Loans shall be made by
the Lenders ratably in accordance with their respective Commitments on the
Borrowing Date of the Committed Borrowing; provided, however, that the failure
of any Lender to make any Loan shall not in itself relieve any other Lender of
its obligation to lend hereunder.
(b) Each Competitive Loan shall be a Eurodollar Loan or a Fixed Rate
Loan, and each Committed Loan shall be a Eurodollar Loan or a Base Rate
Loan, as the Borrower may request subject to and in accordance with
Section 2.3 or Section 2.4, as applicable. Each Lender may at its option
make any Eurodollar Loan by causing a foreign branch of such Lender to
make such Loan; provided, however, that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of the applicable Note and this Agreement. Loans of more
than one interest rate option may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Loan which, if made, would result in an aggregate of more than 10 separate
Borrowings being outstanding hereunder at any one time. For purposes of
the foregoing, Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Loans.
(c) Subject to Section 2.5, each Lender shall make its portion of
each Competitive Borrowing and each Committed Borrowing on the proposed
Borrowing Date thereof by paying the amount required to the Agent in
Dallas, Texas in immediately available funds not later than 12:00 noon,
Dallas, Texas time, and the Agent shall by 2:00 p.m., Dallas, Texas time,
credit the amounts so received to the general deposit account of the
Borrower with the Agent or, if Loans are not made on such date because any
condition precedent to a Borrowing herein specified shall not have been
met, return the amounts so received to the respective Lenders as soon as
practicable; provided, however, if and to the extent the Agent fails to
return any such amounts to a Lender on the Borrowing Date for such
Borrowing, the Agent shall pay interest on such unreturned amounts, for
each day from such Borrowing Date to the date such amounts are returned to
such Lender, at the Federal Funds Rate.
(d) The outstanding principal amount of each Competitive Loan and
each Committed Loan which is a Eurodollar Loan shall be due and payable on
the last day of the Interest Period applicable to such Competitive Loan or
Committed Loan, as the case may be, and the outstanding principal balance
of each Committed Loan which is a Base Rate Loan shall be due and payable
on the Termination Date or the Facility B Termination Date, as applicable;
provided that, after the Facility B Conversion, the outstanding principal
balance of the Facility B Committed Loans shall be due and payable in
accordance with the provisions of Section 2.13 (c) hereof.
2.9 Notes. The Competitive Loans made by each Lender shall be evidenced by
a single Competitive Note, payable to the order of such Lender in a principal
amount equal to the Total Facility A Commitment. The Facility A Committed Loans
made by each Lender shall be evidenced by a single Facility A Committed Note,
payable to the order of such Lender in a principal amount equal to the Facility
A Commitment of such Lender. The Facility B Committed Loans made by each Lender
shall be evidenced by a single Facility B Committed Note payable to the order of
such Lender in a principal amount equal to the Facility B Commitment of such
Lender. Each Note shall bear interest from the date thereof on the outstanding
principal balance thereof as set forth in Section 2.10 and Section 2.11. Each
Lender shall, and is hereby authorized by the Borrower to, make in its records
relating to such Note an appropriate notation evidencing the date and amount of
each Competitive Loan or Committed Loan, as applicable, of such Lender, and each
payment or prepayment of principal of any Competitive Loan or Committed Loan, as
applicable. The aggregate unpaid principal amount so recorded shall be
presumptive evidence of the principal amount owing by the Borrower to a Lender
and unpaid under the Note of such Lender. The failure of any Lender to make such
a notation or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Competitive Loans or Committed Loans, as applicable,
made by such Lender in accordance with the terms of the relevant Note.
2.10 Interest on Loans. (a) Subject to the provisions of Section 2.11,
each Eurodollar Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to the
lesser of (i) the Highest Lawful Rate and (ii) the Eurodollar Rate for the
Interest Period in effect for such Loan (A) plus or minus, as the case may be,
in the case of each Competitive Loan, the Applicable Margin specified by a
Lender with respect to such Loan in its Competitive Bid submitted pursuant to
Section 2.3(b) and (B) plus, in the case of each Committed Loan, the Applicable
Margin. Interest on each Eurodollar Loan shall be payable on each Interest
Payment Date applicable thereto. The applicable Eurodollar Rate for each
Interest Period shall be determined by the Agent, and such determination shall
be conclusive absent manifest error.
(b) Subject to the provisions of Section 2.11, each Base Rate Loan
shall bear interest at the rate per annum (computed on the basis of the
actual number of days elapsed over a year of (x) 365 or 366 days, as the
case may be if the Base Rate is based on the Prime Rate or (y) 360 days if
the Base Rate is based on the Federal Funds Rate) equal to the lesser of
(i) the Highest Lawful Rate and (ii) the Base Rate plus the Applicable
Margin. Interest on each Base Rate Loan shall be payable on each Quarterly
Payment Date applicable thereto. The applicable Base Rate shall be
determined by the Agent, and such determination shall be conclusive absent
manifest error.
(c) Subject to the provisions of Section 2.11, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed
rate of interest offered by the Lender making such Loan and accepted by
the Borrower pursuant to Section 2.3. Interest on each Fixed Rate Loan
shall be payable on each Interest Payment Date applicable thereto.
2.11 Interest on Overdue Amounts. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, the Borrower shall on demand from time to time pay interest, to
the extent permitted by Law, on such defaulted amount up to (but not including)
the date of actual payment (after as well as before judgment) at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the Default
Rate.
2.12 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 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 Agent shall, as soon as practicable thereafter, give telecopy notice
of such determination, stating the specific reasons therefor, to the Borrower,
the Auction Administration Agent, and the Lenders. In the event of any such
determination, any request by the Borrower for a Eurodollar Loan that is a
Committed Loan shall, until the circumstances giving rise to such notice no
longer exist, be deemed to be a request for a Base Rate Loan. Each determination
by the Agent hereunder shall be conclusive absent manifest error.
2.13 Mandatory and Optional Prepayment of Loans. (a) Prior to the
Termination Date or the Facility B Termination Date, as applicable, the Borrower
shall have the right at any time to prepay any Committed Borrowing, in whole or
in part, subject to the requirements of Section 2.16 and Section 2.17 but
otherwise without premium or penalty, but prepayment of Eurodollar Loans shall
require at least five Business Days prior written notice to the 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, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing by the amount stated therein. The
Borrower shall not have the right to prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the Total Facility
A Commitment or the Total Facility B Commitment pursuant to Section
2.7(a), the Borrower shall pay or prepay so much of the Loans as shall be
necessary in order that the aggregate principal amount of the Loans
outstanding will not exceed the Total Facility A Commitment or the Total
Facility B Commitment following such termination or reduction. Subject to
the foregoing and the requirements of Section 2.7, 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 2.16 and Section 2.17.
(c) After a Facility B Conversion, the principal of the Term Loan
shall be due and payable as follows:
(i) commencing on December 31, 1998, and continuing on each
Quarterly Payment Date thereafter, principal installments in an
amount equal to the percentages set forth below multiplied by the
original principal amount of the Term Loan:
Quarterly Payment Dates Percentage Amortization
December 31, 1998 through September 30, 1999 1.25%
December 31, 1999 through September 30, 2000 1.25%
December 31, 1999 through September 30, 2001 2.50%
December 31, 2001 through June 30, 2002 2.50%; and
(ii) on the Termination Date, the entire remaining principal
amount of the Term Loan shall be due and payable.
(d) After a Facility B Conversion and prior to the Termination Date,
the Borrower shall have the right at any time to prepay the Term Loan, in
whole or in part, without premium or penalty; provided, however, that (i)
each such partial prepayment shall be in an integral multiple of
$1,000,000 and in a minimum aggregate principal amount of $5,000,000 and
(ii) except after the occurrence and during the continuance of a Default
or an Event of Default, each such prepayment shall be applied in order of
maturity, and first to Tranche B-1 and then to Tranche B-2.
(e) Upon the sale by the Borrower or any Subsidiary of any of its
assets, the Borrower shall prepay the Facility B Committed Loans (or the
Term Loan if the Facility B Conversion has occurred) in an amount equal to
100% of the Net Cash Proceeds received above five percent of the
Consolidated Net Worth of the Companies by the Borrower or any Subsidiary;
provided that no prepayment shall be required if the proceeds of such
asset sale are reinvested in equivalent assets within the 12-month period
immediately following the sale. Any prepayment made under this Section
2.13(e) (i) shall reduce the Total Facility B Commitment by the amount of
such prepayment and (ii) after the Facility B Conversion has occurred
shall, except after the occurrence and during the continuance of a Default
or an Event of Default, be applied in order of maturity, and first to
Tranche B-1 and then to Tranche B-2.
(f) Upon the issuance by the Borrower of any public or privately
placed Debt or equity securities, the Borrower shall prepay the Facility B
Committed Loans (or the Term Loan if the Facility B Conversion has
occurred) in an amount equal to 100% of the Net Cash Proceeds received by
the Borrower. Any prepayment made under this Section 2.13(f) (i) shall
reduce the Total Facility B Commitment by the amount of such prepayment
and (ii) after the Facility B Conversion has occurred, shall, except after
the occurrence and during the continuance of a Default or an Event of
Default, be applied in order of maturity, and first to Tranche B-1 and
then to Tranche B-2; provided that, the Total Facility B Commitment (or
after the Facility B Conversion, the Term Loan) shall not be required to
be reduced to an amount which, when added to the Total Facility A
Commitment, is less than $800,000,000.
(g) All prepayments under this Section 2.13 shall be accompanied by
accrued interest on the principal amount being prepaid to the date of
prepayment.
2.14 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 or Fixed Rate 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, 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 Fixed Rate 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 Agent for the account of such Lender such additional amount or amounts as
will compensate such Lender for such increase or reduction to such Lender, to
the extent such amounts have not been included in the calculation of the
Eurodollar Rate, upon demand by such Lender (through the Agent). Notwithstanding
the foregoing, in no event shall any Lender be permitted to receive any
compensation hereunder constituting interest in excess of the Highest Lawful
Rate.
(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 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 Agent). Notwithstanding the foregoing, in no event shall any
Lender be permitted to receive any compensation hereunder constituting
interest in excess of the Highest Lawful Rate.
(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 Agent) promptly after such
Lender determines it is entitled to compensation under this Section 2.14,
and shall be conclusive and binding absent manifest error. The Borrower
shall pay to the 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 2.14 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 2.14, 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 Eligible Assignees 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
2.14 agrees to sell its Commitment, Loans, Notes, and interest in this
Agreement and the other Loan Papers to any such Eligible Assignee 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 2.14 and as to which such Lender has delivered the
certificate required by Section 2.14(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) Notwithstanding anything herein to the contrary, no Lender shall
be entitled to any compensation under this Section 2.14 with respect to
any Competitive Loan.
(g) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 2.14, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
Applicable 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.
(h) Without prejudice to the survival of any other obligations of the
Borrower hereunder, the obligations of the Borrower under this Section
2.14 shall survive for one year after the termination of this Agreement
and/or the payment or assignment of any of the Loans or Notes.
2.15 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 Agents,
such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon the Borrower shall be prohibited
from requesting Eurodollar Loans from such Lender hereunder unless
such declaration is subsequently withdrawn; and
(ii) if such unlawfulness shall be effective prior to the end of
any Interest Period of an outstanding Eurodollar Loan, require that
all outstanding Eurodollar Loans with such Interest Periods made by
it be converted to Base Rate Loans, in which event (A) all such
Eurodollar Loans shall be automatically converted to Base Rate Loans
as of the effective date of such notice as provided in paragraph (b)
below and (B) all payments and prepayments of principal which would
otherwise have been applied to repay the converted Eurodollar Loans
shall instead be applied to repay the Base Rate Loans resulting from
the conversion of such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower (with
a copy to the Agent) by any Lender pursuant to paragraph (a) above shall
be effective on the date of receipt thereof by the Borrower.
2.16 INDEMNITY. THE BORROWER SHALL INDEMNIFY EACH LENDER AGAINST ANY LOSS
OR REASONABLE EXPENSE WHICH SUCH LENDER MAY SUSTAIN OR INCUR AS A CONSEQUENCE OF
(A) ANY FAILURE BY THE BORROWER TO FULFILL ON THE DATE OF ANY BORROWING
HEREUNDER THE APPLICABLE CONDITIONS SET FORTH IN SECTION 4, (B) ANY FAILURE BY
THE BORROWER TO BORROW HEREUNDER AFTER A NOTICE OF COMMITTED BORROWING PURSUANT
TO SECTION 2 HAS BEEN GIVEN OR AFTER COMPETITIVE BIDS HAVE BEEN ACCEPTED, (C)
ANY PAYMENT, PREPAYMENT, OR CONVERSION OF A EURODOLLAR LOAN OR FIXED RATE LOAN
REQUIRED BY ANY OTHER PROVISION OF THIS AGREEMENT OR OTHERWISE MADE ON A DATE
OTHER THAN THE LAST DAY OF THE APPLICABLE INTEREST PERIOD FOR ANY REASON,
INCLUDING WITHOUT LIMITATION THE ACCELERATION OF OUTSTANDING LOANS AS A RESULT
OF ANY EVENT OF DEFAULT, (D) ANY FAILURE BY THE BORROWER FOR ANY REASON
(INCLUDING WITHOUT LIMITATION THE EXISTENCE OF A DEFAULT OR AN EVENT OF DEFAULT)
TO PAY, PREPAY OR CONVERT A EURODOLLAR LOAN ON THE DATE FOR SUCH PAYMENT,
PREPAYMENT OR CONVERSION, SPECIFIED IN THE RELEVANT NOTICE OF PAYMENT,
PREPAYMENT OR CONVERSION UNDER THIS AGREEMENT. THE INDEMNITY OF THE BORROWER
PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE SHALL INCLUDE, BUT NOT BE LIMITED
TO, ANY LOSS OR REASONABLE EXPENSE SUSTAINED OR INCURRED OR TO BE SUSTAINED OR
INCURRED IN LIQUIDATING OR EMPLOYING DEPOSITS FROM THIRD PARTIES ACQUIRED TO
EFFECT OR MAINTAIN SUCH LOAN OR ANY PART THEREOF AS A EURODOLLAR LOAN OR FIXED
RATE LOAN. SUCH LOSS OR REASONABLE EXPENSE SHALL INCLUDE, WITHOUT LIMITATION, AN
AMOUNT EQUAL TO THE EXCESS, IF ANY, AS REASONABLY DETERMINED BY EACH LENDER OF
(I) ITS COST OF OBTAINING THE FUNDS FOR THE LOAN BEING PAID, PREPAID, OR
CONVERTED OR NOT BORROWED, PAID, PREPAID OR CONVERTED (BASED ON THE EURODOLLAR
RATE OR, IN THE CASE OF A FIXED RATE LOAN, THE FIXED RATE OF INTEREST APPLICABLE
THERETO) FOR THE PERIOD FROM THE DATE OF SUCH PAYMENT, PREPAYMENT, OR CONVERSION
OR FAILURE TO BORROW, PAY, PREPAY OR CONVERT TO THE LAST DAY OF THE INTEREST
PERIOD FOR SUCH LOAN (OR, IN THE CASE OF A FAILURE TO BORROW, PAY, PREPAY OR
CONVERT, THE INTEREST PERIOD FOR THE LOAN WHICH WOULD HAVE COMMENCED ON THE DATE
OF SUCH FAILURE TO BORROW, PAY, PREPAY OR CONVERT) OVER (II) THE AMOUNT OF
INTEREST (AS REASONABLY DETERMINED BY SUCH LENDER) THAT WOULD BE REALIZED BY
SUCH LENDER IN REEMPLOYING THE FUNDS SO PAID, PREPAID, OR CONVERTED OR NOT
BORROWED, PAID, PREPAID OR CONVERTED FOR SUCH PERIOD OR INTEREST PERIOD, AS THE
CASE MAY BE. A CERTIFICATE OF EACH LENDER SETTING FORTH ANY AMOUNT OR AMOUNTS
AND, IN REASONABLE DETAIL, THE COMPUTATIONS THEREOF, WHICH SUCH LENDER IS
ENTITLED TO RECEIVE PURSUANT TO THIS SECTION 2.16 SHALL BE DELIVERED TO THE
BORROWER (WITH A COPY TO THE AGENT) AND SHALL BE CONCLUSIVE, IF MADE IN GOOD
FAITH, ABSENT MANIFEST ERROR. THE BORROWER SHALL PAY TO THE AGENT FOR THE
ACCOUNT OF EACH LENDER THE AMOUNT SHOWN AS DUE ON ANY CERTIFICATE WITHIN 30 DAYS
AFTER ITS RECEIPT OF THE SAME. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL
ANY LENDER BE PERMITTED TO RECEIVE ANY COMPENSATION HEREUNDER CONSTITUTING
INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE. WITHOUT PREJUDICE TO THE SURVIVAL
OF ANY OTHER OBLIGATIONS OF THE BORROWER HEREUNDER, THE OBLIGATIONS OF THE
BORROWER UNDER THIS SECTION 2.16 SHALL SURVIVE FOR ONE YEAR AFTER THE
TERMINATION OF THIS AGREEMENT AND/OR THE PAYMENT OR ASSIGNMENT OF ANY OF THE
LOANS OR NOTES.
2.17 Pro Rata Treatment. (a) Unless otherwise specifically provided
herein, each payment or prepayment of principal and each payment of interest
with respect to a Competitive Borrowing (at a particular Competitive Bid Rate)
or a Committed Borrowing shall be made pro rata among the Lenders in accordance
with the respective principal amounts of the Loans extended by each Lender, if
any, with respect to such Competitive Borrowing or Committed Borrowing, and (b)
conversions of Committed Loans to Committed Loans of another Type, continuations
of Committed Loans that are Eurodollar Loans from one Interest Period to another
Interest Period, refinancings of Competitive Loans with Committed Loans, and
Committed Loans which are not refinancings of other Loans shall be made pro rata
among the Lenders in accordance with their respective Commitments.
