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): July 1, 1996
TELEPHONE AND DATA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Iowa 1-8251 36-2669023
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
30 North LaSalle Street, Chicago, Illinois 60602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (312) 630-1900
Not Applicable
(Former name or former address, if changed since last report)
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Item 5. Other Events.
On June 7, 1996, the Company signed a $500 million Revolving Credit
Agreement ("Agreement") with the First National Bank of Boston, as Agent. This
Agreement replaces the $300 million one year revolving credit agreement signed
in 1995.
This Current Report on Form 8-K is being filed for the purpose of
filing the Agreement.
Item 7. Financial Statements and Exhibits
(c) Exhibits
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.
Date: July 1, 1996
Telephone and Data Systems, Inc.
(Registrant)
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
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99 Revolving Credit Agreement dated as of June 7, 1996
(except for xhibits and schedules which will be supplied
supplementally to the ommission upon request).
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Exhibit 99
REVOLVING CREDIT AGREEMENT
DATED AS OF
June 7, 1996
AMONG
TELEPHONE AND DATA SYSTEMS, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
THE FIRST NATIONAL BANK OF BOSTON,
as Agent and Arranger
and
LASALLE NATIONAL BANK
and
TORONTO DOMINION (TEXAS), INC.,
as Co-Agents
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TABLE OF CONTENTS
Sect 1 DEFINITIONS AND RULES OF INTERPRETATION......................... 1
Sect 1.1 Definitions......................................... 1
Sect 1.2. Rules of Interpretation............................. 9
Sect 2. THE REVOLVING CREDIT FACILITY................................... 10
Sect 2.1. Commitment to Lend.................................. 10
Sect 2.2. Facility Fee........................................ 10
Sect 2.3. Reduction of Commitment............................. 10
Sect 2.4. The Notes........................................... 10
Sect 2.5. Requests for Loans.................................. 11
Sect 2.6. Funds for Loans..................................... 11
Sect 2.7. Mandatory Repayments of Loans....................... 12
Sect 2.8. Optional Repayments of Loans........................ 12
Sect 2.9. Extension of the Maturity Date...................... 12
Sect 3. INTEREST; CERTAIN GENERAL PROVISIONS............................ 13
Sect 3.1. Interest on Loans; Payment.......................... 13
Sect 3.2. Interest Period Options............................. 13
Sect 3.3. Indemnity........................................... 13
Sect 3.4. Funds for Payments.................................. 13
Sect 3.5. Computations........................................ 14
Sect 3.6. Inability to Determine Eurodollar Rate.............. 14
Sect 3.7. Illegality.......................................... 15
Sect 3.8. Additional Costs, Etc............................... 15
Sect 3.9. Certificate......................................... 16
Sect 3.10. Capital Adequacy.................................... 16
Sect 3.11. Interest on Overdue Amounts......................... 17
Sect 4. REPRESENTATIONS AND WARRANTIES.................................. 17
Sect 4.1. Corporate Authority................................. 17
Sect 4.2. Governmental Approvals.............................. 18
Sect 4.3. Title to Properties; Leases......................... 18
Sect 4.4. Financial Statements................................ 18
Sect 4.5. No Material Changes, Etc............................ 18
Sect 4.6. Franchises, Patents, Copyrights, Etc................ 19
Sect 4.7. No Litigation....................................... 19
Sect 4.8. No Materially Adverse Contracts, Etc................ 19
Sect 4.9. Compliance, With Other Instruments, Laws, Etc....... 19
Sect 4.10. Tax Status.......................................... 20
Sect 4.11. No Event of Default................................. 20
Sect 4.12. Holding Company and Investment Company Acts......... 20
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Sect 4.13. Certain Transactions................................ 20
Sect 4.14. ERISA Compliance.................................... 20
Sect 4.15. Purpose Credit...................................... 21
Sect 4.16. Environmental Compliance............................ 22
Sect 4.17. Compliance With Fair Labor Standards Act............ 22
Sect 4.18. Subsidiaries........................................ 22
Sect 4.19. Disclosure.......................................... 23
Sect 5. AFFIRMATIVE COVENANTS OF THE BORROWER........................... 23
Sect 5.1. Punctual Payment.................................... 23
Sect 5.2. Maintenance of Office............................... 23
Sect 5.3. Records and Accounts................................ 23
Sect 5.4. Financial Statements, Certificates and Information.. 23
Sect 5.5. Corporate Existence; Maintenance of Properties...... 24
Sect 5.6. Insurance........................................... 25
Sect 5.7. Taxes; Etc.......................................... 25
Sect 5.8. Inspection of Properties and Books.................. 25
Sect 5.9. Compliance with Laws, Contracts, Licenses,
and Permits......................................... 26
Sect 5.10. Pension Plans....................................... 26
Sect 5.11. Further Assurances.................................. 26
Sect 5.12. Notices............................................. 27
Sect 5.13. Fair Labor Standards Act............................ 27
Sect 5.14. Environmental Events................................ 27
Sect 5.15. Notification of Claims.............................. 27
Sect 5.16. Use of Proceeds..................................... 27
Sect 5.17. Notice of Litigation, Judgment and Material Events.. 27
Sect 6. CERTAIN NEGATIVE COVENANTS OF THE BORROWER...................... 28
Sect 6.1. Indebtedness........................................ 28
Sect 6.2. Restrictions on Liens............................... 28
6.2.1. The Borrower............................ 28
6.2.2. Subsidiaries............................ 30
Sect 6.3. Limitation on Sales, Consolidation, Merger, Etc..... 32
Sect 6.4. Federal Regulations................................. 33
Sect 6.5. Restrictions on Ability to Repay Loans.............. 33
Sect 6.6. Employee Benefit Plans.............................. 33
Sect 6.7. Compliance with Environmental Laws.................. 34
Sect 6.8. Limitation on Sale and Leaseback.................... 34
Sect 7. FINANCIAL COVENANTS OF THE BORROWER............................. 35
Sect 7.1. Debt to Capitalization Ratio........................ 35
