CREDIT AGREEMENT DATED AS OF DECEMBER 6, 2006 Among CITIZENS COMMUNICATIONS COMPANY as the Borrower, and COBANK, ACB, as the Administrative Agent, the Lead Arranger and a Lender, and the other Lenders referred to herein
Exhibit
10.1
DATED
AS
OF DECEMBER 6, 2006
Among
as
the
Borrower,
and
COBANK,
ACB,
as
the
Administrative Agent, the Lead Arranger and a Lender,
and
the
other
Lenders referred to herein
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iii
SCHEDULES
|
Schedule
3.7
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Existing
Guarantees
|
|
Schedule
10.1(A)
|
Lender
Commitments and Commitment
Percentages
|
EXHIBITS
|
Exhibit
1.3
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Form
of Notice of Borrowing/Conversion/Continuation
|
|
Exhibit
4.2(C)
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Form
of Compliance Certificate
|
|
Exhibit
10.1(A)
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Form
of Assignment and Assumption
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Exhibit
10.1(B)
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Form
of Term Loan Note
|
iv
INDEX
OF
DEFINED TERMS
|
Defined
Term
|
Defined
in Section
|
|
Adjustment
Date
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§10.1
|
|
Administrative
Agent
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§10.1
|
|
Administrative
Questionnaire
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§10.1
|
|
Affected
Lender
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§1.12
|
|
Affiliate
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§10.1
|
|
Agent(s)
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§10.1
|
|
Agreement
|
§10.1
|
|
Applicable
Law
|
§10.1
|
|
Approved
Fund
|
§10.1
|
|
Asset
Exchange
|
§10.1
|
|
Assignment
and Assumption
|
§10.1
|
|
Availability
Period
|
§10.1
|
|
Bankruptcy
Code
|
§10.1
|
|
Base
Rate
|
§10.1
|
|
Base
Rate Loans
|
§10.1
|
|
Benefited
Lender
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§6.9
|
|
Board
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§10.1
|
|
Borrower
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Preamble
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Borrowing
Approvals
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§5.1(B)
|
|
Breakage
Fee
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§1.4(C)
|
|
Budget
|
§10.1
|
|
Business
Day
|
§10.1
|
|
Calculation
Period
|
§10.1
|
|
Capital
Lease Obligations
|
§10.1
|
|
Certificate
of Exemption
|
§1.13(B)
|
|
Change
in Control
|
§10.1
|
|
Closing
Date
|
§10.1
|
|
CoBank
|
Preamble
|
|
Communications
Act
|
§10.1
|
|
Communications
System
|
§10.1
|
|
Compliance
Certificate
|
§4.2(C)
|
|
Consolidated
Net Worth
|
§10.1
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|
Consolidated
Tangible Assets
|
§10.1
|
|
Control
|
§10.1
|
|
Xxxxxxx
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§00.0
|
|
XXXXXX
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§00.0
|
|
Eligible
Assignee
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§10.1
|
|
Environmental
Laws
|
§10.1
|
|
ERISA
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§10.1
|
|
ERISA
Affiliate
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§10.1
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|
ERISA
Event
|
§10.1
|
|
Event
of Default
|
§6.1
|
|
Facility
|
§10.1
|
v
|
FCC
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§10.1
|
|
Federal
Funds Rate
|
§10.1
|
|
Foreign
Lender
|
§1.13(B)
|
|
Fund
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§10.1
|
|
Funding
Date
|
§7.2
|
|
GAAP
|
§10.1
|
|
Governmental
Approvals
|
§10.1
|
|
Governmental
Authority
|
§10.1
|
|
Guarantee
|
§10.1
|
|
Guaranty
Agreement
|
§10.1
|
|
Xxxxxxxxxxxx
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§00.0
|
|
Indemnitees
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§9.1
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|
Interest
Period
|
§1.2(C)
|
|
Investment
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§10.1
|
|
IRC
|
§10.1
|
|
Lead
Arranger
|
§10.1
|
|
Lenders
|
Preamble
|
|
LIBOR
|
§10.1
|
|
LIBOR
Loans
|
§10.1
|
|
LIBOR
Margin
|
§10.1
|
|
Licenses
|
§10.1
|
|
Lien
|
§10.1
|
|
Loan(s)
|
§10.1
|
|
Loan
Documents
|
§10.1
|
|
Margin
Regulations
|
§10.1
|
|
Material
Adverse Effect
|
§10.1
|
|
Material
Transaction
|
§10.1
|
|
Multi-employer
Plan
|
§10.1
|
|
Note(s)
|
§10.1
|
|
Notice
of Borrowing/Conversion/Continuation
|
§1.3
|
|
Obligations
|
§10.1
|
|
Participant
|
§8.1(D)
|
|
Patriot
Act
|
§5.15
|
|
PBGC
|
§10.1
|
|
PCS
System
|
§10.1
|
|
PCS
|
§10.1
|
|
Pension
Plan
|
§10.1
|
|
Person
|
§10.1
|
|
Plan
|
§10.1
|
|
Principal
Subsidiary
|
§10.1
|
|
Pro
Rata Share
|
§10.1
|
|
XXX
|
§00.0
|
|
Register
|
§8.1(C)
|
|
Regulation
D
|
§10.1
|
|
Regulation
T
|
§10.1
|
|
Regulation
U
|
§10.1
|
|
Regulation
X
|
§10.1
|
|
Related
Parties
|
§10.1
|
vi
|
Release
|
§10.1
|
|
Replacement
Lender
|
§1.12(1)
|
|
Reportable
Event
|
§10.1
|
|
Representatives
|
§8.2(E)
|
|
Requisite
Lenders
|
§10.1
|
|
Restricted
Payment
|
§10.1
|
|
SEC
|
§4.2(E)
|
|
Securitization
Transaction
|
§10.1
|
|
Security
Documents
|
§10.1
|
|
Specified
Substance
|
§10.1
|
|
Statement
|
§4.2(B)
|
|
Subsidiary
|
§10.1
|
|
Swap
Contract
|
§10.1
|
|
Swap
Termination Value
|
§10.1
|
|
Tax
Liabilities
|
§1.13(A)
|
|
Term
Loan
|
§10.1
|
|
Term
Loan Commitment
|
§10.1
|
|
Term
Loan Commitment Fee
|
§1.4(A)
|
|
Term
Loan Facility
|
§10.1
|
|
Term
Loan Maturity Date
|
§10.1
|
|
Term
Loan Note(s)
|
§10.1
|
|
Total
Indebtedness
|
§10.1
|
|
Total
Leverage Ratio
|
§10.1
|
This
CREDIT
AGREEMENT
is
entered into as of December 6, 2006, among CITIZENS
COMMUNICATIONS COMPANY,
a
Delaware corporation (the “Borrower”),
COBANK,
ACB
(individually, “CoBank”),
as
the Administrative Agent, the Lead Arranger and a Lender, and such other Lenders
as may from time to time become a party to this Agreement (together with their
respective successors and assigns, including any Eligible Assignee (as defined
herein), collectively, the “Lenders”).
Capitalized terms used and not otherwise defined herein shall have the meanings
given to them in Subsection 10.1.
R
E C
I T A L S:
WHEREAS,
the Borrower desires that the Lenders extend to the Borrower a term loan
facility, the proceeds of which are to be available to refinance a portion
of
the Borrower’s existing outstanding Indebtedness; and
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions
and
covenants herein contained, and for other good and valuable consideration,
the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
AMOUNTS
AND TERMS OF TERM
LOAN
FACILITY
1.1 Loan.
Subject
to the terms and conditions of this Agreement and in reliance upon the
representations, warranties and covenants of the Borrower contained herein
and
in the other Loan Documents:
(A) Term
Loan Facility.
Each
Lender, severally and not jointly, agrees to lend to the Borrower, in a single
advance to be made during the Availability Period, its Pro Rata Share of the
Term Loan Commitment; provided
all
conditions precedent set forth in Subsections
7.1
and
7.2
are
satisfied or waived by the Administrative Agent as provided herein. Amounts
borrowed under this Subsection
1.1(A)
that are
repaid or prepaid may not be reborrowed.
(B) Notes.
To the
extent requested by a Lender, the Borrower shall execute and deliver to such
Lender a Term Loan Note in the principal amount of such Lender’s Pro Rata Share
of the Term Loan Commitment.
(C) Advances.
The
advance under the Term Loan will be made available by wire transfer of
immediately available funds. The wire transfer will be made to such account
or
accounts as may be authorized by the Borrower.
(A) Interest
Options.
(i) From
the
date the Term Loan is made, based upon the election of the Borrower, at such
time and from time to time thereafter (as provided in Subsection 1.3
and
subject to the conditions set forth in such Subsection and Subsection 1.2(G)),
the
Term Loan shall accrue interest as follows:
(1) as
a Base
Rate Loan,
at
the
sum of the Base Rate plus
0.25%;
or
(2) as
a
LIBOR Loan, for the applicable Interest Period, at the sum of LIBOR plus
the
LIBOR Margin applicable to such Loan from time to time as provided in
Subsection
1.2(B).
(ii) Except
as
otherwise provided in Subsection
1.2(E),
interest on all Obligations other than interest payments required pursuant
to
Subsection
1.2(A)(i)
above
not paid when due will accrue at the Base Rate plus
0.25%
per annum.
(B) Applicable
Margins.
Initially, and continuing through the day immediately preceding the first
Adjustment Date, the applicable LIBOR Margin shall be 1.375% per annum.
Commencing on such Adjustment Date, the applicable LIBOR Margin shall be for
each Calculation Period the applicable per annum percentage set forth in the
pricing table below opposite the applicable Total Leverage Ratio of the
Borrower, determined on a consolidated basis for the Borrower and its
Subsidiaries; provided,
that
effective (i) upon the occurrence of an Event of Default and notice from the
Administrative Agent or Requisite Lenders and until such Event of Default is
cured or waived or (ii) in the event that the Administrative Agent shall not
receive the financial statements and Compliance Certificate required pursuant
to
Subsections
4.2(A),
4.2(B)
and
4.2(C)
when
due, from such due date and until the Business Day following the Administrative
Agent’s receipt of such overdue financial statements and Compliance Certificate,
the applicable LIBOR Rate Margin shall be 1.625% per annum.
PRICING
TABLE
|
Total
Leverage Ratio
|
LIBOR
Margin
|
|
≥
4.00:1.0
|
1.625%
|
|
<
4.00:1.0
|
1.375%
|
(C) Interest
Periods.
Each
LIBOR Loan may be obtained for a one, two, three or six month period, or such
longer period as may be agreed by all of the Lenders (each such period being
an
“Interest
Period”).
With
respect to all LIBOR Loans:
(i) the
Interest Period will commence on the date that the LIBOR Loan is made or the
date on which any portion of any Base Rate Loan is converted into a LIBOR Loan,
or, in the case of immediately successive Interest Periods, each successive
Interest Period shall commence on the day on which the immediately preceding
Interest Period expires;
(ii) if
the
Interest Period would otherwise expire on a day that is not a Business Day,
then
it will expire on the next Business Day; provided,
that if
any Interest Period would otherwise expire on a day that is not a Business
Day
and such day is a day of a calendar month after which no further Business Day
occurs in such month, such Interest Period shall expire on the Business Day
next
preceding such day;
(iii) any
Interest Period that begins on the last Business Day of a calendar month or
on a
day for which there is no numerically corresponding day in the last calendar
month in such Interest Period shall end on the last Business Day of the last
calendar month in such Interest Period; and
(iv) no
Interest Period shall be selected under the Term Loan Facility if, in order
to
make scheduled repayments of such Term Loan required pursuant to Subsection
1.6(B),
repayment of all or any portion of the LIBOR Loan prior to the expiration of
such Interest Period would be necessary.
(D) Calculation
and Payment.
Interest
on Base Rate Loans shall be calculated on the basis of a 365-6-day year for
the
actual number of days elapsed. Interest on LIBOR Loans and all other
Obligations, including amounts due under Subsection
1.4,
shall
be calculated on the basis of a 360-day year for the actual number of days
elapsed. The date of funding or conversion to a Base Rate Loan and the first
day
of an Interest Period with respect to a LIBOR Loan shall be included in the
calculation of interest. The date of payment of any Loan and the last day of
an
Interest Period with respect to a LIBOR Loan shall be excluded from the
calculation of interest; provided,
if a
Loan is repaid on the same day that it is made, one day’s interest shall be
charged.