2.18 Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff, or counterclaim against the
Borrower, including, but not limited to, a secured claim under Section 506 of
Title 11 of the United States Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Lender under any applicable
Debtor Relief Law or otherwise, obtain payment (voluntary or involuntary) in
respect of the Committed Note held by it (other than pursuant to Section 2.14 or
Section 2.16) as a result of which the unpaid principal portion of the Committed
Note held by it shall be proportionately less than the unpaid principal portion
of the Committed Note held by any other Lender, it shall be deemed to have
simultaneously purchased from such other Lender a participation in the Committed
Note held by such other Lender, so that the aggregate unpaid principal amount of
the Committed Note and participations in Committed Notes held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all
Committed Notes then outstanding as the principal amount of the Committed Note
held by it prior to such exercise of banker's lien, setoff, or counterclaim was
to the principal amount of all Committed Notes outstanding prior to such
exercise of banker's lien, setoff, or counterclaim; provided, however, that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.18 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Committed Note deemed to
have been so purchased may, upon the existence of an Event of Default, exercise
any and all rights of banker's lien, setoff, or counterclaim with respect to any
and all moneys owing by the Borrower to such Lender as fully as if such Lender
had made a Committed Loan directly to the Borrower in the amount of such
participation.
2.19 Payments. (a) The Borrower shall make each payment hereunder and
under any instrument delivered hereunder not later than 1:00 p.m. (Dallas, Texas
time) on the day when due in dollars to the Agent at its address referred to on
Schedule 1 for the account of the Lenders, in immediately available funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal of or interest on Committed Loans (other than pursuant
to Section 2.14 and Section 2.16) or Commitment Fees ratably to the Lenders and
like funds relating to the payment of any other amount (including, without
limitation, payments of principal or interest on Competitive Loans and
prepayments on Facility B Committed Loans which are not made ratably to the
Lenders) payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.
(b) Whenever any payment hereunder or under any Note shall be stated
to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in
all such case be included in the computation of payment of interest or
Commitment Fee, as the case may be; provided, however, if such extension
would cause payment of interest on or principal of a Eurodollar Loan to be
made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
(c) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume
that the Borrower has made or will make such payment in full to the Agent
on such date and the Agent may, in reliance upon such assumption, cause to
be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall not
have so made such payment in full to the Agent, each Lender shall repay to
the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount
to the Agent, at the Federal Funds Rate.
(d) All payments (whether of principal, interest, fees,
reimbursements, or otherwise) by the Borrower under this Agreement shall
be made without setoff or counterclaim and shall be made free and clear of
and without deduction for any present or future Tax, levy, impost, or any
other charge against the Borrower, if any, of any nature whatsoever now or
hereafter imposed by any Tribunal excluding, in the case of each Lender
and the Agent, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the Laws of which such Lender (or its
Applicable Lending Office) or the Agent (as the case may be) is organized
or any political subdivision thereof. If the making of such payments by
the Borrower is prohibited by Law unless such a Tax, levy, impost, or
other charge is deducted or withheld therefrom, the Borrower shall pay to
the Agent, on the date of each such payment, such additional amounts
(without duplication of any other amounts required to be paid by the
Borrower pursuant to Section 2.14) as may be necessary in order that the
net amounts received by the Lenders after such deduction or withholding
shall equal the amounts which would have been received if such deduction
or withholding were not required. The Borrower shall confirm that all
applicable Taxes, if any, imposed on this Agreement or transactions
hereunder shall have been properly and legally paid by it to the
appropriate taxing authorities by sending official Tax receipts or
notarized copies of such receipts to the Agent within 30 days after
payment of any applicable Tax.
(e) So long as no Event of Default has occurred and is continuing,
payments and prepayments of the Obligation shall be applied first to
accrued interest then due and payable and to the remaining Obligation in
the order and manner as the Borrower may direct; provided, however, unless
a Default or Event of Default has occurred and is continuing, any payments
and prepayments made pursuant to Section 2.7(a) or Sections 2.13(a)
through (f) with respect to Facility B Committed Loans shall be applied
first to accrued interest then due and payable, then to principal of
Tranche B-1 and finally to principal of Tranche B-2, and in order of
maturity. At any time during which an Event of Default has occurred and is
continuing or if the Borrower fails to give direction, any payment or
prepayment shall be applied in the following order: (i) to expenses and
fees for which the Agents and the Lenders have not been reimbursed in
accordance with the Loan Papers; (ii) to accrued interest; and (iii) to
the remaining Obligation in the order and manner as the Majority Lenders
deem appropriate.
2.20 Calculation of Eurodollar Rate. The provisions of this Agreement
relating to calculation of the Eurodollar Rate are included only for the purpose
of determining the rate of interest or other amounts to be paid hereunder that
are based upon such rate, it being understood that each Lender shall be entitled
to fund and maintain its funding of all or any part of a Eurodollar Loan as it
sees fit. All such determinations hereunder, however, shall be made as if each
Lender had actually funded and maintained funding of each Eurodollar Loan
through the purchase in the London interbank market of one or more eurodollar
deposits, in an amount equal to the principal amount of such Loan and having a
maturity corresponding to the Interest Period for such Loan.
2.21 Booking Loans. Any Lender may make, carry, or transfer
Loans at, to, or for the account of any of its branch offices.
2.22 Quotation of Rates. It is hereby acknowledged that the Borrower may
call the Agent on or before the date on which notice of a Borrowing is to be
delivered by the Borrower in order to receive an indication of the rate or rates
then in effect, but that such projection shall not be binding upon the Agent or
any Lender nor affect the rate of interest which thereafter is actually in
effect when the election is made.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower
- -----------------------------------------
represents and warrants to the Agents and the Lenders as follows:
3.1 Purpose of Credit Facility. The Borrower will use Loan proceeds only
(i) to finance the Acquisition, (ii) to repay all of the indebtedness of the
Borrower under the Existing Credit Agreement, (iii) to refinance existing senior
credit facilities of the Borrower, PTI and PTI's subsidiaries, and (iv) for
working capital and other lawful corporate purposes of the Companies. The
proceeds loaned hereunder will not be used directly or indirectly for the
purpose of purchasing or carrying, or for the purpose of extending credit to
others for the purpose of purchasing or carrying, any Margin Stock, or to repay
any Debt which was created for such purposes.
3.2 Corporate Existence, Good Standing,and Authority. Each Company is, to
the best of the Borrower's knowledge, duly organized, validly existing, and in
good standing under the Laws of its state of incorporation (such jurisdictions
being identified on Exhibit 21 of Borrower's most recent annual report filed
with the Securities and Exchange Commission on Form 10-K). Except where failure
would not reasonably be expected to have a Material Adverse Effect, each Company
(a) is duly qualified to transact business and is in good standing as a foreign
corporation in each jurisdiction where the nature and extent of its business and
properties require the same (such jurisdictions being identified on Exhibit 21
of Borrower's most recent annual report filed with the Securities and Exchange
Commission on Form 10-K) and (b) possesses all requisite authority, power,
licenses, permits, and franchises to conduct its business as is now being, or is
contemplated herein to be, conducted. The Borrower possesses all requisite
authority, power, licenses, permits, and franchises to execute, deliver, and
comply with the terms of the Loan Papers, all which have been duly authorized
and approved by all necessary corporate action and, except where failure would
not reasonably be expected to have a Material Adverse Effect, for which no
approval or consent of any Person or Tribunal is required which has not been
obtained and no filing or other notification to any Person or Tribunal is
required which has not been properly completed.
3.3 Subsidiaries.Exhibit 21 of Borrower's most recent annual report filed
with the Securities and Exchange Commission on Form 10-K sets forth, in all
material respects, all existing Subsidiaries of the Borrower and correctly
lists, as to each Subsidiary, (a) its name and (b) its jurisdiction of
incorporation. The shares of capital stock of each Subsidiary owned by the
Borrower (either directly or indirectly through another Subsidiary) as set forth
on Exhibit 21 of Borrower's most recent annual report filed with the Securities
and Exchange Commission on Form 10-K are the duly authorized, validly issued,
fully paid, and nonassessable shares of such Subsidiary and are owned by the
Borrower free and clear of all Liens except Permitted Liens.
3.4 Financial Statements. The Current Financials were prepared in
accordance with GAAP and present fairly the consolidated financial condition and
the results of operations of the Companies as of, and for the periods ended, the
dates thereof. There were no material (to the Companies taken as a whole)
liabilities, direct or indirect, fixed or contingent, of any Company as of the
date of the Current Financials which are not reflected therein. No Company has
incurred any material (to the Companies taken as a whole) liability, direct or
indirect, fixed or contingent, between the dates of the Current Financials and
the date hereof, except in the ordinary course of business, such as in
connection with acquisitions and financing activities.
3.5 Compliance with Laws, Charter, and Agreements.No Company is, nor will
the execution, delivery, performance, or observance of the Loan Papers cause any
Company to be, in violation of any Laws or any Material Agreements to which it
is a party, other than such violations which would not reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any Significant
Subsidiary is, nor will the execution, delivery, performance, or observance of
the Loan Papers cause the Borrower or any Significant Subsidiary to be, in
violation of its bylaws or charter.
3.6 Litigation. Except as described on Schedule 3.6 and to the knowledge
of the Borrower, no Company is aware of any "Material" Litigation, and there are
no Material outstanding or unpaid judgments against any Company. Material for
purpose of this Section 3.6 in relation to Litigation would include any actions
or proceedings pending or threatened against any Company before any court or
Tribunal seeking damages, net of insurance proceeds to the Company, in excess of
$10,000,000 in any case or 1% of Consolidated Net Worth in the aggregate, or
which might result in any Material Adverse Effect.
3.7 Taxes. All Tax returns of each Company required to be filed have been
filed (or extensions have been granted) except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect, and all Taxes
imposed upon each Company which are due and payable have been paid other than
Taxes for which the criteria for Permitted Liens have been satisfied.
3.8 Environmental Matters. No Company's ownership of its assets violates
any applicable Environmental Law, other than such violations which would not
reasonably be expected to have a Material Adverse Effect. To the Borrower's
knowledge, no investigation or review is pending or threatened by any Tribunal
with respect to any alleged violation of any Environmental Law in connection
with any Company's assets. None of any Company's assets have been used by such
Company or, to the Borrower's knowledge, any other Person as a dump site for any
Hazardous Substance except where such use would not reasonably be expected to
have a Material Adverse Effect.
3.9 Employee Benefit Plans.(a) No employee benefit plan as defined in the
Code and Title IV of ERISA of any Company has incurred an accumulated funding
deficiency in an amount sufficient to have a Material Adverse Effect, (b) no
Company has incurred liability to the PBGC in connection with any such plan
where such liability could reasonably be expected to have a Material Adverse
Effect, (c) no Company has withdrawn in whole or in part from participation in a
Multiemployer Plan where the withdrawal could reasonably be expected to have a
Material Adverse Effect, and (d) to the best of the Borrower's knowledge, no
"prohibited transaction" (as defined in section 406 of ERISA or section 4975 of
the Code) or "reportable event" (as defined in section 4043 of ERISA) has
occurred which could reasonably be expected to have a Material Adverse Effect.
3.10 Properties; Liens. Each Company has good and marketable (except for
Permitted Liens) title to all its property reflected on the Current Financials
(except for dispositions of property in the ordinary course of business between
the date or dates thereof and the date hereof). Except for Permitted Liens,
there is no Lien on any property of any Company, and the execution, delivery,
performance, or observance of the Loan Papers will not require or result in the
creation of any Lien other than Permitted Liens.
3.11 Holding Company and Investment Company Status. The Borrower is not
(a) a "holding company," a "subsidiary company" of a "holding company," an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, (b) a "public utility" within the meaning of
the Federal Power Act, as amended, (c) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (d) an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended,
or (e) directly subject to the jurisdiction of the Federal Communications
Commission or any public service commission.
3.12 Transactions with Affiliates. Except as disclosed on Schedule 3.12,
no Company is a party to a material transaction with any of its Affiliates other
than transactions in the ordinary course of business and upon fair and
reasonable terms not materially less favorable than such Company could obtain or
could become entitled to in an arm's-length transaction with a Person that was
not its Affiliate. For purposes of this Section 3.12, such transactions are
"material" if they, individually or in the aggregate, require any Company to pay
more than 1 percent of Consolidated Net Worth over the course of such
transactions.
3.13 Leases. All material leases under which any Company is lessee or
tenant are in full force and effect, and no default or potential default exists
thereunder.
3.14 Labor Matters. There are no actual or, to the Borrower's knowledge,
threatened strikes, labor disputes, slow downs, walkouts, or other concerted
interruptions of operations by any Company's employees, the effect of which
would have a Material Adverse Effect.
3.15 Insurance. Each Company maintains with financially sound insurance
companies or associations (or, as to workers' compensation or similar insurance,
with an insurance fund or by self-insurance authorized by the jurisdictions in
which it operates) insurance concerning its properties and businesses against
such casualties and contingencies and of such types and in such amounts (and
with co-insurance and deductibles) as is customary in the case of same or
similar businesses; provided, however, a program of self-insurance in such
amounts and against such risks as are prudent and which is consistent with
accepted business practice shall constitute compliance with this Section 3.15.
3.16 Solvency. The Companies are, and after giving effect to the
transactions contemplated under the Loan Papers will be, solvent.
3.17 Business. The business of the Borrower, as presently conducted and as
proposed to be conducted, is set forth on Schedule 3.17.
3.18 General. All writings exhibited or delivered to the Agent by or on
behalf of any Company are and will be genuine and in all material respects what
they purport and appear to be.
SECTION 4. CONDITIONS PRECEDENT.
- --------------------------------
4.1 Initial Loan. No Lender will be obligated to fund the initial Loan
unless the Agent has received all of the following in form and substance
satisfactory to the Agent and its special counsel:
(a) Loan Papers. This Agreement, the Notes, a Notice
of Committed Borrowing or a Competitive Bid Request, and the
Current Financials.
(b) Officers' Certificates. A certificate dated as of the date
hereof, executed and delivered by the Borrower, certifying that (i)
attached is a true, correct, and complete copy of (A) the Borrower's
charter, certified by the appropriate state official and dated a Current
Date, (B) the Borrower's bylaws, and (C) resolutions of the Borrower's
board of directors authorizing the execution and delivery of each Loan
Paper to which the Borrower is a party and (ii) the officers whose
specimen signatures appear on such certificate hold the corporate office
indicated and are authorized to sign agreements, documents, and
instruments on behalf of the Borrower.
(c) Good Standing, Existence, and Authority. Certificates (dated a
Current Date) relating to the Borrower's existence, good standing, and
authority to transact business issued by appropriate state officials as
set forth on Exhibit 21 of Borrower's most recent annual report filed with
the Securities and Exchange Commission on Form 10-K.
(d) Opinions of Borrower's Counsel. The favorable opinion, dated the
Closing Date and substantially in the form of Exhibit E of Boles, Boles &
Ryan, special counsel to the Borrower.
(e) Payoff of Existing Loans. Evidence that all Debt of the Borrower
under the Existing Credit Agreement has been paid in full and that the
Existing Credit Agreement has been terminated.
(f) Fees and Expenses. Payment from the Borrower of all fees then due
the Agents or the Lenders pursuant to this Agreement or any other
agreement.
(g) Other. Such other agreements, documents, instruments, opinions,
certificates, and evidences as the Agent may reasonably request.
4.2 Initial Facility B Loan. No Lender will be obligated to fund the
initial Facility B Committed Loan unless the Agent has received, in form and
substance satisfactory to the Agent and its special counsel:
(a) Closing of Acquisition. Evidence that all conditions precedent to
the closing of the Acquisition (except payment of the purchase price) have
been satisfied, together with copies of all of the executed Acquisition
Documents.
(b) Opinions of PTI's Counsel. A letter from PTI's counsel stating
that the Agent and the Lenders may rely on PTI's counsel's opinion to the
Borrower issued in connection with the Acquisition, together with a copy
of such opinion, both in form and substance satisfactory to Agent.
4.3 Each Loan. In addition, the Lenders will not be obligated to fund any
Loan unless at the time of such funding (a) the representations and warranties
made in the Loan Papers are true and correct in all material respects (except to
the extent that (i) the representations and warranties speak to a specific date
or (ii) the facts on which such representations and warranties are based have
been changed by transactions contemplated or permitted by this Agreement), (b)
no Default or Event of Default shall have occurred and shall be continuing, (c)
the funding of such Loan is permitted by Law, and (d) if requested by the Agent
or the Majority Committed Lenders, the Borrower shall have delivered to the
Agent evidence substantiating any of the matters contained in this Agreement
which are necessary to enable the Borrower to qualify for such Loan.
4.4 Materiality of Conditions.Each condition precedent herein is material
to the transactions contemplated herein, and time is of the essence in respect
of each thereof.
4.5 Waiver of Conditions. Subject to the provisions of Section 9.15, the
Majority Committed Lenders may elect to fund any Loan without all conditions
being satisfied, but this shall not be deemed to be a waiver of the requirement
that each such condition precedent be satisfied as a prerequisite for any
subsequent Loan, unless the Majority Committed Lenders (or, if required by
Section 9.15, all Lenders) specifically waive each such item in writing.
SECTION 5. COVENANTS. So long as the Lenders are committed to
- --------------------
make Loans under this Agreement and thereafter until the Obligation is paid and
performed in full, unless the Borrower receives a prior written notice from the
Majority Lenders (or, if required by Section 9.15, all Lenders) that they do not
object to a deviation, the Borrower covenants and agrees with the Agents and the
Lenders as follows:
5.1 Use of Proceeds. Proceeds of Loans advanced hereunder shall be used
only as represented herein.
5.2 Books and Records. Each Company shall maintain, in accordance with
GAAP, proper and complete books, records, and accounts which are necessary to
prepare the financial statements required to be delivered hereunder.
5.3 Items to be Furnished. The Borrower shall cause the following to be
furnished to the Agent:
(a) Promptly after preparation, and no later than 120 days after the
last day of each fiscal year of the Borrower, Financial Statements showing
the consolidated financial condition and results of operations of the
Companies as of, and for the year ended on, such last day, accompanied by
(i) the opinion of KPMG Peat Marwick LLP (or another firm of
nationally-recognized independent certified public accountants reasonably
acceptable to Majority Lenders), based on an audit using generally
accepted auditing standards, that such Financial Statements were prepared
in accordance with GAAP and present fairly the consolidated financial
condition and results of operations of the Companies (and such accountants
shall indicate in a letter to the Agent, that during their audit no
Default or Event of Default not already reported was discovered or, if
such Default or Event of Default was discovered, the nature and period of
existence thereof) and (ii) a Financial Report Certificate with respect to
such Financial Statements.
(b) Promptly after preparation, and no later than 60 days after the
last day of each of the first three quarters of each fiscal year of the
Borrower, (i) Financial Statements showing the consolidated financial
condition and results of operations of the Companies as of, and for the
period from the beginning of the current fiscal year to, such last day,
and (ii) a Financial Report Certificate with respect to such Financial
Statements.