Sect 7.2. Interest Coverage Ratio............................. 35
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Sect 8. CLOSING CONDITIONS.............................................. 35
Sect 8.1. Corporate Action.................................... 35
Sect 8.2. Loan Documents...................................... 35
Sect 8.3. Opinion of Borrower's Legal Counsel................. 35
Sect 8.4. Certified Copies of Charter Documents............... 36
Sect 8.5. Incumbency Certificate.............................. 36
Sect 8.6. Good Standing Certificates.......................... 36
Sect 8.7. Existing Credit Agreement........................... 36
Sect 9. CONDITIONS TO ALL BORROWINGS.................................... 36
Sect 9.1. Representations True; No Event of Default........... 36
Sect 9.2. No Legal Impediment................................. 36
Sect 9.3. Governmental Regulation............................. 36
Sect 9.4. Proceedings and Documents........................... 36
Sect 10. EVENTS OF DEFAULT; ACCELERATION................................. 37
Sect 11. THE AGENT AND CO-AGENTS......................................... 38
Sect 11.1. Authorization....................................... 38
Sect 11.2. Employees and Agents................................ 39
Sect 11.3. No Liability........................................ 39
Sect 11.4. No Representations.................................. 39
Sect 11.5. Payments............................................ 39
Sect 11.6. Holders of Notes.................................... 40
Sect 11.7. Indemnity........................................... 40
Sect 11.8. Agent as Bank....................................... 40
Sect 11.9. Resignation......................................... 40
Sect 11.10. Co-Agents........................................... 40
Sect 12. EXPENSES ............................................... 40
Sect 13. INDEMNIFICATION ............................................... 41
Sect 14. SURVIVAL OF COVENANTS, ETC...................................... 41
Sect 15. ASSIGNMENT AND PARTICIPATION.................................... 42
Sect 15.1. Conditions to Assignment by Banks................... 42
Sect 15.2. Certain Representations and Warranties;
Limitations; Covenants............................. 42
Sect 15.3. Register............................................ 43
Sect 15.4. New Notes........................................... 43
Sect 15.5. Participations...................................... 43
Sect 15.6. Disclosure.......................................... 44
Sect 15.7. Assignee or Participant Affiliated with
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the Borrower....................................... 44
Sect 15.8. Miscellaneous Assignment Provisions................. 44
Sect 15.9. Assignment by Borrower.............................. 45
Sect 16. NOTICES, ETC. ............................................... 45
Sect 17. GOVERNING LAW ............................................... 45
Sect 18. HEADINGS ............................................... 45
Sect 19. COUNTERPARTS ............................................... 45
Sect 20. ENTIRE AGREEMENT, ETC........................................... 46
Sect 21. WAIVER OF JURY TRIAL............................................ 46
Sect 22. CONSENTS, AMENDMENTS, WAIVERS, ETC.............................. 46
Sect 23. FCC APPROVAL ............................................... 46
Sect 24. SEVERABILITY ............................................... 47
Sect 25. CONFIDENTIALITY ............................................... 47
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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
SCHEDULE 6.2.1: Existing Liens of Borrower
SCHEDULE 6.2.2: Existing Liens of Subsidiaries
SCHEDULE 6.8: Sale and Leaseback Transactions
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of the 7th day of June,
1996, 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"), THE FIRST NATIONAL BANK OF BOSTON, as agent for the Banks
(the "Agent") and as Arranger and LASALLE NATIONAL BANK and TORONTO DOMINION
(TEXAS), INC., as Co-Agents.
Sect 1. DEFINITIONS AND RULES OF INTERPRETATION.
Sect 1.1. Definitions. The following terms shall have the meanings set
forth in this Sect 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 LLP of Boston,
Massachusetts, or such other counsel as may be approved by the Agent.
Assignment and Acceptance. See Sect 15.1.
Balance Sheet Date. December 31, 1995.
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 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.
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Business Day. Any day on which banking institutions in Boston,
Massachusetts, New York, New York and Chicago, Illinois are open for the
transaction of banking business.
Capitalized Lease. As applied to any Person, any lease of property by
such Person as lessee or obligor, the discounted future rental payments under
which are required to be capitalized on the balance sheet of such Person in
accordance with Generally Accepted Accounting Principles.
Capitalized Rent. The present value (discounted semi-annually at a
discount rate equal to the weighted average rate of interest borne by the
Obligations) of the total net amount of rent payable for the remaining term of
any lease of property by the Borrower (including any period for which such lease
has been extended); provided that no such rental obligation shall be deemed to
be Capitalized Rent unless the lease resulted from a Sale and Leaseback
Transaction. The total net amount of rent payable under any lease for any period
shall be the total amount of the rent payable by the lessee with respect to such
period but shall not include amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, sewer rates
and similar charges.
Closing Date. June 7, 1996.
Co-Agents. LaSalle National Bank and Toronto Dominion (Texas), Inc.
acting as co-agents for the Banks.
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 Sect 5.4(c).
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 Capitalization. The sum of (i) Funded Debt of the Borrower
and its Subsidiaries calculated on a consolidated basis, plus (ii) Consolidated
Net Worth plus (iii) deferred taxes and deferred investment credit to the extent
deducted in calculating Consolidated Net Worth.
Consolidated EBITDA. For any period, an amount equal to (a) the sum of
(i) Consolidated Net Income for such period, plus (ii) depreciation,
amortization and all other non-cash charges deducted from Consolidated Net
Income for such period, plus (iii) to the extent deducted in the calculation of
Consolidated Net Income, Consolidated Interest Expense and taxes paid or payable
for such period.