Interest
accruing on Base Rate Loans is payable in arrears on each of the following
dates
or events: (i) the last day of each calendar quarter; (ii) the prepayment of
such Loan (or portion thereof), to the extent accrued on the principal prepaid;
and (iii) the Term Loan Maturity Date, whether by acceleration or otherwise,
with respect to the principal to be repaid. Interest accruing on each LIBOR
Loan
is payable in arrears on each of the following dates or events: (i) the last
day
of each applicable Interest Period; (ii) if the Interest Period is longer than
three months, on each three-month anniversary of the commencement date of such
Interest Period; (iii) the prepayment of such Loan (or portion thereof), to
the
extent accrued on the principal prepaid; and (iv) the Term Loan Maturity Date,
whether by acceleration or otherwise, with respect to the principal to be
repaid.
(E) Default
Rate of Interest.
At the
election of the Administrative Agent or the Requisite Lenders, after the
occurrence of an Event of Default pursuant to either Subsection
6.1(A)
or
6.1(C)
and for
so long as it continues, all Loans and other Obligations shall bear interest
at
rates that are 2.00% in excess of the rates otherwise in effect (after giving
effect to the proviso in the second sentence of Subsection
1.2(B))
with
respect to such Loans and other Obligations.
(F) Excess
Interest.
Notwithstanding anything to the contrary set forth herein, the aggregate
interest, fees and other amounts required to be paid by the Borrower to the
Lenders or any Lender hereunder are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration or maturity
of the Indebtedness evidenced hereby or otherwise, shall the amount paid or
agreed to be paid to the Lenders or any Lender for the use or the forbearance
of
the Indebtedness or Obligations evidenced hereby exceed the maximum permissible
under Applicable Law. If under or from any circumstances whatsoever, fulfillment
of any provision hereof or of any of the other Loan Documents at the time of
performance of such provision shall be due, shall involve exceeding the limit
of
such validity prescribed by Applicable Law then the obligation to be fulfilled
shall automatically be reduced to the limit of such validity and if under or
from circumstances whatsoever the Lenders or any Lender should ever receive
as
interest any amount which would exceed the highest lawful rate, the amount
of
such interest that is excessive shall be applied to the reduction of the
principal balance of the Obligations evidenced hereby and not to the payment
of
interest. Additionally, should the method used for calculating interest (i.e.,
using a 360-day year) be unlawful, such calculation method shall be
automatically changed to a 365/6-day year or such other lawful calculation
method as is reasonably acceptable to the Administrative Agent. This provision
shall control every other provision of this Agreement and all provisions of
every other Loan Document.
(G) Selection,
Conversion or Continuation of Loans; LIBOR Availability.
The
Borrower shall have the option to (i) select all or any part of a new borrowing
under the Term Loan Facility to be a Base Rate Loan or a LIBOR Loan, in the
case
of a Base Rate Loan in a principal amount equal to at least $250,000 and any
whole multiple of $100,000 in excess thereof and in the case of a LIBOR Loan
in
a principal amount equal to $1,000,000 or any whole multiple of $500,000 in
excess thereof, (ii) convert at any time all or any portion of any Base
Rate Loan(s) in a principal amount equal to $1,000,000 or any whole multiple
of
$500,000 in excess thereof into a LIBOR Loan, (iii) upon the expiration of
its Interest Period, convert all or any part of any LIBOR Loan into a Base
Rate
Loan, and (iv) upon the expiration of its Interest Period, continue any
LIBOR Loan in a principal amount of $1,000,000 or any whole multiple of $500,000
in excess thereof into one or more LIBOR Loans, for such new Interest Period(s)
as selected by the Borrower. During any period in which any Event of Default
is
continuing, as the Interest Periods for LIBOR Loans then in effect expire,
such
Loans shall be converted into a Base Rate Loan and the LIBOR option will not
be
available to the Borrower until all Events of Default are cured or waived.
In
the event the Borrower fails to elect a LIBOR Loan upon any advance hereunder
or
upon the termination of any Interest Period, the Borrower shall be deemed to
have elected to have such amount constitute a Base Rate Loan. Notwithstanding
the foregoing, there may be no more than an aggregate of five LIBOR or Base
Rate
Loans outstanding under the Term Loan Facility at any one time.
1.3 Notice
of Borrowing, Conversion or Continuation
of Loans.
Whenever
the Borrower desires to request the Term Loan pursuant to Subsection 1.1
or to
convert or continue Loans pursuant to Subsection 1.2(G),
the
Borrower shall give the Administrative Agent irrevocable prior written notice
in
the form attached hereto as Exhibit
1.3
(a
“Notice
of Borrowing/Conversion/Continuation”),
(i)
if requesting a borrowing of, conversion to or continuation of a Base Rate
Loan
(or any portion thereof), not later than 11:00 a.m. (Denver, Colorado time),
one
Business Day before the proposed borrowing, conversion or continuation is to
be
effective or (ii), if requesting a borrowing of, a conversion to or a
continuation of a LIBOR Loan, not later than 11:00 a.m. (Denver, Colorado time),
three Business Days before the proposed borrowing, conversion or continuation
is
to be effective. Each Notice of Borrowing/Conversion/Continuation shall specify
(a) the Loan (or portion thereof) to be advanced, converted or continued and,
with respect to any LIBOR Loan to be converted or continued, the last day of
the
current Interest Period therefor, (b) the effective date of such borrowing,
conversion or continuation (which shall be a Business Day), (c) the
principal amount of such Loan to be borrowed, converted or continued and (d)
the
Interest Period to be applicable to any new LIBOR Loan. In the event the
Borrower fails to elect a LIBOR Loan upon any advance hereunder or upon the
termination of any Interest Period, the Borrower shall be deemed to have elected
to have such amount constitute a portion of the Base Rate Loan under the Term
Loan Facility.
(A) Loan
Commitment Fees.
From
and including the Closing Date through and excluding the last day of the
Availability Period, the Borrower shall pay to the Administrative Agent, for
the
benefit of all the Lenders (based upon their respective Pro Rata Shares of
the
Term Loan Commitment), a fee (the “Term
Loan Commitment Fee”)
in an
amount equal to the Term Loan Commitment multiplied by
0.25%
per annum, calculated on the basis of a 360-day year for the actual number
of
days elapsed. Such fees are to be paid in arrears on the last day of the of
the
Availability Period.
(B) Certain
Other Fees.
The
Borrower shall pay the fees specified in that certain letter agreement, dated
October 23, 2006, between the Borrower and the Lead Arranger, at such times
and
to such entities as specified in such letter agreement.
(C) Breakage
Fees.
Upon
any repayment or payment of a LIBOR Loan on any day that is not the last day
of
the Interest Period applicable thereto (regardless of the source of such
repayment or prepayment and whether voluntary, mandatory, by acceleration or
otherwise), the Borrower shall pay the Administrative Agent, for the benefit
of
all affected Lenders, an amount (the “Breakage
Fee”)
equal
to the amount of any losses, reasonable expenses and liabilities (including
any
loss (including interest paid) sustained by each such affected Lender in
connection with the re-employment of such funds) that each such affected Lender
may sustain as a result of the payment of such LIBOR Loan on such day. For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Subsection
1.4(C),
each
LIBOR Loan made by a Lender (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
LIBOR rate for such LIBOR Loan by a matching deposit or other borrowing in
the
interbank eurocurrency market for a comparable amount and for a comparable
period, whether or not such LIBOR Loan is in fact so funded. In addition, upon
any repayment or prepayment of a LIBOR Loan on any day that is not the last
day
of the Interest Period applicable thereto (regardless of the source of such
repayment or prepayment and whether voluntary, mandatory, by acceleration or
otherwise), the Borrower shall pay the Administrative Agent, individually and
not for the benefit of the Lenders, an administrative fee of $300.
(D) Expenses
and Attorneys Fees.
In
addition to fees due under Subsections
1.4 (A)
and 1.4(B),
the
Borrower agrees to pay promptly all reasonable fees, costs and expenses
(including those of attorneys) incurred by the Administrative Agent or the
Lead
Arranger in connection with (i) the syndication of the credit facility contained
herein and the preparation and negotiation of this Agreement and the other
Loan
Documents and (ii) in the case of the Administrative Agent only, the
continued administration of the Loan Documents, including any such reasonable
fees, costs and expenses incurred in connection with any amendments,
supplements, modifications and waivers of any Loan Document. In addition to
fees
due under Subsections 1.4(A)
and
1.4(B),
the
Borrower agrees to pay promptly all reasonable out-of-pocket fees, costs and
expenses (including those of attorneys, provided that the Borrower shall only
be
obligated to reimburse for one set of attorneys for the Administrative Agent
and
the Lenders unless the Administrative Agent or any Lender reasonably determines
that due to a conflict or otherwise its interests are better represented by
separate counsel) incurred by each of the Administrative Agent and
the
Lenders in
connection with any Default or Event of Default and any enforcement of
collection proceeding resulting therefrom or any workout or restructuring of
any
of the transactions hereunder or contemplated thereby or any action to enforce
any Loan Document or to collect any payments due from the Borrower. All fees,
costs and expenses for which the Borrower is responsible under this Subsection 1.4(D)
shall be
deemed part of the Obligations when incurred.
1.5 Payments.
All
payments by the Borrower of the Obligations shall be made in same day funds
and
delivered to the Administrative Agent, for the benefit of itself and the
Lenders, as applicable, by wire transfer to the following account or such other
place as the Administrative Agent may from time to time designate in accordance
with Subsection
9.3:
CoBank,
ACB
Greenwood
Village, Colorado
ABA
Number 0000-0000-0
Reference:
CoBank for the benefit of Citizens Communications Company
The
Borrower shall receive credit on the day of receipt for funds received by the
Administrative Agent by 11:00 a.m. (Denver, Colorado time) on any Business
Day. Funds received on any Business Day after such time shall be deemed to
have
been paid on the next Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, the payment
shall
be due on the next succeeding Business Day and such extension of time shall
be
included in the computation of the amount of interest and fees due
hereunder.
To
the
extent the Borrower or any other party or Person makes a payment or payments
to
the Administrative Agent for the ratable benefit of the Lenders or for the
benefit of the Administrative Agent in its individual capacity, which payments
or any part thereof are subsequently invalidated, declared to be fraudulent
or
preferential, set aside and/or required to be repaid to a trustee, receiver
or
any other party under any bankruptcy law, state or federal law, common law
or
equitable cause, or any combination of the foregoing (whether by demand,
litigation, settlement or otherwise), then, to the extent of such payment or
proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
Each
payment received by the Administrative Agent under this Agreement or any Note
for account of any Lender shall be remitted by the Administrative Agent to
such
Lender promptly after the Administrative Agent’s receipt thereof, and such
remittance shall be made in immediately available funds for the account of
such
Lender for the Loans or other obligation in respect of which such payment is
made.
1.6 Termination
of the Term Loan Commitment and
Repayments of Loans.
(A) Termination
of the Term Loan Commitment.
The
Term
Loan Commitment shall be permanently reduced and terminated in full on the
last
day of the Availability Period.
(B) Repayments
of the Term Loan Facility.
In
addition to any prepayment made pursuant to Subsection
1.7
and
subject to adjustment pursuant to Subsection
1.12,
the
Borrower shall repay the aggregate outstanding principal balance of the Term
Loan in quarterly payments in the following amounts and on each of the following
repayment dates as set forth below:
TERM
LOAN - REPAYMENT TABLE
|
Quarterly
Repayment
Date
|
Quarterly
Repayment Amount
|
|
March
31, 2007
|
$375,000
|
|
June
30, 2007
|
$375,000
|
|
September
30, 2007
|
$375,000
|
|
December
31, 2007
|
$375,000
|
|
March
31, 2008
|
$375,000
|
|
June
30, 2008
|
$375,000
|
|
September
30, 2008
|
$375,000
|
|
December
31, 2008
|
$375,000
|
|
March
31, 2009
|
$375,000
|
|
June
30, 2009
|
$375,000
|
|
September
30, 2009
|
$375,000
|
|
December
31, 2009
|
$375,000
|
|
March
31, 2010
|
$375,000
|
|
June
30, 2010
|
$375,000
|
|
September
30, 2010
|
$375,000
|
|
December
31, 2010
|
$375,000
|
|
March
31, 2011
|
$375,000
|
|
June
30, 2011
|
$375,000
|
|
September
30, 2011
|
$375,000
|
|
Quarterly
Repayment
Date
|
Quarterly
Repayment
Amount
|
|
December
31, 2011
|
$375,000
|
|
March
31, 2012
|
$375,000
|
|
June
30, 2012
|
$375,000
|
|
September
30, 2012
|
$70,875,000
|
|
December
31, 2012
|
$70,875,000
|
;
provided,
however,
that
any outstanding principal balance of the Term Loan not sooner due and payable
shall become due and payable on the Term Loan Maturity Date.
