FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 19,
1995
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TELEPHONE AND DATA SYSTEMS, INC.
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(Exact name of registrant as specified in its charter)
Iowa 1-8251 36-2669023
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(State or other (Commission (IRS Employer
juridiction of File Number) Identification
incorporation) No.)
30 North LaSalle Street, Chicago, Illinois 60603
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (312) 630-1900
Not Applicable
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(Former name or former address, if changed since last report)
The Exhibit Index is Located on Page 4 of 47 Total Pages.
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Item 5. Other Events.
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On May 19, 1995, the Company signed a $300 million
Revolving Credit Agreement ("Agreement") with the First
National Bank of Boston, as Agent. This Current Report on
Form 8-K is being filed for the purpose of filing the
Agreement.
Item 7. Financial Statements and Exhibits
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(c) Exhibits
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The exhibits accompanying this report are listed in the
accompanying Exhibit Index.
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SIGNATURES
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, thereto duly
authorized.
Telephone and Data Systems, Inc.
(Registrant)
Date: June 22, 1995
By: /s/ GREGORY J. WILKINSON
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Gregory J. Wilkinson
Vice President and Controller
(principal accounting officer)
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EXHIBIT INDEX
Exhibit Number Description of Exhibit Sequentially Numbered
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99 Revolving Credit Agreement 5
Dated May 19, 1995
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REVOLVING CREDIT AGREEMENT
DATED AS OF
May 19, 1995
AMONG
TELEPHONE AND DATA SYSTEMS, INC.,
and
THE FIRST NATIONAL BANK OF BOSTON, AS AGENT
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION1
1.1. Definitions 1
1.2. Rules of Interpretation 7
2. THE REVOLVING CREDIT FACILITY 8
2.1. Commitment to Lend 8
2.2. Facility Fee 8
2.3. Reduction of Commitment 8
2.4. The Notes 8
2.5. Requests for Loans 9
2.6. Funds for Loans 9
2.7. Mandatory Repayments of Loans 9
2.8. Optional Repayments of Loans 10
3. INTEREST; CERTAIN GENERAL PROVISIONS 10
3.1. Interest on Loans; Payment 10
3.2. Interest Period Options 10
3.3. Indemnity 10
3.4. Funds for Payments 11
3.5. Computations 11
3.6. Inability to Determine Eurodollar Rate 11
3.7. Illegality 11
3.8. Additional Costs, Etc. 12
3.9. Certificate 13
3.10. Capital Adequacy 13
3.11. Interest on Overdue Amounts 13
4. REPRESENTATIONS AND WARRANTIES 14
4.1. Corporate Authority 14
4.2. Governmental Approvals 14
4.3. Title to Properties; Leases 14
4.4. Financial Statements 15
4.5. No Material Changes, Etc. 15
4.6. Franchises, Patents, Copyrights, Etc. 15
4.7. No Litigation 15
4.8. No Materially Adverse Contracts, Etc. 16
4.9. Compliance, With Other Instruments,
Laws, Etc. 16
4.10. Tax Status 16
4.11. No Event of Default 16
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4.12. Holding Company and Investment
Company Acts 16
4.13. Certain Transactions 17
4.14. ERISA Compliance 17
4.15. Purpose Credit 18
4.16. Environmental Compliance 18
4.17. Compliance With Fair Labor Standards
Act 19
4.18. Subsidiaries 19
4.19. Disclosure 19
5. AFFIRMATIVE COVENANTS OF THE BORROWER 19
5.1. Punctual Payment 19
5.2. Maintenance of Office 19
5.3. Records and Accounts 19
5.4. Financial Statements, Certificates
and Information 19
5.5. Corporate Existence; Maintenance of
Properties 21
5.6. Insurance 21
5.7. Taxes, Etc. 21
5.8. Inspection of Properties and Books 22
5.9. Compliance with Laws, Contracts, Licenses,
and Permits 22
5.10. Pension Plans 22
5.11. Further Assurances 23
5.12. Notices 23
5.13. Fair Labor Standards Act 23
5.14. Environmental Events 23
5.15. Notification of Claims 23
5.16. Use of Proceeds 23
5.17. Notice of Litigation, Judgment and
Material Events 23
6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER 24
6.1. Federal Regulations 24
6.2. Restriction on Ability to Repay Loans 24
6.3. Employee Benefit Plans 24
6.4. Compliance with Environmental Laws 24
6.5. Restricted Transactions 25
7. FINANCIAL COVENANTS OF THE BORROWER 25
7.1. Debt Rating 25
7.2. Minimum Consolidated Net Worth 25
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8. CLOSING CONDITIONS 25
8.1. Corporate Action 25
8.2. Loan Documents 25
8.3. Opinion of Borrower's Legal Counsel 25
8.4. Certified Copies of Charter Documents 25
8.5. Incumbency Certificate 25
8.6. Good Standing Certificates 26
9. CONDITIONS TO ALL BORROWINGS 26
9.1. Representations True; No Event of Default 26
9.2. No Legal Impediment 26
9.3. Governmental Regulation 26
9.4. Proceedings and Documents 26
10. EVENTS OF DEFAULT; ACCELERATION 26
11. THE AGENT 28
11.1. Authorization 28
11.2. Employees and Agents 28
11.3. No Liability 28
11.4. No Representations 28
11.5. Payments 29
11.6. Holders of Notes 29
11.7. Indemnity 29
11.8. Agent as Bank 29
11.9. Resignation 29
12. EXPENSES 30
13. INDEMNIFICATION 30
14. SURVIVAL OF COVENANTS, ETC. 30
15. ASSIGNMENT AND PARTICIPATION 31
15.1. Conditions to Assignment by Banks 31
15.2. Certain Representations and Warranties;
Limitations; Covenants 31
15.3. Register 32
15.4. New Notes 32
15.5. Participations 32
15.6. Disclosure 32
15.7. Assignee or Participant Affiliated with
the Borrower 33
15.8. Miscellaneous Assignment Provisions 33
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15.9. Assignment by Borrower 33
16. NOTICES, ETC. 33
17. GOVERNING LAW 34
18. HEADINGS 34
19. COUNTERPARTS 34
20. ENTIRE AGREEMENT, ETC. 34
21. WAIVER OF JURY TRIAL 34
22. CONSENTS, AMENDMENTS, WAIVERS, ETC. 34
23. FCC APPROVAL 35
24. SEVERABILITY 35
25. CONFIDENTIALITY 35
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SCHEDULES AND EXHIBITS
EXHIBIT A: Form of Revolving Credit Note
EXHIBIT B: Form of Loan Request
EXHIBIT C: Form of Compliance Certificate
EXHIBIT D: Form of Opinion of Borrower's Counsel
EXHIBIT E: Form of Assignment and Acceptance
SCHEDULE 1.1(a): Revolving Credit Commitments
SCHEDULE 1.1(b): Eurodollar Lending Offices
SCHEDULE 1.2 Margin Percentage
SCHEDULE 4.14: Assets and Accrued Benefits
SCHEDULE 4.18 Material Subsidiaries
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of the
19th day of May, 1995, by and among TELEPHONE AND DATA
SYSTEMS, INC. (the "Borrower"), an Iowa corporation having its
principal place of business at 30 N. LaSalle Street, Chicago,
Illinois 60602, the financial institutions listed on Schedule
1.1(a) hereto (the "Banks") and THE FIRST NATIONAL BANK OF
BOSTON, as agent for the Banks (the "Agent").
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have
the meanings set forth in this Section 1 or elsewhere in the
provisions of this Credit Agreement referred to below:
Affiliate. Any Person that would be considered to
be an affiliate of the Borrower under Rule 144(a) of the Rules
and Regulations of the Securities and Exchange Commission, as
in effect on the date hereof, if the Borrower were issuing
securities.
Agent. The First National Bank of Boston acting as
agent for the Banks.
Agent's Special Counsel. Bingham, Dana & Gould of
Boston, Massachusetts, or such other counsel as may be
approved by the Agent.
Assigning Fee. See Section 16.
Assignment and Acceptance. See Section 16.1.
Balance Sheet Date. December 31, 1994.
Bank of Boston. The First National Bank of Boston,
in its individual capacity.
Banks. The financial institutions listed on
Schedule 1.1(a), and any of their successors and assigns.
Base Rate. The lower of (a) the annual rate of
interest announced from time to time by the Agent at its head
office in Boston, Massachusetts as its "base rate" and (b) the
Federal Funds Rate charged by the Federal Reserve Bank to
member banks plus three-quarters of one percent (3/4%).
Basis Points. One one-hundredth of one percent
(0.01%).
Borrower. Telephone and Data Systems, Inc., an Iowa
corporation.
Business Day. Any day on which banking institutions
in Boston, Massachusetts and Chicago, Illinois are open for
the transaction of banking business.
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CERCLA. See Section 4.16.
Closing Date. May 19, 1995.
Code. The Internal Revenue Code of 1986, as amended
and in effect from time to time.
Commitment. With respect to each Bank, the amount
set forth in the column labeled Commitment, opposite such
Bank's name on Schedule 1.1(a) hereto, as the same may be
reduced from time to time.
Commitment Percentage. With respect to each Bank,
the percentage set forth opposite such Bank's name on Schedule
1.1(a) thereto.
Compliance Certificate. See Section 5.4.
Consolidated or consolidated. With reference to any
term defined herein, shall mean that term as applied to the
accounts of the Borrower and all of its Subsidiaries,
consolidated in accordance with Generally Accepted Accounting
Principles.
Consolidated Net Worth. The excess of Consolidated
Total Assets over Consolidated Total Liabilities.
Consolidated Total Assets. All assets of the
Borrower and its Subsidiaries determined on a consolidated
basis in accordance with Generally Accepted Accounting
Principles.
Consolidated Total Liabilities. All liabilities of
the Borrower and its Subsidiaries determined on a consolidated
basis in accordance with Generally Accepted Accounting
Principles (including all Funded Debt and other indebtedness
of the Borrower and its Subsidiaries).
Continuation Request. A notice given by the
Borrower to the Agent in accordance with Section 3.2 pursuant
to which the Borrower notifies the Agent of its election to
continue a Loan for a particular Interest Period.
Credit Agreement. This Revolving Credit Agreement,
including the Schedules and Exhibits hereto.
Debt Rating. At the relevant time of reference
thereto, the debt rating issued by S&P or Moody's with respect
to unsecured indebtedness of the Borrower not maturing within
twelve months and not subordinated by its terms in right of
payment to other indebtedness of the Borrower.
Default. See Section 10.
Dollars. Dollars in lawful currency of the United
States of America.
Drawdown Date. The date on which any Loan is made
or is to be made in accordance with Section 2.1.
Eligible Assignee. Any of (a) a commercial bank or
finance company organized under the laws of the United States,
or any State thereof or the District of Columbia, and having
total assets in excess
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of $1,000,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a
net worth of at least $1,000,000,000, calculated in
accordance with generally accepted accounting principles; (c)
a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having total assets in
excess of $1,000,000,000, provided that such bank is acting
through a branch or agency located in the country in which it
is organized or another country which is also a member of the
OECD; (d) the central bank of any country which is a member of
the OECD; and (e) if, but only if, an Event of Default has
occurred and is continuing, any other bank, insurance company,
commercial finance company or other financial institution
approved by the Agent, such approval not to be unreasonably
withheld.
Environmental Laws. See Section 4.16.
ERISA. The Employee Retirement Income Security Act
of 1974, as amended.
ERISA Affiliate. Any Person which is treated as a
single employer with the Borrower under Section 414 of the
Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of
Section 4043 of ERISA and the regulations promulgated
thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Requirement. For any day with
respect to a Loan, the maximum rate (expressed as a decimal)
at which any lender subject thereto would be required to
maintain reserves under Regulation D of the Board of Governors
of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation
D), if such liabilities were outstanding. The Eurocurrency
Reserve Requirement shall be adjusted automatically on and as
of the effective date of any change in the Eurocurrency
Reserve Requirement.