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Consolidated Interest Expense. For any period, the aggregate amount of
interest required to be paid or payable in cash by the Borrower or any of its
Subsidiaries during such period on all Funded Debt of the Borrower or any of its
Subsidiaries outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of Capitalized
Leases (including, without duplication, the interest for rental payments made
with respect to Sale and Leaseback Transactions) and including Facility Fees
payable pursuant to Sect 2.2.
Consolidated Net Income. For any period, the net income of the Borrower
and its Subsidiaries for such period, after deduction of all expenses, taxes,
and other proper charges for such period, determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles, after eliminating
therefrom (a) all extraordinary nonrecurring gains or losses, including, without
limitation, any gains (or losses) from any sales of assets other than sales in
the ordinary course of business, and (b) non-cash dividends or non-cash
distributions from Investments.
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 Sect 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 by its terms or pursuant to any other
contractual arrangement subordinated in right of payment to other indebtedness
of the Borrower.
Default. See Sect 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 Sect 2.
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 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.
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Environmental Laws. See Sect 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 Sect 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Sect 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 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 11:00 a.m., Boston time, for delivery on the first day of such Interest
Period for the number of days comprised therein and in an 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.
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Event of Default. See Sect 10.
Existing Credit Agreement. That certain Revolving Credit Agreement
dated as of May 19, 1995 among the Borrower, the financial institutions named
therein, and The First National Bank of Boston, as Agent, as amended.
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 Sect 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 of such other Person which is
secured by a lien on the property of such Person or for which such Person is
contingently liable, whether or not such obligation is assumed by such Person
and (d) all obligations of such Person with respect to Capitalized Leases.
Funded Debt to Capitalization Ratio. At the relevant time of reference
thereto, the ratio of (a) Funded Debt of the Borrower and its Subsidiaries
calculated on a consolidated basis to (b) Consolidated Capitalization.
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 of
the Borrower 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.
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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
PBGC.
Hazardous Substances. See Sect 4.16.
Interest Coverage Ratio. For each period consisting of four consecutive
fiscal quarters of the Borrower, the ratio of (i) Consolidated EBITDA for such
period to (ii) Consolidated Interest Expense for such period.
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 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 immediately 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 Sect 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 unless such
Interest Period is a seven day Interest Period; and
(iv) the Borrower may not select an Interest Period for any
Loan that would extend beyond the scheduled Maturity Date.
Lien. Any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, the interest of a lessor under a
Capitalized Lease, any financing lease having substantially the same economic
effect as any of the foregoing and the filing of any financing statement naming
the owner of the asset to which such Lien relates as debtor.
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Loan Documents. This Credit Agreement and the Notes.
Loan Request. See Sect 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. June 7, 2001 or such later date to which the maturity of
the Loans is extended as provided in Sect 2.9; provided that in any case, if
earlier, the Maturity Date shall be deemed to occur on the date on which the
outstanding Loans hereunder are declared or become due and payable pursuant to
the terms of this Credit Agreement, including, without limitation, pursuant to
Sect 6.2.2 and/or Sect 10 hereof, or on which the Total Commitment is
terminated.
Moody's. Moody's Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
Sect 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 Sect 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.
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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 Sect 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 Sect 4.6.
Real Estate. All real property at any time owned or leased by the
Borrower or any of its Subsidiaries.
Register. See Sect 15.3.
S&P. Standard & Poor's Rating Group, Inc.
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.
Sale and Leaseback Transaction. Any arrangement with any Person other
than a Tax Consolidated Subsidiary providing for the leasing (as lessee) by the
Borrower of any property (except for temporary leases for a term, including any
renewal thereof, of not more than three (3) years (provided that any such
temporary lease may be for a term of up to five (5) years if (a) the Board of
Directors reasonably finds such term to be in the best interest of the Borrower
and (b) the primary purpose of the transaction of which such lease is a part is
not to provide funds to or financing for the Borrower)), which property has been
or is to be sold or transferred by the Borrower (i) to any subsidiary of the
Borrower in contemplation of or in connection with such arrangement or (ii) to
such other Person.
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.
Tax Consolidated Subsidiary. Any subsidiary of the Borrower with which,
at the time a Sale and Leaseback Transaction is entered into by the Borrower,
the Borrower would be entitled to file a consolidated federal income tax return.
<PAGE>
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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.
Sect 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 "Sect" 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 Sect 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 Sect 1.1.
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Sect 2. THE REVOLVING CREDIT FACILITY.
Sect 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 Sect 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 Sect 8 and Sect
9, in the case of the initial Loans to be made on the Closing Date, and Sect 9,
in the case of all other Loans, have been satisfied on the date of such request.
Sect 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 of the Borrower, or portion
thereof, then ended.
Sect 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 Sect 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.
Sect 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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Sect 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.
Sect 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
Sects 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. 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. 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.
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Sect 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.
Sect 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 Sect 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 Sect 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.
Sect 2.9. Extension of the Maturity Date. By delivery to the Agent of a
written request not less than thirty days nor more than sixty days prior to the
first anniversary of the Closing Date, the Borrower may request that the
Maturity Date be extended to June 7, 2002. The Agent shall promptly deliver a
copy of such request to each Bank within 10 Business Days after receipt thereof.
Such requested extension shall become effective upon the consent of each Bank
then a party hereto; provided that if Banks holding an aggregate Commitment
Percentage of at least eighty percent (80%) have consented to such extension,
the Borrower may, at its option, elect to prepay all, but not less than all, of
the Obligations owing to each Bank which has failed to consent to such extension
including, without limitation, all Obligations owing to such Bank pursuant to
Sect 3.3 hereof. Upon the prepayment of the Obligations owing to each such Bank,
the Commitment of each such Bank shall terminate and such Bank shall cease to be
a Bank hereunder and the Maturity Date shall be deemed to be extended. The
Borrower may at its option replace such Bank with any Eligible Assignee
acceptable to the Agent; provided that the Total Commitment may not exceed the
sum of the Commitments set forth on Schedule 1.1(a) hereto as in effect
immediately prior to the transactions contemplated by this Sect 2.9. Each Bank
shall have thirty (30) days following receipt from the Agent of the Borrower's
extension request to respond to such request. Any Bank which has not consented
to such request within such thirty (30) day period shall be deemed to have
denied such consent.