All
repayments of the Term Loan pursuant to this Subsection
1.6(B)
shall be
applied in accordance with Subsection
1.8,
and
shall be accompanied by accrued interest on the amount repaid and any applicable
Breakage Fees and any other fees required pursuant to Subsection
1.4(C).
1.7 Voluntary
Prepayments.
Subject
to the provisions of Subsection
1.8,
at any
time, with one day’s notice, the Borrower may prepay the Base Rate Loans, in
whole or in part, without penalty. Subject to the provisions of Subsection 1.8,
payment
of the Breakage Fees and any other fees required pursuant to Subsection
1.4(C)
and the
notice requirement in the following sentence, at any time the Borrower may
prepay any LIBOR Loan, in whole or in part. Notice of any prepayment of a LIBOR
Loan shall be given not later than 11:00 a.m. (Denver, Colorado time) on
the third Business Day preceding the date of prepayment. All prepayments shall
be in a minimum amount of at least $1,000,000, or any whole multiple of $500,000
in excess thereof, shall be applied as to each Lender based upon its Pro Rata
Share, and shall be paid and applied in accordance with Subsection
1.8.
All
prepayment notices shall be irrevocable. All prepayments shall be accompanied
by
accrued interest on the amount prepaid and the Breakage Fees and any other
fees
required pursuant to Subsection
1.4(C).
1.8 Application
of Prepayments and
Repayments; Payment of Breakage Fees, Etc.
All
prepayments and repayments made pursuant to Subsections
1.6
and
1.7
shall
first be applied to such Base Rate Loans and such LIBOR Loans as the Borrower
shall direct in writing and, in the absence of such direction, shall first
be
applied to such Base Rate Loans, and then after payment in full of all Base
Rate
Loans to such LIBOR Loans, as in each case the Administrative Agent shall
select. All prepayments and repayments required or permitted hereunder shall
be
accompanied by payment of all applicable Breakage Fees and other fees required
pursuant to Subsection
1.4(C)
and all
accrued interest on the amount prepaid or repaid. All prepayments applied to
the
Term Loan shall be applied to principal installments in the inverse order of
maturity.
1.9 Loan
Accounts.
The
Administrative Agent will maintain loan account records for (i) all Loans,
interest charges and payments thereof, (ii) the charging and payment of all
fees, costs and expenses and (iii) all other debits and credits pursuant to
this Agreement. The balance in the loan accounts shall be presumptive evidence
of the amounts due and owing to the Lenders, absent manifest error, provided
that any
failure by the Administrative Agent to maintain such records shall not limit
or
affect the Borrower’s obligation to pay.
1.10 Changes
in LIBOR Rate
Availability.
(A) In
the
event that, prior to the first day of any Interest Period (a) the Administrative
Agent shall have determined that, by reason of circumstances generally affecting
the relevant market, adequate and reasonable means do not exist for ascertaining
LIBOR for such Interest Period, or (b) the Requisite Lenders determine (and
notify the Administrative Agent) that LIBOR applicable pursuant to Subsection
1.2(A)(i)
for any
requested Interest Period with respect to a proposed LIBOR Loan under the Term
Loan Facility does not adequately and fairly reflect the cost to such Lenders
of
funding such Loan, the Administrative Agent shall promptly give notice thereof
to the Borrower and the Lenders. If such notice is given, (i) any LIBOR
Loans requested to be made on the first day of such Interest Period shall accrue
interest at the Base Rate, (ii) Loans that were to have been converted on the
first day of such Interest Period to LIBOR Loans shall be continued as Base
Rate
Loans, and (iii) any outstanding LIBOR Loans shall be converted, on the last
day
of the Interest Period applicable thereto, to Base Rate Loans. Until such notice
has been withdrawn by the Administrative Agent, no further LIBOR Loans shall
be
made or construed as such, nor shall the Borrower have the right to convert
Base
Rate Loans to LIBOR Loans.
(B) If
the
introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender with any request or directive (whether
or
not having the force of law) of any such Governmental Authority, central bank
or
comparable agency, shall make it unlawful or impossible for one or more of
the
Lenders to honor its obligations hereunder to make or maintain any LIBOR Loan,
such Lender shall promptly give notice thereof to the Administrative Agent,
and
the Administrative Agent shall promptly give notice thereof to the Borrower
and
all other Lenders. Thereafter, until the Administrative Agent notifies the
Borrower that such circumstances no longer exist, (i) the obligations of such
Lender or Lenders to make LIBOR Loans and the right of the Borrower to convert
any Loan or continue any Loan as a LIBOR Loan shall be suspended with respect
to
the affected Lenders and (ii) if any Lender may not lawfully continue to
maintain a LIBOR Loan to the end of the then current Interest Period applicable
thereto, the portion of the Loan held by the affected Lenders shall immediately
be converted to a Base Rate Loan.
(A) If
the
introduction of or the interpretation of any law, rule, or regulation would
increase the reserve requirement or otherwise increase the cost to any Lender
of
making or maintaining a LIBOR Loan in an amount deemed by such Lender to be
material, then such Lender shall submit a certificate to the Borrower setting
forth the amount and demonstrating the calculation of such increased cost to
such Lender. The Borrower shall be obligated to pay the amount of such increased
cost to the Administrative Agent for the benefit of the affected Lender within
15 days after receipt of such certificate. Such certificate shall, absent
manifest error, be final, conclusive and binding for all purposes. There is
no
limitation on the number of times such a certificate may be
submitted.
(B) In
the
event that any Lender shall have determined that the adoption after the date
hereof of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy, reserve requirements
or similar requirements or compliance by any Lender or any corporation
controlling such Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) from any central bank or governmental agency or body having
jurisdiction does or shall have the effect of increasing the amount of capital,
reserves or other funds required to be maintained by such Lender or any
corporation controlling such Lender and thereby reducing the rate of return
on
such Lender’s or such corporation’s capital as a consequence of its obligations
hereunder in an amount deemed by such Lender to be material, then the Borrower
shall be obligated to, from time to time within 15 days after notice and demand
from such Lender (together with the certificate referred to in the next sentence
and with a copy to the Administrative Agent), pay to the Administrative Agent,
for the account of such Lender, additional amounts sufficient to compensate
such
Lender for such reduction. A certificate as to the amount of such cost and
showing the basis of the computation of such cost submitted by such Lender
to
the Borrower and the Administrative Agent shall, absent manifest error, be
final, conclusive and binding for all purposes. There is no limitation on the
number of times such a certificate may be submitted.
(C) Failure
or delay on the part of any Lender to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return
on
capital shall not constitute a waiver of such Lender’s right to demand such
compensation; provided
that the
Borrower shall not be under any obligation to compensate any Lender under
Subsections
1.11(A)
or
1.11(B)
with
respect to increased costs or reductions with respect to any period prior to
the
date that is 120 days prior to such request if such Lender knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further
that the
foregoing limitation shall not apply to any increased costs or reductions
arising out of the retroactive application of any change in any law, rule,
regulation, treaty or directive or in the interpretation thereof within such
120-day period. A Lender shall seek compensation for any increased costs or
reduction under Subsections
1.11(A)
or
1.11(B)
only if
such Lender is also seeking such increased costs or reductions from similarly
situated borrowers of such Lender.
(D) If
(i) any Lender shall request compensation under this Subsection
1.11,
(ii) any Lender delivers a notice described in Subsection
1.14
or
(iii) the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority on account of any Lender, pursuant to Subsection
1.13,
then
such Lender shall use reasonable efforts (which shall not require such Lender
to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take
any
action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested
in writing by the Borrower or (y) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for
compensation under Subsection
1.11
or
enable it to withdraw its notice pursuant to Subsection
1.14
or would
reduce amounts payable pursuant to Subsection
1.13,
as the
case may be, in the future. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such filing
or
assignment, delegation and transfer.
1.12 Optional
Prepayment/Replacement of Lender in
Respect of Increased Costs.
Within
15 days after receipt by the Borrower of written notice and demand from any
Lender (an “Affected
Lender”)
for
payment of additional costs as provided in Subsections
1.11
or
1.14
or if it
becomes illegal or impossible for any Lender to continue to fund or to make
LIBOR Loans pursuant to Subsection
1.10(B),
as a
result of any condition described in either of such Subsections, then, unless
such Lender has theretofore removed or cured the conditions creating the cause
for such obligation to pay such additional amounts or for such illegality or
impossibility, the Borrower may, at its option, notify the Administrative Agent
and such Affected Lender of its intention to do one of the
following:
(1) The
Borrower may obtain, at the Borrower’s expense, a replacement Lender
(“Replacement
Lender”)
for
such Affected Lender, which Replacement Lender shall be reasonably satisfactory
to the Administrative Agent. In the event the Borrower obtains a Replacement
Lender within 120 days following notice of its intention to do so, the Affected
Lender shall sell and assign its Loans and its obligations under the Term Loan
Commitment to such Replacement Lender in an amount equal to the sum of the
principal of and interest accrued to the date of such sale and assignment on
the
outstanding Loans of such Affected Lender, provided that the Borrower has
reimbursed such Affected Lender for its increased costs for which it is entitled
to reimbursement under this Agreement through the date of such sale and
assignment; or
(2) The
Borrower may prepay in full all outstanding Obligations owed to such Affected
Lender and terminate such Affected Lender’s Pro Rata Share of the Term Loan
Commitment, in which case the Term Loan Commitment will be permanently reduced
by the amount of such Pro Rata Share. The Borrower shall, within 120 days
following notice of its intention to do so, prepay in full all outstanding
Obligations owed to such Affected Lender (including all applicable Breakage
Fees
and such Affected Lender’s increased costs for which it is entitled to
reimbursement under this Agreement through the date of such prepayment), and
terminate such Affected Lender’s obligations under the Term Loan Commitment, and
upon such prepayment each scheduled repayment of the Term Loan pursuant to
Subsection
1.6(B)
shall be
reduced on a proportional basis.
(A) No
Deductions.
Any and
all payments or reimbursements made hereunder or under the Notes shall be made
free and clear of and without deduction for any and all taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding,
however,
any
tax, levy, impost, deduction, charge or withholding, and all liabilities with
respect thereto, with respect to any Foreign Lender as defined below, and any
tax imposed on the revenues, income or net income of a Lender or the
Administrative Agent by its jurisdiction of incorporation or by the federal,
state, local or foreign taxing authorities in the jurisdiction in which the
principal place of business of such Lender or the Administrative Agent is
located or by any jurisdiction or taxing authority thereof or therein, with
which such Lender or the Administrative Agent has or had a connection (other
than a connection arising solely as a result of such Lender or the
Administrative Agent having executed, delivered or performed its obligations
or
received a payment under, or enforced, this Agreement or any other Loan
Document) (all such non-excluded taxes, levies, imposts, deductions or
withholdings, and all liabilities with respect thereto, collectively,
“Tax
Liabilities”).
If
the Borrower shall be required by law to deduct any Tax Liabilities from or
in
respect of any sum payable hereunder to any Lender or the Administrative Agent,
then the sum payable hereunder shall be increased as may be necessary so that,
after making all required deductions, such Lender or the Administrative Agent
receives an amount equal to the sum it would have received had no such
deductions been made; provided,
however,
that
the Borrower shall not be required to increase any such amounts payable to
any
Lender or the Administrative Agent with respect to (i) any withholding tax
that
is imposed or amounts payable to any Lender or the Administrative Agent at
the
time such Lender or Administrative Agent becomes a party to this Agreement
(or
designates a new lending office) or (ii) any Tax Liabilities that are
attributable to such Lender’s or the Administrative Agent’s failure to comply
with the requirements of Subsections
1.13(B)
or
1.13(C).