(c) Promptly after preparation (and no later than the later of 15
days (a) after such filing is due or (b) after timely filing, if filed
with the Securities and Exchange Commission), true copies of all regular
and periodic reports, statements, documents, plans, and other written
communications furnished by or on behalf of any Company to stockholders or
to the Securities and Exchange Commission. However, only registration
statements covering more than 2 percent of the Borrower's outstanding
shares of common stock shall be required to be furnished unless
specifically requested by the Agent.
(d) Promptly upon receipt thereof, copies of any notices received
from any Tribunal (including, without limitation, state regulatory
agencies) relating to the possible violation or violation of any Law which
might adversely affect the material franchises, permits, or rights for the
operation of the business of any Company.
(e) Notice, promptly after the Borrower knows or has reason to know
of, (i) the existence of any Material Litigation as defined in Section
3.6, (ii) any material change in any material fact or circumstance
represented or warranted in any Loan Paper, or (iii) a Default or Event of
Default, specifying the nature thereof and what action the Borrower or any
other Company has taken, is taking, or proposes to take with respect
thereto.
(f) Notice, promptly after the Borrower knows or has reason to know
of, a Subsidiary Encumbrance, as defined in Section 5.25(c).
(g) Promptly upon the Agent's reasonable request, such information
(not otherwise required to be furnished under the Loan Papers) respecting
the business affairs, assets, and liabilities of any Company, and any
opinions, certifications, and documents, in addition to those mentioned
herein.
5.4 Inspection. The Borrower shall allow the Agent and each Lender, when
the Agent or such Lender reasonably deems necessary, at such Lender's own
expense if no Default then exists, to inspect any of its properties, to review
reports, files, and other records and to make and take away copies thereof, to
conduct tests or investigations, and to discuss any of its affairs, conditions,
and finances with any director, officer, or employee of such Company from time
to time, upon reasonable notice during reasonable business hours, or otherwise
when reasonably considered necessary.
5.5 Taxes. Each Company shall promptly pay when due any Taxes, except
those which if unpaid would not cause a Material Adverse Effect and Taxes for
which the criteria for Permitted Liens have been satisfied. No Company shall use
any proceeds of Loans to pay the wages of employees unless a timely payment to
or deposit with the United States of America of all amounts of Tax required to
be deducted and withheld with respect to such wages is also made.
5.6 Payment of Obligations. Each Company shall promptly pay (or renew and
extend) all of its material obligations as the same become due, but no Company
will make any voluntary prepayment of the principal of any Debt other than the
Obligation, whether subordinate to the Obligation or not, if a Default or Event
of Default exists under any Loan Paper.
5.7 Expenses of Agent. The Borrower shall promptly pay all reasonable and
necessary out-of-pocket costs, fees, and expenses paid or incurred by the Agent
incident to any Loan Paper (including, but not limited to, the reasonable fees
and expenses of counsel to the Agent in connection with the negotiation,
preparation, delivery, and execution of the Loan Papers and any related
amendment, waiver, or consent) or to the enforcement of the obligations of any
Company or the exercise of any Rights (including, but not limited to, reasonable
attorneys' fees and court costs), all of which shall be a part of the
Obligation.
5.8 Maintenance of Existence, Assets, Business, and Insurance. Except as
permitted by Section 5.14, each Company shall at all times: Maintain its
corporate existence and authority to transact business and good standing in its
jurisdiction of incorporation or organization and all other jurisdictions where
the failure to so maintain could reasonably be expected to have a Material
Adverse Effect; maintain all licenses, permits, and franchises necessary for its
business, where the failure to so maintain could reasonably be expected to have
a Material Adverse Effect; keep all of its assets which are necessary to its
business in good working order and condition (ordinary wear and tear excepted),
and make all necessary repairs and replacements thereto; and maintain either (a)
insurance with such insurers, in such amounts, and covering such risks, as shall
be ordinary and customary in the industry or (b) a comparable self-insurance
program.
5.9 Preservation and Protection of Rights.Each Company shall perform such
acts and duly authorize, execute, acknowledge, deliver, file, and record any
additional agreements, documents, instruments, and certificates as the Agent may
reasonably deem necessary or appropriate in order to preserve and protect the
Rights of the Agents or the Lenders under any Loan Paper.
5.10 Employee Benefit Plans. No Company will, directly or indirectly, if
it would have a Material Adverse Effect, (a) engage in any "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the Code),
(b) permit the funding requirements under ERISA with respect to any employee
benefit plan established or maintained by any Company to ever be less than the
minimum required by ERISA, (c) permit any employee benefit plan established or
maintained by any Company to ever be subject to involuntary termination
proceedings, or (d) fully or partially withdraw from any Multiemployer Plan.
5.11 Liens. No Company will create, incur, or suffer or permit to be
created or incurred or to exist any Lien (other than Permitted Liens) upon any
of its assets unless the Obligations then outstanding shall be secured by such
Lien equally and ratably with any and all obligations and indebtedness secured
by such Lien.
5.12 Restricted Payments. The Borrower will not directly or indirectly
make or declare any Restricted Payment, unless no Default has occurred and is
continuing or would result from such Restricted Payment.
5.13 Refinancing of PTI Debt. The Borrower agrees, that to the extent it
refinances any Debt of PTI and PTI's subsidiaries, that it will use its best
efforts to refinance such Debt with Debt incurred as a result of such
refinancing by the Borrower.
5.14 Acquisitions, Mergers, and Dissolutions. No Company will merge or
consolidate with any Person other than any merger or consolidation whereby the
Borrower (or another Company, if the Borrower is not a party thereto) is the
surviving corporation and immediately after such merger or consolidation there
shall not exist any Default or Event of Default.
5.15 Loans, Advances, and Investments. Except as permitted by Section
5.14, no Company will make any loan, advance, extension of credit, or capital
contribution to, make any investment in, or purchase or commit to purchase any
stock or other securities or evidences of Debt of, or interests in, any other
Person, other than (a) the Acquisition, (b) expense accounts for and other
advances to directors, officers, and employees of such Company in the ordinary
course of business not to exceed $1,000,000 in the aggregate outstanding at any
time; (c) investments in (or secured by) obligations of the United States of
America and agencies thereof and obligations guaranteed by the United States of
America maturing within one year from the date of acquisition; (d) certificates
of deposit issued by any of the Lenders; (e) certificates of deposit which are
fully insured by the Federal Deposit Insurance Corporation or are issued by
commercial banks organized under the Laws of the United States of America or any
state thereof and having combined capital, surplus, and undivided profits of not
less than $100,000,000 (as shown on such Person's most recently published
statement of condition), and which certificates of deposit have one of the two
highest ratings from Moody's or S&P, unless Borrower has a written commitment to
borrow funds from such commercial bank; (f) commercial paper rated A-1 by
Moody's or P-1 by S&P; (g) investments having one of the two highest ratings
from Moody's or S&P; (h) extensions of credit in connection with trade
receivables and overpayments of trade payables, in each case resulting from
transactions in the ordinary course of business; (i) loans from any Company to
any other Company, investments by any Company in any other Company, and
Guaranties by any Company of the Debt of any other Company; (j) investments in
the cash surrender value of life insurance policies issued by Persons with a
financial rating from A. M. Best Company (as reported in Best's Insurance
Reports) of at least "A+"; provided, however, that if such Person's financial
rating is downgraded to less than "A+", then within 90 days following such
downgrading, either (i) such cash value life insurance policies will be
transferred to another insurance company with a financial rating of at least
"A+", (ii) such cash value insurance policies will be collapsed and the cash
value thereof will be collected by the investing Company, or (iii) such
investment will become an investment subject to the limitations of subparagraph
(n) of this Section 5.15; (k) investments in the capital stock or securities of
or loans to or Guaranties of the Debt of any Person engaged in business
comparable to the general business of any Company (x) in which a Company
possesses (or will possess, after such investment) an equity ownership interest
in such Person or (y) secured by the borrower's interest in such business; (l)
in the ordinary course of business, investments in the capital stock of the
Rural Telephone Bank, National Bank for Cooperatives, or the National Rural
Utilities Cooperative Finance Corporation, or any other lender from whom the
investing Company is intending to borrow money which requires such Company to
make an equity investment in such lender in order to so borrow; (m) Guaranties
of the Debt of the Borrower's Employee Stock Ownership Plan; and (n) other
loans, advances, Guaranties, and investments which never exceed in the aggregate
at any time 25% of Adjusted Consolidated Net Worth (valued on the basis of
original cost, plus subsequent cash and stock additions, less any write-down in
value).
5.16 Transactions with Affiliates. No Company will enter into any material
transaction with any of its Affiliates, other than transactions in the ordinary
course of business and upon fair and reasonable terms not materially less
favorable than such Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate. For purposes
of this Section 5.16, such transactions are "material" if they, individually or
in the aggregate, require any Company to pay more than 1 percent of Consolidated
Net Worth over the course of such transactions.
5.17 Sale of Assets. No Company will sell, lease, or otherwise dispose of
all or any substantial part of its assets other than (a) sales of inventory in
the ordinary course of business, (b) sales of equipment for a fair and adequate
consideration, provided that if any such equipment is sold, and a replacement is
necessary for the proper operation of the business of such Company, such Company
will replace such equipment with adequate equipment, (c) the exchange of assets
- -- other than equipment -- for similar assets of equal or greater value, (d) the
sale, discount, or transfer of delinquent notes or accounts receivable in the
ordinary course of business for purposes of collection, and (e) in any 12-month
period, dispositions of assets (net of acquisitions of similar assets) that,
when added to all other such dispositions by all Companies, do not exceed 10
percent of Consolidated Net Worth.
5.18 Compliance with Laws and Documents. No Company will violate the
provisions of any Laws or any Material Agreement if such violation alone, or
when aggregated with all other such violations, could reasonably be expected to
have a Material Adverse Effect. No Company will violate the provisions of its
charter or bylaws or modify, repeal, replace, or amend any provision of its
charter or bylaws if such action could reasonably be expected to have a Material
Adverse Effect. The Borrower will provide to the Agent a copy of each document
that materially modifies, repeals, replaces, or amends the charter or bylaws of
the Borrower.
5.19 New Businesses. No Company will engage in any material business other
than the businesses in which it is presently engaged or businesses related
thereto, as described on Schedule 3.17.
5.20 Assignment. The Borrower will not assign or transfer any of its
Rights, duties, or obligations under any of the Loan Papers.
5.21 Fiscal Year and Accounting Methods. The Borrower will not change its
fiscal year or accounting methods (other than immaterial changes and changes
required by changes in GAAP) without the prior written consent of the Agent
(which shall not be unreasonably withheld).
5.22 Holding Company and Investment Company Status. The Borrower will not
conduct its business in such a way that it will become (a) a "holding company,"
a "subsidiary company" of a "holding company," an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, (b) a "public utility" within the meaning of the Federal Power Act,
as amended, (c) an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or (d) an "investment adviser" within the
meaning of the Investment Advisers Act of 1940, as amended.
5.23 Environmental Laws. Each Company shall conduct its business so as to
comply with all applicable Environmental Laws and shall promptly take corrective
action to remedy any non-compliance with any Environmental Law, except where
failure to so comply or take such action would not reasonably be expected to
have a Material Adverse Effect. Each Company shall maintain a system which, in
its reasonable business judgment, will assure its continued compliance with
Environmental Laws.
5.24 Environmental Indemnification. Borrower shall indemnify, protect, and
hold each Indemnified Party harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
proceedings, costs, expenses (including, without limitation, all reasonable
attorneys' fees and legal expenses whether or not suit is brought), and
disbursements of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against such Indemnified Parties, with respect to
or as a direct or indirect result of the violation by any Company of any
Environmental Law; or with respect to or as a direct or indirect result of any
Company's generation, manufacture, production, storage, release, threatened
release, discharge, disposal or presence in connection with its properties of a
Hazardous Substance including, without limitation, (a) all damages of any such
use, generation, manufacture, production, storage, release, threatened release,
discharge, disposal, or presence, or (b) the costs of any required or necessary
environmental investigation, monitoring, repair, cleanup, or detoxification and
the preparation and implementation of any closure, remedial, or other plans. The
provisions of and undertakings and indemnification set forth in this paragraph
shall survive the satisfaction and payment of the Obligation and termination of
this Agreement for a period of time set forth in the statute of limitations in
any applicable Environmental Law.
5.25 Financial Covenants.
(a) As calculated at the end of each fiscal quarter of the Borrower
(but computed with respect to EBITDA for the four fiscal quarters ending
on the last day of such fiscal quarter), the Borrower shall not permit the
ratio of Funded Debt of the Companies to EBITDA of the Companies to exceed
(i) 4.50 to 1.0 from the date hereof through the fiscal quarter which
includes the date which is 18 months after the closing of the Acquisition
and (ii) 4.00 to 1.0 thereafter.
(b) As calculated at the end of each fiscal quarter of the Borrower
(but computed with respect to EBITDA for the four fiscal quarters ending
on the last day of such fiscal quarter), the Borrower shall not permit the
ratio of Funded Debt of its Subsidiaries to EBITDA of the Companies to
exceed (i) 1.75 to 1.0 from the date hereof through the fiscal quarter
which includes the date which is 24 months from the closing of the
Acquisition and (ii) 1.50 to 1.0 thereafter.
(c) As calculated at the end of each fiscal quarter of the Borrower
(but computed for the four fiscal quarters ending on the last day of such
fiscal quarter), the Borrower shall not permit the ratio of EBIT of the
Companies to the sum of (i) consolidated interest expense of the Companies
and (ii) dividends declared or paid by any Company (other than to another
Company) on its preferred capital stock (but if such dividends are
declared and paid during such four-quarter period, the amount shall not be
counted twice) to be less than 1.50 to 1.0.
For purposes of this Section 5.25(c), EBIT and interest expense of
any Subsidiary which is subject to any Subsidiary Encumbrance, shall be
reduced to the extent such Subsdiary is restricted by the Subsidiary
Encumbrance. As used in this Section 5.25(c), "Subsidiary Encumbrance"
shall mean, so long as a default has occurred and is continuing under the
agreement creating such encumbrance or restriction, any encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends or make
any other distributions on its capital stock or any other interest or
participation in its profits owned by the Borrower or any Subsidiary of
the Borrower, or pay any Debt owed to the Borrower or a Subsidiary of the
Borrower, (ii) make loans or advances to, or grant liens in favor of, the
Borrower or any of the Borrower's Subsidiaries or (iii) transfer any of
its properties or assets to the Borrower, except for such encumbrances or
restrictions (A) existing on the date of this Agreement, including those
now existing on PTI and its subsidiaries, (B) arising in connection with
loans made to any Company by the Rural Electrification Administration, the
Rural Utilities Service, the Rural Telephone Bank, or similar lenders such
as the Rural Telephone Finance Cooperative, or (C) now existing or
hereafter arising under or by reason of either (x) applicable Law or (y)
this Agreement and the other Loan Papers.
(d) If at any time after the date of this Agreement the Borrower
enters into any financing arrangement with a third party which requires
the Borrower or the Companies as a whole to maintain a specified minimum
net worth, then such minimum net worth requirement or covenant shall be
incorporated herein by reference and made a part of this Agreement for all
purposes as of the date such financing arrangement is entered into by the
Borrower.
Further, for purposes of this Section 5.25 Funded Debt shall include any
Company's Guaranty of Funded Debt of any Person other than another Company or
the Borrower's Employee Stock Ownership Plan. For the first four quarters
following the Acquisition, calculations under this Section 5.25 shall be made on
a pro forma basis as if PTI and its subsidiaries were "Companies" and
"Subsidiaries" during the period of calculation.
SECTION 6. DEFAULT. The term "Event of Default" means the
-------------------
occurrence and continuance of any one or more of the following events (including
the passage of time, if any, specified therefor) (provided that, if any such
event occurs and the Lenders or Majority Lenders, as required by the provisions
of Section 9.15, subsequently agree in writing that they will not exercise any
remedies hereunder as a result thereof, the occurrence and continuance of such
event shall no longer be deemed an Event of Default hereunder insofar as the
state of facts giving rise to such event is concerned):
6.1 Payment of Obligation. The failure or refusal of the Borrower to pay
any portion of the Obligation, as the same become due in accordance with the
terms of the Loan Papers and, in the case of an interest payment, such failure
or refusal continues for a period of 5 Business Days (no grace period being
given for failure or refusal to make a principal payment). Notwithstanding the
foregoing, the Borrower's failure to pay, if caused solely by a wire transfer
malfunction or similar problem outside the Borrower's control, shall not be
deemed an Event of Default.
6.2 Covenants.
(a) The failure or refusal of the Borrower (and, if applicable, any
other Company) to punctually and properly perform, observe, and comply
with any covenant, agreement, or condition contained in Sections
5.3(e)(iii), 5.11, 5.12, 5.13, 5,14, 5.16, 5.19, 5.20, 5.21, 5.22 and
5.25.
(b) The failure or refusal of the Borrower (and, if applicable, any
other Company) to punctually and properly perform, observe, and comply
with any covenant, agreement, or condition contained in any of the Loan
Papers to which such Company is a party, other than covenants to pay the
Obligation and the covenants listed in clause (a) preceding, and such
failure or refusal continues for 10 days after notice from the Agent to
the Borrower.
6.3 Debtor Relief. The Companies shall not be Solvent, or any Company (a)
fails to pay its Debts generally as they become due, (b) voluntarily seeks,
consents to, or acquiesces in the benefit of any Debtor Relief Law, or (c)
becomes a party to or is made the subject of any proceeding provided for by any
Debtor Relief Law, other than as a creditor or claimant, that could suspend or
otherwise adversely affect the Rights of the Agents or the Lenders granted in
the Loan Papers (unless, in the event such proceeding is involuntary, the
petition instituting same is dismissed within 60 days after its filing).
6.4 Attachment. The failure of any Company to have discharged within 60
days after commencement any attachment, sequestration, or similar proceeding
which, individually or together with all such other proceedings then pending,
affects assets of such Company having a value (individually or collectively) of
1 percent of Consolidated Net Worth or more.
6.5 Payment of Judgments.Any Company fails to pay any judgments or orders
for the payment of money in excess of 1 percent of Consolidated Net Worth
(individually or collectively) rendered against it or any of its assets and
either (a) any enforcement proceedings shall have been commenced by any creditor
upon any such judgment or order or (b) a stay of enforcement of any such
judgment or order, by reason of pending appeal or otherwise, shall not be in
effect prior to the time its assets may be lawfully sold to satisfy such
judgment.