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Sect 3. INTEREST; CERTAIN GENERAL PROVISIONS.
Sect 3.1. Interest on Loans; Payment. Except as otherwise increased
pursuant to Sect 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.
Sect 3.2. Interest Period Options. Upon notice (a "Continuation
Request") 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.
Sect 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 Sects 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 Sect 2.8. This covenant shall survive the termination of this
Credit Agreement and payment of the Notes.
Sect 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. All payments by the
Borrower hereunder and under any of the other Loan Documents shall be made
without setoff or counterclaim and free and clear of and without deduction for
any taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless the Borrower is compelled by law to
make such deduction or withholding. If any such obligation is imposed upon the
Borrower with respect to any amount payable by it hereunder or under any of the
other Loan Documents, the Borrower will pay to the Agent, for the account of the
Banks or (as the case may be) the Agent, on the date on which such amount is due
and payable hereunder or under such other Loan Document, such additional amount
in Dollars as shall be necessary to enable the Banks or the Agent to receive the
same net amount which the Banks or the Agent would have received on such due
date had no such obligation been imposed upon the Borrower. The Borrower will
deliver promptly to the Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document. The Borrower may, within
90 days of the imposition of any such obligation by any Bank, by notice in
writing to the Agent and such Bank, (a) require such Bank that imposed such
obligation to cooperate with the Borrower in obtaining an Eligible Assignee
satisfactory to the Agent as a replacement bank for such Bank and in assigning
such Bank's interest hereunder and under its Note to such Eligible Assignee
subject to the terms, conditions, and procedures of Sect 15, or (b) repay all
amounts owed to such Bank, terminate such Bank's Commitment and reduce the
aggregate of the Commitments under the Credit Agreement by a corresponding
amount. Each Bank that is not incorporated or organized under the laws of the
United States of America or a state thereof or the District of Columbia agrees
that, on an annual basis, it will deliver to the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that such
Bank is entitled to receive payments under this Credit Agreement and the Note
payable to it, without deduction or withholding of any United States federal
income taxes.
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Sect 3.5. Computations. All computations of interest on the Loans and
the Facility Fee shall be based on a 360 day year 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.
Sect 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.
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Sect 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 notice by telefax 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 Borrower
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 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 Sect 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).
Sect 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
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(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, 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 Sect 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 reasonable 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 or to a jurisdiction
which otherwise will be disadvantageous to such Bank. 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.
Sect 3.9. Certificate. A certificate setting forth any additional
amounts payable pursuant to Sects 3.7 and 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.
Sect 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.
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Sect 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).
Sect 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Banks as follows:
Sect 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.
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Sect 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.
Sect 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 rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances,
except for liens permitted pursuant to Section 6.2. 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.
Sect 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.
Sect 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.
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Sect 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 Sect 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.
Sect 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 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.
Sect 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.
Sect 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.
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Sect 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.
Sect 4.11. No Event of Default. No Default or Event of Default has
occurred and is continuing.
Sect 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.
Sect 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, 1995, 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.
Sect 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 Code.
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(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 Sect
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 Sect 4201 of ERISA or as a result of a sale of assets
described in Sect 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 Sect 4241 or Sect 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated under Sect 4041A
of ERISA.
Sect 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.
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Sect 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. ss.6903(5), any hazardous substances as defined
by 42 U.S.C. ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.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 agency
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 the effectiveness of any other transactions contemplated hereby.
Sect 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. Sect 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.
Sect 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.
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Sect 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.
Sect 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:
Sect 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.
Sect 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.
Sect 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.
Sect 5.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Banks or, with respect to subsection (f) of
this Sect 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 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 which 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;
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(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 Sects 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 Sect 25 hereof.
Sect 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 Sect 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.
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Sect 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.
Sect 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.
Sect 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 pursuant to Sect 25 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 Sect 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.
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Sect 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.
Sect 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 Sect 103(d) of ERISA or (ii) any
notice, report or demand sent or received by a pension plan under Sect 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 Sect 4041(a) of ERISA and (ii)
any notice, report or demand sent or received by a pension plan under Sects
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 Sect 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.
Sect 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.
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Sect 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.
Sect 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. Sects 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.
Sect 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.
Sect 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.
Sect 5.16. Use of Proceeds. The Borrower will use the proceeds of the
Loans to repay all outstanding loans, interest, fees and other obligations owing
under the Existing Credit Agreement and for general corporate purposes,
including without limitation the financing of capital expenditures and for
working capital purposes.
Sect 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 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 or filed with the Securities and Exchange Commission.
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Sect 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:
Sect 6.1. Indebtedness. The Borrower will not, and will not permit any
of its Subsidiaries to incur any Funded Debt if an Event of Default will occur
hereunder immediately after giving effect thereto as a consequence of the
incurrence of such Funded Debt. The Borrower will not incur any obligation to
repay money borrowed in an aggregate amount in excess of $225,000,000 under or
in connection with any line of credit having an initial or scheduled maturity
date of less than one year from the initial borrowing date or renewal date
therefor.
Sect 6.2 Restrictions on Liens.