(B) Foreign
Lenders.
Each
Lender organized under the laws of a jurisdiction outside of the United States
(“Foreign
Lender”)
as to
which payments made under this Agreement or under the Notes are exempt from
United States withholding tax or are subject to United States withholding tax
at
a reduced rate under an applicable statute or tax treaty shall provide to the
Borrower and the Administrative Agent promptly upon becoming a Lender under
this
Agreement or when such Lender designates a new lending office a properly
completed and executed United States Internal Revenue Service Form W-8BEN or
other applicable form, certificate or document prescribed by the Internal
Revenue Service of the United States certifying as to such Foreign Lender’s
entitlement to such exemption or reduced rate of withholding with respect to
payments to be made to such Foreign Lender under this Agreement and under the
Notes or Form W-8ECI or other applicable form, certificate or document
prescribed by the Internal Revenue Service of the United States certifying
that
payments made to such Foreign Lender are not subject to withholding because
they
are effectively connected with the conduct of a trade or business in the United
States (a “Certificate
of Exemption”).
If
a
Foreign Lender is entitled to an exemption with respect to payments to be made
to such Foreign Lender under this Agreement or the Notes (or to a reduced rate
of withholding) and does not provide a Certificate of Exemption to the Borrower
and the Administrative Agent within the time periods set forth in the preceding
paragraph, the Borrower shall withhold taxes from payments to such Foreign
Lender at the applicable statutory rates and the Borrower shall not be required
to pay any additional amounts as a result of such withholding, provided
that all
such withholding shall, to the extent permitted by Applicable Law, cease or
be
reduced, as appropriate, upon delivery by such Foreign Lender of a Certificate
of Exemption to the Borrower and the Administrative Agent.
(C) Non-U.S.
Withholding Taxes.
A Lender
that is entitled to an exemption from or reduction of non-U.S. withholding
tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement or under the Notes shall deliver to the Borrower (with a copy
to
the Administrative Agent), at the time or times prescribed by Applicable Law
or
reasonably requested by the Borrower, such properly completed and executed
documentation that such Lender is legally entitled to complete, execute and
deliver and is prescribed by Applicable Law as will permit such payments to
be
made without withholding or at a reduced rate.
If
a
Lender is entitled to an exemption with respect to payments to be made to such
Lender under this Agreement or the Notes (or to a reduced rate of withholding)
and does not provide such documentation to the Borrower and the Administrative
Agent within the time periods set forth in the preceding paragraph, the Borrower
shall withhold taxes from payments to such Lender at the applicable statutory
rates and the Borrower shall not be required to pay any additional amounts
as a
result of such withholding, provided that all such withholding shall, to the
extent permitted by applicable law, cease or be reduced, as appropriate, upon
delivery by such Lender of such documentation to the Borrower and the
Administrative Agent.
(D) Participations.
Each
Lender that sells or grants a participation shall (i) withhold or deduct
from each payment to a Participant the amount of any tax required under
Applicable Law to be withheld or deducted from such payment and not withheld
or
deducted therefrom by the Borrower or the Administrative Agent, (ii) pay any
tax
so withheld or deducted by it to the appropriate taxing authority in accordance
with Applicable Law and (iii) indemnify the Borrower and the Administrative
Agent for any losses, costs and expenses that either of them may incur as a
result of any failure to withhold or deduct and pay any tax to the extent the
amount of such tax and losses, costs and expenses exceeds the amount of tax
and
losses, costs and expenses that would have been imposed in the absence of such
participation.
(E) Refunds.
If the
Administrative Agent or a Lender determines that it has received a refund of
any
Tax Liabilities as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Subsection
1.13,
it
shall pay over such refund to Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this
Subsection
1.13
with
respect to the Tax Liabilities giving rise to such refund) net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided,
that
the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Subsection
1.13
shall
not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrower or any other Person.
1.14 Changes
in Laws.
In the
event that, subsequent to the Closing Date, (i) any changes in any existing
law,
regulation, treaty or directive or in the interpretation or application thereof,
(ii) any new law, regulation, treaty or directive enacted or any interpretation
or application thereof, or (iii) compliance by the Administrative Agent or
any
Lender with any request or directive (whether or not having the force of law)
from any Governmental Authority, does or shall impose on the Administrative
Agent or any Lender any other condition or increased cost in connection with
the
transactions contemplated hereby or participations herein and the result of
any
of the foregoing is to increase the cost to the Administrative Agent or any
such
Lender of making or continuing any Loan hereunder, or to reduce any amount
receivable hereunder, as the case may be, then, in any such case, the Borrower
shall be obligated to promptly pay to the Administrative Agent or such Lender,
upon its demand, any additional amounts necessary to compensate the
Administrative Agent or such Lender, on an after-tax basis, for such additional
cost or reduced amount receivable, as determined by the Administrative Agent
or
such Lender with respect to this Agreement or the other Loan Documents. If
the
Administrative Agent or such Lender becomes entitled to claim any additional
amounts pursuant to this Subsection
1.14,
it
shall promptly notify the Borrower of the event by reason of which the
Administrative Agent or such Lender has become so entitled. A certificate as
to
any additional amounts payable pursuant to the foregoing sentence submitted
by
the Administrative Agent or such Lender to the Borrower and the Administrative
Agent shall, absent manifest error, be final, conclusive and binding for all
purposes. There is no limitation on the number of times such a certificate
may
be submitted; provided,
however,
that
this Subsection
1.14
shall
not apply to any changes in law with respect to taxes.
1.15 Term
of This Agreement.
All of
the Obligations shall become due and payable as otherwise set forth herein,
but
in any event, all of the remaining Obligations shall become due and payable
on
the Term Loan Maturity Date. This Agreement shall remain in effect through
and
including, and (except with respect to provisions hereof expressly stated herein
to survive any such termination) shall terminate immediately after, the date
on
which all Obligations shall have been indefeasibly and irrevocably paid and
satisfied in full in cash.
AFFIRMATIVE
COVENANTS
The
Borrower hereby covenants and agrees that so long as this Agreement is in effect
and until payment in full of all Obligations, unless the Requisite Lenders
shall
otherwise give their prior written consent, the Borrower shall perform and
comply with all covenants in this Section
2.
(A) Preserve
and maintain, cause each of the Principal Subsidiaries to preserve
and maintain,
and cause each other Subsidiary to preserve and maintain (where the failure
by
any such other Subsidiary to so preserve and maintain would likely result in
a
Material Adverse Effect), its corporate existence, rights and franchises, except
in connection with an Asset Exchange, provided,
however,
that
the
corporate existence of any Principal Subsidiary may be terminated if such
termination is not disadvantageous in any material respect to the Administrative
Agent or any Lender;
(B) continue
to own all of the outstanding shares of common stock of each Principal Subsidiary,
except in connection with an Asset
Exchange;
(C) comply,
and cause each of the Subsidiaries to comply, in all
material respects, with all applicable laws, rules, regulations and orders,
including, without limitation, all Environmental Laws;
(D) pay,
and
cause each of the
Subsidiaries to pay, before any such amounts become delinquent, (i) all taxes,
assessments and governmental charges imposed upon it or upon its property,
and
(ii) all claims (including, without limitation, claims for labor, materials,
supplies, or services) which might, if unpaid, become a Lien upon its property,
unless, in each case,
the
validity or amount thereof is being disputed in good faith, and the Borrower
has
maintained adequate reserves with respect thereto, in each case where the
failure to so pay would
be
reasonably expected to cause a Material Adverse Effect;
(E) keep,
and
cause each of the Subsidiaries to keep, proper books of record and account,
containing complete and accurate entries of all financial and business
transactions of the Borrower and such Subsidiary in all material
respects;
(F) continue
to carry on, and cause each Principal Subsidiary to continue to carry on,
substantially the same type of business as the Borrower or such Principal
Subsidiary conducted as of the date hereof and business reasonably related
thereto, except for changes in such business that result from an Asset Exchange;
and
(G) maintain
or cause to be maintained insurance with financially sound and reputable
insurers, or self-insurance, with respect to its properties and business and
the
properties and business of the Subsidiaries against loss or damage of the kinds
customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts (with such
deductible amounts) as is customary for such companies under similar
circumstances;
provided,
however,
that
the
foregoing shall not limit the right of the Borrower or any of its Subsidiaries
to engage in any transaction not otherwise prohibited by Subsection
3.2,
3.3
or
3.4.
2.2 Maintaining
Records.
Maintain
all financial records in accordance with GAAP and, upon reasonable notice,
permit the Administrative Agent and each Lender to visit and inspect the
financial records of the Borrower at reasonable times and as often as requested
and to make extracts from and copies
of
such financial records, and permit any representatives designated by the
Administrative Agent or any Lender to discuss the affairs, finances and
condition of the Borrower with the appropriate officers thereof and, with the
Borrower’s consent (which shall not be unreasonably withheld), the independent
accountants therefor; provided,
however,
that
if
the Borrower shall so require, a single representative shall be appointed by
the
Requisite Lenders to exercise the rights granted to the Lenders under this
Subsection
2.2;
provided,
further,
that
when
an Event of Default exists the Administrative Agent or any Lender may do any
of
the foregoing, upon reasonable notice, at any time during normal business hours
(without appointment of a single representative by the Lenders).
2.3 Use
of
Proceeds.
The
Borrower will use the proceeds of the Term Loan solely for the purposes
described in the recital paragraphs to this Agreement.
2.4 CoBank
Patronage Capital.
So long
as CoBank is a Lender hereunder, the Borrower will acquire non-voting
participation certificates in CoBank in such amounts and at such times as CoBank
may require in accordance with CoBank’s Bylaws and Capital Plan (as each may be
amended from time to time), except that the maximum amount of participation
certificates that the Borrower may be required to purchase in CoBank in
connection with the Loans may not exceed the maximum amount permitted by the
Bylaws and the Capital Plan at the time this Agreement is entered into. The
rights and obligations of the parties with respect to such participation
certificates and any distributions made on account thereof or on account of
the
Borrower’s patronage with CoBank shall be governed by CoBank’s Bylaws. CoBank
agrees that all Loans that are made by CoBank and that are retained for its
own
account and not sold in a participation (except to a participant that makes
patronage distributions to CoBank) shall be entitled to patronage distributions
in accordance with CoBank’s Bylaws; all Loans that are made by CoBank and are
included in a sale of a participation (except to a participant that makes
patronage distributions to CoBank) shall not be entitled to patronage
distributions. CoBank’s Pro Rata Share of the Loans and other Obligations due to
CoBank shall be secured by a statutory first lien on all equity which the
Borrower may now own or hereafter acquire in CoBank. Such equity shall not,
however,
constitute security for the Obligations due to any other Lender. CoBank shall
not be obligated to set off or otherwise apply such equities to the Borrower’s
obligations to CoBank. In the event of any liquidation, sale, transfer or other
disposition of collateral that includes the Borrower’s participation
certificates in CoBank, whether by foreclosure or otherwise, the proceeds
attributable to such participation certificates shall be equal to the face
value
of such participation certificates as reflected in the official records of
CoBank.
NEGATIVE
COVENANTS
The
Borrower hereby covenants and agrees that so long as this Agreement is in effect
and until payment in full of all Obligations, unless the Requisite Lenders
shall
otherwise give their prior written consent, the Borrower shall perform and
comply with all covenants in this Section
3,
and the
Borrower will not:
3.1 Liens;
Restrictions on Sales of Receivables.