6.6 Default Under Other Agreements. A default exists under any Material
Agreement to which any Company is a party, the effect of which is to cause, or
which permits the holder thereof (or a trustee or representative of such holder)
to cause, unpaid consideration of at least 2% of Consolidated Net Worth
(individually or in the aggregate) to become due prior to the stated maturity or
prior to the regularly scheduled dates of payment.
6.7 Antitrust Proceedings. A petition or complaint is filed before or by
any Tribunal (including, without limitation, the Federal Trade Commission, the
United States Justice Department, or the Federal Communications Commission)
seeking to cause the Borrower or any Subsidiary to divest a significant portion
of its assets or any of its Subsidiaries pursuant to any antitrust, restraint of
trade, unfair competition, or similar Laws, and such petition or complaint is
not dismissed or discharged within 270 days after the filing thereof.
6.8 Misrepresentation. Either Agent or any Lender discovers that any
statement, representation, or warranty in the Loan Papers, any Financial
Statement of the Borrower, or any writing ever delivered to either Agent or any
Lender pursuant to the Loan Papers is false, misleading, or erroneous when made
or delivered in any material respect.
6.9 Change in Control. A Change of Control shall occur.For the purpose of
this Section, a "Change of Control" shall be deemed to have occurred if:
(a) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), but excluding any employee benefit plan or plans of Borrower and
its Subsidiaries and Affiliates, becomes the beneficial owner, directly or
indirectly, of thirty percent (30%) or more of the combined voting power
of Borrower's outstanding voting securities ordinarily having the right to
vote for the election of directors of Borrower; or
(b) the individuals who, as of June 30, 1997 constituted the Board of
Directors of Borrower (the "Board" generally and as of June 30, 1997 the
"Incumbent Board") cease for any reason to constitute at least two-thirds
(2/3) of the Board, or in the case of a merger or consolidation of
Borrower, do not constitute or cease to constitute at least two-thirds
(2/3) of the board of directors of the surviving company (or in a case
where the surviving corporation is controlled, directly or indirectly, by
another corporation or entity do not constitute or cease to constitute at
least two-thirds (2/3) of the board of such controlling corporation or do
not have or cease to have at least two-thirds (2/3) voting seats on any
body comparable to a board of directors of such controlling entity or, if
there is no body comparable to a board of directors, at least two-thirds
(2/3) voting control of such controlling entity), provided that any person
becoming a director (or, in the case of a controlling non-corporate
entity, obtaining a position comparable to a director or obtaining a
voting interest in such entity) subsequent to June 30, 1997, whose
election, or nomination for election, was approved by a vote of the
persons comprising at least two-thirds (2/3) of the Incumbent Board (other
than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) shall be, for purposes of this Agreement, considered as
though such person were a member of the Incumbent Board.
6.10 ERISA. Any one of the following shall have occurred: (a) any
"Reportable Event" as such term is defined in ERISA under any Plan, (b) the
appointment by an appropriate Tribunal of a trustee to administer any Plan, (c)
the termination of any Plan within the meaning of Title IV of ERISA, or (d) any
material accumulated funding deficiency within the meaning of ERISA exists under
any Plan, and any of (a), (b), (c) or (d) results in a Material Adverse Effect.
6.11 Validity and Enforceability of Loan Documents. Any Loan Paper shall,
at any time after its execution and delivery and for any reason, cease to be in
full force and effect in any material respect or be declared to be null and void
or the validity or enforceability thereof be contested by any Company party
thereto or any Company shall deny that it has any liability or obligations under
any Loan Paper to which it is a party.
SECTION 7. RIGHTS AND REMEDIES.
- -------------------------------
7.1 Remedies Upon Event of Default.
(a) Should an Event of Default occur and be continuing under Section
6.3, the commitment of the Lenders to make Loans shall automatically
terminate and the entire unpaid balance of the Obligation shall
automatically become due and payable without any action of any kind
whatsoever.
(b) Should any other Event of Default occur and be continuing,
subject to any agreement among the Lenders, the Agent may (and shall upon
the request of the Majority Lenders), at its (or the Majority Lenders')
election, do any one or more of the following: (i) If the maturity of the
Obligation has not already been accelerated under Section 7.1(a), declare
the entire unpaid balance of the Obligation, or any part thereof,
immediately due and payable, whereupon it shall be due and payable (and
notice of such declaration shall promptly be given thereafter by the Agent
to the Borrower); (ii) terminate commitments to make Loans hereunder;
(iii) reduce any claim to judgment; (iv) exercise (or request each Lender
to exercise) the Rights of offset or banker's Lien against the interest of
the Borrower in and to every account and other property of the Borrower
which are in the possession of any Lender to the extent of the full amount
of the Obligation; and (v) exercise any and all other legal or equitable
Rights afforded by the Loan Papers, the Laws of the State of New York or
any other jurisdiction as the Agent shall deem appropriate, or otherwise,
including, but not limited to, the Right to bring suit or other
proceedings before any Tribunal either for specific performance of any
covenant or condition contained in any of the Loan Papers or in aid of the
exercise of any Right granted to the Lenders in any of the Loan Papers.
7.2 Waivers. The Borrower hereby waives presentment and demand for
payment, protest, notice of intention to accelerate, notice of acceleration, and
notice of protest and nonpayment, and agrees that its liability with respect to
the Obligation, or any part thereof, shall not be affected by any renewal or
extension in the time of payment of the Obligation, by any indulgence, or by any
release or change in any security for the payment of the Obligation.
7.3 Performance by Agent. If any covenant, duty, or agreement of any
Company is not performed in accordance with the terms of the Loan Papers, the
Agent may, at its option (but subject to the approval of the Majority Lenders),
perform or attempt to perform such covenant, duty, or agreement on behalf of
such Company. In such event, any amount expended by the Agent in such
performance or attempted performance shall be reasonable, payable by the
Borrower to the Agent on demand, shall become part of the Obligation, and shall
bear interest at the Default Rate from the date of such expenditure by the Agent
until paid. Notwithstanding the foregoing, it is expressly understood that the
Agent does not assume and shall never have, except by its express written
consent, any liability or responsibility for the performance of any covenant,
duty, or agreement of any Company.
7.4 Delegation of Duties and Rights. The Agents and the Lenders may
perform any of their duties or exercise any of their Rights under the Loan
Papers by or through the Agent and their and the Agent's officers, directors,
employees, attorneys, agents, or other representatives.
7.5 Lenders Not in Control. None of the covenants or other provisions
contained in this Agreement or in any other Loan Paper shall, or shall be deemed
to, give the Agents or the Lenders the Right to exercise control over the assets
(including, without limitation, real property), affairs, or management of any
Company, the power of the Agents and the Lenders being limited to the Right to
exercise the remedies provided in this Section 7.
7.6 Waivers by Lenders.The acceptance by the Agents or the Lenders at any
time and from time to time of partial payment on the Obligation shall not be
deemed to be a waiver of any Event of Default then existing. No waiver by the
Agents, the Majority Lenders, or all of the Lenders of any Event of Default
shall be deemed to be a waiver of any other then-existing or subsequent Event of
Default. No delay or omission by the Agents, the Majority Lenders, or all of the
Lenders in exercising any Right under the Loan Papers shall impair such Right or
be construed as a waiver thereof or any acquiescence therein, nor shall any
single or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
7.7 Cumulative Rights. All Rights available to the Agents and the Lenders
under the Loan Papers are cumulative of and in addition to all other Rights
granted to the Agents and the Lenders at law or in equity, whether or not the
Obligation is due and payable and whether or not the Agents or the Lenders have
instituted any suit for collection, foreclosure, or other action in connection
with the Loan Papers.
7.8 Application of Proceeds. Any and all proceeds ever received by the
Agents or the Lenders from the exercise of any Rights pertaining to the
Obligation shall be applied to the Obligations in the order and manner set forth
in Section 2.19.
7.9 Certain Proceedings.The Borrower will promptly execute and deliver or
cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers the
Agents or the Lenders may reasonably request in connection with the obtaining of
any consent, approval, registration, qualification, permit, license, or
authorization of any other Tribunal or other Person necessary or appropriate for
the effective exercise of any Rights under the Loan Papers. Because the Borrower
agrees that the Agents' and the Lenders' remedies at Law for failure of the
Borrower to comply with the provisions of this paragraph would be inadequate and
that such failure would not be adequately compensable in damages, the Borrower
agrees that the covenants of this paragraph may be specifically enforced.
SECTION 8. AGREEMENT AMONG LENDERS.
- -----------------------------------
8.1 Agents.
(a) Each Lender hereby irrevocably appoints and authorizes the Agents
to act on its behalf and to exercise such powers under this Agreement as
are specifically delegated to or required of such Agent by the terms
hereto, together with such powers as are reasonably incidental thereto. As
to any matters not expressly provided for by this Agreement or the Notes
(including, without limitation, enforcement or collection of the Notes),
the Agents shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that
neither Agent shall be required to take any action which exposes such
Agent to personal liability or which is contrary to this Agreement or
applicable Law.
(b) The Agent may resign at any time by giving written notice thereof
to the Lenders, the Auction Administration Agent, and the Borrower and may
be removed as the Agent under this Agreement and the Notes at any time
with cause by all Lenders other than the Agent (the "Removing Lenders").
Upon any such resignation or removal, the Majority Lenders shall have the
right, with the consent of the Borrower, not to be unreasonably withheld,
to appoint a successor Agent from among the Lenders (other than the
resigning Agent). If no successor Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment, within 30
calendar days after the retiring Agent's giving notice of resignation or
the Removing Lenders' removal of the retiring Agent, then the retiring
Agent may, on behalf of the Lenders, with the consent of the Borrower, not
to be unreasonably withheld, appoint a successor Agent, which shall be a
commercial bank organized under the Laws of or authorized to do business
in the United States of America or any state thereof and having a combined
capital and surplus of at least $100,000,000. Upon the acceptance of any
appointment as the Agent hereunder and under the Notes by a successor
Agent, such successor Agent shall thereupon succeed to and become vested
with all rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
under this Agreement and the Notes. After any retiring Agent's resignation
or removal as the Agent hereunder and under the Notes, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent under this Agreement and
the Notes.
(c) The Auction Administration Agent may resign at any time by giving
written notice thereof to the Lenders, the Agent, and the Borrower and may
be removed as the Auction Administration Agent under this Agreement and
the Notes at any time with cause by all Lenders other than the Auction
Administration Agent (the "AAA Removing Lenders"). Upon any such
resignation or removal, the Majority Lenders shall have the right, with
the consent of the Borrower, not to be unreasonably withheld, to appoint a
successor Auction Administration Agent. If no successor Auction
Administration Agent shall have been so appointed by the Majority Lenders,
and shall have accepted such appointment, within 30 calendar days after
the retiring Auction Administration Agent's giving notice of resignation
or the AAA Removing Lenders' removal of the retiring Auction
Administration Agent, then the retiring Auction Administration Agent may,
on behalf of the Lenders, appoint a successor Auction Administration
Agent, with the consent of the Borrower, not to be unreasonably withheld,
which shall be a commercial bank organized under the Laws of the United
States of America or of any state thereof and having a combined capital
and surplus of at least $100,000,000. Upon the acceptance of any
appointment as the Auction Administration Agent hereunder and under the
Notes by a successor Auction Administration Agent, such successor Auction
Administration Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges, and duties of the retiring Auction
Administration Agent, and the retiring Auction Administration Agent shall
be discharged from its duties and obligations under this Agreement and the
Notes. After any retiring Auction Administration Agent's resignation or
removal as the Auction Administration Agent hereunder and under the Notes,
the provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Auction
Administration Agent under this Agreement and the Notes.
(d) If either Agent fails to take any action under any Loan Paper
after an Event of Default and within a reasonable time after being
reasonably requested to do so by any Lender (when such Lender is entitled
to make such request under the Loan Papers and after such requesting
Lender has obtained the concurrence of such other Lenders as may be
required hereunder), such Agent shall not suffer or incur any liability as
a result of such failure or refusal, but such requesting Lender may
request such Agent to resign as such Agent, whereupon such Agent shall so
resign upon receiving such request.
(e) The Agent, in its capacity as a Lender, shall have the same
Rights under the Loan Papers as any other Lender and may exercise the same
as though it were not acting as the Agent or the Auction Administration
Agent; the term "Lender" shall, unless the context otherwise indicates,
include the Agent; and any resignation by the Agent hereunder shall not
impair or otherwise affect any Rights which it has or may have in its
capacity as an individual Lender.
(f) Subject in all respects to the terms and conditions of the Loan
Papers, the Agents may be engaged in, or may hereafter engage in, one or
more loan, letter of credit, leasing, or other financing transactions
(collectively, the "other financings") not the subject of the Loan Papers,
with one or more of the Companies, or may act as trustee on behalf of, or
depositary for, or otherwise engage in other business transactions with
one or more of the Companies, in each case with no responsibility to
account therefor to the Lenders. Without limiting Rights to which the
Lenders are specifically entitled under the Loan Papers, no other Lenders
shall have, by virtue of their being parties hereto, any interest in (i)
any such other financings, (ii) any present or future guaranties by or for
the account of any Company which are not contemplated or included in the
Loan Papers, (iii) any present or future offset exercised by such Agent in
respect of such other financings, or (iv) any present or future property
taken as security for any such other financings, even if such property may
become security for the obligations of any Company arising under the Loan
Papers by reason of a general description of indebtedness related to any
such other financings; provided that, if any payments in respect of such
guaranties or such property or the proceeds thereof shall be applied to
reduce the Obligations, then each Lender shall be entitled to share in
such application according to its pro rata part thereof.
8.2 Expenses. Each Lender shall pay its pro rata part of any reasonable
expenses (including, without limitation, court costs, reasonable attorneys'
fees, and other costs of collection) incurred by either Agent in connection with
any of the Loan Papers if such Agent does not receive reimbursement therefor
from other sources within 60 days after incurred; provided that each Lender
shall be entitled to receive its pro rata part of any reimbursement for such
expenses, or part thereof, which such Agent subsequently receives from such
other sources.
8.3 Proportionate Absorption of Losses.Except as herein provided, nothing
in the Loan Papers shall be deemed to give any Lender any advantage over any
other Lender insofar as the portion of the Obligation arising under the Loan
Papers is concerned, or to relieve any Lender from absorbing its pro rata part
of any losses sustained with respect to the Obligation (except to the extent
unilateral actions or inactions by any Lender result in any credit, allowance,
setoff, defense, or counterclaim solely with respect to all or any part of such
Lender's pro rata part of the Obligation).
8.4 Delegation of Duties; Reliance. Each Agent may exercise any of its
duties under the Loan Papers by or through its officers, directors, employees,
attorneys, or agents (collectively, "Representatives"), and each Agent and its
Representatives shall (a) be entitled to rely upon (and shall be protected in
relying upon) any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telecopy, telegram or teletype message, statement, order, or
other documents or conversation believed by it or them to be genuine and correct
and to have been signed or made by the proper Person and, with respect to legal
matters, upon opinion of counsel selected by such Agent, (b) be entitled to deem
and treat each Lender as the owner and holder of its pro rata part of the
Obligation for all purposes until, subject to Section 9.20, written notice of
the assignment or transfer thereof shall have been given to and received by such
Agent (and, any request, authorization, consent, or approval of any Lender shall
be conclusive and binding on each subsequent holder, assignee, or transferee of
such Lender's pro rata part of the Obligation or Participant therein), and (c)
not be deemed to have notice of the occurrence of an Event of Default unless an
officer of such Agent has actual knowledge thereof or such Agent has been
notified thereof by a Lender or the Borrower.
8.5 Limitation of Agents' Liability.
(a) Neither of the Agents nor any of their respective Representatives
(as defined in Section 8.4) shall be liable for any action taken or
omitted to be taken by it or them under the Loan Papers in good faith and
believed by it or them to be within the discretion or power conferred upon
it or them by the Loan Papers or be responsible for the consequences of
any error of judgment, except for fraud, gross negligence, or willful
misconduct (IT BEING THE EXPRESS INTENTION OF THE PARTIES THAT THE AGENTS
AND THEIR RESPECTIVE REPRESENTATIVES SHALL HAVE NO LIABILITY FOR ACTIONS
AND OMISSIONS RESULTING FROM THEIR ORDINARY CONTRIBUTORY NEGLIGENCE), and
neither of the Agents nor any of their respective Representatives has a
fiduciary relationship with any Lender by virtue of the Loan Papers
(provided that nothing herein shall negate the obligation of each Agent to
account for funds received by it for the account of any Lender).
(b) Unless indemnified to its satisfaction against loss, cost,
liability, and expense, neither Agent shall be compelled to do any act
under the Loan Papers or to take any action toward the execution or
enforcement of the powers thereby created or to prosecute or defend any
suit in respect of the Loan Papers. If either Agent requests instructions
from the Lenders or from the Majority Lenders, as the case may be, with
respect to any act or action (including, but not limited to, any failure
to act) in connection with any Loan Paper, such Agent shall be entitled
(but shall not be required) to refrain (without incurring any liability to
any Person by so refraining) from such act or action unless and until it
has received such instructions. In no event, however, shall either Agent
or any of its Representatives be required to take any action which it or
they reasonably determine could incur for it or them criminal or onerous
civil liability.
(c) Neither Agent shall be responsible in any manner to any Lender or
any Participant for, and each Lender represents and warrants that it has
not relied upon either Agent in respect of, (i) the creditworthiness of
the Borrower and the risks involved to such Lender, (ii) the
effectiveness, enforceability, genuineness, validity, or the due execution
of any Loan Paper, (iii) any representation, warranty, document,
certificate, report, or statement made therein or furnished thereunder or
in connection therewith, or (iv) observation of or compliance with any of
the terms, covenants, or conditions of any Loan Paper on the part of any
Company. Each Lender also acknowledges and agrees that it will,
independently and without reliance upon either Agent or any other Lender
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement. Each Lender agrees to indemnify each
Agent and its respective Representatives and hold them harmless from and
against (but limited to such Lender's pro rata part of) any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, reasonable expenses, and reasonable disbursements of any
kind or nature whatsoever which may be imposed on, asserted against, or
incurred by them in any way relating to or arising out of the Loan Papers
or any action taken or omitted by them under the Loan Papers, except to
the extent the same result solely from fraud, gross negligence, or willful
misconduct by such Agent or its Representatives (it being the express
intention of the parties that the Agents and their respective
Representatives shall have no liability for actions and omissions
resulting from their ordinary contributory negligence).