Eurodollar Business Day. Any Business Day on which
commercial banks are open for international business
(including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the
Agent in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of
each Bank designated as such on Schedule 1.1(b) hereto and,
thereafter, such other office of such Bank, if any, that shall
be making or maintaining Loans.
Eurodollar Rate. For any Interest Period with
respect to a Loan, a rate per annum equal to the quotient
(rounded upwards to the next higher 1/16 of one percent) of
(a) (i) the rate per annum for deposits in U.S. Dollars for a
period comparable to such Interest Period which appears on the
Telerate Page 3750 as of 11:00 a.m., London time, on the day
that is two Eurodollar Business Days prior to the beginning of
such Interest Period, or (ii) if such rate specified in clause
(i) does not appear on the Telerate Page 3750, the rate at
which the Agent's Eurodollar Lending Office is offered Dollar
deposits two Eurodollar Business Days prior to the beginning
of such Interest Period in the eurodollar interbank market
where the eurodollar and foreign currency and exchange
operations of such Eurodollar Lending Office are customarily
conducted at or about 10:00 A.M., Boston time, for delivery on
the first day of such Interest Period for the number of days
comprised therein and in an
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amount comparable to the amount of the Agent's Loan to which
such Interest Period applies, divided in either case by (b) a
number equal to 1.00 minus the Eurocurrency Reserve
Requirement.
Event of Default. See Section 10.
FCC. The Federal Communications Commission (or any
successor agency, commission, bureau, department or other
political subdivision) of the United States.
FCC License. Any license, permit, certificate of
compliance, franchise, approval or authorization granted or
issued by the FCC.
Facility Fee. See Section 2.2.
Federal Funds Rate. For any day, the rate per annum
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, as published for
such day (or if such day is not a Business Day, of the next
preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three funds
brokers of recognized standing selected by the Agent.
Funded Debt. As to any Person and without
duplication, the amount of (a) any obligation of such Person
to repay money borrowed, (b) any indebtedness of such Person
evidenced by notes (other than short-term trade debt incurred
in the ordinary course of business), bonds, debentures or
similar instruments, (c) any obligation of others constituting
Funded Debt secured by an asset of such Person, whether or not
such obligation is assumed by such Person and (d) all
obligations of such Person with respect to leases which should
be capitalized on such Person's financial statements in
accordance with Generally Accepted Accounting Principles.
Generally Accepted Accounting Principles.
Principles that are consistent with the principles promulgated
or adopted by the Financial Accounting Standards Board and its
predecessors in effect for the fiscal year ended on the
Balance Sheet Date, and to the extent consistent with such
principles, the accounting practice of the Borrower reflected
in its financial statements for the year ended on the Balance
Sheet Date; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent,
be in a position to deliver an unqualified opinion (other than
a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Pension Plan. Any pension plan
maintained by the Borrower or any of its Subsidiaries, or to
which the Borrower or any of its Subsidiaries contributes,
that is required to pay plan termination insurance premiums to
the Pension Benefit Guaranty Corporation.
Hazardous Substances. See Section 4.16.
Interest Payment Date. As to any Loan in respect of
which the Interest Period is (i) 3 months or less, the last
day of such Interest Period and (ii) more than 3 months, the
date that is 3 months from the Drawdown Date thereof and the
last day of such Interest Period.
Interest Period. With respect to each Loan, (a)
initially, the period commencing on the date such Loan is made
and ending on the last day of a period of either seven (7)
days or 1, 2, 3, or 6
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months as selected by the Borrower in a Loan Request for any
Loan, and (b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in a Continuation
Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to
a Loan would otherwise end on a day that is not a Eurodollar
Business Day, that Interest Period shall be extended to the
next succeeding Eurodollar Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the immediately preceding Eurodollar Business
Day;
(ii) if the Borrower shall fail to give a
Continuation Request as provided in Section 3.2 with respect
to a Loan, the Borrower shall be deemed to have requested that
a seven (7) day Interest Period apply to such Loan commencing
on the last day of the then current Interest Period with
respect thereto;
(iii) any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Eurodollar Business Day of a calendar month; and
(iv) the Borrower may not select an Interest
Period for any Loan that would extend beyond the scheduled
Maturity Date.
Loan Documents. This Credit Agreement and the
Notes.
Loan Request. See Section 2.5.
Loans. Collectively, the loans advanced to the
Borrower by the Banks pursuant to this Credit Agreement.
Majority Banks. As of any date, the Banks holding
at least sixty-six and two-thirds percent (66-2/3%) of the
outstanding principal amount of the Notes on such date, and if
no such principal is outstanding, the Banks whose aggregate
Commitment constitutes at least sixty-six and two-thirds
percent (66-2/3 %) of the Total Commitment.
Margin Percentage. At the relevant time of
reference hereto, the applicable rate per annum, expressed in
Basis Points, set forth in the table attached hereto as
Schedule 1.2 beneath the column for the applicable Debt Rating
in the row labeled "Margin Percentage".
Material Subsidiaries. Those Subsidiaries listed
on Schedule 4.18.
Maturity Date. 364 days following the Closing Date
or such earlier date on which the outstanding Loans hereunder
are declared due and payable pursuant to the terms of this
Credit Agreement or on which the Total Commitment is
terminated.
Moody's. Moody's Investors Service, Inc.
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Multiemployer Plan. Any multiemployer plan within
the meaning of Section 3(37) of ERISA maintained or
contributed to by any of the Borrowers or any ERISA Affiliate.
Note Record. The grid attached to a Note, or the
continuation of such grid, or any other similar record
maintained by the Bank holding such Note with respect to any
Loan.
Notes. The promissory notes issued pursuant to
Section 2.4 of this Credit Agreement evidencing the Loans.
Obligations. All indebtedness, obligations and
liabilities of the Borrower and its Subsidiaries to the Banks,
individually or collectively, existing on the date of this
Credit Agreement or arising thereafter, direct or indirect,
joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan
Documents or in respect of Loans and any Notes or other
instruments at any time evidencing any thereof.
Outstanding or outstanding. With respect to the
Loans, the aggregate unpaid principal thereof as of any date
of determination.
PBGC. The Pension Benefit Guaranty Corporation
created by Section 4002 of ERISA and any successor entity or
entities having similar responsibilities.
Person. Any individual, corporation, partnership,
limited liability company, trust, unincorporated association,
business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Proprietary Rights. See Section 4.6.
Real Estate. All real property at any time owned or
leased by the Borrower or any of its Subsidiaries.
Register. See Section 16.3.
S&P. Standard & Poor's Corporation.
Sale. Any sale, transfer or other disposition of
assets (other than by means of a simultaneous exchange of
assets of a similar type and having a comparable value),
whether in one transaction or a series of related
transactions, if the assets so transferred have a value taken
at the greater of (i) fair value (which shall be the price at
which the Board of Directors of the relevant Person shall have
agreed to sell such assets in an arm's length transaction to a
third party buyer which is not an Affiliate) or (ii) book
value, as of the date of reference thereto, in excess of five
percent (5%) of the Consolidated Net Worth of the Borrower.
Subsidiary. Any corporation, association, trust, or
other business entity of which the designated parent shall at
any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of the
outstanding Voting Stock.
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Telerate Page 3750. The display page designated
3750 on the Dow Jones Telerate Service (or such other page as
may replace that page on that service, or such other service
as may replace the Dow Jones Telerate Service as a customary
reference for interest rates).
Total Commitment. The sum of the Commitments of the
Banks, as in effect from time to time.
Voting Stock. Stock or similar interests, of any
class or classes (however designated), the holders of which
are at the time entitled, as such holders, to vote for the
election of the directors (or persons performing similar
functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote
exists by reason of the happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall
include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms
and the terms of this Credit Agreement.
(b) The singular includes the plural and the
plural includes the singular.
(c) A reference to any law includes any amendment
or modification to such law.
(d) A reference to any Person includes its
permitted successors and permitted assigns.
(e) Accounting terms not otherwise defined herein
have the meanings assigned to them by Generally Accepted
Accounting Principles applied on a consistent basis by the
accounting entity to which they refer.
(f) The words "include", "includes" and
"including" are not limiting.
(g) All terms not specifically defined herein or
by Generally Accepted Accounting Principles, which terms are
defined in the Uniform Commercial Code as in effect in
Massachusetts, have the meanings assigned to them therein.
(h) Reference to a particular "Section" refers to
that section of the agreement in which such reference appears
unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and
words of like import shall refer to the agreement in which
they appear as a whole and not to any particular section or
subdivision of that agreement unless otherwise specifically
indicated.
(j) The Section references and defined terms set
forth in parentheticals at the end of certain definitions in
Section 1.1 are intended for convenience of reference only to
cite to other sections of this Credit Agreement where such
terms are used and shall not define or limit the defined terms
set forth in Section 1.1.
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2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and
conditions set forth in this Credit Agreement, each of the
Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time
between the date of this Credit Agreement and the Maturity
Date upon notice by the Borrower to the Agent given in
accordance with Section 2.5 such sums as requested by the
Borrower up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts then being
requested) at any one time equal to such Bank's Commitment,
provided that the sum of the outstanding amount of the Loans
(after giving effect to all amounts then being requested)
shall not exceed the Total Commitment. The Loans shall be
made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Loan shall constitute a
representation by the Borrower that the conditions set forth
in Section 8 and Section 9, in the case of the initial Loans
to be made on the Closing Date, and Section 9, in the case of
all other Loans, have been satisfied on the date of such
request.
2.2. Facility Fee. The Borrower agrees to pay to
the Agent for the accounts of the Banks in accordance with
their respective Commitment Percentages a facility fee (the
"Facility Fee") calculated daily on the Total Commitment in
effect on such date at the per annum rate equal to that amount
set forth on Schedule 1.2 in the row headed "Facility Fee"
beneath the column for the Debt Rating in effect for such
date. The amount of such Facility Fee shall be payable
quarterly in arrears on the last day of each March, June,
September and December and on the Maturity Date for the fiscal
quarter, or portion thereof, of the Borrower then ended.
2.3. Reduction of Commitment.
(a) The Borrower shall have the right at any time
and from time to time upon two (2) Business Days' written
notice to the Agent to reduce by $1,000,000 or an integral
multiple thereof or terminate entirely the unborrowed portion
of the Total Commitment, whereupon the Commitments of the
Banks shall be reduced pro rata in accordance with their
respective Commitment Percentages of the amount specified in
such notice or, as the case may be, terminated. Promptly
after receiving any notice of the Borrower delivered pursuant
to this Section 2.3, the Agent will notify the Banks of the
substance thereof. No reduction of the Commitments of the
Banks may be reinstated.
(b) Upon the effective date of any such
termination, the Borrower shall pay to the Agent for the
respective accounts of the Banks the full amount of any
Facility Fee then accrued.
2.4. The Notes. The Loans shall be evidenced by
separate promissory notes of the Borrower in substantially the
form of Exhibit A hereto (each a "Note"), dated the Closing
Date and completed with appropriate insertions. One Note
shall be payable to the order of each Bank in a principal
amount equal to such Bank's Commitment or, if less, the
outstanding amount of all Loans made by such Bank, plus
interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes each Bank to make or cause to be made,
at or about the time of receipt of any payment of principal on
such Bank's Note, an appropriate notation reflecting such
payment on the Note Record attached to such Bank's Note. The
outstanding amount of the Loans set forth on such Note Record
shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or
any error in so recording, any such amount on such Note Record
shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due.
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2.5. Requests for Loans. The Borrower shall give
to the Agent written notice in the form of Exhibit B hereto
(or telephonic notice confirmed in a writing in the form of
Exhibit B hereto) of each Loan requested hereunder (a "Loan
Request") no later than 11:00 a.m. (Boston time) at least two
(2) Eurodollar Business Days prior to the proposed Drawdown
Date of any Loan. Each such notice shall specify (i) the
principal amount of the Loan requested, (ii) the proposed
Drawdown Date of such Loan and (iii) the Interest Period for
such Loan. Promptly upon receipt of any such Loan Request,
the Agent shall notify each of the Banks of the substance
thereof. Each Loan Request shall be irrevocable and binding
on the Borrower and shall obligate the Borrower to accept the
Loan requested from the Banks on the proposed Drawdown Date.