Create,
incur, assume, or suffer to exist,
or
permit
any of the Principal Subsidiaries to create, incur, assume, or suffer to exist,
any Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness of the Borrower or any such Principal Subsidiary, or sell or assign
any accounts receivable (other than in the ordinary course of business
substantially in accordance with the Borrower’s past practice), other than: (a)
Liens incurred or deposits made in
the
ordinary course of business to secure surety and appeal bonds, leases,
return-of-money bonds and other similar obligations (exclusive of obligations
of
the payment of borrowed money); (b) pledges or deposits to secure the utility
obligations of the Borrower incurred in the ordinary course of business; (c)
Liens upon or in property now owned or hereafter acquired to secure Indebtedness
incurred solely for the purpose of financing the acquisition, construction
or
improvement of any property, provided that such Indebtedness shall not exceed
the fair market
value of the property being acquired, constructed or improved; (d) Liens
on the
assets of any Principal Subsidiary to secure the repayment of project financing
for such Principal Subsidiary, (e) Liens on the assets of any Person merged
or
consolidated with or into (in accordance with Subsection
3.4)
the
Borrower or any Principal Subsidiary that were in effect at the time of such
merger or consolidation;
(f) Liens for taxes, assessments and governmental charges or levies, which
are
not yet due or are which are being contested in good faith by appropriate
proceedings; (g) Liens securing Indebtedness of the Borrower or any Principal
Subsidiary to the Rural Electrification Administration or the Rural Utilities
Service (or any successor to any such agency); (h) carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s, suppliers or other like Liens arising in
the ordinary course of business relating to obligations not overdue for a period
of more than 60 days or which are bonded or being contested in good faith by
appropriate proceedings; (i) pledges or deposits in connection with workers’
compensation laws or similar legislation or to secure public or statutory
obligations; (j) Liens incurred on deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business; (k) easements, rights of way, restrictions and
other encumbrances incurred which, in the aggregate, do not materially interfere
with the ordinary conduct of business; (l) restrictions by Governmental
Authorities on the operations, business or assets of the Borrower or its
Subsidiaries that are customary in the Borrower’s and its Subsidiaries’
businesses; (m) sales of accounts receivable pursuant to, and Liens existing
or
deemed to exist in connection with, any Securitization Transactions,
provided the
aggregate amount of all such Securitization Transactions shall not at any time
exceed $150,000,000; and (n) other Liens securing Indebtedness outstanding
in an
aggregate principal amount not to exceed $25,000,000; provided,
however,
that
the
Borrower or any Principal Subsidiary may create, incur, assume or suffer to
exist other Liens (in addition to Liens excepted by the foregoing clauses (a)
through (n)) on its assets so long as such Liens equally and ratably secure
the
Obligations pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent.
3.2 Ownership
of the Principal
Subsidiaries.
Sell,
assign, pledge, or otherwise transfer or dispose of any shares of common stock,
voting stock, or stock convertible into voting or common stock of any Principal
Subsidiary, except (a) to another Subsidiary, or (b) in connection with an
Asset
Exchange; provided,
however,
that
the
Borrower may pledge any
shares of common stock, voting stock, or stock convertible into voting or common
stock of any Principal Subsidiary so long as such pledge equally and ratably
secures the Obligations pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent.
3.3 Asset
Sales.
Except
in connection with an Asset Exchange, permit any Principal Subsidiary to sell,
assign, or otherwise dispose of telecommunications assets (whether in one
transaction or a series of transactions), if the net, after-tax proceeds thereof
are used by the Borrower or any Subsidiary to prepay (other than a mandatory
prepayment in accordance with the terms of the applicable governing documents,
including pursuant to any put provision) Indebtedness incurred after the date
hereof which Indebtedness has a maturity later than the Term Loan Maturity
Date
(other than bridge or other financings incurred in connection with an asset
purchase or sale, including acquisition indebtedness or indebtedness of an
acquired entity or indebtedness incurred to refinance indebtedness outstanding
as of the date hereof).
3.4 Mergers.
Merge or
consolidate with, or sell, assign, lease, or otherwise dispose of (whether
in
one transaction or a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired); except in connection with
an
Asset Exchange, to any Person, or permit any Principal Subsidiary to do so,
except that any Subsidiary may merge into or, subject to Subsection
3.3,
transfer assets to the Borrower or any other Subsidiary and the Borrower may
merge with any Person; provided that,
immediately thereafter and after giving effect thereto, no event shall occur
or
be continuing which constitutes an Event of Default or a Default and, in the
case of any such merger to which the Borrower is a party, either
the Borrower is the surviving corporation
or the surviving entity (if not the Borrower) has a Consolidated
Net Worth (as determined in accordance with GAAP) immediately subsequent to
such
merger at least equal to the Consolidated Net Worth of the Borrower immediately
prior to such merger and expressly assumes the obligations of the Borrower
hereunder; provided,
however,
that,
notwithstanding the foregoing, the Borrower and any of the Principal
Subsidiaries may sell assets in the ordinary course of its business and may
sell
or otherwise dispose of worn out or obsolete equipment on a basis consistent
with good business practices.
(A) Enter
into or permit any Principal Subsidiary to enter into, any contract or agreement
(other than with a governmental regulatory authority having jurisdiction over
the Borrower or such Principal Subsidiary) restricting the ability of such
Principal Subsidiary to pay dividends or make distributions to the Borrower
in
any manner that could reasonably be expected to impair the ability of the
Borrower to meet its present and future obligations hereunder.
(B) In
the
case of the Borrower only, declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do
so,
in each case if any Event of Default has occurred and is continuing at the
time
of such action or will result therefrom (but excluding the payment of dividends
declared and announced by the Board of Directors at a time when no Event of
Default existed).
3.6 Transactions
with Affiliates.
Except
in connection with an Asset Exchange, sell or transfer any property or assets
to, or purchase or acquire any property or assets from, or otherwise engage
in
any other transactions with, any of its Affiliates, except that as long as
no
Default or Event of Default shall have occurred and be continuing, the Borrower
or any Subsidiary may engage in any of the foregoing transactions (i) in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (ii) as otherwise may be
required by any Federal or state Governmental Authority, or (iii) so long as
such transactions
are not materially disadvantageous to the Borrower.
3.7 Guarantees.
Permit
any Subsidiary to enter into, directly or indirectly, any Guarantee of any
Indebtedness of the Borrower or any Subsidiary unless the Obligations are
Guaranteed on a pari passu basis pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent, except (i) any Guarantee
in
effect at the time such Subsidiary becomes a
Subsidiary of the Borrower, so long as such Guarantee was not entered into
solely in contemplation of such Person becoming a Subsidiary of the Borrower,
(ii) any Guarantee in effect as of the Closing Date that is listed on
Schedule
3.7,
and
(iii) additional Guarantees
aggregating not more than $25,000,000 at any one time outstanding.
FINANCIAL
COVENANTS AND REPORTING
The
Borrower hereby covenants and agrees that so long as this Agreement is in effect
and until payment in full of all Obligations, unless the Requisite Lenders
shall
otherwise give their prior written consent, the Borrower shall perform and
comply with all covenants in this Section
4.
For the
purposes of this Section
4,
all
covenants calculated for the Borrower shall be calculated on a consolidated
basis for the Borrower and its Subsidiaries.
4.1 Total
Leverage Ratio.
The
Borrower shall maintain at all times, measured at each fiscal quarter end,
a
Total Leverage Ratio less than or equal to 4.5:1.0; provided,
that if
after the Closing Date the Borrower provides any other holder of Indebtedness
with additional or more restrictive financial covenants than set forth set
forth
in this Subsection
4.1,
then
this Agreement shall be deemed to include, and this Agreement shall be amended
to contain, such additional and more restrictive financial
covenants.
4.2 Financial
Statements and Other
Reports.
The
Borrower will and will cause its Subsidiaries to maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in conformity with GAAP consistently
applied (it being understood that quarterly financial statements are not
required to have footnote disclosures and are subject to normal year-end audit
adjustments). The Borrower will deliver each of the financial statements and
other reports described below to the Administrative Agent.
(A) Quarterly
Financials.
As soon
as available and in any event within 65 days after the end of the first three
fiscal quarters of each fiscal year of the Borrower, the Borrower will deliver
consolidated balance sheets of the Borrower and its Subsidiaries, as at the
end
of such fiscal quarter and the then elapsed portion of the applicable fiscal
year, and the related consolidated statements of income, shareholders’ equity
and cash flows for such fiscal quarter and for the period from the beginning
of
the then current fiscal year of the Borrower to the end of such quarter
(which
requirement shall be deemed satisfied by the delivery of the Borrower’s
Quarterly Report on Form 10-Q (or any successor form) for such year).
(B) Year-End
Financials.
As soon
as available and in any event within 110 days after the end of each fiscal
year
of the Borrower, the Borrower will deliver (i) consolidated balance sheets
of the Borrower and its Subsidiaries, as at the end of such year, and the
related consolidated statements of income, shareholders’ equity and cash flows
for such fiscal year (which
requirement shall be deemed satisfied by the delivery of the Borrower’s Annual
Report on Form 10-K (or any successor form) for such year)
and
(ii) a report with respect to the financial statements from a firm of
independent certified public accountants of recognized national standing
selected by the Borrower and reasonably acceptable to the Administrative Agent,
which report shall be without a “going concern” or like qualification and
without any material qualification or exception as to the scope of such
audit.
(C) The
Borrower Compliance Certificate.
Together with each delivery of financial statements of the Borrower and its
Subsidiaries pursuant to Subsections
4.2(A)
or
4.2(B),
the
Borrower will deliver a compliance certificate in substantially the same form
as
Exhibit
4.2(C)
(each, a
“Compliance
Certificate”)
signed
by the chief financial officer or the treasurer of the Borrower (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto and (ii) setting forth reasonably detailed calculations (including
with
respect to any pro forma effect given to a Material Transaction) demonstrating
compliance with Subsection
4.1
as of
the last day of the most recent fiscal quarter covered by such financial
statements.
(D) Budget.
As soon
as available and in any event within 65 days after the end of each of the
Borrower’s fiscal years, the Borrower will deliver a Budget of the Borrower and
its consolidated Subsidiaries for such fiscal year. As soon as available and
in
any event within 120 days after the end of each of the Borrower’s fiscal years,
the Borrower will deliver a Budget of the Borrower and its consolidated
Subsidiaries for such fiscal year and the next succeeding four fiscal
years.
(E) SEC
Filings.
Promptly upon the mailing or filing thereof, copies of all financial statements,
reports and proxy statements mailed to the Borrower’s public shareholders, and
copies of all registration statements (other than those on Form S-8) and Form
8-K’s (to the extent that such Form 8-K’s disclose actual or potential adverse
developments with respect to the Borrower or any of its Subsidiaries that
constitute, or could reasonably be anticipated to constitute, a Material Adverse
Effect) filed with the Securities and Exchange Commission (the “SEC”)
(or
any successor thereto) or any national securities exchange.
(F) Events
of Default, Etc.
Promptly
upon any officer of the Borrower obtaining knowledge of any Event of Default
or
Default, the Borrower shall deliver a certificate of the Borrower’s chief
financial officer or treasurer, specifying the nature and extent thereof and
the
corrective action (if any) proposed to be taken with respect
thereto.
(G) Litigation.
Promptly upon any officer of the Borrower obtaining knowledge of the filing
or
commencement of, or any written notice of intention of any Person to file or
commence, any action, suit or proceeding, whether at law or in equity or by
or
before any Governmental Authority, against the Borrower or any of its
Subsidiaries which is reasonably likely to be adversely determined and which,
if
adversely determined, could reasonably be anticipated to result in a Material
Adverse Effect, the Borrower will give notice thereof to the Administrative
Agent and provide such other information as may be requested by the
Administrative Agent and reasonably available to the Borrower to enable the
Administrative Agent and its counsel to evaluate such matter.
(H) Regulatory
and Other Notices.
Within
15 days after filing or receipt, copies of any non-ordinary course (as
determined in good faith by the Borrower) filings or communications sent to
or
notices and other communications received by the Borrower or any of its
Subsidiaries from any Governmental Authority, including the FCC, any applicable
PUC and the SEC, relating to any noncompliance by the Borrower or any of its
Subsidiaries with any law or with respect to any matter or proceeding the effect
of which could reasonably be expected to have a Material Adverse
Effect.
(I) Material
Adverse Effect.
The
Borrower will give prompt written notice to the Administrative Agent of any
development with respect to the Borrower or any of its Subsidiaries that has
resulted in, or could reasonably be anticipated to result in, a Material Adverse
Effect.
(J) ERISA
Events.
Promptly
after becoming aware of any ERISA Event, which could reasonably be expected
to
have a Material Adverse Effect, the Borrower will give notice to the
Administrative Agent thereof and provide such information relating thereto
as
may be requested by the Administrative Agent and reasonably available to the
Borrower to enable the Administrative Agent and the Lenders to reasonably
evaluate such matter.
(K) Delivery
of Information.