Sect 6.2.1. The Borrower. The Borrower will not create or incur or
suffer to be created or incurred or to exist any Lien of any kind upon any of
its property or assets of any character, whether now owned or hereafter
acquired, or upon the income or profits therefrom to secure Funded Debt without
in any such case effectively providing concurrently with the creation or
incurrence of any such Liens that the Obligations shall be secured equally and
ratably with (or, at the option of the Borrower, prior to) such Funded Debt,
unless immediately after the incurrence of such Funded Debt (and after giving
effect to the application of the proceeds, if any, therefrom), the aggregate
principal amount of all such Funded Debt, together with the aggregate amount of
Capitalized Rent in respect of Sale and Leaseback Transactions (other than Sale
and Leaseback Transactions described in clauses (a) through (d), inclusive, of
Sect 6.8), would not exceed two percent (2%) of Consolidated Capitalization;
provided that the foregoing restrictions shall not apply to, and there shall be
excluded in computing the aggregate amount of Funded Debt secured by Liens for
the purpose of such restrictions:
(a) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations not overdue or in respect
of which the Borrower shall at the time in good faith be prosecuting an appeal
or proceeding for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review and for which any reserves required
in accordance with Generally Accepted Accounting Principles have been
established;
(b) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions
or other social security obligations;
(c) liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower shall
at the time in good faith be prosecuting an appeal or proceeding for review and
in respect of which a stay of execution shall have been obtained pending such
appeal or review and for which any reserves required in accordance with
Generally Accepted Accounting Principles have been established;
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(d) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties in existence less than 120 days from the date of
creation thereof in respect of obligations not overdue;
(e) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which the Borrower is a party, and other minor liens or encumbrances none of
which in the opinion of the Borrower interferes materially with the use of the
property affected in the ordinary conduct of the business of the Borrower, which
defects do not individually or in the aggregate have a materially adverse effect
on the business of the Borrower individually or of the Borrower and its
Subsidiaries on a consolidated basis;
(f) presently outstanding liens listed on Schedule 6.2.1 hereto;
(g) Liens on property existing at the time the Borrower acquires such
property and not created in anticipation of such acquisition, purchase money
security interests in or purchase money mortgages on real or personal property
acquired or constructed after the date hereof to secure Funded Debt permitted to
be incurred hereunder and incurred in connection with the acquisition or
construction of such property at the time of or within 270 days following the
acquisition of such property, which security interests or mortgages cover only
the real or personal property so acquired, and Liens on existing properties or
assets to secure Funded Debt permitted hereunder and incurred for improvements
on such properties or assets;
(h) Liens on the property of a Person (i) existing at the time such
Person is merged into or consolidated with the Borrower as permitted hereby or
at the time of a sale, lease or other disposition of the properties of a Person
as an entirety or substantially as an entirety to the Borrower as permitted
hereby, (ii) resulting from such merger, consolidation, sale, lease or
disposition by virtue of any Lien on property granted by the Borrower as
permitted hereby prior to such merger, consolidation, sale, lease or disposition
(and not in contemplation thereof or in connection therewith) which applies to
after-acquired property of the Borrower, or (iii) resulting from such merger,
consolidation, sale, lease or disposition pursuant to a Lien or contractual
provision granted or entered into by such Person prior to such merger,
consolidation, sale, lease or disposition (and not at the request of the
Borrower); provided that any such Lien referred to in clause (i) shall not apply
to any property of the Borrower other than the property subject thereto at the
time such Person or properties were acquired and any such Lien referred to in
clause (ii) or (iii) shall not apply to any property of the Borrower other than
the property so acquired;
(i) Liens arising by reason of deposits with, or the giving of any form
of security to, any governmental agency or any body created or approved by law
or governmental regulation, which Lien is required by law or governmental
regulation as a condition to the transaction of any business or the exercise of
any privilege, franchise, license or permit and Liens in favor of a government
or governmental entity to secure partial progress, advance or other payments, or
other obligations, pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the costs
of acquiring, constructing or improving the property subject to such Liens
(including, without limitation, Liens incurred in connection with pollution
control, industrial revenue, private activity bond or similar financing); and
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(j) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses (a) through (i), inclusive; provided, however, that the
principal amount secured thereby shall not exceed the principal amount secured
thereby at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the obligation so extended, renewed or replaced (plus
improvements to such property).
Sect 6.2.2. Subsidiaries. No Subsidiary of the Borrower shall create or
incur or suffer to be created or incurred or to exist any Lien of any kind (but
in any event, subject to the exceptions set forth in the last sentence of this
Sect 6.2.2) upon any of its property or assets of any character, whether now
owned or hereafter acquired, or upon the income or profits therefrom, to secure
its obligations with respect to Funded Debt in an aggregate amount for all
Subsidiaries in excess of two percent (2%) of the Consolidated Capitalization of
the Borrower unless contemporaneously with the creation or incurrence of such
Lien, but in any event not later than ten Business Days following such creation
or incurrence, the Borrower shall request S&P and Moody's to review its Debt
Rating of the Borrower. The Borrower shall promptly notify the Agent if such
review results in a change in the Debt Rating issued by either S&P or Moody's.
In the event that the Debt Rating issued by S&P is downgraded to BB or worse
following such review or the Debt Rating issued by Moody's is downgraded to Ba3
or worse following such review, the Agent, upon the request of the Majority
Banks, shall notify the Borrower that on the later to occur of (a) the date
which is thirty (30) days following the date of such notice to the Borrower or
(b) the date which is one hundred and eighty (180) days following the issuance
of such downgraded Debt Rating, the unused portion of the credit hereunder shall
terminate and all amounts owing with respect to this Credit Agreement and the
Notes shall be due and payable without presentment, demand or protest. Upon the
occurrence of such accelerated Maturity Date, the unused portion of the credit
shall terminate and all amounts owing with respect to this Credit Agreement and
the Notes shall be due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower.