Each Loan Request shall be in a minimum amount of $3,000,000
or an integral multiple of $250,000 in excess thereof.
2.6. Funds for Loans.
(a) Not later than 11:00 a.m. (Boston time) on the
proposed Drawdown Date of any Loans, each of the Banks,
severally, will make available to the Agent, at its head
office, in immediately available funds, the amount of such
Bank's Commitment Percentage of the amount of the requested
Loans. Upon receipt from each Bank of such amount, and upon
receipt of the documents required by Sections 8 and 9 and the
satisfaction of the other conditions set forth therein, to the
extent applicable, the Agent will make the aggregate amount of
such Loans available to the Borrower. The failure or refusal
of any Bank to make available to the Agent at the aforesaid
time on any Drawdown Date the amount of its Commitment
Percentage of the requested Loans shall not relieve any other
Bank from its several obligation hereunder to make available
to the Agent the amount of its Commitment Percentage of any
requested Loans.
(b) The Agent may (unless notified to the contrary
by any Bank prior to a Drawdown Date) assume that each Bank
has made available to the Agent on such Drawdown Date the
amount of such Bank's Commitment Percentage of the Loans to be
made on such Drawdown Date, and the Agent may (but it shall
not be required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any Bank
makes available to the Agent such amount advanced by the Agent
on a date after such Drawdown Date, such Bank shall pay to the
Agent on demand an amount equal to the product of (i) the
average computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by the Agent
for federal funds acquired by the Agent during each day
included in such period, times (ii) the amount equal to such
Bank's Commitment Percentage of such Loans, times (iii) a
fraction, the numerator of which is the number of days that
elapse from and including such Drawdown Date to the date on
which the amount of such Bank's Commitment Percentage of such
Loans shall become immediately available to the Agent, and the
denominator of which is 365. A statement of the Agent
submitted to any Bank with respect to any amounts owing under
this paragraph shall be prima facie evidence of the amount due
and owing to the Agent by such Bank. If the amount of such
Bank's Commitment Percentage of such Loans is not made
available to the Agent by such Bank within three (3) Business
Days of such Drawdown Date, the Agent shall be entitled to
recover such amount from the Borrower on demand, with interest
thereon at the rate per annum applicable to the Loans made on
such Drawdown Date.
2.7. Mandatory Repayments of Loans. The Borrower
promises to pay the outstanding amount of all Loans on the
Maturity Date. In addition, if at any time the outstanding
amount of the Loans exceeds the Total Commitment, then the
Borrower shall immediately pay the amount of such excess to
the Agent for application to the Loans.
<PAGE>
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2.8. Optional Repayments of Loans. The Borrower
shall have the right, at its election, to repay the
outstanding amount of any Loans, as a whole or in part, at any
time without penalty or premium; provided that in the case of
any full or partial prepayment of the outstanding amount of
any Loans prior to the end of the Interest Period applicable
thereto, the Borrower shall be obligated to reimburse the
Banks in respect thereof pursuant to Section 3.3. The
Borrower shall give the Agent, no later than 11:00 a.m.
(Boston time) at least two (2) Eurodollar Business Days'
notice of any proposed repayment of Loans, in each case
specifying the proposed date of repayment and the principal
amount to be paid, which notice, if not in writing, shall be
promptly confirmed in writing. Each such partial payment of
Loans shall be in a minimum amount of $3,000,000 or an
integral multiple of $250,000 in excess thereof. Each
repayment pursuant to this Section 2.8 shall be accompanied by
the payment of accrued interest on the principal repaid to the
date of payment. Each such partial repayment shall be
allocated among the Banks, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each
Bank's Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
3. INTEREST; CERTAIN GENERAL PROVISIONS.
3.1. Interest on Loans; Payment. Except as
otherwise increased pursuant to Section 3.11 hereof, the
outstanding amount of each Loan shall bear interest during
each Interest Period relating thereto at a rate per annum
equal to the Eurodollar Rate determined for such Interest
Period plus the applicable Margin Percentage as in effect on
the first day of such Interest Period. The Borrower
absolutely and unconditionally promises to pay interest on
each Loan in arrears on each Interest Payment Date with
respect thereto.
3.2. Interest Period Options. Upon notice (a
"Continuation Notice") given to the Agent no later than 11:00
a.m. (Boston time) at least two (2) Eurodollar Business Days'
prior to the expiration of an Interest Period applicable to
any Loan, the Borrower may elect to continue such Loan upon
the expiration of the then applicable Interest Period for
another Interest Period of the duration specified in such
notice; provided that no Loan may be continued for an Interest
Period in excess of seven (7) days when any Default or Event
of Default has occurred and is continuing; provided further
that the Loans to which a particular Interest Period applies
shall be in an aggregate principal amount of $3,000,000 or an
integral multiple of $250,000 in excess thereof. Each
continuation of a Loan hereunder shall be allocated between
the Banks in proportion, as nearly as practicable, to such
Bank's Commitment Percentage, with adjustments to the extent
practicable to equalize any prior continuations not exactly in
proportion.
3.3. Indemnity. The Borrower agrees to indemnify
each Bank and to hold each Bank harmless from any loss or
expense that such Bank may sustain or incur as a consequence
of (a) default by the Borrower in payment of the principal
amount of or interest on any Loans, including any such loss or
expense arising from interest or fees payable by such Bank to
lenders of funds obtained by it in order to maintain its
Loans, (b) default by the Borrower in making a borrowing after
the Borrower has given (or is deemed to have given) a Loan
Request or a Continuation Request in accordance with Sections
2.5 or 3.2 other than as a result of a default by any Bank,
(c) the making of any payment of a Loan on a day that is not
the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by any Bank to
lenders of funds obtained by it in order to maintain any such
Loan, to the extent not off-set by income derived from the
redeployment of such funds or (d) default by the Borrower in
making any repayment of a Loan after the Borrower has given a
notice in accordance with Section 2.8. This covenant shall
survive the termination of this Credit Agreement and payment
of the Notes.
<PAGE>
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3.4. Funds for Payments. All payments of
principal, interest, and the Facility Fee and any other
amounts due hereunder or under any of the other Loan Documents
shall be made by the Borrower to the Agent at the Agent's head
office at 100 Federal Street, Boston, Massachusetts 02110 or
at such other location in the Boston, Massachusetts area that
the Agent may from time to time designate, in each case in
immediately available funds.
3.5. Computations. All computations of interest on
the Loans and the Facility Fee shall be based on a 360 day
year and twelve 30 day months and paid for the actual number
of days elapsed. Except as otherwise specifically provided
herein, whenever a payment hereunder or under any of the other
Loan Documents becomes due on a day that is not a Business
Day, the due date for such payment shall be extended to the
next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as
reflected on the Note Records from time to time shall be
considered conclusive and binding absent manifest mathematical
error on the Borrower unless within thirty (30) Business Days
after receipt of any notice by the Agent or any of the Banks
of such outstanding amount, the Borrower shall notify the
Agent or such Bank to the contrary.
3.6. Inability to Determine Eurodollar Rate. In
the event the Agent shall determine that adequate and
reasonable methods do not exist for ascertaining the
Eurodollar Rate that would otherwise determine the rate of
interest to be applicable during any Interest Period, the
Agent shall forthwith give telex notice of such determination
(which shall be conclusive and binding on the Borrower) to the
Borrower at least one (1) Business Day before the first day of
such Interest Period. In such event, (a) any Loan Request or
Continuation Request with respect to Loans shall be
automatically withdrawn, (b) the Borrowers and the Banks shall
negotiate in good faith to agree on an alternative interest
rate which is reasonably equivalent to the Eurodollar Rate;
provided that if the Borrowers and the Banks are unable to
agree on such alternative interest rate prior to the last day
of the then current Interest Period, each Loan then
outstanding will as of the last day of the then current
Interest Period bear interest at a per annum rate equal to the
Base Rate in effect from time to time payable in arrears on
the last day of each fiscal quarter of the Borrower and (c)
the obligations of the Banks to make additional Loans shall be
suspended until the Agent determines that the circumstances
giving rise to such suspension no longer exist, whereupon the
Agent shall so notify the Borrower and the Banks.
3.7. Illegality. Notwithstanding any other
provisions herein, if any introduction of or change in any
law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful, or any central
bank or other governmental authority having jurisdiction over
any Bank or its Eurodollar Lending Office shall assert that it
is unlawful, for such Bank or its Eurodollar Lending Office to
make or maintain Loans that bear interest calculated by
reference to the Eurodollar Rate, (a) such Bank shall
forthwith give telex notice of such circumstances, confirmed
in a writing delivered to the Borrower by courier or postal
service (which notice shall be withdrawn by such Bank when
such Bank shall reasonably determine that it shall no longer
be illegal for such Bank or its Eurodollar Lending Office to
make or maintain such Loans), (b) the commitment of such Bank
to make or maintain Loans shall forthwith be cancelled and (c)
such Bank's Loans then outstanding, if any, shall be converted
automatically on the next succeeding last day of each Interest
Period applicable to such Loans or within such earlier period
as may be required by law to Loans which bear interest at a
per annum rate equal to an alternative interest rate which is
reasonably equivalent to the Eurodollar Rate upon which the
Agent and the Banks may in good faith agree; provided that if
the Borrowers and the Banks are unable to agree on such
alternative interest rate, such Loans shall bear interest at a
per annum rate equal to the Base Rate in effect from time to
time payable in arrears on the last day of each
<PAGE>
-12-
fiscal quarter of the Borrower. The Borrower agrees promptly
to pay the Agent for the account of each Bank, upon demand by
the Agent, any additional amounts necessary to compensate the
Banks for any costs incurred by the Banks in making any
conversion in accordance with this Section 3.7, including any
interest or fees payable by the Banks to lenders of funds
obtained by them in order to make or maintain their Loans (the
Agent's written notice of such costs, as certified to the
Borrower, to be conclusive absent manifest error).
3.8. Additional Costs, Etc. If any present or
future, or any change in any present or future, applicable
law, which expression, as used herein, includes statutes,
rules and regulations thereunder and interpretations thereof
by any competent court or by any governmental or other
regulatory body or official charged with the administration or
the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank by any
central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Bank to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with
respect to this Credit Agreement, the other Loan Documents,
such Bank's Commitment or the Loans advanced by such Bank
(other than taxes based upon or measured by the income or
profits of such Bank), or
(b) materially change the basis of taxation
(except for changes in taxes on income or profits) of payments
to any Bank of the principal of or the interest on any Loans
or any other amounts payable to such Bank under this Credit
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other
than to the extent specifically provided for elsewhere in this
Credit Agreement) any special deposit, reserve, assessment,
liquidity, or other similar requirements against assets held
by, or deposits in or for the account of, or loans by, or
commitments of, or letters of credit issued by, an office of
any Bank, or
(d) impose on any Bank any other conditions or
requirements with respect to this Credit Agreement, the other
Loan Documents, the Loans, such Bank's Commitment, or any
class of loans or commitments of which any of the Loans or
such Bank's Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining
the Loans or such Bank's Commitment, or
(ii) to reduce the amount of principal, interest
or other amounts payable to such Bank hereunder on
account of such Bank's Commitment or the Loans, or
(iii) to require such Bank to make any payment or
to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or
other sum is calculated by reference to the gross
amount of any sum receivable or deemed received by such
Bank from the Borrower hereunder,
then, and in each such case, the Borrower will, upon written
demand made by such Bank at any time and from time to time and
as often as the occasion therefor may arise, pay to such Bank
such additional amounts as will be sufficient to compensate
such Bank for such additional cost, reduction,
<PAGE>
-13-
payment or foregone interest or other sum (after such Bank
shall have allocated the same fairly and equitably among all
customers of any class generally affected thereby); provided
that in the event that such additional cost, reduction,
payment, or foregone interest or other sum which was incurred
by such Bank is subsequently returned or reimbursed to such
Bank, such Bank shall return or reimburse to the Borrower any
additional amount paid pursuant to this Section 3.8 by the
Borrower to such Bank with respect thereto. In the event that
any of the foregoing events occur, each Bank will use its best
efforts to take such actions as are reasonably feasible and
available to such Bank to decrease the additional costs
payable hereunder; provided that no Bank shall be required to
transfer any activities related to this Agreement to any
jurisdiction in which such Bank does not at such time
regularly conduct ordinary banking operations. Such Bank
shall give the Borrower written notice of any event causing
such additional cost, reduction, payment or foregone interest
or other sum within 90 days of the occurrence thereof and the
Borrower shall not be liable for any such costs incurred prior
to the date which is 90 days prior to the date of such notice.