Documents required to be delivered pursuant to Subsection
4.2(A),
(B)
or
(E)
(to the
extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower’s on the Internet at the website
address listed in Subsection
9.3;
or (ii)
on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided
that:
(i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver
such paper
copies until a written request to cease delivering paper copies is given by
the
Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of
the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower
shall be
required to provide paper copies of the Compliance Certificates required by
Subsection
4.2(C)
to the
Administrative Agent. Except for Compliance Certificates, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies
of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
4.3 Accounting
Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement.
For
purposes of this Agreement, all accounting terms not otherwise defined herein
shall have the meanings assigned to such terms in conformity with GAAP. Except
as otherwise expressly provided, financial statements and other information
furnished to the Administrative Agent and the Lenders pursuant to this Agreement
shall be prepared in accordance with GAAP as in effect at the time of such
preparation. For purposes of determining the Borrower’s compliance with the
financial covenant set forth in Subsection
4.1
of this
Agreement, all terms of an accounting or financial nature shall be construed
in
accordance with GAAP, as in effect from time to time; provided,
however,
that if
the Borrower notifies the Administrative Agent that the Borrower wishes to
amend
the covenant in Subsection
4.1
or any
related definition to eliminate the effect of any change in GAAP occurring
after
the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Requisite Lenders wish
to
amend Subsection
4.1
or any
related definition for such purpose), then the Borrower’s compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Requisite Lenders.
REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Administrative Agent and the Lenders to enter into this Agreement
and to make the Term Loan, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender on the Closing Date (except as may be
set
forth on the attached Schedules and acceptable to the Administrative Agent)
and
on the Funding Date that:
5.1 Organization,
Powers, Governmental
Approvals.
(A) The
Borrower and each Principal Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
organization, (ii) has all requisite power and authority to own its property
and
assets and to carry on its business as now conducted and (iii) is qualified
to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not have a Material Adverse Effect. The
Borrower’s execution, delivery and performance of the Loan Documents are within
its corporate powers, have been duly authorized by all necessary action and
do
not violate or create a default under (a) law, (b) its constituent documents,
or
(c) any contractual provision binding upon it, except to the extent (in the
case
of violations or defaults described under clauses (a) or (c)) where such
violation or default would not reasonably be expected to result in a Material
Adverse Effect. Each of the Loan Documents constitutes the legal, valid and
binding obligation of the Borrower enforceable against it in accordance with
its
terms (except as such enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights
of
creditors generally and general principles of equity, including an implied
covenant of good faith and fair dealing).
(B) Except
for (i) any Governmental Approvals required in connection with any Borrowings
(such approvals being “Borrowing
Approvals”) and
(ii)
any Governmental Approvals the failure to obtain which could not reasonably
be
expected to result in a Material Adverse Effect or affect the validity or
enforceability of this Agreement or any other Loan Document, all Governmental
Approvals required in connection with the execution and delivery by the Borrower
of this Agreement and the other Loan Documents and the performance by the
Borrower of its obligations hereunder and thereunder have been, and, prior
to
the time of any Borrowing, all Borrowing Approvals will be, duly obtained,
are
(or, in the case of Borrowing Approvals, will be) in full force and effect
without having been amended or modified in any manner that may impair the
ability of the Borrower to perform its obligations under this Agreement, and
are
not (or, in the case of Borrowing Approvals, will not be) the subject of any
pending appeal, stay or other challenge.
5.2 Financial
Statements.
The
Borrower has furnished to the Lenders, for itself and its Subsidiaries, its
most
recent filings with the Securities and Exchange Commission on Forms 10-K and
10-Q. Such Forms 10-K and 10-Q do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make any statement therein,
in light of the circumstances under which it was made, not misleading. Each
of
the financial statements in such Forms 10-K and 10-Q has been, and each of
the
financial statements to be furnished pursuant to Subsection
4.2
will be,
prepared in accordance with GAAP applied consistently with prior periods, except
as therein noted, and fairly presents or will fairly present in all material
respects the consolidated financial position of the Borrower and its
Subsidiaries as of the date thereof and the results of the operations of the
Borrower and its Subsidiaries for the period then ended.
5.3 No
Material Adverse Effect.
Since
the date of the Borrower’s most recent financial statements contained in its
Annual Report on Form 10-K for the fiscal year ended December 31, 2005, there
has been no material adverse change in, and there has occurred no event or
condition which is likely to result in a material adverse change in, the
financial condition, results of operations, business, assets or operations
of
the Borrower and the Subsidiaries taken as a whole (it being understood that
the
consummation of an Asset Exchange shall not constitute such a material adverse
change).
5.4 Title
to Properties; Possession Under
Leases.
(A) To the
best
of the Borrower’s knowledge, each of the Borrower and the Principal Subsidiaries
has good and marketable title to, or valid leasehold interests in,
or other
rights to use or occupy, all its material properties and assets, except for
minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for
their intended purposes. All such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by Subsection
3.1.
(B) Each
of
the Borrower and the Principal Subsidiaries has complied with all obligations
under all material leases to which it is a party and all such leases are in
full force
and
effect, except where such failure to comply or maintain such leases in full
force and effect would not have a Material Adverse Effect. Each of the Borrower
and the Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases except where such failure would not have a Material Adverse
Effect.
5.5 Ownership
of Subsidiaries.
The
Borrower owns, free and clear of any Lien (other than Liens expressly permitted
by Subsection
3.1),
all of
the issued and outstanding shares of common stock of each of the Principal
Subsidiaries.
5.6 Litigation;
Compliance with
Laws.
(A) There
is
no action, suit, or proceeding, or any governmental investigation or any
arbitration, in each case pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of the Subsidiaries or any material
property of any thereof before any court or arbitrator or any governmental
or
administrative body, agency, or official which (i) challenges the validity
of
this Agreement or any other Loan Document, (ii) may reasonably be expected
to
have a material adverse effect on the ability of the Borrower to perform any
of
its material obligations under this Agreement or any other Loan Document or
on
the material rights of or material benefits available to
the Lenders
under this Agreement or any other Loan Document or (iii) except as disclosed
in
the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31,
2005 or the Borrower’s Quarterly Reports on Form 10-Q for the periods ending
March 31, 2006, June 30,
2006
or September 30, 2006, would reasonably be expected to have a Material Adverse
Effect.
(B) Neither
the Borrower nor any of the Subsidiaries is in violation of any law,
rule, or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default would reasonably be expected to have a Material Adverse
Effect.
(C) Except
as
set forth in or contemplated by the financial statements or other reports
referred to in Subsection
5.2
and
which have been delivered to the Lenders on or prior to the date hereof, (i)
the
Borrower and each of its Subsidiaries have complied with all Environmental
Laws,
except to the extent that failure to so comply would not reasonably be expected
to have a Material Adverse Effect, (ii) neither the Borrower nor any of its
Subsidiaries has failed to obtain,
maintain
or comply with any permit, license or other approval under any Environmental
Law, except where such failure would not reasonably be expected to have a
Material Adverse Effect, (iii) neither the Borrower nor any of its Subsidiaries
has received notice of any failure to comply with
any
Environmental Law or become subject to any liability under any Environmental
Law, except where such failure or liability would not reasonably be expected
to
have a Material Adverse Effect, (iv) no facilities of the Borrower or any of
its
Subsidiaries are used to manage any Specified Substance in violation of any
law,
except to the extent that such violations, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, and (v)
the
Borrower is aware of no events, conditions or circumstances involving any
Release of a Specified Substance that would reasonably be expected to have
a
Material Adverse Effect.
(A) Neither
the Borrower nor any of the Subsidiaries is a party to any agreement or
instrument or subject to any corporate restriction that has resulted, or would
reasonably be expected to result, in a Material Adverse Effect.
(B) Neither
the Borrower nor any of the Subsidiaries is in default under any indenture
or
other agreement or instrument evidencing Indebtedness, or any other material
agreement or instrument to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default would reasonably
be
expected to result in a Material Adverse Effect.
5.8 Federal
Reserve Regulations.
No part
of the proceeds of the Loans will be used, whether directly or indirectly,
and
whether immediately, incidentally, or ultimately, for any purpose which entails
a violation of the Margin Regulations.
5.9 Investment
Company Act; Public Utility
Holding Company Act.
Neither
the Borrower nor any of the Subsidiaries is (a) an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a “holding company” as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 2005.
5.10Use
of Proceeds. The Borrower will use the
proceeds of the Term Loan solely for the purposes described in the recital
paragraphs to this Agreement.
5.11 Tax
Returns.
Each of
the Borrower and the Subsidiaries has filed or caused to be filed all Federal
and all material state and local tax returns required to have been filed by
it
and has paid or caused to be paid all taxes shown to be due and payable on
such
returns or on any assessments received by it, except (i) taxes that are being
contested in good faith by appropriate proceedings and for which the
Borrower shall have set aside on its books adequate reserves or (ii) where
such
failure to file or pay would not reasonably be expected to result in a Material
Adverse Effect.
5.12 No
Material Misstatements.
No
statement, information, report, financial statement, exhibit or schedule
furnished by
or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the syndication or negotiation of this Agreement or any other Loan Document
or included herein or therein or delivered pursuant hereto or thereto contained,
contains, or will contain any material misstatement of fact or intentionally
omitted, omits, or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were,
are, or will be made, not misleading; provided
that to
the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, the Borrower
represents only that it acted in good faith and utilized assumptions believed
by
it to be reasonable in the preparation of such information, report, financial
statement, exhibit or schedule.
(A) Each
Plan
is in compliance with ERISA, except for
such
noncompliance that has not resulted, and would not reasonably be expected to
result, in a Material Adverse Effect.
(B) No
Plan
has an accumulated or waived funding deficiency within the meaning of Section
412 or Section 418B of the IRC, except for any such deficiency that has not
resulted, and would not reasonably be expected to result, in a Material Adverse
Effect.
(C) No
proceedings have been instituted to terminate any Plan, except for
such
proceedings where the termination of a Plan has not resulted, and would not
reasonably be expected to result, in a Material Adverse Effect.
(D) Neither
the Borrower nor any Subsidiary or ERISA Affiliate has incurred any liability
to or on account of a Plan under ERISA (other than obligations to make
contributions in
accordance with such Plan), and no condition exists which presents a material
risk to the Borrower or any Subsidiary of incurring such a liability,
except for such
liabilities that have not resulted,
and would not reasonably be expected to result, in a Material Adverse
Effect.
5.14 Insurance.
Each of
the Borrower and the Principal Subsidiaries maintains insurance with financially
sound and reputable insurers, or self-insurance, with respect to its properties
and business
against loss or damage of the kind customarily insured against by reputable
companies in the same or similar business and of such types and in such amounts
(with such deductible amounts) as
is
customary for such companies under similar circumstances.
EVENTS
OF
DEFAULT AND RIGHTS AND REMEDIES
6.1 Event
of Default.“Event
of
Default” shall mean the occurrence or existence of any one or more of the
following:
(A) Payment.
(i)
Failure to repay any outstanding principal amount of the Term Loan at the time
required pursuant to this Agreement, or (ii) failure to pay any interest on
the
Term Loan or any other amount due under this Agreement or any of the other
Loan
Documents and such default shall continue unremedied for a period of five
Business Days; or
(B) Default
in Other Agreements.
(i) The
Borrower or any Principal Subsidiary, as the case may be, fails to pay when
due,
or within any grace period applicable thereto by the terms thereof, any
Indebtedness of the Borrower or any Principal Subsidiary aggregating $50,000,000
or more, or (ii) the Borrower or any Principal Subsidiary shall fail to observe
or perform any covenant or agreement contained in any single agreement or
instrument relating to any Indebtedness in excess of $50,000,000 in the
aggregate, in each case within any applicable grace period, or any other event
shall occur if the effect of such failure or other event is to accelerate,
or to
permit the holder of such Indebtedness or any other Person to accelerate, the
maturity of such Indebtedness; or any such Indebtedness shall be required to
be
prepaid (other than by a regularly scheduled required prepayment, pursuant
to
any put right (or similar right) of the holder thereof, or by the exercise
by
the Borrower or such Principal Subsidiary of its right to make a voluntary
prepayment) in
whole
or in part prior to its stated maturity; or there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting from
(A)
any event of default under such Swap
Contract as to which the Borrower or any Principal Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under
such Swap Contract as to which the Borrower or any Principal Subsidiary is
an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater than
$50,000,000; or
(C) Breach
of Certain Provisions.