Notwithstanding anything to the contrary set forth herein, the foregoing
restriction on Liens shall not apply to, and there shall be excluded in
calculating the aggregate amount of Funded Debt secured by Liens for purposes of
the requirement set forth in the first sentence of this Sect 6.2.2, Funded Debt
secured by the following:
(a) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations not overdue or in respect
of which the relevant Subsidiary shall at the time in good faith be prosecuting
an appeal or proceeding for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review and for which any
reserves required in accordance with Generally Accepted Accounting Principles
have been established;
(b) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions
or other social security obligations;
(c) liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the relevant
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceeding for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review and for which any reserves required
in accordance with Generally Accepted Accounting Principles have been
established;
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(d) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties in existence less than 120 days from the date of
creation thereof in respect of obligations not overdue;
(e) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which any Subsidiary is a party, and other minor liens or encumbrances none
of which in the opinion of the Borrower interferes materially with the use of
the property affected in the ordinary conduct of the business of such
Subsidiary, which defects do not individually or in the aggregate have a
materially adverse effect on the business of such Subsidiary individually or of
the Borrower and its Subsidiaries on a consolidated basis;
(f) presently outstanding liens listed on Schedule 6.2.2 hereto;
(g) Liens on property existing at the time the relevant Subsidiary
acquires such property and not created in anticipation of such acquisition,
purchase money security interests in or purchase money mortgages on real or
personal property acquired or constructed after the date hereof to secure Funded
Debt permitted to be incurred hereunder and incurred in connection with the
acquisition or construction of such property at the time of or within 270 days
following the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired, and Liens on
existing properties or assets to secure Funded Debt permitted hereunder and
incurred for improvements on such properties or assets;
(h) liens on the property of a Person (i) existing at the time such
Person is merged into or consolidated with the relevant Subsidiary as permitted
hereby or at the time of a sale, lease or other disposition of the properties of
a Person as an entirety or substantially as an entirety to the relevant
Subsidiary as permitted hereby, (ii) resulting from such merger, consolidation,
sale, lease or disposition by virtue of any Lien on property granted by the
relevant Subsidiary as permitted hereby prior to such merger, consolidation,
sale, lease or disposition (and not in contemplation thereof or in connection
therewith) which applies to after-acquired property of the relevant Subsidiary,
or (iii) resulting from such merger, consolidation, sale, lease or disposition
pursuant to a Lien or contractual provision granted or entered into by such
Person prior to such merger, consolidation, sale, lease or disposition (and not
at the request of the relevant Subsidiary); provided that any such Lien referred
to in clause (i) shall not apply to any property of the relevant Subsidiary
other than the property subject thereto at the time such Person or properties
were acquired and any such Lien referred to in clause (ii) or (iii) shall not
apply to any property of the relevant Subsidiary other than the property so
acquired;
(i) Liens arising by reason of deposits with, or the giving of any form
of security to, any governmental agency or any body created or approved by law
or governmental regulation, which Lien is required by law or governmental
regulation as a condition to the transaction of any business or the exercise of
any privilege, franchise, license or permit and Liens in favor of a government
or governmental entity to secure partial progress, advance or other payments, or
other obligations, pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the costs
of acquiring, constructing or improving the property subject to such Liens
(including, without limitation, Liens incurred in connection with pollution
control, industrial revenue, private activity bond or similar financing) and
Liens to secure Funded Debt incurred by any telephone companies owned by the
Borrower or any of its Subsidiaries to secure Funded Debt owing to governmental
entitities such as the Rural Utility Services;
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(j) Liens to secure Funded Debt incurred by any telephone company owned
by the Borrower or any of its Subsidiaries to secure Funded Debt owing to
governmental entities and Liens incurred by the Borrower or any of its
Subsidiaries to secure the indebtedness incurred to finance the purchase of
equipment or services; and
(k) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses (a) through (j), inclusive; provided, however, that the
principal amount secured thereby shall not exceed the principal amount secured
thereby at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the obligation so extended, renewed or replaced (plus
improvements to such property).
Sect 6.3. Limitation on Sales, Consolidation, Merger, Etc.
(a) The Borrower will not, and will not permit any of its Subsidiaries
to complete a Sale if a Default or Event of Default is continuing, or would
result immediately after giving effect to such Sale.
(b) Nothing contained in this Credit Agreement shall prevent any
consolidation of the Borrower with or merger of the Borrower into any other
Person or Persons (whether or not affiliated with the Borrower), or successive
consolidations or mergers to which the Borrower or its successor or successors
shall be a party or parties, provided that, and the Borrower hereby consents and
agrees that, upon any such consolidation or merger, the due and punctual payment
of the principal of and interest on all of the Loans and the due and punctual
performance and observance of all of the covenants, conditions and other
obligations of the Credit Agreement and the Notes to be performed and observed
by the Borrower, shall be expressly assumed in an agreement satisfactory in form
and substance to the Agent and the Banks, executed and delivered to the Agent by
the Person formed by such consolidation or merger, provided, further, that the
Person formed by such consolidation or merger shall be a Person organized and
existing under the laws of the United States, any state thereof or the District
of Columbia, and provided, further, that immediately before and after giving
effect to any such transaction (and treating any Funded Debt or Sale and
Leaseback Transaction which becomes an obligation of the resulting or surviving
Person as a result of such transaction as having been incurred or entered into
by such Person at the time of such transaction), no Default or Event of Default
shall exist. Unless the conditions prescribed above in this Sect 6.3(b) are
satisfied, no such consolidation or merger shall be permitted.
(c) Nothing contained in this Credit Agreement shall prevent any
consolidation of any Subsidiary of the Borrower with, or merger of any
Subsidiary of the Borrower into, any other Person or Persons (whether or not
affiliated with the Borrower), or successive consolidations or mergers to which
any such Subsidiary of the Borrower or its successor or successors shall be a
party or parties, provided that, immediately before and after giving effect to
any such transaction, no Default or Event of Default shall exist. Unless the
condition prescribed above in this Sect 6.3(c) is satisfied, no such
consolidation or merger shall be permitted.
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Sect 6.4. 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.
Sect 6.5. 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.