3.9. Certificate. A certificate setting forth any
additional amounts payable pursuant to Section 3.8 and the
changes as a result of which such amounts are due and the
computations in reasonable detail pursuant to which such
amounts were calculated, submitted by any Bank to the
Borrower, shall be conclusive absent manifest error. Upon
delivery of a notice to such Bank no more than thirty Business
Days after receipt of such certificate, the Borrower shall
have reasonable opportunity to review and discuss such
computations with a responsible officer at such Bank.
3.10. Capital Adequacy. If any present or future, or
any change in any present or future, law, governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a
court or governmental authority with appropriate jurisdiction
affects the amount of capital required or expected to be
maintained by any Bank or any corporation controlling such
Bank and such Bank determines that the amount of capital
required to be maintained by it or such corporation is
increased by or based upon the existence of its Commitment or
the Loans made pursuant hereto, then such Bank may notify the
Borrower of such fact. To the extent that the costs of such
increased capital requirements are not reflected in the rates
of interest payable hereunder, the Borrower and such Bank
shall thereafter attempt to negotiate in good faith, within
thirty (30) days of the day on which the Borrower receives
such notice, an adjustment payable hereunder that will
adequately compensate such Bank in light of these
circumstances. If the Borrower and such Bank are unable to
agree to such adjustment within thirty (30) days of the date
on which the Borrower receives such notice, then commencing on
the date of such notice (but not earlier than the effective
date of any such increased capital requirement), the fees
payable hereunder shall increase by an amount that will, in
such Bank's reasonable determination, provide adequate
compensation to such Bank, such amount to be conclusive and
binding on the Borrower, absent manifest error. Each Bank
shall allocate such cost increases among its customers in good
faith and on an equitable basis.
3.11. Interest on Overdue Amounts. Overdue principal
and (to the extent permitted by applicable law) interest on
the Loans and all other overdue amounts payable hereunder or
under any of the other Loan Documents shall bear interest
compounded daily and payable on demand at a rate per annum
which is two percent (2%) above the per annum interest rate
otherwise applicable to such Loans, until such amount shall be
paid in full (after as well as before judgment).
<PAGE>
-14-
4. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Banks as follows:
4.1. Corporate Authority.
(a) Incorporation; Good Standing. Each of the
Borrower and its Material Subsidiaries (i) is a corporation
duly organized, validly existing and in good standing under
the laws of its state of incorporation, (ii) has all requisite
corporate power and authority and legal right to own and
operate its property, to lease the property it operates as
lessee and to conduct its business as now conducted and as
presently contemplated, and (iii) is in good standing as a
foreign corporation and is duly authorized to do business in
each jurisdiction where such qualification is necessary except
where (x) a failure to be so qualified would not have a
materially adverse effect on the business, assets or financial
condition of the Borrower or the Borrower and its Material
Subsidiaries, taken as a whole or the Borrower's ability to
perform the Obligations or (y) the Borrower or such Subsidiary
has applied for qualification to do business in such
jurisdiction and such application is pending.
(b) Authorization. The execution, delivery and
performance of this Credit Agreement and the other Loan
Documents to which the Borrower is or is to become a party and
the transactions contemplated hereby and thereby (i) are
within the corporate authority and legal right of the
Borrower, (ii) have been duly authorized by all necessary
corporate proceedings, (iii) do not conflict with or result in
any breach or contravention of any provision of law, statute,
rule or regulation to which the Borrower is subject or any
judgment, order, writ, injunction, license or permit
applicable to the Borrower which would have a materially
adverse effect on the business, assets or financial condition
of the Borrower or the Borrower and its Material Subsidiaries,
taken as a whole and (iv) do not conflict with any provision
of the corporate charter or bylaws of, or any agreement or
other instrument binding upon, the Borrower.
(c) Enforceability. The execution and delivery of
this Credit Agreement and the other Loan Documents to which
the Borrower is or is to become a party will result in valid
and legally binding obligations of the Borrower enforceable
against it in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
4.2. Governmental Approvals. The execution, delivery
and performance by the Borrower of this Credit Agreement and
the other Loan Documents to which the Borrower is or is to
become a party and the transactions contemplated hereby and
thereby do not require the Borrower to obtain the approval or
consent of, to make a filing with, or to perform or obtain the
performance of any other act by or in respect of any
governmental agency or authority other than those already
obtained or performed.
4.3. Title to Properties; Leases. Other than as noted
on the audited consolidated financial statements of the
Borrower and its Subsidiaries as at the Balance Sheet Date,
the Borrower and its Subsidiaries own all of the assets
reflected in the consolidated balance sheet of the Borrower
and its Subsidiaries as at the Balance Sheet Date or acquired
since that date (except property and assets sold or otherwise
disposed of in the ordinary course of business since that date
and except for defects of title to certain real property which
do not materially impair the value or usefulness thereof),
subject to no
<PAGE>
-15-
rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other
encumbrances, except for liens which do not in aggregate have
a material adverse effect on the assets, financial condition
or business of the Borrower and its Material Subsidiaries,
taken as a whole. The Borrower and its Material Subsidiaries
enjoy peaceful and undisturbed possession under all leases
under which they are operating, and all said leases are valid
and subsisting and in full force and effect except to the
extent that the failure to enjoy peaceful and undisturbed
possession of such lease or the failure of such lease to be
valid, subsisting and in full force and effect does not have a
material adverse effect on the assets, financial condition or
business of the Borrower and its Material Subsidiaries, taken
as a whole.
4.4. Financial Statements. There has been furnished
to each of the Banks a consolidated balance sheet of the
Borrower and its Subsidiaries as at the Balance Sheet Date,
and related consolidated statements of income, retained
earnings and cash flow for the fiscal year then ended,
certified by Arthur Andersen and Company, the Borrower's
independent certified public accountants. Such balance sheet
and statements of income, retained earnings and cash flow have
been prepared in accordance with Generally Accepted Accounting
Principles consistently applied and are correct and complete
and fairly present the financial condition of the Borrower and
its Material Subsidiaries as at the close of business on the
date thereof and the consolidated results of operations for
the fiscal year then ended. There are no contingent
liabilities of the Borrower or any of its Subsidiaries as of
such date involving material amounts, known to the officers of
the Borrower and not disclosed in said balance sheet and the
related notes thereto.
4.5. No Material Changes, Etc. Since the Balance
Sheet Date there has occurred no materially adverse change in
the financial condition or business of the Borrower and its
Subsidiaries as shown on or reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, or the related consolidated statements of
income, retained earnings or cash flow for the fiscal year
then ended, other than changes in the ordinary course of
business that have not had any materially adverse effect
either individually or in the aggregate on the business or
financial condition of the Borrower and its Material
Subsidiaries, taken as a whole.
4.6. Franchises, Patents, Copyrights, Etc. Each of
the Borrower and its Subsidiaries, respectively, possesses or
has a valid right to use all material franchises, patents,
copyrights, inventions, technology, trademark registrations,
trademarks, trade names, trade secrets, service marks, FCC
Licenses, other licenses and permits, and rights in respect of
the foregoing and, to the best of its knowledge, patent and
trademark applications and rights in respect thereto
(collectively, the "Proprietary Rights"), adequate for the
conduct of its business substantially as now conducted without
known conflict with any rights of others which could affect or
impair in a material manner the business or assets of the
Borrower and its Material Subsidiaries, taken as a whole.
Except as disclosed in the financial statements referred to in
Section 4.4 hereof, the Borrower is not aware of any existing
or threatened infringement or misappropriation of (a) any
Proprietary Rights of others by the Borrower or any of its
Subsidiaries or (b) any Proprietary Rights of the Borrower or
any of its Subsidiaries by others, in any way which might
materially adversely affect the business, assets or condition,
financial or otherwise, of the Borrower and its Material
Subsidiaries, taken as a whole.
4.7. No Litigation. There are no actions, suits,
proceedings or investigations of any kind pending or, to the
Borrower's knowledge, threatened against the Borrower or any
of its Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined
are reasonably likely to in the aggregate, materially
adversely affect the properties, assets, financial condition
or business of the Borrower and its Material Subsidiaries,
taken as a whole or materially
<PAGE>
-16-
impair the right of the Borrower and its Material
Subsidiaries, taken as a whole, to carry on business
substantially as now conducted by them, or result in any
substantial liability not adequately covered by insurance, or
for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower, or which question
the validity of this Credit Agreement or any of the other
Loan Documents, or any action taken or to be taken pursuant
hereto or thereto. There are no final judgments against the
Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged and not covered by
insurance, exceeds in the aggregate five percent (5%) of the
Consolidated Net Worth of the Borrower.
4.8. No Materially Adverse Contracts, Etc. Neither
the Borrower nor any of its Subsidiaries is subject to any
charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation that has or, to
the Borrower's knowledge, is expected in the future to have a
materially adverse effect on the business, assets or financial
condition of the Borrower and its Material Subsidiaries, taken
as a whole. Neither the Borrower nor any of its Subsidiaries
is a party to any contract or agreement that has or, to the
best of the Borrower's knowledge, is expected, in the judgment
of the Borrower's officers, to have any materially adverse
effect on the business of the Borrower and its Material
Subsidiaries, taken as a whole.
4.9. Compliance With Other Instruments, Laws, Etc.
Neither the Borrower nor any of its Subsidiaries is in
violation of any provision of its charter documents, bylaws,
or any agreement or instrument to which it is subject or by
which it or any of its properties are bound or any decree,
order, judgment, statute, license, rule or regulation, in any
of the foregoing cases in a manner that are reasonably likely
to result in the imposition of substantial penalties or
materially and adversely affect the financial condition,
properties or business of the Borrower and its Material
Subsidiaries, taken as a whole or the Borrower's ability to
perform the Obligations.
4.10. Tax Status. The Borrower and, to the best of
the Borrower's knowledge, its Subsidiaries have (a) made or
filed all federal and state income and all other material tax
returns, reports and declarations required by any jurisdiction
to which any of them is subject or properly filed for and
received extensions with respect thereto which are still in
full force and effect and which have been fully complied with
in all material respects, (b) paid all taxes and other
governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those
being contested in good faith by appropriate proceedings and
for which adequate reserves, to the extent required by
Generally Accepted Accounting Principles, have been
established and (c) set aside on their books provisions
reasonably adequate for the payment of all estimated taxes for
periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Borrower know of
no basis for any such claim.
4.11. No Event of Default. No Default or Event of
Default has occurred and is continuing.
4.12. Holding Company and Investment Company Acts.
Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or
an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor
is it a "registered investment company", or an "affiliated
company" or a "principal underwriter" of a "registered
investment company", as such terms are defined in the
Investment Company Act of 1940.