8.6 Default. Upon the occurrence and continuance of an Event of Default,
the Lenders agree to promptly confer in order that the Majority Lenders (or, if
required by Section 9.15, all Lenders) may agree upon a course of action for the
enforcement of the Rights of the Lenders; provided that the Agent shall be
entitled (but not obligated) to proceed to take any actions necessary in its
reasonable judgment to preserve the Rights of the Agents and the Lenders
hereunder, pending agreement by the Majority Lenders (or, if required by Section
9.15, all Lenders) on the course of action to be taken.
8.7 Limitation of Liability of Lenders. No Lender or any Participant
shall incur any liability to any other Lender or Participant except for
acts or omissions in bad faith, and no Lender or any Participant shall
incur any liability to any Company or any other Person for any act or
omission of any other Lender or any Participant.
8.8 Relationship of Lenders. Nothing herein shall be construed as
creating a partnership or joint venture among the Agents, the Agents and
the Lenders, or the Lenders.
8.9 Foreign Lenders. Each Lender that is organized under the Laws of any
jurisdiction other than the United States of America or any State thereof (a)
represents to the Agents and the Borrower that (i) under applicable Laws and
treaties no Taxes will be required to be withheld by the Agents or the Borrower
with respect to any payments to be made to such Lender in respect of the
Obligation and (ii) it has furnished to the Agent and the Borrower two duly
completed copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Lender claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder), and (b) covenants to (i) provide the Agent and the Borrower a new
Form 4224 or Form 1001 upon the obsolescence of any previously delivered form in
accordance with applicable U.S. Laws and amendments thereto duly executed and
completed by such Lender and (ii) comply from time to time with all applicable
U.S. Laws with regard to such withholding tax exemption.
8.10 Benefits of Agreement. Except for requiring the Borrower's consent
under Section 8.1(b) and the representations and covenants in Section 8.9 in
favor of the Borrower, none of the provisions of this Section 8 shall inure to
the benefit of any Company or any Person other than the Agents, the Lenders, and
the Participants; consequently, neither any Company nor any other Person shall
be entitled to rely upon, or to raise as a defense, in any manner whatsoever,
the failure of either Agent or any Lender to comply with such provisions.
SECTION 9. MISCELLANEOUS.
- -------------------------
9.1 Changes in GAAP. All accounting and financial terms used in any of the
Loan Papers and the compliance with each covenant contained in the Loan Papers
which relates to financial matters shall be determined in accordance with GAAP,
except to the extent that a deviation therefrom is expressly stated in such Loan
Papers. Should a change in GAAP require a change in any method of accounting or
should any voluntary change in the accounting methods be permitted pursuant to
Section 5.21, then such change shall not result in an Event of Default if, at
the time of such change, such Event of Default had not occurred and was not then
continuing, based upon the former methods of accounting used by or on behalf of
the Borrower; provided that, after any such change in accounting methods, the
Financial Statements required to be delivered shall either be (a) supplemented
with financial information prepared in comparative form, in compliance with the
former methods of accounting used prior to such change, as well as with the new
method or methods of accounting and, for the purpose of determining whether an
Event of Default has occurred, Lenders shall look solely to that portion of such
supplemental information that complies with the former methods of accounting, or
(b) supplemented with financial information prepared in compliance with such new
method or methods of accounting but accompanied by such information, in form and
detail satisfactory to Lenders, that will allow Lenders to readily determine the
effect of such changes in accounting methods on such Financial Statements, and,
for the purpose of determining whether an Event of Default has occurred, Lenders
shall look solely to such supplemental information as adjusted to reflect
compliance with such former method or methods of accounting.
9.2 Money and Interest. Unless stipulated otherwise (a) all references in
any of the Loan Papers to "dollars," "money," "payments," or other similar
financial or monetary terms are references to currency of the United States of
America and (b) all references to interest are to simple and not compound
interest.
9.3 Number and Gender of Words. Whenever in any Loan Paper the singular
number is used, the same shall include the plural where appropriate, and vice
versa; and words of any gender in any Loan Paper shall include each other gender
where appropriate. The words "herein," "hereof," and "hereunder," and other
words of similar import refer to the relevant Loan Paper as a whole and not to
any particular part or subdivision thereof.
9.4 Headings. The headings, captions, and arrangements used in any of the
Loan Papers are, unless specified otherwise, for convenience only and shall not
be deemed to limit, amplify, or modify the terms of the Loan Papers, nor affect
the meaning thereof.
9.5 Exhibits. If any Exhibit, which is to be executed and delivered,
contains blanks, the same shall be completed correctly and in accordance with
the terms and provisions contained and as contemplated herein prior to, at the
time of, or after the execution and delivery thereof.
9.6 Communications. Unless specifically otherwise provided, whenever any
Loan Paper requires or permits any consent, approval, notice, request, or demand
from one party to another, such communication must be in writing (which may be
by telecopy) to be effective and shall be deemed to have been given on the day
actually delivered or, if mailed, on the Business Day it is received by the
party to be notified at the address indicated on Schedule 1 (unless changed by
notice pursuant hereto).
9.7 Form and Number of Documents. Each agreement, document,instrument, or
other writing to be furnished under any provision of this Agreement must be in
form and substance and in such number of counterparts as may be reasonably
required by the Agent and its counsel.
9.8 Exceptions to Covenants. The Borrower shall not take any action or
fail to take any action which is permitted as an exception to any of the
covenants contained in any of the Loan Papers if such action or omission would
result in the breach of any other covenant contained in any of the Loan Papers.
9.9 Survival. All covenants, agreements, undertakings, representations,
and warranties made in any of the Loan Papers (a) shall survive all closings
under the Loan Papers, (b) except as otherwise indicated, shall not be affected
by any investigation made by any party, and (c) unless otherwise provided herein
shall terminate upon the later of the termination of this Agreement and the
payment in full of the Obligation.
9.10 Governing Law. The Laws (other than conflict-of-laws provisions
thereof) of the State of New York and of the United States of America shall
govern the Rights and duties of the parties hereto and the validity,
construction, enforcement, and interpretation of the Loan Papers.
9.11 VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY HERETO, IN EACH
CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (a) IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF
TEXAS AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY
LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE LOAN PAPERS AND THE
OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY TEXAS LAW, (b) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN
CONNECTION WITH THE LOAN PAPERS AND THE OBLIGATION BROUGHT IN DISTRICT COURTS OF
DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, DALLAS DIVISION, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM,
(d) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN DALLAS,
TEXAS, IN CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO THE AGENT
EVIDENCE THEREOF, IF REQUESTED, (e) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (f) IRREVOCABLY AGREES THAT ANY LEGAL
PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS ON THE OBLIGATION SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED
COURTS, AND (g) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RIGHT TO A JURY TRIAL IN ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS AND THE OBLIGATION.
9.12 Maximum Interest Rate. Regardless of any provision contained in any
of the Loan Papers, no Lender shall ever be entitled to contract for, charge,
take, reserve, receive, or apply, as interest on the Obligation, or any part
thereof, any amount in excess of the Highest Lawful Rate, and, in the event the
Lenders ever contract for, charge, take, reserve, receive, or apply as interest
any such excess, it shall be deemed a partial prepayment without penalty of
principal and treated hereunder as such and any remaining excess shall be
refunded to the Borrower. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the Highest Lawful Rate, the
Borrower and the Lenders shall, to the maximum extent permitted under applicable
Law, (a) treat all Borrowings as but a single extension of credit (and the
Lenders and the Borrower agree that such is the case and that provision herein
for multiple Borrowings and multiple Notes is for convenience only), (b)
characterize any nonprincipal payment as an expense, fee, or premium rather than
as interest, (c) exclude voluntary prepayments and the effects thereof, and (d)
"spread" the total amount of interest throughout the entire contemplated term of
the Obligation; provided that, if the Obligation is paid and performed in full
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Highest Lawful
Rate, the Lenders shall refund such excess, and, in such event, the Lenders
shall not be subject to any penalties provided by any Laws for contracting for,
charging, taking, reserving, or receiving interest in excess of the Highest
Lawful Rate.
9.13 Invalid Provisions. If any provision in any Loan Paper is held to be
illegal, invalid, or unenforceable, such provision shall be fully severable; the
appropriate Loan Paper shall be construed and enforced as if such provision had
never comprised a part thereof; and the remaining provisions thereof shall
remain in full force and effect and shall not be affected by such provision or
by its severance therefrom. Furthermore, in lieu of such provision there shall
be added automatically as a part of such Loan Paper a provision as similar
thereto as may be possible and be legal, valid, and enforceable.
9.14 Entire Agreement. THIS AGREEMENT (AS AMENDED IN WRITING FROM TIME TO
TIME) AND THE OTHER WRITTEN LOAN PAPERS EXECUTED BY THE BORROWER, THE AGENTS,
AND THE LENDERS (OR BY THE BORROWER FOR THE BENEFIT OF THE AGENTS OR ANY LENDER)
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
9.15 Amendments, Etc. No amendment or waiver of any provision of any Loan
Paper nor consent to any departure therefrom by the Borrower shall be effective
unless the same shall be in writing and signed by the Majority Committed
Lenders, or after termination of the Commitments, the Majority Lenders and the
Borrower, and then, such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver, or consent shall, unless in writing and
signed by all Lenders, do any of the following: (a) increase the Commitments, or
extend the due date for payment of any of the Obligation, (b) reduce the
principal amount of Loans due hereunder or any interest rate or the amount of
fees applicable to the Obligation (except such reductions as are contemplated by
this Agreement), (c) amend or waive compliance with this Section 9.15 or (d)
amend the definition of Majority Lenders; provided that no amendment, waiver, or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this or any other Loan Paper.
9.16 Waivers. No course of dealing nor any failure or delay by the Agents,
any Lender, or any of their respective officers, directors, employees, agents,
representatives, or attorneys with respect to exercising any Right of the
Lenders hereunder shall operate as a waiver thereof. A waiver must be in writing
and signed by the Lenders (or the Majority Committed Lenders or Majority
Lenders, to the extent permitted hereunder) to be effective, and such waiver
will be effective only in the specific instance and for the specific purpose for
which it is given.
9.17 Taxes. Any Taxes (excluding income, gross receipts and franchise
taxes) payable or ruled payable by any Tribunal in respect of this Agreement or
any other Loan Paper shall be paid by the Borrower, together with interest and
penalties, if any.
9.18 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, the Lenders shall not be obligated to extend credit to
the Borrower in violation of any Law.
9.19 Multiple Counterparts. This Agreement may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute, collectively, one Agreement; but, in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that each Lender execute
the same counterpart so long as identical counterparts are executed by the
Borrower and each Lender. This Agreement shall become effective when
counterparts hereof shall have been executed and delivered to the Agent by each
Lender, the Agents, and the Borrower, or, in the case only of the Lenders, when
the Agent shall have received telecopied or other evidence satisfactory to it
that each Lender has executed and is delivering to the Agent a counterpart
hereof.
9.20 Successors and Assigns; Participations; Assignments.
(a) This Agreement shall be binding upon, and inure to the benefit of
the parties hereto and their respective successors and assigns, except
that (i) the Borrower may not, directly or indirectly, assign or transfer,
or attempt to assign or transfer, any of its Rights, duties, or
obligations under any Loan Papers to which it is a party without the
express written consent of all Lenders, and (ii) except as permitted under
Section 2.21 and this Section 9.20, no Lender may transfer, pledge,
assign, sell participations in, or otherwise encumber its portion of the
Obligation.
(b) Subject to the provisions of this Section 9.20, any Lender (other
than a Designated Lender) may sell to one or more Persons (each a
"Participant") participating interests (in each case not less than
$5,000,000) in its portion of the Obligation; provided that the Agent and
the Borrower shall have the right to approve any Participant which is not
a financial institution. In the event of any such sale to a Participant,
(i) such Lender shall remain a "Lender" under this Agreement and the
Participant shall not constitute a "Lender" hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender
shall remain solely responsible for the performance thereof, (iv) such
Lender shall remain the holder of its share of the Obligation for all
purposes under this Agreement, and (v) the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with
such Lender's Rights and obligations under the Loan Papers. Participants
shall have no Rights under the Loan Papers, other than certain voting
rights as provided below. Each Lender shall be entitled to obtain (on
behalf of its Participants) the benefits of Section 2 with respect to all
participations in its Loans outstanding from time to time. No Lender shall
sell any participating interest under which the Participant shall have any
Rights to approve any amendment, modification, or waiver of any Loan
Paper, except to the extent such amendment, modification, or waiver
extends the due date for payment of any amount in respect of principal,
interest, or fees due under the Loan Papers, or reduces the interest rate
or the amount of principal or fees applicable to the Obligation (except
such reductions as are contemplated by this Agreement); provided that in
those cases where a Participant is entitled to the benefits of Section 2
or a Lender grants Rights to its Participants to approve amendments to or
waivers of the Loan Papers respecting the matters previously described in
this sentence, such Lender must include a voting mechanism in the relevant
participation agreement whereby a majority of such Lender's portion of the
Obligation (whether held by such Lender or participated) shall control the
vote for all of such Lender's portion of the Obligation. Except in the
case of the sale of a participating interest to a Lender, the relevant
participation agreement shall not permit the Participant to transfer,
pledge, assign, sell participations in, or otherwise encumber its portion
of the Obligation.
(c) Subject to the provisions of this Section 9.20, any Lender may
sell to one or more Eligible Assignees (each a "Purchaser") a
proportionate part (in each case not less than $5,000,000) of its Rights
and obligations under the Loan Papers pursuant to an Assignment and
Acceptance (herein so called) between such Purchaser and such Lender in
the form of Exhibit H hereto. Upon (i) delivery of an executed copy of the
Assignment and Acceptance to the Borrower and the Agent and (ii) payment
of a fee of $3,500 from such Lender to the Agent, from and after the
assignment's effective date (which shall be after the date of such
delivery), such Purchaser shall for all purposes be a Lender hereunder and
shall have all the Rights and obligations of a Lender hereunder to the
same extent as if it were an original party hereto with commitments as set
forth in the Assignment and Acceptance, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent. Upon
any transfer pursuant to this Section 9.20(c), Schedule 1 shall
automatically be deemed to reflect the name, address, and Committed Sum of
such Purchaser and the Agent shall deliver to the Borrower and the Lenders
an amended Schedule 1 reflecting such changes. A Purchaser shall be
subject to all the provisions in this Section 9.20 the same as if it were
a Lender as of the date hereof. Notwithstanding anything herein to the
contrary, no Designated Lender may make an assignment pursuant to the
provisions of this Section 9.20(c), other than to the Lender which
originally designated the Designated Lender.
(d) Each Lender (other than a Designated Lender) may designate a
Designated Lender to make Competitive Loans as a Lender pursuant to this
Agreement; provided, however, that (i) no such Lender shall be entitled to
make more than one such designation, (ii) each such Lender making such
designation shall retain the right to make Competitive Bid Loans as a
Lender pursuant to this Agreement and (iii) each such designation shall be
to a Designated Lender approved by the Borrower, the Agent and the Auction
Administration Agent, and the parties to each such designation shall
execute and deliver a Designation Agreement, for acceptance by the
Borrower, the Agent and the Auction Administration Agent. Upon such
execution, delivery, and acceptance, and the execution and delivery by the
Borrower to the Designated Lender of a Competitive Note in the same
principal amount as that previously delivered to the Lender making such
designation, from and after the effective date specified in each
Designated Agreement, the designee thereunder shall be a party hereto with
the right to make Competitive Bid Loans as a Lender pursuant to this
Agreement, and shall have the obligations related thereto. By executing
and delivering a Designation Agreement, the Lender making the designation
thereunder and its designee thereunder confirm and agree with each other
and the other parties hereto as follows:
(i) such Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any
other Loan Paper or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement
or any other Loan Paper or any other instrument or document furnished
pursuant hereto or thereto;
(ii) such Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of
its obligations under this Agreement or any other Loan Paper or any
other instrument or document furnished pursuant hereto or thereto;
(iii) such designee confirms that it has received a copy of this
Agreement and each other Loan Paper, together with copies of the
Current Financials and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into such Designation Agreement;
(iv) such designee will, independently and without reliance upon
the Agent, the Auction Administration Agent, such designating Lender
or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement or any
other Loan Paper;
(v) such designee confirms that it is a Designated Lender;
(vi) such designee appoints and authorizes (A) the Agent to take
such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and each other Loan Paper as are
delegated to the Agent by the terms hereof and thereof, together with
such powers and discretion as are reasonably incidental thereto and
(B) the Auction Administration Agent to take such actions as agent on
its behalf and to exercise such powers and discretion under this
Agreement and each other Loan Paper as are delegated to the Auction
Administration Agent by the terms hereof and thereof, together with
such powers and discretion as are reasonably incidental thereto; and
(vii) such designee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement and each other Loan Paper are required to be performed by
it as a Lender.
(e) If pursuant to Section 9.20(c) any interest in the Obligation is
transferred to any Purchaser which is organized under the Laws of any
jurisdiction other than the United States of America or any State thereof,
the transferor Lender shall cause such Purchaser, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender
(for the benefit of the transferor Lender, the Agent, and the Borrower)
that under applicable Laws and treaties no Taxes will be required to be
withheld by the Agent, the Borrower, or the transferor Lender with respect
to any payments to be made to such Purchaser in respect of the Obligation,
(ii) to furnish to each of the transferor Lender, the Agent, and the
Borrower two duly completed copies of either U.S. Internal Revenue Service
Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Purchaser claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder), and (iii) to agree
(for the benefit of the transferor Lender, the Agent, and the Borrower) to
provide the transferor Lender, the Agent, and the Borrower a new Form 4224
or Form 1001 upon the obsolescence of any previously delivered form in
accordance with applicable U.S. Laws and amendments thereto duly executed
and completed by such Purchaser, and to comply from time to time with all
applicable U.S. Laws with regard to such withholding tax exemption.