Sect 6.6. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of Sect
406 of ERISA or Sect 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 (other than those maintained by
Persons that become ERISA Affiliates after the Closing Date) to incur an
"accumulated funding deficiency", as such term is defined in Sect 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 Sect 302(f) or Sect 4068 of ERISA; or
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Sect 4001 of ERISA) of all Guaranteed
Pension Plans (other than those maintained by Persons that become ERISA
Affiliates after the Closing Date) 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.
Sect 6.7. 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 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.
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Sect 6.8. Limitation on Sale and Leaseback. The Borrower will not enter
into any Sale and Leaseback Transaction unless immediately thereafter (and after
giving effect to the application of the proceeds, if any, therefrom), the
aggregate amount of Capitalized Rent in respect of Sale and Leaseback
Transactions, together with the aggregate principal amount of all Funded Debt
secured by Liens (other than Funded Debt described in clauses (a) through (j),
inclusive, of Sect 6.2.1) would not exceed two percent (2%) of Consolidated
Capitalization; provided that foregoing restrictions shall not apply to, and
there shall be excluded in computing Funded Debt for the purpose of such
restrictions:
(a) presently outstanding Sale and Leaseback Transactions listed
on Schedule 6.8 hereto;
(b) any Sale and Leaseback Transaction entered into by the Borrower to
finance the payment of all or any part of the purchase price of such real or
personal property (including any improvements to existing property) acquired or
constructed after the date hereof at the time of or within 270 days following
the acquisition or construction of such property, which covers only the real or
personal property so acquired and does not in the aggregate exceed the lesser of
the purchase price or the fair market value of such property;
(c) any Sale and Leaseback Transaction involving property of a Person
existing at the time such Person is merged into or consolidated with the
Borrower as permitted hereby or at the time of a sale, lease or other
disposition of the properties of a Person as an entirety or substantially as an
entirety to the Borrower as permitted hereby;
(d) any Sale and Leaseback Transaction in which the lessor is a
government or governmental entity and which Sale and Leaseback Transaction is
entered into to secure partial progress, advance or other payments, or other
obligations, pursuant to any contract or statute or to secure any indebtedness
incurred for the purpose of securing all or any part of the cost of constructing
or improving the property subject to such Sale and Leaseback Transaction
(including, without limitation, Sale and Leaseback Transactions incurred in
connection with pollution control, industrial revenue, private activity bond or
similar financing);
(e) any Sale and Leaseback Transaction involving the extension, renewal
or replacement (or successive extensions, renewals or replacements) in whole or
in part of a lease pursuant to a Sale and Leaseback Transaction referred to in
the foregoing clauses (a) through (d), inclusive; provided, however, that any
such lease, extension, renewal or replacement shall be limited to all or any
part of the same property leased under the lease so extended, renewed or
replaced (plus improvements to such property); and
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(f) any Sale and Leaseback Transaction the net proceeds of which are at
least equal to the fair value (as determined by the Borrower's Board of
Directors) of the property leased pursuant to such Sale and Leaseback
Transaction, so long as within 270 days of the effective date of such Sale and
Leaseback Transaction, the Borrower applies (or irrevocably commits to an escrow
account for the purpose or purposes hereinafter mentioned) an amount equal to
the net proceeds of such Sale and Leaseback Transaction to either (x) the
purchase of other property having a fair market value at least equal to the fair
market value of the property leased in such Sale and Leaseback Transaction and
having a similar utility and function or (y) the repayment of Funded Debt of the
Borrower or the retirement of preferred stock of any Subsidiary (other than
preferred stock owned by the Borrower or any Subsidiary) and if any such
repayment is applied to the Loans then upon such repayment the Total Commitment
shall be automatically reduced by an amount equal to the amount of such
repayment.
Sect 7. FINANCIAL COVENANTS OF THE BORROWER.
Sect 7.1. Debt to Capitalization Ratio. The Borrower will not permit
its Funded Debt to Capitalization Ratio to exceed sixty-five percent at any
time.
Sect 7.2. Interest Coverage Ratio. The Borrower will not permit its
Interest Coverage Ratio for any period consisting of the four consecutive fiscal
quarters of the Borrower most recently ended to be less than 3.00 to 1.00.
Sect 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:
Sect 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.
Sect 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.
Sect 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.
Sect 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.
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Sect 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.
Sect 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.
Sect 8.7. Existing Credit Agreement. All obligations under the Existing
Credit Agreement shall have been satisfied in full and the Existing Credit
Agreement shall be terminated.
Sect 9. CONDITIONS TO ALL BORROWINGS. The obligation of any Bank to
make any Loan, including the initial Loan to be made on the Closing Date shall
be subject to the satisfaction of the following conditions precedent:
Sect 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.
Sect 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.
Sect 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.
Sect 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.
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Sect 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;
(c) the Borrower or any Subsidiary of the Borrower shall fail to comply
with any of its covenants contained in Sects 5.9, 5.10, 5.12, 5.15 through 5.17,
inclusive, Sect 6 or Sect 7;
(d) the Borrower fails to perform any term, covenant or agreement
contained in Sect 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 Sect 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 (i) fail to pay at
maturity, or within any applicable period of grace, any obligation for borrowed
money in an aggregate amount equal to or greater than 2% of the Consolidated
Capitalization of the Borrower or (ii) fail to observe or perform any term,
covenant or agreement relating to or contained in any instrument or agreement
evidencing or securing any obligation for borrowed money which results in the
acceleration (whether by declaration or automatically) of such indebtedness in
an aggregate amount equal to or greater than 2% of the Consolidated
Capitalization of the Borrower;
(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;
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(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;
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 Sect 10(g) or Sect 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 Sect 10(g) or
Sect 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.
Sect 11. THE AGENT AND CO-AGENTS.
Sect 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; provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been assumed by the
Agent. The relationship among the Agent and the Co-Agents, on the one hand, and
the Banks, on the other hand, shall be that of agent and principal only and
nothing contained in this Credit Agreement or any of the related documents shall
be construed to constitute the Agent or Co-Agents as trustees of the Banks.