<PAGE>
-17-
4.13. Certain Transactions. Except for arm's length
transactions pursuant to which the Borrower makes payments in
the ordinary course of business upon terms no less favorable
than the Borrower could obtain from third parties and
transactions disclosed in the Borrower's Form 10-K filed with
the Securities and Exchange Commission for its fiscal year
ending December 31, 1994, none of the officers, directors or
other key employees of the Borrower or any of its Material
Subsidiaries is presently a party to any transaction with the
Borrower or any of its Material Subsidiaries (other than for
services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring
payments to or from any officer, director or such key employee
or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer,
director, or any such key employee has a substantial interest
or is an officer, director, trustee or partner.
4.14. ERISA Compliance.
(a) In General. To the best of the Borrower's
knowledge, the Borrower and its Subsidiaries have complied in
all material respects with provisions of the Code, to the
extent applicable, and of ERISA relevant to the Borrower's
Pension Plans (as defined in Section 3(2) of ERISA), including
the provisions thereof respecting funding requirements for,
and the termination of, such plans and respecting prohibited
transactions thereunder, and the funding of any Guaranteed
Pension Plan complies with the minimum funding standards of
Section 412 of the Internal Revenue Code.
(b) Guaranteed Pension Plans. Each contribution
required to be made to a Guaranteed Pension Plan, whether
required to be made to avoid the incurrence of an accumulated
funding deficiency, the notice or lien provisions of Section
302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any
Guaranteed Pension Plan. No liability to the PBGC (other than
required insurance premiums, all of which have been paid) has
been incurred by the Borrowers or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been
any ERISA Reportable Event, or any other event or condition
which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest
valuation of each Guaranteed Pension Plan (which in each case
occurred within twelve months of the date of this
representation), and except as disclosed on Schedule 4.14
attached hereto, the current value of all accrued benefits
under each of such plans did not, as of the latest valuation
date, exceed the then current value of the assets of such
plans allocable to such accrued benefits based upon the
actuarial methods and assumptions used for such plans.
(c) Multiemployer Plans. Neither the Borrower nor any
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of
a complete or partial withdrawal from such Multiemployer Plan
under Section 4201 of ERISA or as a result of a sale of assets
described in Section 4204 of ERISA. Neither the Borrower nor
any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the
meaning of Section 4241 or Section 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
<PAGE>
-18-
4.15. Purpose Credit.
(a) The Borrower has not engaged principally or as one
of its important activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of
the Federal Reserve System.
(b) The Borrower shall not, directly or indirectly,
apply any part of the proceeds of the Notes for the purpose of
or in connection with the Borrower's broker-dealer activities,
if any, within the meaning of Regulation T of the Federal
Reserve Board (Title 12, Part 220, Code of Federal
Regulations, as amended) or any published regulations,
interpretations or rulings thereunder.
(c) The issuance of the Notes and the application of
the proceeds thereof by the Borrower will not contravene
Regulation X of the Federal Reserve Board (Title 12, Part 224,
Code of Federal Regulations, as amended) or any published
regulations, interpretations or rulings thereunder.
4.16. Environmental Compliance.
(a) The Borrower has no actual knowledge that any
operator of the Real Estate, has violated, or is alleged to
have violated, any judgment, decree, order, law, license, rule
or regulation pertaining to environmental matters (hereinafter
"Environmental Laws"), which violation would have a material
adverse effect on the environment or the business, assets or
financial condition of the Borrower or any of its Material
Subsidiaries, taken as a whole.
(b) Neither the Borrower nor any of its Material
Subsidiaries has received notice from any third party
including, without limitation, any federal, state or local
governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection
Agency ("EPA") as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii)
that any hazardous waste, as defined by 42 U.S.C. Section
6903(5), any hazardous substances as defined by 42 U.S.C.
Section 9601(14), any pollutant or contaminant as defined by
42 U.S.C. Section 9601(33) and any toxic substances, oil or
hazardous materials or other chemicals or substances regulated
by any Environmental Laws (hereinafter "Hazardous Substances")
which any one of them has generated, transported or disposed
of has been found at any site at which a federal, state or
local ag40ncy or other third party has conducted or has
ordered that the Borrower or any of its Material Subsidiaries
conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; or (iii) that it is
or shall be a named party to any claim, action, cause of
action, complaint, or legal or administrative proceeding (in
each case, contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses or damages of
any kind whatsoever in connection with the release of
Hazardous Substances.
(c) Neither the Borrower nor any of its Material
Subsidiaries are subject to any applicable environmental law
requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency
or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of
the transactions set forth herein and contemplated hereby or
to the effectiveness of any other transactions contemplated
hereby.
<PAGE>
-19-
4.17. Compliance With Fair Labor Standards Act. To
the best of the Borrower's knowledge, the Borrower has at all
times operated its business in compliance with all applicable
provisions of the Fair Labor Standards Act of 1938 (29 U.S.C.
Sections 106 and 207) except to the extent that the Borrower's
failure to comply therewith would not have a material adverse
affect on the business, assets or condition, financial or
otherwise, of the Borrower and its Material Subsidiaries,
taken as a whole. To the best of the Borrower's knowledge,
none of the Borrower's inventory has been produced by
employees who are or were employed in violation of the minimum
wage or maximum hour provisions of such Act or any regulations
thereunder.
4.18. Subsidiaries. Attached hereto as Schedule 4.18
is a schedule showing with respect to each Material Subsidiary
the jurisdiction in which it is organized and the approximate
percentage of the outstanding Voting Stock of that Subsidiary
held either by the Borrower or another Subsidiary. All of the
outstanding capital stock of each Material Subsidiary has been
duly authorized and issued and is fully-paid and non-
assessable; and, except as indicated in Schedule 4.18, free
and clear of any pledge, charge, lien, security interest or
other encumbrance or restriction on transfer.
4.19. Disclosure. No representation or warranty made
by the Borrower in any of the Loan Documents or in any other
document furnished from time to time in connection herewith or
therewith, contains any misrepresentation of a material fact
or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no fact
known to the Borrower that materially adversely affects, or
that might reasonably be expected to materially adversely
affect, the business, property or financial condition of the
Borrower and its Material Subsidiaries on a consolidated
basis.
5. AFFIRMATIVE COVENANTS OF THE BORROWER. The
Borrower covenants and agrees that, so long as any Loan or
Note is outstanding or any Bank has any obligation to make any
Loans hereunder:
5.1. Punctual Payment. The Borrower will duly and
punctually pay or cause to be paid the principal and interest
on the Loans and the Facility Fee, all in accordance with the
terms of this Credit Agreement and the Notes.
5.2. Maintenance of Office. The Borrower will
maintain its chief executive office in Chicago, Illinois, or
at such other place in the United States of America as the
Borrower shall designate upon written notice to the Agent,
where notices, presentations and demands to or upon the
Borrower in respect of the Loan Documents may be given or
made.
5.3. Records and Accounts. The Borrower will (a)
keep, and cause each of its Subsidiaries to keep, true and
accurate records and books of account in which full, true and
correct entries will be made in accordance with Generally
Accepted Accounting Principles and (b) maintain adequate
accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its
properties and the properties of its Subsidiaries,
contingencies, and other reserves.
5.4. Financial Statements, Certificates and
Information. The Borrower will deliver to each of the Banks
or, with respect to subsection (f) of this Sections 5.4 only,
make available to each of the Banks at the Borrower's
principal place of business:
(a) as soon as practicable, but in any event not later
than ninety (90) days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as
<PAGE>
-20-
at the end of such year, and the related consolidated
statements of income, retained earnings and cash flows for
such year, each setting forth in comparative form the figures
for the previous fiscal year and all such consolidated
statements to be in reasonable detail, prepared in accordance
with Generally Accepted Accounting Principles, and certified
without material qualification as to any circumstance with
could reasonably be expected to have a material adverse effect
on the Borrower and its Material Subsidiaries, taken as a
whole, by independent public accountants of nationally
recognized standing selected by the Borrower and acceptable
to the Majority Banks, together with a written statement from
such accountants to the effect that they have read a copy of
this Credit Agreement, and that, in making the examination
necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such
statement any such Default or Event of Default; provided that
such accountants shall not be liable to the Banks for failure
to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later
than forty-five (45) days after the end of each of the first
three fiscal quarters in each of the Borrower's fiscal years,
copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such quarter,
and the related consolidated statements of income and cash
flows for such quarter and the portion of the Borrower's
fiscal year then elapsed, together with comparative
consolidated figures for the same periods of the preceding
year, all in reasonable detail and prepared in accordance with
Generally Accepted Accounting Principles and accompanied by a
certificate of the principal financial officer of the Borrower
stating that the information contained in such financial
statements is correct and complete and fairly presents the
financial position of the Borrower and its Subsidiaries on the
date thereof and the results of their operations for the
periods covered thereby (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a
statement certified by the principal financial officer of the
Borrower in substantially the form of Exhibit C hereto and
setting forth in reasonable detail computations evidencing
compliance with the covenants contained in Sections 7.1 and
7.2 as at the end of the period covered by such statements or
during such period as may be required, and (if applicable)
reconciliations to reflect changes in Generally Accepted
Accounting Principles since the Balance Sheet Date (each a
"Compliance Certificate");
(d) contemporaneously with the filing or mailing
thereof, copies of all material of a financial nature filed
with the Securities and Exchange Commission or sent to the
stockholders of the Borrower or any holder of the Borrower's
Funded Debt;
(e) promptly upon request by the Agent or any Bank,
all detailed audits or reports submitted to the Borrower by
independent public accountants in connection with any annual
or interim audits of the books of the Borrower or any Material
Subsidiary; and
(f) from time to time upon request by the Agent or any
Bank, such other financial data and information (including,
without limitation, accountants management letters and such
other information regarding the business and affairs and
condition, financial and other, of the Borrower, its
Subsidiaries and their respective properties) as the Agent or
any Bank may reasonably request, subject to the
confidentiality provisions set forth in Section 25 hereof.
<PAGE>
-21-
5.5. Corporate Existence; Maintenance of Properties.
The Borrower will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate
existence, material rights, franchises and Proprietary Rights
and those of its Subsidiaries except to the extent that the
Borrower's failure to do so will not have a materially adverse
effect on the assets, financial condition or business of the
Borrower and its Material Subsidiaries, taken as a whole. It
(a) will cause all of its material properties and those of its
Subsidiaries used or useful in the conduct of its business or
the business of its Subsidiaries to be maintained and kept in
good condition, repair and working order and supplied with all
reasonably necessary equipment, (b) will cause to be made all
reasonably necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment
of the Borrower may be necessary so that the business carried
on in connection therewith may be properly and advantageously
conducted at all times, and (c) will, and will cause each of
its Material Subsidiaries to, continue to engage primarily in
the businesses now conducted by them and in related
businesses; provided that nothing in this Section 5.5 shall
prevent the Borrower from discontinuing the operation and
maintenance of any of its properties or those of its Material
Subsidiaries if such discontinuance is, in the sole judgment
of the Borrower, desirable in the conduct of its or their
business and that do not in the aggregate materially adversely
affect the business of the Borrower and its Material
Subsidiaries on a consolidated basis.
5.6. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain with financially sound
and reputable insurers insurance with respect to its insurable
properties and business against such casualties and
contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be reasonably
satisfactory to the Agent; provided, however, that the
Borrower and any Subsidiary may self-insure for physical
damage to automobiles, welfare benefits and against liability
to workers in any state or jurisdiction, or may effect
worker's compensation insurance therein through an insurance
fund operated by such state or jurisdiction; and provided,
further, that notwithstanding anything to the contrary
contained herein, the Borrower or such Subsidiary will keep
its assets which are of an insurable character insured by
financially sound and reputable insurers against loss or
damage by fire or explosion in amounts sufficient to prevent
the Borrower or such Subsidiary from becoming a co-insurer and
not in any event less than 80% of the full insurable value of
the property insured.