9.21 Confidentiality. All nonpublic information furnished by the Companies
to the Agents or the Lenders in connection with the Loan Papers and the
transactions contemplated thereby will be treated as confidential, but nothing
herein contained shall limit or impair the Agent's or any Lender's right, and
the Agent and the Lenders shall be entitled, (a) to disclose the same to any
Tribunal or as otherwise required by Law or to any prospective or actual
Participant or Purchaser or to the respective affiliates, directors, officers,
employees, attorneys, and agents of any prospective or actual Participant or
Purchaser (provided that such prospective or actual Participant or Purchaser has
agreed in writing to comply with this Section 9.21 and provided further that the
Borrower has given its prior written consent to such distribution), (b) to use
such information to the extent pertinent to an evaluation of the Obligation, (c)
to enforce compliance with the terms and conditions of the Loan Papers, and (d)
to take any action which the Agent or any Lender deems necessary to protect its
interests if an Event of Default has occurred and is continuing.
9.22 Conflicts and Ambiguities. Any conflict or ambiguity between the
terms and provisions herein and terms and provisions in any other Loan Paper
shall be controlled by the terms and provisions herein.
9.23 General Indemnification. THE BORROWER SHALL INDEMNIFY, PROTECT, AND
HOLD THE AGENTS AND THE LENDERS AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES,
DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS,
AND ATTORNEYS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND
AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES (INCLUDING, WITHOUT
LIMITATION, ATTORNEYS' FEES AND LEGAL EXPENSES WHETHER OR NOT SUIT IS BROUGHT
AND SETTLEMENT COSTS), AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH
MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST THE INDEMNIFIED PARTIES, IN
ANY WAY RELATING TO OR ARISING OUT OF THE LOAN PAPERS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN (COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), TO THE
EXTENT THAT ANY OF THE INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR INDIRECTLY,
FROM ANY CLAIM MADE OR ACTION, SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF
ANY PERSON OTHER THAN THE INDEMNIFIED PARTIES; PROVIDED, HOWEVER, THAT ALTHOUGH
EACH INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED FROM ITS OWN
ORDINARY NEGLIGENCE, NO INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE INDEMNIFIED
HEREUNDER FOR ITS OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. THE
PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH
SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF
THIS AGREEMENT FOR THE PERIOD OF TIME SET FORTH IN ANY APPLICABLE STATUTE OF
LIMITATIONS.
9.24 Investment Representation. The Notes are being acquired by the
Lenders for their own respective account for investment and not with the view
to, or for sale in connection with, any distribution thereof. The Lenders
understand that the Notes will not be registered under the Securities Act of
1933 or any securities act of any state pursuant to an exemption from the
registration provisions thereof. Each Lender shall indemnify the Borrower
against and hold it harmless from any claim, and any cost or expense therefrom,
that the Borrower shall have committed a violation of applicable Law by virtue
of the exercise by such Lender of its right to sell participations or make
assignments hereunder.
[Remainder of page left intentionally blank. Signature pages follow.]
EXECUTED as of the day and year first mentioned.
CENTURY TELEPHONE ENTERPRISES, INC.
By: /s/ David G. Thiels
-----------------------
Name: David G. Thiels
-----------------------
Title: Treasurer
-----------------------
NATIONSBANK OF TEXAS, N.A.
as the Agent, the Auction
Administration Agent, and a Lender
By: /s/ David J. Robbitt
------------------------
Name: David J. Robbitt
------------------------
Title: Vice President
------------------------
BANK OF TOKYO MITSUBISHI TRUST COMPANY
By: /s/ Glenn B. Eckert
-----------------------
Name: Glenn B. Eckert
-----------------------
Title: Vice President
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ Allen King
-----------------------
Name: Allen King
-----------------------
Title: Vice President
-----------------------
SUNTRUST BANK,CENTRAL FLORIDA, N.A.
By: /s/ Janet P. Sammons
-------------------------
Name: Janet P. Sammons
-------------------------
Title: Vice President
-------------------------
WACHOVIA BANK, N.A.
By: /s/ David K. Alexander
------------------------------
Name: David K. Alexander
------------------------------
Title: Senior Vice President
------------------------------
BANK ONE, TEXAS, N.A.
By: /s/ Fred Points
------------------------------
Name: Fred Points
------------------------------
Title: Vice President
------------------------------
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ Seiji Imai
------------------------------
Name: Seiji Imai
------------------------------
Title: Vice President
------------------------------
DEPOSIT GUARANTY NATIONAL BANK
By: /s/ Ron Hendrix
------------------------------
Name: Ron Hendrix
------------------------------
Title: Vice President
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael P. King
------------------------------
Name: Michael P. King
------------------------------
Title: Assistant Vice President
------------------------------
FIRST NATIONAL BANK OF COMMERCE
By: /s/ Edward M. Rowley, III
------------------------------
Name: Edward M. Rowley, III
------------------------------
Title: Assistant Vice President
------------------------------
FLEET NATIONAL BANK
By: /s/ Vincent J. Rivers
------------------------------
Name: Vincent J. Rivers
------------------------------
Title: Assistant Vice President
------------------------------
HIBERNIA NATIONAL BANK
By: /s/ Roger E. Johnston
------------------------------
Name: Roger E. Johnston
------------------------------
Title: Vice President
------------------------------
MELLON BANK, N.A.
By: /s/ John M. Kailer
------------------------------
Name: John M. Kailer
------------------------------
Title: First Vice President
------------------------------
MICHIGAN NATIONAL BANK
By: /s/ Stephane E. Lubin
------------------------------
Name: Stephane E. Lubin
------------------------------
Title: Relationship Manager
------------------------------
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ George J. Stapleton
------------------------------
Name: George J. Stapleton
------------------------------
Title: Vice President
------------------------------
REGIONS BANK OF LOUISIANA
By: /s/ Thomas E. Brabston
------------------------------
Name: Thomas E. Brabston
------------------------------
Title: Vice President
------------------------------
ROYAL BANK OF CANADA
By: /s/ Thomas M. Byrne
------------------------------
Name: Thomas M. Byrne
------------------------------
Title: Senior Manager
------------------------------
THE SANWA BANK, LIMITED
By: /s/ L.J. Perenyi
------------------------------
Name: L.J. Perenyi
------------------------------
Title: Vice President
------------------------------
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By: /s/ Robert H. Riley, III
------------------------------
Name: Robert H. Riley, III
------------------------------
Title: Managing Director
------------------------------
By: /s/ David G. Dickinson, Jr.
------------------------------
Name: David G. Dickinson, Jr.
------------------------------
Title: Assistant Treasurer
------------------------------
<PAGE>
SCHEDULE 1
Parties, Addresses, Committed Sums, and Wiring Information
----------------------------------------------------------
Borrower
- --------
All notice confirming amounts borrowed and the interest rate
thereon, responses to Competitive Bid Requests, notices
regarding amounts of any principal or interest payments due
and any billings for Facility Fees should be directed to:
Century Telephone Enterprises, Inc.
P. O. Box 4065
Monroe, Louisiana 71211-4065
Attention: Director of Treasury Services
FAX No.: 318-388-9602
Other written communications:
Century Telephone Enterprises, Inc.
P. O. Box 4065
Monroe, Louisiana 71211-4065
Attention: David G. Thiels, Treasurer
FAX No.: 318-388-9093
with a copy to:
Harvey P. Perry, Senior Vice President,
Secretary and General Counsel
Century Telephone Enterprises, Inc.
P. O. Box 4065
Monroe, Louisiana 71211-4065
FAX No.: 318-388-9562
Agents
- ------
NationsBank of Texas, N.A.
600 Peachtree Street N.E., 21st Floor
Atlanta, Georgia 30308
Attention: Daniel J. Rabbitt
FAX No.: 404/607-6465
Copy to: Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2199
Attention: Ira D. Einsohn
FAX No.: 214/745-5390
Lenders
================================================================================
Lenders Facility A Facility B
Commitment Commitment
(Tranche B-2)
- --------------------------------------------------------------------------------
NationsBank of Texas, N.A. $65,000,000 $195,000,000 1
Domestic and Eurodollar Lending Office
- --------------------------------------
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75201
Attention: Sahar Sharkawy
FAX No.: 214/508-2118
- --------------------------------------------------------------------------------
Bank of Tokyo Mitsubishi Trust Company 25,000,000 75,000,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Bank of Tokyo Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, New York 10020
Attention: Glenn Eckert, Vice President
FAX No.: 212/782-4935
- --------------------------------------------------------------------------------
Texas Commerce Bank National Association 25,000,000 75,000,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Texas Commerce Bank National Association
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Attention: Allen King, Vice President
FAX No.: 214/965-2990
- --------------------------------------------------------------------------------
Royal Bank of Canada 25,000,000 75,000,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Royal Bank of Canada
New York Branch
Financial Square
New York, New York 10005
Attention: Brian Schneider, Associate
FAX No.: 212/428-6460
- --------------------------------------------------------------------------------
SunTrust Bank, Central Florida, N.A. 25,000,000 75,000,000
Domestic and Eurodollar Lending Office
- --------------------------------------
SunTrust Bank, Central Florida, N.A.
200 S. Orange Avenue
Orlando, Florida 32801
Attention: Kimberly Evans, Vice President
FAX No.: 407/237-4253
- --------------------------------------------------------------------------------
Wachovia Bank, N.A. 25,000,000 75,000,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Wachovia Bank, N.A.
191 Peachtree Street N.E., MC-GA370
Atlanta, Georgia 30303
Attention: Carl Peoples, Vice President
FAX No.: 404/332-6898
- --------------------------------------------------------------------------------
Bank One, Texas, N.A. 12,500,000 37,500,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Bank One, Texas, N.A.
1717 Main Street, 3rd Floor
Dallas, Texas 75201
Attention: Fred Points, Vice President
FAX No.: 214/290-2683
- --------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Limited 12,500,000 37,500,000
Domestic and Eurodollar Lending Office
- --------------------------------------
The Dai-Ichi Kangyo Bank, Limited
1 World Trade Center, Suite 4911
New York, New York 10048
Attention: Tina Brucculeri
FAX No.: 212/912-1879
- --------------------------------------------------------------------------------
The First National Bank of Chicago 12,500,000 37,500,000
Domestic and Eurodollar Lending Office
- --------------------------------------
The First National Bank of Chicago
One First National Plaza, Suite 0363
Chicago, Illinois 60670
Attention: Michael King
FAX No.: 312/732-8587
- --------------------------------------------------------------------------------
Mellon Bank, N.A. 12,500,000 37,500,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Mellon Bank, N.A.
One Mellon Bank Center, Room 4440
151-440
Pittsburgh, Pennsylvania 15258-0001
Attention: John M. Kailer, First Vice President
FAX No.: 412/234-6375
- --------------------------------------------------------------------------------
Morgan Guaranty Trust Company of New York 12,500,000 37,500,000
Domestic Lending Office
- -----------------------
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Attention: Loan Servicing Unit
FAX No.: 302/634-1852
Eurodollar Lending Office
- -------------------------
Morgan Guaranty Trust Company of New York
Nassau Bahamas Office
c/o J.P. Morgan Services, Inc.
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Euro-Loan Servicing Unit
FAX No.: 302/634-1852
- --------------------------------------------------------------------------------
Union Bank of Switzerland, New York Branch 12,500,000 37,500,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Union Bank of Switzerland, New York Branch
299 Park Avenue
New York, New York 10171
Attention: Robert H. Riley III, Managing Director
FAX No.: 212/821-3914
- --------------------------------------------------------------------------------
Fleet National Bank 6,250,000 18,750,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Fleet National Bank
One Federal Street, MA of D03D
Boston, Massachusetts 02110
Attention: Jeffrey J. McLaughlin, Senior Vice President
FAX No.: 617/345-4345
- --------------------------------------------------------------------------------
Hibernia National Bank 6,250,000 18,750,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Hibernia National Bank
1808 North 18th Street
Monroe, Louisiana 71201
Attention: Roger Johnston, Vice President
FAX No.: 318/329-2727
- --------------------------------------------------------------------------------
The Sanwa Bank, Limited 6,250,000 18,750,000
Domestic and Eurodollar Lending Office
- --------------------------------------
The Sanwa Bank, Limited
New York Branch
55 East 52nd Street
New York, New York 10055
Attention: Renko Hara
FAX No.: 212/754-3084
- --------------------------------------------------------------------------------
Michigan National Bank 5,000,000 15,000,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Michigan National Bank
27777 Inkster Road
Farmington Hills, Michigan 48334
Attention: Stephane E. Lubin, Relationship Manager
FAX No.: 248/473-4345
- --------------------------------------------------------------------------------
Deposit Guaranty National Bank 3,750,000 11,250,000
Domestic and Eurodollar Lending Office
- --------------------------------------
Deposit Guaranty National Bank
210 E. Capitol
Jackson, Mississippi 39201
Attention: Ron Hendrix, Vice President
FAX No.: 601/354-8412
- --------------------------------------------------------------------------------
First National Bank of Commerce 3,750,000 11,250,000
Domestic and Eurodollar Lending Office
- --------------------------------------
First National Bank of Commerce
201 St. Charles Avenue, No. Ctr 286
New Orleans, Louisiana 70170
Attention: Charles A. Tulloh, IV, Senior Vice President
FAX No.: 504/623-1864
- --------------------------------------------------------------------------------
Regions Bank of Louisiana 3,750,000 11,250,000
Domestic and Eurodollar Lending Office
Regions Bank of Louisiana
1500 North 18th Street
Monroe, Louisiana 71201
Attention: Tom Brabston, Vice President
FAX No.: 318/263-8864
- --------------------------------------------------------------------------------
Total $300,000,000 $900,000,000
================================================================================
- --------
1 Facility B Commitment (Tranche B-1) equals $400,000,000.
Wiring Information
NATIONSBANK OF TEXAS, N.A.
- --------------------------
Location of account: NationsBank of Texas, N.A.
(Dallas, Texas)
ABA #: 111000025
Attention: Commercial Loan Operations
Reference: Century Telephone Enterprises, Inc.
Account #: 129-2000-883
THE BORROWER
- ------------
Location of account: Regions Bank of Louisiana
(Monroe, Louisiana)
ABA #: 062005690
A/C#: 42-0013-0443
Reference: Century Telephone Enterprises, Inc.
(Immediate advice to Treasury Department, 318-388-9713)
BANK ONE, TEXAS, N.A.
- ---------------------
Location of account: Bank One, Texas, N.A.
ABA #: 111 000 614
Account #: 0109904045
Reference: Century Telephone Enterprises, Inc., #1484678929
BANK OF TOKYO MITSUBISHI TRUST COMPANY
- --------------------------------------
Location of account: Bank of Tokyo-Mitsubishi Trust Company
ABA #: 0260-0968-7
Further Credit to: Loan Administration Dept., C1F #97770477
THE DAI-ICHI KANGYO BANK, LIMITED
- ---------------------------------
Location of account: The Dai-Ichi Kangyo Bank, Limited
1 World Trade Center, Suite 4911
New York, New York 10048
ABA #: 026004307
Reference: Century Telephone Enterprises, Inc.
Attention: Tina Brucculeri
DEPOSIT GUARANTY NATIONAL BANK
- ------------------------------
Location of account: Deposit Guaranty National Bank
210 East Capitol Street
Jackson, Mississippi 39201
ABA #: 065305436
Account #: IFT # 11703
Reference: Century Telephone Enterprises, Inc.
Attention: Kay Shelton
THE FIRST NATIONAL BANK OF CHICAGO
- ----------------------------------
Location of account: The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
ABA #: 071000013
Account #: 7521-7653
Reference: Century Telephone Enterprises, Inc.
Attention: Robert Simon
FIRST NATIONAL BANK OF COMMERCE
- -------------------------------
Location of account: First National Bank of Commerce
201 St. Charles Avenue
New Orleans, Louisiana 70170
ABA #: 065000029
Account #: 1343623
Reference: Century Telephone Enterprises, Inc.
Attention: Document Review
FLEET NATIONAL BANK
- -------------------
Location of account: Fleet Bank
One Federal Street
Boston, Massachusetts 02110
ABA #: 011000138
Account #: 1510351-03156
Reference: Century Telephone Enterprises, Inc.
Attention: Loan Adm-Wire Suspense Acct.
HIBERNIA NATIONAL BANK
- ----------------------
Location of account: Hibernia National Bank
313 Carondolet
New Orleans, Louisiana 70130
ABA #: 065000090
Account #: 509036615
Reference: Century Telephone Enterprises, Inc.
Attention: Ginny Keller
MELLON BANK, N.A.
- -----------------
Location of account: Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-2305
Pittsburgh, Pennsylvania 15230
ABA #: 043000261
Account #: 990873800
Reference: Century Telephone Enterprises, Inc.
Attention: Lorrie Amadio
MICHIGAN NATIONAL BANK
- ----------------------
Location of account: Michigan National Bank
27777 Inkster Road
Farmington Hills, Michigan 48334
ABA #: 072000805
Reference: Century Telephone Enterprises, Inc.
Attention: Sylvia Mills, 248/615-5951
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
- -----------------------------------------
o For LIBOR, CD, Base Rate Principal and/or Interest payments and fees
Morgan Guaranty Trust Company of New York
New York, New York
ABA #021000238
For Credit to: Loan Department
A/C # 999-99-090
Attention: Corporate Processing - Mod 23
Reference: Century Telephone Enterprises, Inc.
o For Competitive Bids (Money Market):
Morgan Guaranty Trust Company of New York
New York, New York
ABA #021000238
For Credit to: Loan Department
A/C #001-39-968
Attention: Competitive Bids
Reference: Century Telephone Enterprises, Inc.
o For Letters of Credit:
Morgan Guaranty Trust Company of New York
ABA #021-000-238
For Credit to: International Trade Services
A/C #999-99-068
Reference: Century Telephone Enterprises, Inc.
(Commission, Drawing, Closing Fee, etc.)
REGIONS BANK OF LOUISIANA
- -------------------------
Location of account: Regions Bank
417 N. 20th Street
Birmingham, Alabama 35203
ABA #: 062005690
Account #: To be Determined
Reference: Century Telephone Enterprises, Inc.
Attention: Debbie Garner, Commercial Loans
ROYAL BANK OF CANADA
- --------------------
Location of account: Chase Manhattan Bank, NY
ABA #: 021-000-021
Account #: 920-1-033363
Reference: Century Telephone Enterprises, Inc.
THE SANWA BANK, LIMITED
- -----------------------
Location of account: The Sanwa Bank, Limited, New York Branch
55 East 52nd Street
New York, New York 10055
ABA #: 026009823
Account #: UID #279368
Reference: Century Telephone Enterprises, Inc.
Attention: Renko Hara
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
- ------------------------------------
Location of account: SunTrust Bank, Central Florida, N.A.
200 S. Orange Avenue
Orlando, Florida 32801
ABA #: 063-102-152
Account #: 9215004320
Reference: Century Telephone Enterprises, Inc.