Failure
of the Borrower or any of its Subsidiaries to perform or comply with any term
or
condition contained in Subsection
2.3,
Section
3
or
Subsections
4.1
or
4.2(F),
(G),
(I)
or
(J);
or
(D) Breach
of Warranty.
Any
representation, warranty, certification or other statement made by the Borrower
or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by the Borrower or any of its Subsidiaries or
in
writing pursuant or in connection with any Loan Document is false in any
material respect on the date made or deemed made; or
(E) Other
Defaults Under Loan Documents.
The
Borrower or any of its Subsidiaries breaches or defaults in the performance
of
or compliance with any term contained in this Agreement or the other Loan
Documents and such default is not remedied or waived within 30 days after the
earlier of (i) the Borrower obtaining knowledge of such breach or default or
(ii) receipt by the Borrower or any such Subsidiary of notice from the
Administrative Agent or the Requisite Lenders of such default (other than
occurrences described in other provisions of this Subsection
6.1
for
which a different grace or cure period is specified or which constitute
immediate Events of Default); or
(F) Involuntary
Bankruptcy; Appointment of Receiver; Etc.
An
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect of
the
Borrower or any Principal Subsidiary, or of a substantial part of the property
or assets of the Borrower or a Principal Subsidiary, under the Bankruptcy Code,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator, or similar official for the Borrower or any Principal Subsidiary
or
for a substantial part of the property or assets of the Borrower or,
a
Principal Subsidiary, or (iii) the winding-up or liquidation of the Borrower
or
any Principal Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the
foregoing shall be entered; or
(G) Voluntary
Bankruptcy; Appointment of Receiver; Etc.
The
Borrower or any Principal Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under the Bankruptcy Code, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in Subsection
6.1(F), (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator, or similar official for the Borrower or any Principal
Subsidiary or for a substantial part of the property or assets of the Borrower
or any Principal Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a
general assignment for the benefit of creditors, (vi) become unable, admit
in
writing its inability, or fail generally to pay its debts as they become due,
or
(vii) take any action for the purpose of effecting any of the foregoing;
or
(H) Judgment
and Attachments.
A
judgment or order for the payment of money in excess of $50,000,000 and having
a
Material Adverse Effect shall be rendered against the Borrower or any of its
Subsidiaries and such judgment or order shall continue unsatisfied (in the
case
of a money judgment) and in effect for a period of 30 days during which
execution shall not be effectively stayed or deferred (whether by action of
a
court, by agreement, or otherwise); or
(I) ERISA;
Pension Plans.
A Plan
shall fail to maintain the minimum funding standard required by Section 412(a)
of the IRC for any plan year or a waiver of such standard is sought or
granted under Section 412(d), or a Plan is or shall have been terminated or
the
subject of termination proceedings under ERISA, or the Borrower or an ERISA
Affiliate has incurred a liability to or on account of a Plan under Section
4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result from any such
event or events a Material Adverse Effect; or
(J) Change
in Control.
There
shall have occurred a Change in Control.
6.2 Suspension
of the Term Loan
Commitment.
Upon the
occurrence and during the continuation of any Default or Event of Default,
and
without limiting any other right or remedy hereunder, each Lender, without
notice or demand, may immediately cease making additional Loans and cause its
obligation to lend its Pro Rata Share of the Term Loan Commitment to be
suspended; provided
that, in
the case of a Default, if the subject condition or event is cured to the
reasonable satisfaction of the Requisite Lenders (unless otherwise provided
in
Subsection
9.2)
or
waived or removed by the Requisite Lenders (unless otherwise provided in
Subsection
9.2)
within
any applicable grace or cure period, any suspended portion of the Term Loan
Commitment shall be reinstated.
6.3 Acceleration.
Upon the
occurrence of any Event of Default described in the foregoing Subsections
6.1(F)
or
6.1(G),
the
unpaid principal amount of and accrued interest and fees on the Term Loan and
all other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest, notice of intent to accelerate, notice
of
acceleration or other requirements of any kind, all of which are hereby
expressly waived by the Borrower, and the obligations of the Lenders to make
Loans shall thereupon terminate. Upon the occurrence and during the continuance
of any other Event of Default, the Administrative Agent may, and upon written
demand by Requisite Lenders shall, by written notice to the Borrower, declare
all or any portion of the Term Loan and all or some of the other Obligations
to
be, and the same shall forthwith become, immediately due and payable together
with accrued interest thereon, and upon such acceleration the obligations of
the
Administrative Agent and the Lenders to make Loans shall thereupon
terminate.
6.4 Rights
of Collection.
Upon the
occurrence and during the continuation of any Event of Default and at any time
thereafter, unless and until such Event of Default is cured, or waived or
removed by Requisite Lenders, the Administrative Agent may exercise on behalf
of
the Lenders all of their other rights and remedies under this Agreement, the
other Loan Documents and Applicable Law, in order to satisfy all of the
Obligations.
6.5 Consents.
The
Borrower acknowledges that certain transactions contemplated by this Agreement
and the other Loan Documents and certain actions which may be taken by the
Administrative Agent or the Lenders in the exercise of their respective rights
under this Agreement and the other Loan Documents may require the consent of
a
Governmental Authority. If the Administrative Agent reasonably determines that
the consent of a Governmental Authority is required in connection with the
execution, delivery and performance of any of the aforesaid Loan Documents
or
any Loan Documents delivered to the Administrative Agent or the Lenders in
connection therewith or as a result of any action which may be taken pursuant
thereto, then the Borrower, at the Borrower’s cost and expense, agrees to use
commercially reasonable efforts, and to cause its Subsidiaries to use their
commercially reasonable efforts, to secure such consent and to cooperate with
the Administrative Agent and the Lenders in any action commenced by the
Administrative Agent or any Lender to secure such consent.
6.6 Set
Off and Sharing of Payments.
In
addition to any rights now or hereafter granted under applicable law and not
by
way of limitation of any such rights, during the continuance of any Event of
Default, each Lender is hereby authorized by the Borrower at any time or from
time to time, to set off and to apply any and all (A) balances held by such
Lender at any of its offices for the account of the Borrower (regardless of
whether such balances are then due to the Borrower), and (B) other property
at
any time held or owing by such Lender to or for the credit or for the account
of
the Borrower, against and on account of any of the Obligations; provided,
that no
Lender shall exercise any such right without the prior written consent of the
Administrative Agent. Any Lender exercising a right to set off shall, to the
extent the amount of any such set off exceeds its Pro Rata Share of the amount
set off, purchase for cash (and the other Lenders shall sell) interests in
each
such other Lender’s Pro Rata Share of the Obligations as would be necessary to
cause such Lender to share such excess with each other Lender in accordance
with
their respective Pro Rata Shares. The Borrower agrees, to the fullest extent
permitted by law, that any Lender may exercise its right to set off with respect
to amounts in excess of its Pro Rata Share of the Obligations and upon doing
so
shall deliver such excess to the Administrative Agent for the benefit of all
the
Lenders in accordance with their Pro Rata Shares; provided,
that
CoBank may exercise its rights against any equity of CoBank held by the Borrower
without complying with this Subsection
6.6.
6.7 Application
of Payments.
Subsequent to the acceleration of the Term Loan pursuant to Subsection
6.3,
all
payments received by the Lenders on the Obligations and on the proceeds from
the
enforcement of the Obligations shall be applied among the Administrative Agent
and the Lenders as follows: first, to all the Administrative Agent’s and the
Lenders’ fees and expenses then due and payable; then to all other expenses then
due and payable by the Borrower under the Loan Documents; then to all indemnitee
obligations then due and payable by the Borrower under the Loan Documents;
then
to all accrued and unpaid interest on the Term Loan in accordance with all
such
amounts due on the Term Loan; then to the principal amount of the Term Loan;
and
then to any remaining amounts due under the Obligations, in that order
(provided, such priority may be changed with the consent of the Requisite
Lenders). Any remaining monies not applied as provided in this Subsection
6.7
shall be
paid to the Borrower or any Person lawfully entitled thereto.
6.8 Adjustments.
If any
Lender (a “Benefited
Lender”)
shall
at any time receive any payment of all or part of its Loans, or interest thereon
in a greater proportion than any such payment received by any other Lender
(other than pursuant to Subsection
1.12(2)),
if
any, in respect of such other Lender’s Loans, or interest thereon, such
Benefited Lender shall, to the extent permitted by Applicable Law, purchase
for
cash from the other Lenders such portion of each such other Lender’s Loans as
shall be necessary to cause such Benefited Lender to share the excess payment
or
benefits ratably with each Lender; provided,
that if
all or any portion of such excess payment or benefits is thereafter recovered
from such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender’s Loans may exercise all rights of payment (including rights of
set-off) with respect to such portion as fully as if such Lender were the direct
holder of such portion. This Subsection 6.8
shall
not apply to any action taken by CoBank with respect to equity in it held by
the
Borrower.
CONDITIONS
TO THE TERM LOAN
The
obligations of each Lender to make its Pro Rata Share of the Term Loan are
subject to satisfaction of all of the applicable conditions set forth
below.
7.1 Conditions
to the Term Loan.
The
obligations of the Lenders to make the Term Loan are, in addition to the
conditions precedent specified in Subsection
7.2,
subject
to the satisfaction of each of the following conditions on the Closing
Date:
(A) Executed
Loan and Other Documents.
(i)
This Agreement, (ii) any Note requested by any Lender and (iii) all other
documents, financing statements and instruments contemplated by such agreements,
shall have been duly authorized and executed by the Borrower or other Persons,
as applicable, in form and substance reasonably satisfactory to the
Administrative Agent, and the Borrower or such other Persons, as applicable,
shall have delivered sufficient original counterparts thereof to the
Administrative Agent as the Administrative Agent shall reasonably
request.
(B) Closing
Certificates; Opinions.
(1) Officer’s
Certificate.
The
Administrative Agent shall have received a certificate from the chief executive
officer or chief financial officer of the Borrower, in form and substance
reasonably satisfactory to the Administrative Agent, confirming compliance
with
the conditions precedent set forth in Subsections
7.2(B)
and
(C).
(2) Certificate
of Secretary of the Borrower.
The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of the Borrower certifying that attached thereto is a true
and complete copy of the articles of incorporation of the Borrower, and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation or organization,
that attached thereto is a true and complete copy of the bylaws of the Borrower
as in effect on the date of such certification; that attached thereto is a
true
and complete copy of the resolutions of the board of directors of the Borrower,
authorizing the borrowings contemplated hereunder, the execution, delivery
and
performance of this Agreement and the other Loan Documents, as applicable;
and
as to the incumbency and genuineness of the signature of each officer of the
Borrower executing Loan Documents.
(3) Certificates
of Good Standing.
The
Administrative Agent shall have received certificates as of a recent date of
the
good standing of the Borrower and its Principal Subsidiaries under the laws
of
their respective jurisdictions of organization.
(4) Opinions
of Counsel.
The
Administrative Agent shall have received a favorable opinion of counsel to
the
Borrower addressed to the Agents and the Lenders with respect to the Borrower
and the Loan Documents, reasonably satisfactory in form and substance to the
Administrative Agent.
(C) Consents.
(1) Governmental
and Third Party Approvals.
The
Borrower shall have delivered to the Administrative Agent all necessary
approvals, authorizations and consents, if any, of all Persons, Governmental
Authorities, including the FCC and all applicable PUCs, and courts having
jurisdiction with respect to the execution and delivery of this Agreement and
the other Loan Documents, and all such approvals shall be in form and substance
reasonably satisfactory to the Administrative Agent.
(2) No
Injunction, Etc.
No
action, proceeding, investigation, regulation or legislation shall have been
instituted or threatened in writing before, nor any adverse ruling received
from, any Governmental Authority to enjoin, restrain or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of
this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, as determined by the Administrative
Agent in its reasonable discretion, would make it inadvisable to consummate
the
transactions contemplated by this Agreement and such other Loan
Documents.
(D) Fees,
Expenses, Etc.
There
shall have been paid by the Borrower to the Administrative Agent the fees and
other amounts set forth or referenced in Subsection
1.4
due and
payable on or prior to the Closing Date, to the extent invoiced.
(E) Litigation,
Investigations, Audits, Etc.