5.7. Taxes; Etc. The Borrower will, and will cause
each of its Subsidiaries to, (a) duly pay and discharge, or
cause to be paid and discharged, before the same shall become
overdue or (b) properly file for and receive extensions for
such payment and duly pay and discharge, or cause to be paid
and discharged, within such extension period, all taxes,
assessments and other governmental charges (other than taxes,
assessments and other governmental charges imposed by foreign
jurisdictions, including states in which neither the Borrower
nor any of its Subsidiaries conducts a material portion of its
business, that in the aggregate are not material to the
business or assets of the Borrower on an individual basis or
of the Borrower and its Subsidiaries on a consolidated basis)
imposed upon it and its real properties, sales and activities,
or any part thereof, or upon the income or profits therefrom,
as well as all claims for labor, materials, or supplies that
if unpaid might by law become a lien or charge upon any of its
property; provided that any such tax, assessment, charge, levy
or claim need not be paid if the validity or amount thereof
shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Subsidiary shall have
set aside on its books adequate reserves with respect thereto;
and provided further that the Borrower and each Subsidiary of
the Borrower will pay all such taxes, assessments, charges,
levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as
security therefor.
<PAGE>
-22-
5.8. Inspection of Properties and Books. The Borrower
shall permit the Banks, through the Agent or any of the Banks'
other designated representatives, to visit and inspect any of
the properties of the Borrower or any of its Subsidiaries, to
examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts
of the Borrower and its Subsidiaries with, and to be advised
as to the same by, its and their officers, employees and
independent public accountants (such accountants being hereby
authorized by the Borrower to so discuss and advise) all at
such reasonable times and intervals as the Agent or any Bank
may reasonably request. In connection with any such
inspections or discussions, each Bank, on behalf of itself and
any representative authorized by it, agrees to treat all non-
public information as confidential information, and to take
all reasonable precautions to prevent such confidential
information from being exposed to third parties and to those
of its employees and representatives who do not need to know
such confidential information; provided that this Section 5.8
shall not affect the disclosure by any Bank of information
required to be disclosed to its auditors, regulatory agencies
or pursuant to subpoena or other legal process or by virtue of
any other law, regulation, order or interpretation.
5.9. Compliance with Laws, Contracts, Licenses, and
Permits. The Borrower will, and will cause each of its
Material Subsidiaries to, comply with (a) the applicable laws
and regulations wherever its business is conducted, including
all Environmental Laws which may be in effect from time to
time, (b) the provisions of its charter documents and by-laws,
(c) all agreements and instruments by which it or any of its
properties or business may be bound and (d) all applicable
decrees, orders, and judgments; if in each such case failure
to comply would have a materially adverse effect on the
Borrower and its Material Subsidiaries, taken as a whole. If
at any time any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any
government shall become necessary or required in order that
the Borrower may fulfill any of the Obligations, the Borrower
will promptly take or cause to be taken all reasonable steps
within the power of the Borrower to obtain such authorization,
consent, approval, permit or license and furnish the Banks
with evidence thereof.
5.10. Pension Plans. The Borrower and any ERISA
Affiliate shall:
(a) promptly after the Borrower or any ERISA Affiliate
knows or has reason to know that any ERISA Reportable Event
has occurred, notify the Agent that such ERISA Reportable
Event has occurred.
(b) promptly upon request make available to each Bank
at the Borrower's principal place of business a copy of (i)
any actuarial statement related to any pension plan required
to be submitted under Section 103(d) of ERISA or (ii) any
notice, report or demand sent or received by a pension plan
under Section 4065 of ERISA;
(c) furnish to each Bank forthwith, a copy of (i) any
notice of a pension plan termination sent to the PBGC under
Section 4041(a) of ERISA and (ii) any notice, report or demand
sent or received by a pension plan under Sections 4041, 4042,
4043, 4063, 4066 or 4068 of ERISA; and
(d) furnish to each Bank a copy of any request for
waiver from the funding standards or extension of the
amortization periods required by Section 412 of the Code no
later than the date on which the request is submitted to the
Department of Labor or the Internal Revenue Service, as the
case may be.
<PAGE>
-23-
5.11. Further Assurances. The Borrower will cooperate
with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall
reasonably request to carry out to their satisfaction the
transactions contemplated by this Credit Agreement and the
other Loan Documents.
5.12. Notices. The Borrower will promptly notify the
Agent and each of the Banks in writing of the occurrence of
any Default or Event of Default. If any Person shall give any
notice or take any other action in respect of a claimed
default (whether or not constituting an Event of Default)
under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligation to which or with
respect to which the Borrower or any of its Subsidiaries is a
party or obligor, whether as principal or surety, the Borrower
shall forthwith give written notice thereof to each of the
Banks, describing the notice or action and the nature of the
claimed default.
5.13. Fair Labor Standards Act. The Borrower will,
and will cause each of its Subsidiaries to, at all times
operate its business in compliance with all applicable
provisions of the Fair Labor Standards Act of 1938 (29 U.S.C.
Sections 206 and 207) if the failure to comply with such
provisions might reasonably be expected to have a materially
adverse affect on the Borrower and its Subsidiaries, taken as
a whole.
5.14. Environmental Events. The Borrower will
promptly give notice to the Agent (a) of any violation of any
Environmental Law that the Borrower or any of its Subsidiaries
reports in writing or is reportable by such Person in writing
(or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental
agency and (b) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice
from any agency of potential environmental liability, or any
federal, state or local environmental agency or board, that
might reasonably be expected to materially adversely affect
the assets, liabilities, financial conditions or operations of
the Borrower and its Material Subsidiaries on a consolidated
basis.
5.15. Notification of Claims. The Borrower will,
immediately upon becoming aware thereof, notify the Agent in
writing of any uninsured set-off, claims (including, with
respect to the Real Estate, environmental claims),
withholdings or other defenses which might reasonably be
expected to have a materially adverse affect on the assets,
liabilities, financial conditions or operations of the
Borrower and its Material Subsidiaries on a consolidated
basis.
5.16. Use of Proceeds. The Borrower will use the
proceeds of the Loans for general corporate purposes,
including without limitation the financing of capital
expenditures and the acquisition of Personal Communications
Services licenses and for working capital purposes.
5.17. Notice of Litigation, Judgment and Material
Events. The Borrower will give notice to the Agent in writing
within fifteen (15) days of becoming aware of any litigation
or proceedings threatened in writing or any pending litigation
and proceedings affecting the Borrower or any of its
Subsidiaries or to which the Borrower or any of its
Subsidiaries is or becomes a party involving an uninsured
claim against the Borrower individually or the Borrower and
its Subsidiaries on a consolidated basis that could reasonably
be expected to have a materially adverse effect on the
Borrower and its Subsidiaries on a consolidated basis and
stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Agent, in writing, in form
and detail satisfactory to the Agent, (a) within ten (10) days
of any judgment not covered by insurance or reserves, final or
otherwise, against the Borrower or any of its Subsidiaries in
an amount which in aggregate with other such judgments against
the Borrower or any of its
<PAGE>
-24-
Subsidiaries exceeds five percent (5%) of the Consolidated Net
Worth of the Borrower and (b) promptly after becoming aware
thereof, of the occurrence of any event that it is reasonable
to expect will be required to be reported to the Securities
and Exchange Commission.
6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The
Borrower covenants and agrees that, so long as any Loan or
Note is outstanding or any Bank has any obligation to make any
Loans hereunder:
6.1. Federal Regulations. The Borrower will not, and
will not permit any of its Subsidiaries to, engage,
principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System. The
Borrower will not, directly or indirectly, use any part of the
proceeds of any Loans for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of
the Federal Reserve System or for any purpose that violates,
or that would be inconsistent with, the provisions of the
Regulations of such Board of Governors.
6.2. Restrictions on Ability to Repay Loans. The
Borrower will not, and will not permit any of its Material
Subsidiaries to, become or remain subject to any restriction
which could reasonably be expected to impair the Borrower's
ability to repay in full its Obligations hereunder, including,
without limitation, any restriction which would prohibit the
distribution by any Material Subsidiary to the Borrower of
proceeds from asset sales.
6.3. Employee Benefit Plans. Neither the Borrowers
nor any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code
which could result in a material liability for the Borrower or
any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, in excess of $500,000, whether or not
such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan
to an extent which, or terminate any Guaranteed Pension Plan
in a manner which, could result in the imposition of a lien or
encumbrance on the assets of the Borrower or any of its
Subsidiaries pursuant to Section 302(f) or Section 4068 of
ERISA; or
(d) permit or take any action which would result in
the aggregate benefit liabilities (with the meaning of Section
4001 of ERISA) of all Guaranteed Pension Plans exceeding the
value of the aggregate assets of such Plans by more than
$500,000, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess
of benefit liabilities.
6.4. Compliance with Environmental Laws. Except as
permitted by any applicable Environmental Laws, the Borrower
will not, and will not permit any of its Subsidiaries to, (a)
use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the
Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances, (c) generate any
Hazardous Substances on any of the Real Estate, (d) conduct
any activity at any Real Estate or use any Real Estate in any
<PAGE>
-25-
manner which is likely to cause a release (i.e. releasing,
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or
dumping) of Hazardous Substances on, upon or into the Real
Estate or (e) otherwise conduct any activity at any Real
Estate or use any Real Estate in any manner that might
reasonably be expected to violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law
if any of the foregoing would be reasonably likely to have a
material adverse effect on the Borrower and its Subsidiaries,
taken as a whole..
6.5. Restricted Transactions. The Borrower will not,
and will not permit any of its Subsidiaries to complete a Sale
or incur any Funded Debt if an Event of Default will occur
hereunder immediately after giving effect thereto as a
consequence of such Sale or the incurrence of such Funded
Debt.
7. FINANCIAL COVENANTS OF THE BORROWER.
7.1. Debt Rating. The Borrower will at all times
maintain a Debt Rating of BB+ or better by S&P.
7.2. Minimum Consolidated Net Worth. The Consolidated
Net Worth of the Borrower shall at all times be greater than
$800,000,000.
8. CLOSING CONDITIONS. The effectiveness of this
Agreement and the obligation of any Bank to make the initial
Revolving Credit Loan on the Closing Date shall be subject to
the satisfaction of the following conditions precedent:
8.1. Corporate Action. All corporate action necessary
for the valid execution, delivery and performance by the
Borrower of this Credit Agreement and the other Loan Documents
to which it is or is to become a party shall have been duly
and effectively taken, and evidence thereof satisfactory to
the Banks shall have been provided to each of the Banks.
8.2. Loan Documents. Each of the Loan Documents shall
have been duly executed and delivered by the respective
parties thereto, shall be in full force and effect and shall
be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each
such document.
8.3 Opinion of Borrower's Legal Counsel. Each of the
Banks and the Agent shall have received from legal counsel to
the Borrower, a favorable opinion addressed to the Banks and
the Agent dated the Closing Date, in substantially the form of
Exhibit D hereto.
8.4. Certified Copies of Charter Documents. Each of
the Banks shall have received from the Borrower a copy of the
Borrower's charter or other incorporation documents and by-
laws certified by the Secretary of the Borrower to be true and
complete as of the Closing Date.
8.5. Incumbency Certificate. Each of the Banks shall
have received from the Borrower an incumbency certificate,
dated the Closing Date, signed by a duly authorized officer of
the Borrower, and giving the name and bearing a specimen
signature of each individual who shall be authorized: (a) to
sign, in the name and on behalf of the Borrower, each of the
Loan Documents to which it is or is to become a party; (b) to
make application for the Loans; and (c) to give notices and to
take other action on its behalf under the Loan Documents.
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8.6. Good Standing Certificates. The Agent shall have
received, with a copy for each Bank, a certificate from the
Secretary of State, or other appropriate authority of such
jurisdiction, evidencing the good standing of the Borrower in
the jurisdiction of its incorporation and each jurisdiction in
which a failure to so qualify could have a materially adverse
effect on the business, operations, property or financial or
other condition of the Borrower.