Attention: Kim Evans
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
- ----------------------------------------
Location of account: Texas Commerce Bank National Association
712 Main Street @ Rusk
Houston, Texas 77002
ABA #: 113000609
Account #: 00100381673
Reference: Century Telephone Enterprises, Inc.
UNION BANK OF SWITZERLAND
- -------------------------
Location of account: Union Bank of Switzerland, New York Branch
299 Park Avenue
New York, New York 10171
ABA #: 026008439
Reference: Loan Servicing
By Order of: Century Telephone Enterprises, Inc.
WACHOVIA BANK, N.A.
- -------------------
Location of account: Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
ABA #: 061000010
Account #: 18-171-498
Reference: Century Telephone Enterprises, Inc.
Attention: Complex Unit
SCHEDULE 2
Permitted Liens
---------------
Paragraph
No. Description
--- -----------
1. 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.
2. 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.
3. 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.
4. Encumbrances and restrictions on the use of real property
which do not materially impair such property.
5. The following, if either (a) no amounts are due and payable
and no Lien has been filed or agreed to or (b) the validity
or amount thereof is being contested in good faith by 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:
a. Liens for Taxes;
b. 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;
c. Liens of mechanics, materialmen, warehousemen,
carriers, and landlords, and similar Liens; and
d. Adverse judgments on appeal.
6. 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.
7. 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 (a) 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 (b) 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 5.25.
8. 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 5.25.
9. Liens on property of a Subsidiary (other than on the stock
of Subsidiary except to the extent permitted in paragraph 8
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 5.25 hereof.
10. Liens existing on the date hereof.
11. Except as otherwise prohibited in paragraphs 7 and 8 above,
Liens securing extensions and renewals of the Debt
originally secured thereby.
SCHEDULE 3.6
MATERIAL LITIGATION
-------------------
NONE
SCHEDULE 3.12
TRANSACTIONS WITH AFFILIATES
----------------------------
NONE
SCHEDULE 3.17
Business of Companies
---------------------
General
- -------
Item 1 of the Borrower's most recent annual report filed with the Securities and
Exchange Commission on Form 10-K contains a more detailed discussion of the
business of the Borrower. The following description summarizes that information.
A. Borrower
--------
The Borrower directly or indirectly owns the voting stock of the
Subsidiaries named in Exhibit 21 of the Borrower's most recent annual
report filed with the Securities and Exchange Commission on Form 10-K
and is active in acquiring additional Subsidiaries, businesses, or
assets for the provision of communications products and services. The
Borrower directly owns no assets for the provision of communications
services, but it provides or arranges financing and provides general
management, and other operating services to its operating Subsidiaries.
B. Subsidiaries
------------
The Subsidiaries named in Exhibit 21 of the Borrower's most recent
annual report filed with the Securities and Exchange Commission on Form
10-K are engaged in providing telephone and/or other telecommunications
services to consumers or they provide services to other Subsidiaries
and other telecommunications companies.
Local telephone service is provided in the telephone Subsidiaries'
respective service areas. Long distance toll service is provided over
facilities partially owned by the telephone Subsidiaries and
interconnected with other telephone companies and with nationwide toll
networks of American Telephone and Telegraph Company and other long
distance carriers. Other telecommunications services include facilities
for private line service teletypewriter, microwave, long distance, data
transmission, cellular mobile telephone, mobile radio telephone,
personal communications services, security systems, call center,
telemarketing, operator services, interactive services, providing
Internet access, paging, cable services, wide area toll service (WATS),
and voice messaging.
Other services provided include management, consulting, finance,
billing, accounting, engineering, purchasing, data processing, printing
and other business communications products, light manufacturing, and
installation and repair of central office equipment.
EXHIBIT A-1
-----------
FORM OF COMPETITIVE BID REQUEST
-------------, -----
NationsBank of Texas, N.A.,
as Auction Administrative Agent for the Lenders as defined in the
Credit Agreement referred to below
NationsBank Plaza, 14th Floor
901 Main Street
Dallas, Texas 75202
Attention: Sahar Sharkawy
Agency Services
Dear Sirs:
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 28, 1997 (as amended, modified, supplemented,
renewed, or extended from time to time, the "Credit Agreement"), among the
undersigned, the Lenders named therein, and NationsBank of Texas, N.A., as
Agents and as Auction Administration Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The undersigned hereby gives you notice pursuant to
Section 2.3 of the Credit Agreement that it requests a Competitive Borrowing
under the Credit Agreement, and in that connection sets forth below the terms on
which such Competitive Borrowing is requested to be made:
(A) Borrowing Date of Competitive Borrowing (a Business Day) _______
(B) Principal Amount of Competitive Borrowing1 _______
(C) Interest rate basis2 _______
(D) Interest Period and the last day thereof3 _______
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By:_______________________
Name :____________________
Title:____________________
- --------------------
1 Not less than $5,000,000 or greater than the unused Total Facility A
Commitment and in integral multiples of $1,000,000.
2 Eurodollar Loan or Fixed Rate Loan or both.
3 Which shall have a duration (i) in the case of a Eurodollar Loan, of one,
two or three months, and (ii) in the case of a Fixed Rate Loan, of not
less than seven calendar days nor more than 90 calendar days, and which,
in either case, shall end not later than the Termination Date.
<PAGE>
EXHIBIT A-2
-----------
FORM OF NOTICE OF COMMITTED BORROWING
-------------, -----
NationsBank of Texas, N.A.,
as Agent for the Lenders as defined in the
Credit Agreement referred to below
NationsBank Plaza, 14th Floor
901 Main Street
Dallas, Texas 75202
Attention: Sahar Sharkawy
Agency Services
Dear Sirs:
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 28, 1997 (as amended, modified, supplemented,
renewed, or extended from time to time, the "Credit Agreement"), among the
undersigned, the Lenders named therein, and NationsBank of Texas, N.A., as Agent
and as Auction Administration Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby (check whichever is applicable):
_____ 1. Gives you notice pursuant to Section 2.4 of the Credit
Agreement that it requests a Committed Borrowing under the
Credit Agreement, and in that connection sets forth below the
terms on which such Committed Borrowing is requested to be
made:
(A) Borrowing Date of Committed Borrowing (a Business Day)
________
(B) Principal Amount of Committed Borrowing1 ________
(C) Type of Committed Borrowing2 ________
(D) Interest rate basis3 ________
(E) Interest Period and the last day thereof4 ________
_____ 2. Gives you notice pursuant to Section 2.5(b) that it
requests the conversion of [Facility A] [Facility B] Committed
Loans that are Eurodollar Loans into Base Rate Loans in the
amount of $___________5.
_____ 3. Gives you notice pursuant to Section 2.5(b) of the Credit
Agreement that it requests the conversion of [Facility
A][Facility B] Committed Loans that are Base Rate Loans into
Eurodollar Loans in the amount of $____________5, having an
Interest Period of _______ months4.
_____ 4. Gives you notice pursuant to Section 2.5(b) of the Credit
Agreement that it requests the continuation of Eurodollar
Loans made under [Facility A][Facility B] in the amount of
$__________5 to another Interest Period of ______ months4.
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By: ___________________
Name: ___________________
Title:___________________
- -----------
1 Not less than $5,000,000 or greater than the unused Total Facility A
Commitment or Total Facility B Commitment, as applicable, and in integral
multiples of $1,000,000.
2 Facility A Comitted Borrowing or Facility B Committed Borrowing
3 Eurodollar Loan or Base Rate Loan.
4 Applicable only to Eurodollar Loans. Interest Periods shall have a
duration of one, two, three or six months and shall end not later than
the Termination Date.
5 Not less than $5,000,000 and in integral multiples of $1,000,000.
EXHIBIT A-3
-----------
FORM OF NOTICE OF CONVERSION
-------------, -----
NationsBank of Texas, N.A.,
as Agent for the Lenders as defined in the
Credit Agreement referred to below
NationsBank Plaza, 14th Floor
901 Main Street
Dallas, Texas 75202
Attention: Sahar Sharkawy
Agency Services
Dear Sirs:
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 28, 1997 (as amended, modified, supplemented,
renewed, or extended from time to time, the "Credit Agreement"), among the
undersigned, the Lenders named therein, and NationsBank of Texas, N.A., as Agent
and as Auction Administration Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby gives you notice pursuant to Section
2.2(c) of the Credit Agreement that it requests to convert all of the Facility B
Committed Borrowings under the Credit Agreement to a single term loan which
shall amortize in accordance with Section 2.13(c) of the Credit Agreement, and
in that connection sets forth below the terms on which such Facility B
Conversion is requested to be made:
(A) Conversion Date of Committed Borrowing (a Business Day)1 ______
(B) Aggregate Outstanding Principal Amount of Facility B
Committed Borrowings to be Converted2 ______
Very truly yours,
CENTURY TELEPHONE ENTERPRISES, INC.
By:___________________________
Name:_________________________
Title:________________________
- ------------
1 Not later than the Facility B Termination Date.
2 Not less than the aggregate amount of outstanding Facility B
Committed Loans.
EXHIBIT B
---------
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST
------------, -----
[Name of Bank]
[Address of Bank]
Attention: ______________________
Dear Sirs:
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 28 , 1997 (as amended, modified, supplemented,
renewed, or extended from time to time, the "Credit Agreement"), among Century
Telephone Enterprises, Inc. (the "Company"), the Lenders named therein and
NationsBank of Texas, N.A., as Agent and as Auction Administration Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Company delivered a
Competitive Bid Request dated _____________, _____, pursuant to Section 2.3(a)
of the Credit Agreement, and in that connection you are invited to submit a
Competitive Bid by [Date] / [Time] .1 Your Competitive Bid must comply with
Section 2.3(b) of the Credit Agreement and the terms set forth below on which
the Notice of Competitive Borrowing was made:
(A) Borrowing Date of Competitive Borrowing (a Business Day) _______
(B) Principal Amount of Competitive Borrowing _______
(C) Interest rate basis _______
(D) Interest Period and the last day thereof _______
Very truly yours,
NATIONSBANK OF TEXAS, N.A.,
Auction Administration Agent
By:
Name:
Title:
- --------
1 The Competitive Bid must be received by the Auction Administration Agent
(i) in the case of Eurodollar Loans, not later than 11:00 a.m., Dallas,
Texas time, three Business Days before a proposed Competitive Borrowing,
and (ii) in the case of Fixed Rate Loans, not later than 11:00 a.m.,
Dallas, Texas time, one Business Day before a proposed Competitive
Borrowing.
EXHIBIT C
---------
FORM OF COMPETITIVE BID
----------, ----
NationsBank of Texas, N.A., as Auction Administration Agent for the Lenders as
defined in the Credit Agreement referred to below
NationsBank Plaza, 14th Floor
901 Main Street
Dallas, Texas 75202
Attention: Sahar Sharkawy
Agency Services
Sirs:
The undersigned, [Name of Bank], refers to the Competitive Advance and
Revolving Credit Facility Agreement dated as of August 28, 1997 (as amended,
modified, supplemented, renewed, or extended from time to time, the "Credit
Agreement"), among Century Telephone Enterprises, Inc. (the "Company"), the
Lenders named therein, and NationsBank of Texas, N.A., as Agent and Auction
Administration Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.3(b) of the
Credit Agreement, in response to the Competitive Bid Request made by the Company
on __________, ____, and in that connection sets forth below the terms on which
such Competitive Bid is made:
(A) Principal Amount1 __________
(B) Competitive Bid Rate2 __________
(C) Interest Period and the last day thereof3 __________
The undersigned hereby confirms that it is prepared to extend credit to
the Company upon acceptance by the Company of this bid in accordance with
Section 2.3(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By:_________________________
Name:_______________________
Title:______________________
- -----------------
1 Not less than $5,000,000 or greater than the amount of the Competitive
Borrowing requested by the Company nor the available Total Facility A
Commitment and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Auction Administration Agent.
2 LIBOR Rate + or - ________%, in the case of Eurodollar Loans, or _______%,
in the case of Fixed Rate Loans (in each case, expressed in the form of a
decimal to no more than four decimal places).
3 The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
EXHIBIT D-1
-----------
FORM OF COMPETITIVE NOTE
$300,000,000.00 August 28, 1997
FOR VALUE RECEIVED, the undersigned, CENTURY TELEPHONE ENTERPRISES, INC.,
a Louisiana corporation (the "Company"), hereby promises to pay to the order of
___________________________ (the "Lender") on or before the Termination Date the
lesser of (i) THREE HUNDRED MILLION AND NO/100 DOLLARS ($300,000,000.00) and
(ii) the aggregate amount of Competitive Loans made by the Lender to the Company
and outstanding on the Termination Date.
This note has been executed and delivered under, and is subject to the
terms of, the Competitive Advance and Revolving Credit Facility Agreement dated
as of August 28, 1997 (as amended, renewed, extended, amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among the Company, the
Lenders, the Agent, and the Auction Administration Agent, and is one of the
"Competitive Notes" referred to therein. Unless defined herein or the context
otherwise requires, capitalized terms used herein have the meaning given to such
terms in the Credit Agreement. Reference is made to the Credit Agreement for
provisions affecting this note regarding applicable interest rates, principal
and interest payment dates, final maturity, voluntary and mandatory prepayments,
acceleration of maturity, exercise of Rights, payment of attorneys' fees, court
costs and other costs of collection, certain waivers by the Company and others
now or hereafter obligated for payment of any sums due hereunder and security
for the payment hereof. Without limiting the immediately preceding sentence,
reference is made to Section 9.12 of the Credit Agreement for usury savings
provisions.
CENTURY TELEPHONE ENTERPRISES, INC.
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT D-2
-----------
FORM OF FACILITY A COMMITTED NOTE
$_____________ August 28, 1997
FOR VALUE RECEIVED, the undersigned, CENTURY TELEPHONE ENTERPRISES, INC.,
a Louisiana corporation (the "Company"), hereby promises to pay to the order of
__________________________ (the "Lender") on or before the Termination Date the
lesser of (i) the amount of the Lender's Facility A Commitment and (ii) the
aggregate amount of Facility A Committed Loans made by the Lender to the Company
and outstanding on the Termination Date.
This note has been executed and delivered under, and is subject to the
terms of, the Competitive Advance and Revolving Credit Facility Agreement dated
as of August 28, 1997 (as amended, renewed, extended, amended, supplemented, or
replaced from time to time, the "Credit Agreement"), among the Company, the
Lenders, the Agent, and the Auction Administration Agent, and is one of the
"Facility A Committed Notes" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning given
to such terms in the Credit Agreement. Reference is made to the Credit Agreement
for provisions affecting this note regarding applicable interest rates,
principal and interest payment dates, final maturity, voluntary and mandatory
prepayments, acceleration of maturity, exercise of Rights, payment of attorneys'
fees, court costs and other costs of collection, certain waivers by the Company
and others now or hereafter obligated for payment of any sums due hereunder and
security for the payment hereof. Without limiting the immediately preceding
sentence, reference is made to Section 9.12 of the Credit Agreement for usury
savings provisions.
CENTURY TELEPHONE ENTERPRISES, INC.
By: ______________________________
Name: ____________________________
Title:____________________________
EXHIBIT D-3
-----------
FORM OF FACILITY B COMMITTED NOTE
$_____________ August 28, 1997
FOR VALUE RECEIVED, the undersigned, CENTURY TELEPHONE ENTERPRISES, INC.,
a Louisiana corporation (the "Company"), hereby promises to pay to the order of
_________________ (the "Lender") on or before the Facility B Termination Date
the lesser of (i) the amount of the Lender's Commitment and (ii) the aggregate
amount of Committed Loans made by the Lender to the Company and outstanding on
the Facility B Termination Date. Notwithstanding the foregoing, after a Facility
B Conversion, the outstanding principal balance of the Facility B Committed
Loans shall be due and payable in accordance with the provisions of Section
2.13(c) of the Credit Agreement.
This note has been executed and delivered under, and is subject to the
terms of, the Competitive Advance and Revolving Credit Facility Agreement dated
as of August 28, 1997 (as amended, and as further renewed, extended, amended,
supplemented, or replaced from time to time, the "Credit Agreement"), among the
Company, the Lenders, the Agent, and the Auction Administration Agent, and is
one of the "Committed Notes" referred to therein. Unless defined herein or the
context otherwise requires, capitalized terms used herein have the meaning given
to such terms in the Credit Agreement. Reference is made to the Credit Agreement
for provisions affecting this note regarding applicable interest rates,
principal and interest payment dates, final maturity, voluntary and mandatory
prepayments, accelleration of maturity, exercise of Rights, payment of
attorneys' fees, court costs and other costs of collection, certain waivers by
the Company and others now or hereafter obligated for payment of any sums due
hereunder and security for the payment hereof. Without limiting the immediately
preceding sentence, reference is made to Section 9.12 of the Credit Agreement
for usury savings provisions.
CENTURY TELEPHONE ENTERPRISES, INC.
By: __________________________
Name: ________________________
Title: _______________________
EXHIBIT E
BOLES, BOLES & RYAN, ATTORNEYS
(A PROFESSIONAL LAW CORPORATION)
WILLIAM R. BOLES 1805 TOWER DRIVE
CHARLES H. RYAN MONROE, LOUISIANA 71201 BATON ROUGE OFFICE
JANET S. BOLES Mail to: 7809 Jefferson Highway
G. ROBERT COLLIER, JR.* P.O. Box 2065 Suite D3
WILLIAM R. BOLES, JR.** Monroe, LA 71207-2065 Baton Rouge, LA 70809
L. SCOTT PATTON TELEPHONE (318) 388-4050 Telephone (504) 924-2686
H. HERBERT HOBGOOD FACSIMILE (318) 329-9150 Facsimile (504) 926-5425
CATHERINE C. CREED FACSIMILE (318) 388-8992
CHRISTIAN C. CREED E-MAIL: [email protected] NEW ORLEANS OFFICE
MICHAEL L. DuBOS 2714 Canal Street,
__________________ Suite 500
New Orleans, LA 70119
JAMES A. MOUNGER Telephone (504) 821-6031
OF COUNSEL Facsimile (504) 822-6292
*Board Certified Tax Attorney
**Also Admitted in Colorado
August 28, 1997
NationsBank of Texas, N.A.,
as Agent for the Lenders as defined in
the Credit Agreement referred to below
NationsBank Plaza, 66th Floor
901 Main Street
Dallas, TX 75202
Attn: Communications Finance
We have acted as counsel for Century Telephone Enterprises, Inc., a
Louisiana corporation (the "Borrower"), in connection with the execution and
delivery of the $1,600,000,000.00 Competitive Advance and Revolving Credit
Facility Agreement of even date herewith (the "Credit Agreement") among the
Borrower, the Agent, the Auction Administration Agent, and the Lenders party
thereto.