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Sect 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.
Sect 11.3. No Liability. None of the Agent or the Co-Agents nor any of
their respective 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, the Co-Agents or such other Person, as the case may be, may be
liable for losses due to its own willful misconduct or gross negligence.
Sect 11.4. No Representations. The Agent and the Co-Agents 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 and the Co-Agents shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to them by
the Borrower or any holder of any of the Notes shall have been duly authorized
or is true, accurate and complete. The Agent and the Co-Agents have not made nor
do they now make any representations or warranties, express or implied, nor do
they 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 Co-Agents 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.
Sect 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.
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Sect 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.
Sect 11.7. Indemnity. The Banks jointly and severally agree hereby to
indemnify and hold harmless the Agent and the Co-Agents 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 or the
Co-Agents have not been reimbursed by the Borrower as required by Sect 12 or
Sect 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 or Co-Agents' actions taken
hereunder or thereunder, except to the extent that any of the same shall be
directly caused by such Agent's or Co-Agent's own willful misconduct or gross
negligence.
Sect 11.8. Agent as Bank. In their individual capacities, Bank of
Boston, LaSalle National Bank and The Toronto-Dominion Bank shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitments 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 or a Co-Agent.
Sect 11.9. Resignation. The Agent or any Co-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 or Co-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 or Co-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 or Co-Agent's giving of notice of
resignation, then the retiring Agent or Co-Agent may, on behalf of the Banks,
appoint a successor Agent or Co-Agent, as the case may be. Upon the acceptance
of any appointment as Agent or Co-Agent hereunder by a successor Agent or
Co-Agent, such successor Agent or Co-Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
or Co-Agent, and the retiring Agent or Co-Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's or Co-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 or Co-Agent.
Sect 11.10. Co-Agents. Neither of the Co-Agents shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Banks as such.
Sect 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, but shall not be required to 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
connection with the transactions contemplated hereby or under the other Loan
Documents, 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 Sect 12 shall survive
payment or satisfaction of payment of amounts owing under or with respect to the
Loan Documents.
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Sect 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 Sect 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. The covenants of this
Sect 13 shall survive payment or satisfaction of payment of amounts owing under
or with respect to the Loan Documents.
Sect 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.
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Sect 15. ASSIGNMENT AND PARTICIPATION.
Sect 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 Bank shall have a Commitment that is at
least $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
Sect 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.
Sect 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 Sect 4.4 and Sect 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 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.
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Sect 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.
Sect 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 Sect 15.4, 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.
Sect 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 facility fees to which such participant is entitled or extend
any regularly scheduled payment date for principal or interest.
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Sect 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 Sect 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 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.
Sect 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 ss.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 Sect 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.
Sect 15.8. Miscellaneous Assignment Provisions. Any assigning Bank
shall retain its rights to be indemnified pursuant to Sect 12 and Sect 13 with
respect to any claims or actions arising prior to the date of such assignment.
Any assignee Bank that is not incorporated or organized under the laws of the
United States of America or any state thereof, 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 two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that such
Bank is entitled to receive payments under this Credit Agreement or any of the
other Loan Documents payable to it, without deduction or withholding of any
United States federal income taxes. Anything contained in this Sect 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
Sect 4 of the Federal Reserve Act, 12 U.S.C. Sect 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.
Sect 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.
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Sect 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: Corporate Treasurer, (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;
(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 either Co-Agent or any other Bank, at the address set forth
for such Co-Agent or Bank in Schedule 1.1(a) hereto or such other address for
notice as such Co-Agent or 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.
Sect 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.
Sect 18. HEADINGS. The captions in this Credit Agreement are for
convenience of reference only and shall not define or limit the provision
hereof.
Sect 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.
Sect 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 ss.22.
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Sect 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.
Sect 22. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
expressly provided in this Credit Agreement, any consent or approval required or
permitted by this Credit 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 Sect 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 or the number of Banks required for any consent
or approval hereunder may not be amended without the written consent of each of
the Banks; and Sect 11 may not be amended without the written consent of the
Agent and each Co-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.
Sect 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.
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Sect 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.
Sect 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, accountants, professional advisors,
counsel, 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 Sect 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 subpeona or other legal
process, by virtue of any other law, regulation, order, or interpretation, or as
required in connection with the exercise or any remedy under this Credit
Agreement or any of the other Loan Documents.
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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...............................
Name:
Title:
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By:..............................
Name:
Title:
LASALLE NATIONAL BANK, individually
and as Co-Agent
By:..............................
Title:...........................
TORONTO DOMINION (TEXAS), INC.,
individually and as Co-Agent
By:..............................
Title:...........................
CIBC, INC.
By:..............................
Title:...........................
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THE FIRST NATIONAL BANK OF CHICAGO
By:..............................
Title:...........................
MELLON BANK, N.A.
By:..............................
Title:...........................
ROYAL BANK OF CANADA
By:..............................
Title:...........................
THE BANK OF NOVA SCOTIA
By:..............................
Title:...........................
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By:..............................
Title:...........................
THE BANK OF NEW YORK
By:..............................
Title:...........................
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THE INDUSTRIAL BANK OF JAPAN, LTD.
CHICAGO BRANCH
By:..............................
Title:...........................
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By...............................
Title............................
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:..............................
Title............................
THE NORTHERN TRUST COMPANY
By:..............................
Title............................
THE SUMITOMO BANK, LTD.
By:..............................
Title:...........................
THE TOKYO TRUST & BANKING CO., LTD.
By:..............................
Title:...........................
<PAGE>
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THE YASUDA TRUST & BANKING CO., LTD.
By:..............................
Title:...........................
BANQUE NATIONALE DE PARIS
By:..............................
Title:...........................
THE DAI-ICHI KANGYO BANK, LTD.
By:..............................
Title:...........................
<PAGE>