9. CONDITIONS TO ALL BORROWINGS. The obligation of
any Bank to make any Loan, including the initial Revolving
Credit Loan to be made on the Closing Date shall be subject to
the satisfaction of the following conditions precedent:
9.1. Representations True; No Event of Default. Each
of the representations and warranties of the Borrower
contained in this Credit Agreement or in any document or
instrument delivered pursuant to or in connection with this
Credit Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the
making of the Loan, with the same effect as if made at and as
of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit
Agreement and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and
warranties relate expressly to an earlier date) and no Default
or Event of Default shall have occurred and be continuing.
The Agent shall have received a certificate of the Borrower
signed by an authorized officer of the Borrower to such
effect.
9.2. No Legal Impediment. No change shall have
occurred in any law or regulations thereunder or
interpretations thereof that in the reasonable opinion of any
Bank would make it illegal for such Bank to make the Loans.
9.3. Governmental Regulation. Each Bank shall have
received such statements in substance and form reasonably
satisfactory to such Bank as such Bank shall require for the
purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
9.4. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this Credit
Agreement and all documents incident thereto shall be
satisfactory in substance and in form to the Banks and to the
Agent's Special Counsel, and the Banks and such counsel shall
have received all information and such counterpart originals
or certified or other copies of such documents as the Banks
may reasonably request.
10. EVENTS OF DEFAULT; ACCELERATION. If any of the
following events ("Events of Default" or, if the giving of
notice or the lapse of time or both is required, then, prior
to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of
the Loans when the same shall become due and payable, whether
at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest on the
Loans, the Facility Fee, or other sums due hereunder or under
any of the other Loan Documents, on or prior to the second day
immediately succeeding the day on which the same shall become
due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for
payment;
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(c) the Borrower or any Subsidiary of the Borrower
shall fail to comply with any of its covenants contained in
Sections 5.9, 5.10, 5.12 or 5.15 through 5.17, inclusive,
Section 6 or Section 7;
(d) the Borrower fails to perform any term, covenant
or agreement contained in Section 5.4 for five (5) days after
written notice of such failure has been given to the Borrower
by the Agent or the Borrower shall fail to perform any other
term, covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified elsewhere in
this Section 10) for thirty (30) days after written notice of
such failure has been given to the Borrower by the Agent or,
if such performance is not possible within such thirty (30)
day period, the Borrower shall fail to undertake such
performance within such thirty (30) day period and thereafter
to diligently and in good faith pursue the completion of such
performance;
(e) any representation or warranty of the Borrower or
any of its Subsidiaries in this Credit Agreement or any of the
other Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any material
respect upon the date when made;
(f) the Borrower or any of its Subsidiaries shall fail
to pay at maturity, or within any applicable period of grace,
any obligation for borrowed money in an amount equal to 15% of
the aggregate amount of Funded Debt then outstanding and owing
by the Borrower and its Subsidiaries, on a consolidated
basis;
(g) the Borrower or any of its Material Subsidiaries
shall make an assignment for the benefit of creditors, or
admit in writing its inability to pay or generally fail to pay
its debts as they mature or become due, or shall petition or
apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Material
Subsidiaries or of any substantial part of the assets of the
Borrower or any of its Material Subsidiaries or shall commence
any case or other proceeding relating to the Borrower or any
of its Material Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction,
now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any
such petition or application shall be filed or any such case
or other proceeding shall be commenced against the Borrower or
any of its Material Subsidiaries and the Borrower or any of
its Material Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the
Borrower or any of its Material Subsidiaries bankrupt or
insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in
respect of the Borrower or any Material Subsidiary of the
Borrower in an involuntary case under federal bankruptcy laws
as now or hereafter constituted;
(i) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty (30) days,
whether or not consecutive, any final judgment against the
Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged and not covered by
insurance, against such Person(s) exceeds in the aggregate
five (5) percent of the Consolidated Net Worth of the
Borrower;
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then, and in any such event, so long as the same may be
continuing, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the Borrower
declare all amounts owing with respect to this Credit
Agreement and the Notes to be, and they shall thereupon
forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower; provided
that in the event of any Event of Default specified in Section
10(g) or Section 10(h), all such amounts shall become
immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
If any one or more of the Events of Default specified
in Section 10(g) or Section 10(h) shall occur, any unused
portion of the credit hereunder shall forthwith terminate and
each of the Banks shall be relieved of all obligations to make
Loans hereunder. If any other Event of Default shall have
occurred and be continuing, the Agent, upon the request of the
Majority Banks, shall, by notice to the Borrower, terminate
the unused portion of the credit hereunder, and upon such
notice being given such unused portion of the credit hereunder
shall terminate immediately and each of the Banks shall be
relieved of all further obligations to make Loans. If any
such notice is given to the Borrower the Agent will forthwith
furnish a copy thereof to each of the Banks. No termination
of the credit hereunder shall relieve the Borrower of any of
the Obligations or any of its existing obligations to the
Banks arising under other agreements or instruments.
11. THE AGENT.
11.1. Authorization. The Agent is authorized to take
such action on behalf of each of the Banks and to exercise all
such powers as are hereunder and in related documents
delegated to the Agent, together with such powers as are
reasonably incident thereto.
11.2. Employees and Agents. The Agent may exercise
its powers and execute its duties by or through employees or
agents and shall be entitled to take, and to rely on, advice
of counsel concerning all matters pertaining to its rights and
duties under this Credit Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons
as the Agent in its sole discretion may reasonably determine,
and upon the occurrence and during the continuation of a
Default or an Event of Default, all reasonable fees and
expenses of any such Persons shall be paid by the Borrower.
11.3. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken, in
good faith by it or them hereunder or under any of the other
Loan Documents, or in connection herewith or therewith, or be
responsible for the consequences of any oversight or error of
judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
11.4. No Representations. The Agent shall not be
responsible for the execution or validity or enforceability of
this Credit Agreement or the Notes or any instrument at any
time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter
furnished to it by or on behalf of the Borrower, or be bound
to ascertain or inquire as to the performance or observance of
any of the terms, conditions, covenants or agreements herein
or in any instrument at any time constituting, or intended to
constitute, collateral security for the Notes. The Agent
shall not be bound to ascertain
<PAGE>
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whether any notice, consent, waiver or request delivered to it
by the Borrower or any holder of any of the Notes shall have
been duly authorized or is true, accurate and complete. The
Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness
or financial conditions of the Borrower or any of its
Subsidiaries. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or the other
Banks, and based upon such information and documents as it has
deemed appropriate, made its own credit analysis and decision
to enter into this Credit Agreement.
11.5. Payments. If in the opinion of the Agent the
distribution of any amount received by it in such capacity
hereunder or under the Notes might involve it in liability, it
may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the
Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. With respect to
Obligations, a payment to the Agent shall be deemed to be a
payment to each Bank of its pro rata share of such payment.
11.6. Holders of Notes. The Agent may deem and treat
the payee of any Note as the absolute owner thereof for all
purposes hereof until it shall have been furnished in writing
with a different name by such payee or by a subsequent holder.
11.7. Indemnity. The Banks jointly and severally
agree hereby to indemnify and hold harmless the Agent from and
against any and all claims, actions and suits (whether
groundless or otherwise), losses, damages, costs, expenses
(including any expenses for which the Agent has not been
reimbursed by the Borrower as required by Section 12 or
Section 13), and liabilities of every nature and character
arising out of or related to this Credit Agreement or the
Notes or the transactions contemplated or evidenced hereby or
thereby, or the Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly
caused by the Agent's willful misconduct or gross negligence.
11.8. Agent as Bank. In its individual capacity, Bank
of Boston shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the
Loans made by it, and as the holder of any of the Notes, as it
would have were it not also the Agent.
11.9. Resignation. The Agent may resign at any time
by giving ninety (90) days' prior written notice thereof to
the Banks and the Borrower. Upon any such resignation, the
Majority Banks shall have the right to appoint another Bank or
any other financial institution as the successor Agent.
Unless a Default or Event of Default shall have occurred and
be continuing, such successor, if other than a Bank, shall be
reasonably acceptable to the Borrower. If no successor Agent
shall have been so appointed by the Majority Banks and shall
have accepted such appointment within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a
successor Agent. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation, the provisions of this Credit Agreement shall
continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as
Agent.
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12. EXPENSES. The Borrower agrees to pay (a) the
reasonable cost of producing and reproducing this Credit
Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the
Agent or the Banks (other than taxes based upon the Agent's or
any Bank's net income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrower hereby
agreeing to indemnify the Banks with respect thereto), (c) the
reasonable fees, expenses and disbursements of the Agent's
Special Counsel or any local counsel to the Agent incurred in
connection with the preparation, administration or
interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or
hereunder regardless of whether any such transaction is
consummated, (d) the fees, expenses and disbursements of the
Agent incurred by the Agent in connection with the
preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein each closing
hereunder and amendments, modifications, approvals, consents
or waivers hereto or hereunder regardless of whether any such
transaction is consummated, and (e) all reasonable out-of-
pocket expenses (including reasonable attorneys' (which
attorneys may be employees of any Bank or the Agent) fees and
costs) incurred by any Bank or the Agent in connection with
(i) the enforcement of any of the Loan Documents against the
Borrower or any of its Subsidiaries or the administration
thereof after the occurrence of a Default or Event of Default,
(ii) any so-called "work-out" of the Obligations and (iii) any
litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the Agent's
relationship with the Borrower or any of its Subsidiaries.
The covenants of this Section 12 shall survive payment or
satisfaction of payment of amounts owing under or with respect
to the Loan Documents.
13. INDEMNIFICATION. The Borrower agrees to indemnify
and hold harmless the Agent and the Banks from and against any
and all claims, actions and suits whether groundless or
otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other Loan
Documents or the transactions evidenced hereby unless any such
claims, actions or suits arise out of the Agent's or the
Banks' intentional misconduct or gross negligence. In
litigation, or the preparation therefor, the Banks and the
Agent shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrower agrees to
pay promptly the reasonable fees and expenses of such counsel.
If, and to the extent that the obligations of the Borrower
under this Section 13 are unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is
permissible under applicable law.
14. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein, in any
of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower pursuant
hereto shall be deemed to have been relied upon by the Banks
and the Agent, notwithstanding any investigation heretofore or
hereafter made by any of them, and shall survive the making by
the Banks of the Loans, as herein contemplated, and shall
continue in full force and effect so long as any Obligation
remains outstanding or any Bank has any obligation to make any
Loans. All statements contained in any certificate or other
paper delivered to any Bank or the Agent at any time by or on
behalf of the Borrower pursuant hereto or in connection with
the transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder.
<PAGE>
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15. ASSIGNMENT AND PARTICIPATION.
Section 15.1. Conditions to Assignment by Banks.
Except as provided herein, each Bank may assign to one or more
Eligible Assignees all or a portion of its interests, rights
and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it) and the
Notes held by it; provided that (a) the Agent and the Borrower
(unless such assignment is (i) to any Federal Reserve Bank or
(ii) from the Agent to an affiliate of an Agent) shall have
given its prior written consent to such assignment, which
consent will not be unreasonably withheld, (b) each such
assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations
under this Credit Agreement, (c) each assignment shall be in
an amount that is not less than $10,000,000 and (d) the
parties to such assignment shall execute and deliver to the
Agent, for recording in the Register (as hereinafter defined),
an Assignment and Acceptance, substantially in the form of
Exhibit E hereto (an "Assignment and Acceptance"), together
with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder, (ii) the assigning Bank
shall, to the extent provided in such assignment and upon
payment to the Agent of the registration fee referred to in
Section 15.3, be released from its obligations under this
Credit Agreement and (iii) Schedule 1.1(a) shall be deemed to
be automatically amended to reflect the change in the Banks
and each Bank's Commitment and Commitment Percentage resulting
from such Assignment and Acceptance.