This opinion is delivered to you pursuant to Section 4.1 of the Credit
Agreement and upon the express instruction of the Borrower. Unless defined
herein, capitalized terms have the meanings given to such terms in the Credit
Agreement.
In connection with this opinion, we have examined executed copies of the
Credit Agreement and Competitive Notes and Committed Notes executed by Borrower
and payable to each Lender (collectively, the "Loan Papers"). We have also
examined and relied upon the representations and warranties as to factual
matters contained in or made pursuant to the Loan Papers and such corporate
documents and records of the Borrower, certificates of public officials,
officers of the Borrower, and such other documents as we have deemed necessary
or appropriate for the purposes of this opinion. In stating our opinion, we have
assumed the genuineness of all signatures of, and the authority of, persons
signing the Loan Papers on behalf of the parties thereto other than the
Borrower, the authenticity of all documents submitted to us as originals, the
conformity to authentic original documents of all documents submitted to us as
certified, conformed, or photostatic copies, and that all documents, books, and
records made available to us by the Borrower are accurate and complete.
We are qualified to practice law in the State of Louisiana and our
opinion is restricted to the laws of the State and the federal law of the United
States of America. We have assumed that insofar as the substantive laws of
states other than Louisiana that may be applicable to any matters opined on
herein, such laws are identical to the substantive laws of the State of
Louisiana applied by us herein.
Based upon the foregoing, we are of the opinion that:
1. The Borrower and each Significant Subsidiary are each a corporation
duly organized, validly existing, and in good standing under the laws of its
state of incorporation. Except where failure would not reasonably be expected to
have a Material Adverse Effect, the Borrower and each Significant Subsidiary (a)
are each duly qualified to transact business and are in good standing as a
foreign corporation in each jurisdiction where the nature and extent of its
business and properties require the same and (b) each possesses all requisite
authority, power, and material licenses, permits, and franchises to conduct its
business as is now being conducted. The Borrower possesses all requisite
authority, power, licenses, permits, and franchises to execute, deliver, and
comply with the terms of the Loan Papers, all which have been duly authorized
and approved by all necessary corporate action and, except where failure would
not reasonably be expected to have a Material Adverse Effect, for which no
approval or consent of any Person or Tribunal is required which has not been
obtained and no filing or other notification to any Person or Tribunal is
required which has not been properly completed.
2. The Borrower is not, nor will the execution, delivery, performance, or
observance of the Loan Papers cause the Borrower to be, (a) to the best of our
knowledge, in violation of any laws or any Material Agreements to which it is a
party, other than such violations which would not reasonably be expected to have
a Material Adverse Effect, or (b) in violation of its bylaws or charter.
3. We have no knowledge of any Material Litigation or outstanding or
unpaid Material judgments against the Borrower.
4. The Borrower is not (a) a "holding company", a "subsidiary company" of
a "holding company", an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, (b) a "public utility"
within the meaning of the Federal Power Act, as amended, (c) an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(d) an "investment advisor" within the meaning of the Investment Advisors Act of
1940, as amended, or (e) directly subject to the jurisdiction of the Federal
Communications Commission or any public service commission.
5. Each of the Loan Papers constitutes a valid, and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by (a) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium, or other similar
laws affecting creditors' rights generally, (b) general principles of equity
(whether enforcement is sought by proceedings in equity or at law), and (c) the
qualification that certain provisions of the Loan Papers may be unenforceable in
whole or in part under the laws of the State, but the inclusion of such
provisions does not affect the validity of any Loan Paper and each Loan Paper
contains adequate provisions for enforcing payment of the Obligations secured
thereby or provided for therein, as the case may be, and for the practical
realization of the rights and benefits afforded thereby, though they may result
in delays thereof (and we express no opinion as to the economic consequences, if
any, of such delays).
6. To our knowledge, without independent verification, the Borrower's
Subsidiaries are legally empowered by franchise, permit, or otherwise to operate
their respective properties in the territory or territories in which such
corporations now operate, and based upon facts known to us and applicable law
currently in effect, such operations may continue to be conducted as they now
are being conducted.
7. The Borrower owns, beneficially and of record, directly or indirectly,
all of the issued and outstanding capital shares of each Significant Subsidiary,
and such shares are validly issued, fully paid, and nonassessable and are so
owned by the Borrower free and clear of all Liens, except as may be indicated on
Schedule 2 attached to the Credit Agreement.
8. Under the circumstances of the transactions as contemplated by the
Credit Agreement, courts of the State of Louisiana would honor the choice of law
agreed to by the Parties in the Credit Agreement.
This opinion is furnished solely in connection with the transactions
referred to in the Credit Agreement and may not, without our permission, be
circulated to any Person, except you, your legal counsel, the Lenders, lender
supervisory authorities, prospective Participants or Purchasers, or as required
by law or order of a court or other legal process and may not be relied upon
except by you, your legal counsel, the Lenders or actual Participants or
Purchasers.
The opinions expressed herein are specific to the matters and documents
referred to herein, and no opinion may be inferred beyond the opinions stated.
The opinions expressed herein are as of the date hereof, and we disclaim any
obligation to update or modify such opinions because of any changes in the law
or represented facts relevant thereto. The opinions expressed herein are solely
for your benefit in connection with the transactions contemplated by the
Agreement. Neither you nor any other person may rely on or quote the opinions
herein without our prior written permission.
Very truly yours,
BOLES, BOLES & RYAN
(A Professional Law Corporation)
By: William R. Boles, Jr.
Its: President
WRBjr:cr
cc: Harvey P. Perry, Esq.
David Thiels
EXHIBIT F
---------
FINANCIAL REPORT CERTIFICATE
FOR _________________ ENDED ______________, _____
AGENT: NationsBank of Texas, N.A.
BORROWER: Century Telephone Enterprises, Inc.
RE: $1,600,000,000 Competitive Advance and Revolving
Credit Facility Agreement
DATE: ___________________, ____
This certificate is delivered pursuant to Section 5.3 of the
$1,600,000,000 Competitive Advance and Revolving Credit Facility Agreement dated
as of August 28, 1997 (as amended, modified, supplemented, renewed, or extended
from time to time, the "Credit Agreement"), among the Borrower, the Agent, the
Lenders and the Auction Administration Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
I certify to the Agents and the Lenders that I am the
_____________________ (president, chief financial officer, treasurer, or
assistant treasurer) of the Borrower on the date hereof and that:
1. The Financial Statements attached hereto were prepared in accordance
with GAAP, and present fairly the consolidated financial condition and results
of operations of the Companies as of, and for the ____________ ended on
_______________, _____ (the "Subject Period").
2. A review of the Borrower's activities during the Subject Period has
been made under my supervision with a view to determining whether, during the
Subject Period, the Borrower has kept, observed, performed, and fulfilled all of
its obligations under the Loan Papers, and during the Subject Period, to my
knowledge, the Borrower kept, observed, performed, and fulfilled each and every
covenant and condition of the Loan Papers in all material respects (except for
any deviations set forth on the attached schedule).
3. During the Subject Period, no Event of Default has occurred which has
not been cured or waived (except for any Events of Default set forth on the
attached schedule).
4. The status of compliance by the Borrower with Section 5.25 of the
Credit Agreement as of the last day of the Subject Period is set forth on the
attached schedule.
5. This certificate is being delivered on behalf of the Borrower. No
person or entity other than the Agents and the Lenders (collectively, the
"Subject Recipients") shall be entitled to receive or rely upon this certificate
for any purpose. The Subject Recipients agree by their acceptance hereof that
(a) they shall look solely to the Borrower for any loss, cost, damage, expense,
claim, demand, suit, or cause of action arising out of or relating in any way to
this certificate or its preparation and delivery, and (b) the undersigned shall
not under any circumstances have any personal liability whatsoever for the
preparation or execution of this certificate.
CENTURY TELEPHONE ENTERPRISES, INC.
By:_________________________
Name:_______________________
Title:______________________
EXHIBIT G
---------
FORM OF DESIGNATION AGREEMENT
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 28, 1997 (as amended, supplemented, renewed,
extended or otherwise modified from time to time, the "Credit Agreement") among
CENTURY TELEPHONE ENTERPRISES, INC., a Louisiana corporation (the "Borrower"),
the Lenders, as defined therein (the "Lenders"), NATIONSBANK OF TEXAS, N.A., a
national banking association, as agent for the Lenders (in such capacity, the
"Agent"), and as auction administration agent (in such capacity, the "Auction
Administration Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
[NAME OF DESIGNOR], (the "Designor") and [NAME OF DESIGNEE], (the
"Designee") agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to have Competitive Loans pursuant to
the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (a) any statements, warranties or representations
made in or in connection with any Loan Paper or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Paper or
any other instrument or document furnished pursuant thereto and (b) the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Paper or any other instrument
or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Paper, together with copies of the Current Financials and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will,
independently and without reliance upon any Agent, the Auction Administration
Agent, the Designor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Loan Paper; (c)
confirms that it is a Designated Lender; (d) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under any Loan Paper as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto, and appoints and authorizes the Auction Administration Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under any Loan Paper as are delegated to the Auction Administration Agent by the
terms thereof, together with such power and discretion as are reasonably
incidental thereto; and (e) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of any Loan Paper are required
to be performed by it as a Lender.
4. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Agent and Auction Administration
Agent for acceptance. The effective date for this Designation Agreement (the
"Effective Date") shall be the date of acceptance hereof by the Agent and
Auction Administration Agent, unless otherwise specified on the signature page
hereto.
5. Upon such acceptance by the Agent and Auction Administration Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make Competitive Loans as a Lender pursuant to the Credit
Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, and the Borrower, intending to indicate his approval of the Designee,
have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date:* _______________, 199__
[NAME OF DESIGNOR] , as Designor
By:____________________
Name:__________________
Title:_________________
[NAME OF DESIGNEE] , as Designee
By:___________________
Name:_________________
Title:________________
Applicable Lending Office (and address for
notices):
[ADDRESS]
CENTURY TELEPHONE ENTERPRISES, INC.,
as Borrower
By:___________________
Name:_________________
Title:________________
ACCEPTED:
NATIONSBANK OF TEXAS, N.A.,
as Agent and Auction Administration Agent
By:___________________
Name:_________________
Title:________________
- --------
* This date should be no earlier than five Business Days after the delivery
of this Designation Agreement to the Agent.
EXHIBIT H
---------
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ____________, _____
Reference is made to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 28, 1997 (as amended, modified, supplemented,
renewed, or extended from time to time, the "Credit Agreement"), among Century
Telephone Enterprises, Inc., a Louisiana corporation (the "Borrower"), the
Lenders (as defined in the Credit Agreement), and NationsBank of Texas, N.A., as
Agent and Auction Administration Agent. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement.
The "Assignor" and the "Assignee" defined on Schedule 1 agree as follows:
1. The Assignor hereby sells and assigns to the Assignee (without recourse
to the Assignor), and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement as of the Effective Date (as defined below) equal to the
percentage interests specified on Schedule 1 of the outstanding rights and
obligations of Loans and facilities specified on Schedule 1.
2. The Assignor (i) represents that it is the legal and beneficial owner
of the interest being assigned by it hereunder, free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties, or representations made in or in
connection with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of the Credit Agreement, any
other Loan Papers or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement, any other Loan Papers or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note or Notes held by the
Assignor and requests that the Agent exchange such Note or Notes for a new Note
or Notes payable to the order of the Assignee as appropriate to reflect the
assignments provided for herein as set forth on Schedule 1, and if the
assignment herein is less than all of Assignor's interest, new Notes reflective
of Assignor's continuing interest under the Credit Agreement, as specified on
Schedule 1.
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant thereto and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon either of the Agents, the Assignor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes the Agent and the Auction
Administration Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Papers as are
delegated to such Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender; and (vii) agrees that it will
keep confidential all information with respect to the Borrower furnished to it
by the Borrower or the Assignor (other than information generally available to
the public or otherwise available to the Assignor on a nonconfidential basis and
disclosures permitted under the Credit Agreement); (viii) attaches hereto a
completed administrative questionnaire [; and (ix) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying as to the
Assignee's exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are subject to
such tax at a rate reduced by an applicable tax treaty].1
4. The effective date for this Assignment and Acceptance (the "Effective
Date") shall be the date of acceptance hereof by the Agent and the payment of
the fee set forth in Section 9.20(c) of the Credit Agreement.
5. From and after the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Papers and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. From and after the Effective Date, the Agent shall make all payments in
respect of the interest assigned hereby (including payments of principal,
interest, fees, and other amounts) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments for periods prior to the
Effective Date by the Agent or with respect to the making of this assignment
directly between themselves.
7. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto and separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 of this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
[NAME OF ASSIGNOR]
By:____________________
Name:__________________
Title:_________________
[NAME OF ASSIGNEE]
By: ___________________
Name:__________________
Title:_________________
ACCEPTED THIS _____ DAY
OF _______________, ____
NATIONSBANK OF TEXAS, N.A.,
as Agent
By:_____________________
Name:___________________
Title:__________________
CONSENTED TO BY:
CENTURY TELEPHONE ENTERPRISES, INC.
By:_____________________
Name:___________________
Title:__________________
- --------
1 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
As to each Facility in
respect of which an interest
is being assigned:
Facility A Facility B Competitive
---------- ---------- -----------
Loan
----
Percentage interest assigned:
Assignee's Unutilized
Commitment (if applicable):
Aggregate outstanding
principal amount of
Loans assigned:
Principal amount of Note
payable to Assignee: $300,000,000
Exhibit 10.1
AMENDMENT
TO THE
CENTURY TELEPHONE ENTERPRISES, INC.
DOLLARS AND SENSE PLAN AND TRUST
WHEREAS, Century Telephone Enterprises, Inc. (the "Company"), approved
and adopted the Century Telephone Enterprises, Inc. Dollars and Sense Plan (the
"Plan") and Trust Agreement (the "Trust") which were originally effective May 1,
1986 and most recently restated generally effective April 1, 1992;
WHEREAS, Section 19.1 of the Plan and Trust provides that the Company
reserves the right to amend the Plan and Trust;
NOW THEREFORE RESOLVED, that Section 1 is amended effective for the
first pay period beginning on or about July 1, 1997 as follows:
1. Section 1 is amended to restate Subsection 1.17 in its entirety as follows:
1.17 "Eligible Employee." An Employee of an Employer, except any Employee:
(a) whose compensation and conditions of employment are
covered by a collective bargaining agreement to which
an Employer is a party unless the agreement calls for
the Employee's participation in the Plan; or
(b) who is a temporary Employee hired specifically to fill
temporary or occasional needs.
Century Telephone Enterprises, Inc.
Dollars and Sense Plan and Trust
Dated: June 26, 1997 Century Telephone Enterprises, Inc.
By: /s/ R. Stewart Ewing, Jr.
_________________________
Title: CFO
__________________
Century Telephone Enterprises, Inc. Amendment No. 3
Dollars and Sense Plan and Trust
The provisions of the above amendment which relate to the Trustee are hereby
approved and executed.
Date: 9/12, 1997 Barclays Global Investors, National Association
By: /s/ Peter H. Sorensen
______________________
Title: Vice President
________________
EXHIBIT 11
CENTURY TELEPHONE ENTERPRISES, INC.
COMPUTATIONS OF EARNINGS PER SHARE
(UNAUDITED)
Three months Nine months
ended September 30 ended September 30
- -----------------------------------------------------------------------------
1997 1996 1997 1996
- -----------------------------------------------------------------------------
(Dollars, except per share amounts,
and shares in thousands)
Net income $ 41,433 36,350 157,744 98,956
Dividends applicable to
preferred stock (4) (128) (59) (285)
- ---------------------------------------------------------------------------
Net income applicable to
common stock 41,429 36,222 157,685 98,671
Dividends applicable to
preferred stock 4 128 59 285
Interest on convertible
securities, net of taxes 120 145 360 435
- ---------------------------------------------------------------------------
Net income as adjusted for
purposes of computing fully
diluted earnings per share $ 41,553 36,495 158,104 99,391
===========================================================================
Weighted average number of shares:
Outstanding during period 60,377 59,744 60,164 59,552
Common stock equivalent shares 798 697 642 639
Employee Stock Ownership Plan
shares not committed to
be released (288) (330) (296) (338)
- ---------------------------------------------------------------------------
Number of shares for computing
primary earnings per share 60,887 60,111 60,510 59,853
Incremental common shares
attributable to additional
dilutive effect of convertible
securities 728 770 688 740
- ---------------------------------------------------------------------------
Number of shares as adjusted for
purposes of computing fully
diluted earnings per share 61,615 60,881 61,198 60,593
===========================================================================
Earnings per average common share $ .69 .61 2.62 1.66
===========================================================================
Primary earnings per share $ .68 .60 2.61 1.65
===========================================================================
Fully diluted earnings per share $ .67 .60 2.58 1.64
===========================================================================
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONSOLIDATED BALANCE SHEET OF CENTURY TELEPHONE ENTERPRISES, INC.
AND SUBSIDIARIES AS OF SEPTEMBER 30, 1997 AND THE RELATED UNAUDITED CONSOLIDATED
STATEMENT OF INCOME FOR THE NINE MONTH PERIOD THEN ENDED AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000018926
<NAME> CENTURY TELEPHONE ENTERPRISES, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 11,283
<SECURITIES> 0
<RECEIVABLES> 74,571
<ALLOWANCES> 4,188
<INVENTORY> 9,139
<CURRENT-ASSETS> 123,913
<PP&E> 1,781,170
<DEPRECIATION> 635,613
<TOTAL-ASSETS> 2,273,704
<CURRENT-LIABILITIES> 152,283
<BONDS> 565,633
<COMMON> 60,519
0
8,106
<OTHER-SE> 1,178,990
<TOTAL-LIABILITY-AND-EQUITY> 2,273,704
<SALES> 0
<TOTAL-REVENUES> 627,912
<CGS> 0
<TOTAL-COSTS> 437,994
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 33,539
<INCOME-PRETAX> 247,995
<INCOME-TAX> 90,251
<INCOME-CONTINUING> 157,744
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 157,744
<EPS-PRIMARY> 2.61
<EPS-DILUTED> 2.58
</TABLE>