15.2. Certain Representations and Warranties;
Limitations; Covenants. By executing and delivering an
Assignment and Acceptance, the parties to the assignment
thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation
and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse
claim, the assigning Bank makes no representation or warranty,
express or implied, and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of this Credit Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security
interest or mortgage; (b) the assigning Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower and its
Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries
or any other Person primarily or secondarily liable in respect
of any of the Obligations of any of their obligations under
this Credit Agreement or any of the other Loan Documents or
any other instrument or document furnished pursuant hereto or
thereto; (c) such assignee confirms that it has received a
copy of this Credit Agreement, together with copies of the
most recent financial statements referred to in Section 4.4
and Section 5.4 and such other documents and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d)
such assignee will, independently and without reliance upon
the assigning Bank, the Agent or any other Bank 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 Credit Agreement; (e) such
assignee represents and warrants that it is an Eligible
Assignee; (f) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise
such powers under this Credit Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably
incidental thereto; (g) such assignee agrees that it will
perform in accordance with their terms all of the
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obligations that by the terms of this Credit Agreement are
required to be performed by it as a Bank; and (h) such
assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
15.3. Register. The Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register
or similar list (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment Percentage
of, and principal amount of the Loans owing to the Banks from
time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all
purposes of this Credit Agreement. The Register shall be
available for inspection by the Borrower and the Banks at any
reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees
to pay to the Agent a registration fee in the sum of $2,500.
15.4. New Notes. Upon its receipt of an Assignment
and Acceptance executed by the parties to such assignment,
together with each Note subject to such assignment, the Agent
shall (a) record the information contained therein in the
Register, and (b) give prompt notice thereof to the Borrower
and the Banks (other than the assigning Bank). Within five
(5) Business Days after receipt of such notice, the Borrower,
at its own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of
such Eligible Assignee in an amount equal to the amount
assumed by such Eligible Assignee pursuant to such Assignment
and Acceptance and, if the assigning Bank has retained some
portion of its obligations hereunder, a new Note to the order
of the assigning Bank in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that
they are replacements for the surrendered Notes, shall be in
an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be
in substantially the form of the assigned Notes. Upon the
request of any Bank, the Borrower shall within five (5) days
of the issuance of any new Notes pursuant to this Section
16.4, at the requesting Bank's expense, deliver an opinion of
counsel, addressed to the Banks and the Agents, relating to
the due authorization, execution and delivery of such new
Notes and the legality, validity and binding effect thereof,
in form and substance satisfactory to the Banks. The
surrendered Notes shall be cancelled and returned to the
Borrower.
15.5. Participations. Each Bank may sell
participations to one or more banks or other entities in all
or a portion of such Bank's rights and obligations under this
Credit Agreement and the other Loan Documents; provided that
(a) each such participation shall be in an amount of not less
than $5,000,000, (b) any such sale or participation shall not
affect the rights and duties of the selling Bank hereunder to
the Borrower and (c) the only rights granted to the
participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan
Documents shall be the rights to approve waivers, amendments
or modifications that would reduce the principal of or the
interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Bank as it relates to such
participant, reduce the amount of any commitment fees to which
such participant is entitled or extend any regularly scheduled
payment date for principal or interest.
15.6. Disclosure. The Borrower agrees that in
addition to disclosures made in accordance with standard and
customary banking practices, any Bank may in accordance with
the terms of Section 25 hereof disclose information obtained
by such Bank pursuant to this Credit Agreement to assignees or
participants and potential assignees or participants
hereunder; provided that such assignees or participants or
potential assignees or participants shall agree (a) to treat
in confidence such information
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unless such information otherwise becomes public knowledge,
(b) not to disclose such information to a third party, except
as required by law or legal process and (c) not to make use of
such information for purposes of transactions unrelated to
such contemplated assignment or participation.
15.7. Assignee or Participant Affiliated with the
Borrower. If any assignee Bank is an Affiliate of the
Borrower, then any such assignee Bank shall have no right to
vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to
any of the Loan Documents or for purposes of making requests
to the Agent pursuant to Section 10, and the determination of
the Majority Banks shall for all purposes of this Agreement
and the other Loan Documents be made without regard to such
assignee Bank's interest in any of the Loans. If any Bank
sells a participating interest in any of the Loans to a
participant, and such participant is the Borrower or an
Affiliate of the Borrower, then such transferor Bank shall
promptly notify the Agent of the sale of such participation.
A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan
Documents or for purposes of making requests to the Agent
pursuant to Section 10 to the extent that such participation
is beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Majority Banks shall
for all purposes of this Agreement and the other Loan
Documents be made without regard to the interest of such
transferor Bank in the Loans to the extent of such
participation.
15.8. Miscellaneous Assignment Provisions. Any
assigning Bank shall retain its rights to be indemnified
pursuant to Section 12 and Section 13 with respect to any
claims or actions arising prior to the date of such
assignment. If any assignee Bank is not incorporated under
the laws of the United States of America or any state thereof,
it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for
its account, deliver to the Borrower and the Agent
certification as to its exemption from deduction or
withholding of any United States federal income taxes.
Anything contained in this Section 15 to the contrary
notwithstanding, any Bank may at any time pledge all or any
portion of its interest and rights under this Credit Agreement
(including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under Section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
the enforcement thereof shall release the pledgor Bank from
its obligations hereunder or under any of the other Loan
Documents.
15.9. Assignment by Borrower. The Borrower shall not
assign or transfer any of its rights or obligations under any
of the Loan Documents without the prior written consent of the
Agent and each of the Banks.
16. NOTICES, ETC. Except as otherwise expressly
provided in this Credit Agreement, all notices and other
communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be
delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, or sent by
telegraph, telecopy, telefax or telex and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to the Borrower, at 30 North LaSalle Street,
Chicago, Illinois 60602, Attention: Ronald Webster, (with a
copy to Michael G. Hron, Sidley & Austin, One First National
Plaza, Chicago, Illinois 60603), or at such other address for
notice as the Borrower shall last have furnished in writing to
the Person giving the notice;
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(b) if to the Agent or Bank of Boston, at the address
set forth for Bank of Boston on Schedule 1.1(a) hereto or such
other address for notice as Bank of Boston shall last have
furnished in writing to the Person giving the notice;
(c) if to any other Bank, at the address set forth for
such Bank in Schedule 1.1(a) hereto or such other address for
notice as such Bank shall have last furnished in writing to
the Person giving the notice.
Any such notice or demand shall be deemed to have been
duly given or made and to have become effective (i) if
telecopied, or delivered by hand to a responsible officer of
the party to which it is directed, at the time of the receipt
thereof by such officer and (ii) if sent by registered or
certified first-class mail, postage prepaid, three days after
the date mailed.
17. GOVERNING LAW. THIS CREDIT AGREEMENT AND EACH OF
THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER CONSENTS TO THE JURISDICTION IN
ANY OF THE FEDERAL OR STATE COURTS LOCATED IN THE COMMONWEALTH
OF MASSACHUSETTS IN CONNECTION WITH ANY SUIT TO ENFORCE THE
RIGHTS OF THE BANKS AND THE AGENT UNDER THIS CREDIT AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS.
18. HEADINGS. The captions in this Credit Agreement
are for convenience of reference only and shall not define or
limit the provisions hereof.
19. COUNTERPARTS. This Credit Agreement and any
amendment hereof may be executed in several counterparts and
by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this
Credit Agreement it shall not be necessary to produce or
account for more than one such counterpart signed by the party
against whom enforcement is sought.
20. ENTIRE AGREEMENT, ETC. The Loan Documents and any
other documents executed in connection herewith or therewith
express the entire understanding of the parties with respect
to the transactions contemplated hereby. Neither this Credit
Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 22.
21. WAIVER OF JURY TRIAL. The Borrower hereby waives
its right to a jury trial with respect to any action or claim
arising out of any dispute in connection with this Credit
Agreement or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such
rights and obligations. The Borrower (a) certifies that no
representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the
Agent would not, in the event of litigation seek to enforce
the foregoing waivers and (b) acknowledges that it has been
induced to enter into this Credit Agreement and the other Loan
Documents by, among other things, the mutual waivers and
certifications contained herein.
22. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as
otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit
<PAGE>
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Agreement to be given by the Banks may be given, and any term
of this Credit Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance
or observance by the Borrower of any terms of this Credit
Agreement or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or
in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Majority Banks.
Notwithstanding the foregoing, (i) the term of the Notes and
the amount of the Commitments of the Banks may not be changed,
(ii) the rate of interest on the Loans and the amount of the
Facility Fee hereunder may not be decreased and (iii) the
terms of this Section 22 may not be changed without the
written consent of the Borrower and the written consent of
each of the Banks; the definition of Majority Banks may not be
amended without the written consent of each of the Banks; and
Section 11 may not be amended without the written consent of
the Agent. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon.
No course of dealing or delay or omission on the part of any
Bank or the Agent in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to
other or further notice or demand in similar or other
circumstances.
23. FCC APPROVAL. Notwithstanding anything to the
contrary contained in this Credit Agreement or in the other
Loan Documents, neither the Agent nor any Bank will take any
action pursuant to this Agreement or any of the other Loan
Documents, which would constitute or result in a change in
control of the Borrower or any of its Subsidiaries requiring
the prior approval of the FCC without first obtaining such
prior approval of the FCC. After the occurrence of an Event
of Default, the Borrower shall take or cause to be taken any
action which the Agents may reasonably request in order to
obtain from the FCC such approval as may be necessary to
enable the Agents to exercise and enjoy the full rights and
benefits granted to the Agent, for the benefit of the Banks by
this Credit Agreement or any of the other Loan Documents,
including, at the Borrower's cost and expense, the use of the
Borrower's best efforts to assist in obtaining such approval
for any action or transaction contemplated by this Credit
Agreement or any of the other Loan Documents for which such
approval is required by law.
24. SEVERABILITY. The provisions of this Credit
Agreement are severable and if any one clause or provision
hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision,
or part thereof, in such jurisdiction, and shall not in any
manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
25. CONFIDENTIALITY. Each of the Banks and the Agent
agrees to keep any non-public information delivered or made
available to it pursuant to this Credit Agreement or any other
Loan Document confidential from any Person other than
officers, employees, agents, designees or representatives of
such Bank or the Agent who are or are expected to become
engaged in evaluating, approving, structuring or administering
this Credit Agreement or any of the other Loan Documents;
provided, that, nothing herein shall prevent the Agent or any
Bank from disclosing such information (i) to any assignee or
participant that has agreed in writing to comply with the
confidentiality provision of this Section 25 in connection
with the contemplated assignment or participation, (ii) to any
of its Affiliates to the extent any such Affiliates require
such information in the ordinary course of the Agent's or such
Bank's credit committee or asset management procedures, or
(iii) as required or requested by any governmental authority
or representative thereof or pursuant to legal process or as
required in connection with the exercise or any remedy under
this Credit Agreement or any of the other Loan Documents.
<PAGE>
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IN WITNESS WHEREOF, the undersigned have duly executed
this Credit Agreement under seal as of the date first set
forth above.
TELEPHONE AND DATA SYSTEMS, INC.
By /s/ Ronald D. Webster
_____________________________
Name: Ronald D. Webster
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: /s/ Mary E. Meduski
-----------------------------
Name: Mary E. Meduski
Vice President
<PAGE>
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SCHEDULES AND EXHIBITS
----------------------
EXHIBIT A: Form of Revolving Credit Note
EXHIBIT B: Form of Loan Request
EXHIBIT C: Form of Compliance Certificate
EXHIBIT D: Form of Opinion of Borrower's Counsel
EXHIBIT E Form of Assignment and Acceptance
SCHEDULE 1.1(a): Revolving Credit Commitments
SCHEDULE 1.1(b): Eurodollar Lending Offices
SCHEDULE 1.2 Margin Percentage
SCHEDULE 4.14: Assets and Accrued Benefits
SCHEDULE 4.18 Material Subsidiaries
The Schedules and Exhibits are not being filed herewith.
The Company agrees to furnish a copy of such Schedules and
Exhibits if so requested by the Commission.
<PAGE>