There
shall be no action, suit, proceeding or investigation pending against, or,
to
the knowledge of the Borrower, threatened against or in any other manner
relating adversely to, the Borrower or any of its respective properties, in
any
court or before any arbitrator of any kind or before or by any Governmental
Authority (including the FCC), except (i) such as affect the telecommunications
industry generally or (ii) as disclosed in the Borrower’s Annual Report on Form
10-K for the fiscal year ended December 31, 2005 or the Borrower’s Quarterly
Reports on Form 10-Q for the periods ending March 31, 2006, June 30,
2006
or September 30, 2006, that would reasonably be expected to have a Material
Adverse Effect.
7.2 Other
Conditions to the Term
Loan.
The
obligations of the Lenders to make the Term Loan on any date during the
Availability Period (such date, the “Funding
Date”)
is
subject to the further conditions precedent set forth below.
(A) The
Administrative Agent shall have received, in accordance with the provisions
of
Subsection 1.3,
a
Notice of Borrowing requesting an advance of the Term Loan.
(B) The
representations and warranties contained in Section
5
of this
Agreement and elsewhere herein and in the Loan Documents shall be (and such
request by the Borrower for the Term Loan shall constitute a representation
and
warranty by the Borrower that such representations and warranties are) true,
correct and complete in all material respects on and as of the Funding Date
to
the same extent as though made on and as of that date (except to the extent
such
representations and warranties expressly relate to an earlier date, in which
case they shall be true, correct and complete in all material respects as of
such earlier date).
(C) No
event
shall have occurred and be continuing or would result from the consummation
of
the borrowing contemplated that would constitute an Event of Default or a
Default.
(D) No
order,
judgment or decree of any court, arbitrator or Governmental Authority of
competent jurisdiction shall purport to enjoin or restrain the Lenders from
making the Term Loan.
(E) Since
December 31, 2005, there shall not have occurred any event or condition that
has
had or would reasonably be expected to have a Material Adverse
Effect.
(F) All
Loan
Documents shall be in full force and effect.
ASSIGNMENT
AND PARTICIPATION;
AGENCY
PROVISIONS
8.1 Assignments
and Participations in Loans and
Notes.
(A)
General.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of
its
rights or obligations hereunder except (i) to an assignee in accordance with
the
provisions of Subsection
8.1(B),
(ii) by
way of participation in accordance with the provisions of Subsection
8.1(D),
or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Subsection
8.1(F)
(and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed
to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided
in
Subsection
8.1(D)
and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy
or
claim under or by reason of this Agreement. In the event of an assignment
pursuant to this Subsection
8.1,
if a
new Note is requested by the Person to which interests are to be assigned,
the
Borrower shall, upon surrender of the assigning Lender’s Note, issue a new Note
to reflect the interests of the assigning Lender and the Person to which
interests are to be assigned. Each Lender may furnish any information concerning
the Borrower and its Subsidiaries in the possession of that Lender from time
to
time to assignees and Participants (including prospective assignees and
Participants), subject to the provisions of Subsection
9.13.
Notwithstanding anything contained in this Agreement to the contrary, so long
as
the Requisite Lenders shall remain capable of making LIBOR Loans, no Person
shall become a “Lender” hereunder unless such Person shall also be capable of
making LIBOR Loans.
(B) Assignments
by the Lenders.
Any
Lender may at any time assign to one or more assignees all or a portion of
its
rights and obligations under this Agreement (including all or a portion of
its
Term Loan Commitment and the Term Loan at the time owing to it); provided
that any
such assignment shall be subject to the following conditions:
|
(i)
|
Minimum
Amounts.
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||
|
(a)
|
in
the case of an assignment of the entire remaining amount of the
assigning
Lender’s Pro Rata Share of the Term Loan Commitment and the Term Loan
at
the time owing to it or in the case of an assignment to a Lender,
an
Affiliate of a Lender or an Approved Fund, no minimum amount need
be
assigned; and
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||
|
(b)
|
in
any case not described in Subsection
8.1(B)(i)(a),
the aggregate amount of the Term Loan Commitment (which for this
purpose
includes the Term Loan outstanding thereunder) or, if the Term
Loan
Commitment is not then in effect, the principal outstanding balance
of the
Term Loan of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect
to
such assignment is delivered to the Administrative Agent or, if
an
“Effective Date” is specified in the Assignment and Assumption, as of the
Effective Date) shall not be less than $5,000,000, in the case
of any
assignment unless each of the Administrative Agent and, so long
as no
Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or
delayed).
|
||
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(ii)
|
Proportionate
Amounts.
Each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Term Loan or the Term Loan Commitment
assigned.
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||
|
(iii)
|
Required
Consents.
No consent shall be required for any assignment except to the extent
required by Subsection
8.1(B)(i)(b)
and, in addition:
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||
|
(a)
|
the
consent of the Borrower (such consent not to be unreasonably withheld
or
delayed) shall be required unless (x) an Event of Default has occurred
and
is continuing at the time of such assignment or (y) such assignment
is to
a Lender, an Affiliate of a Lender or an Approved Fund;
and
provided that assignments by CoBank to institutions chartered under
the
Farm Credit System shall not require written consent of the Borrower;
and
|
||
|
(b)
|
the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect
of the
Term Loan Facility if such assignment is to a Person that is not
a Lender
with a Pro Rata Share of the Term Loan Commitment or the Term Loan,
an
Affiliate of such Lender or an Approved Fund with respect to such
Lender.
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|
(iv)
|
Assignment
and Assumption.
The parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with
a
processing and recordation fee of $3,500, and the assignee, if
it is not a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
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||
|
(v)
|
No
Assignment to the Borrower.
No such assignment shall be made to the Borrower or any of the
Borrower’s
Affiliates or Subsidiaries.
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||
|
(vi)
|
No
Assignment to Natural Persons.
No such assignment shall be made to a natural
person.
|
||
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
Subsection
8.1(C),
from
and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of
the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto) but shall continue to be entitled to the benefits of Subsections
1.4(D),
1.11,
1.13,
1.14,
9.1,
9.14
and
9.15
with
respect to facts and circumstances occurring prior to the effective date of
such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Subsection
8.1(B)
shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Subsection
8.1(D).
(C) Register.
The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Denver, Colorado a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Pro Rata Share
of
the Term Loan Commitment of, and principal amounts of the Term Loan owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at
any reasonable time and from time to time upon reasonable prior
notice.
(D) Participations.
Any
Lender may at any time, without the consent of, or notice to, the Borrower
or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Pro Rata Share of the Term Loan Commitment
and/or the Loans owing to it); provided
that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent
and the Lenders shall continue to deal solely and directly with such Lender
in
connection with such Lender’s rights and obligations under this Agreement.
CoBank reserves the right to assign or sell participations in all or any part
of
its Pro Rata Share of the Term Loan Commitment and the term Loan on a
non-patronage basis.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in Subsection
9.2
relating
to amendments requiring unanimous consent of the Lenders that affects such
Participant. Subject to Subsection
8.1(E),
the
Borrower agrees that each Participant shall be entitled to the benefits of
Subsections
1.11,
1.13
and
1.14
to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Subsection
8.1(B).
To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Subsection
6.6
as
though it were a Lender, provided such Participant agrees to be subject to
Subsection
6.6
as
though it were a Lender.
Any
bank
that is a member of the Farm Credit System that (i) has purchased a
participation in the minimum amount of $5,000,000, (ii) if the Administrative
Agent is other than CoBank, has been designated by written notice to the
Administrative Agent as being entitled to be accorded the right of a voting
participant, and (iii) receives the prior written consent of the
Administrative Agent (such consent being required only if the Administrative
Agent is other than CoBank) and of the Borrower (such consent being required
only if no Event of Default then exists and is continuing and only as to members
not a Participant as of the Closing Date) to become a voting Participant, shall
be entitled to vote, and the voting rights of the selling Lender shall be
correspondingly reduced, on a dollar-for-dollar basis, as if such participant
were a Lender, on any matter requiring or allowing a Lender to provide or
withhold its consent, or to otherwise vote on any proposed action.
(E) Limitations
upon Participant Rights.
A
Participant shall not be entitled to receive any greater payment under
Subsections
1.11,
1.13
and
1.14
than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Subsection
1.13
unless
the Borrower is notified of the participation sold to such Participant and
such
Participant agrees, for the benefit of the Borrower, to comply with Subsection
1.13(B)
as
though it were a Lender.
(F) Certain
Pledges.
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided
that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(A) Appointment.
Each
Lender hereby irrevocably appoints and authorizes CoBank, as the Administrative
Agent and as the Lead Arranger, to act as the Administrative Agent, and the
Lead
Arranger, hereunder and under any other Loan Document with such powers as are
specifically delegated to such Agent by the terms of this Agreement and any
other Loan Document, together with such other powers as are reasonably
incidental thereto. The Administrative Agent is authorized and empowered to
amend, modify or waive any provisions of this Agreement or the other Loan
Documents on behalf of the Lenders, subject to the requirement that the consent
of certain Lenders or all Lenders, as appropriate, be obtained in certain
instances as provided in Subsections
8.3
and
9.2.
CoBank
hereby agrees to act as the Administrative Agent on the express conditions
contained in this Subsection
8.2.
The
provisions of this Subsection 8.2
are
solely for the benefit of the Agents and the Lenders, and the Borrower shall
have no rights as a third party beneficiary of any of the provisions hereof.
In
performing its functions and duties under this Agreement, the Agents shall
act
solely as the Administrative Agent, or the Lead Arranger, as applicable, of
the
Lenders and no Agent shall assume or be deemed to have assumed any obligation
toward or relationship of agency or trust with or for the Borrower or its
respective Affiliates. Each Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents or attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any agents
or
attorneys-in-fact that it selects with reasonable care.
(B) Nature
of Duties.
The
duties of the Agents shall be mechanical and administrative in nature. None
of
the Agents shall have by reason of this Agreement a fiduciary relationship
in
respect of any Lender. Nothing in this Agreement or any of the Loan Documents,
express or implied, is intended to or shall be construed to impose upon the
Agents any obligations in respect of this Agreement or any of the Loan Documents
except as expressly set forth herein or therein. Each Lender expressly
acknowledges that none of the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates have made any
representation or warranty to it and that no act by any Agent or any such Person
hereafter taken, including any review of the affairs of the Borrower, shall
be
deemed to constitute any representation or warranty by any Agent to any Lender.
Each Lender represents to the Administrative Agent that (i) it has,
independently and without reliance upon the Agents or any other Lender and
based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
properties, financial and other condition and creditworthiness of the Borrower
and made its own decision to enter into this Agreement and extend credit to
the
Borrower hereunder, and (ii) it will, independently and without reliance upon
the Agents or any other Lender and based on such documents and information
as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action hereunder and under
the
other Loan Documents and to make such investigation as it deems necessary to
inform itself as to the business, prospects, operations, properties, financial
and other condition and creditworthiness of the Borrower. The Agents shall
have
no duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto (other
than
as expressly required herein). If either Agent seeks the consent or approval
of
any Lender to the taking or refraining from taking of any action hereunder,
then
such Agent shall send notice thereof to each Lender. Each Agent shall promptly
notify each Lender any time that Requisite Lenders have instructed such Agent
to
act or refrain from acting pursuant hereto.
(C) Rights,
Exculpation, Etc.
Each of
the Agents, their respective Affiliates and any of their or their Affiliates’
respective officers, directors, employees, agents or attorneys-in-fact shall
not
be liable to any Lender for any action taken or omitted by them hereunder or
under any of the Loan Documents, or in connection herewith or therewith, except
that each such entity shall be liable with respect to its own gross negligence,
bad faith or willful misconduct. No Agent shall be liable for any apportionment
or distribution of payments made by it in good faith and if any such
apportionment or distribution is subsequently determined to have been made
in
error, the sole recourse of any Lender to whom payment was due but not made
shall be to recover from other Lenders any payment in excess of the amount
to
which they are determined to be entitled (and such other Lenders hereby agree
to
return to such Lender any such erroneous payments received by them). In
performing its functions and duties hereunder, each Agent shall exercise the
same care which it would in dealing with loans for its own account, but the
Agents shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any of the Loan Documents or the transactions contemplated thereby,
or for the financial condition of the Borrower. Each Agent may at any time
request instructions from the Lenders with respect to any actions or approvals
which by the terms of this Agreement or of any of the Loan Documents such Agent
is permitted or required to take or to grant, and if such instructions are
promptly requested, such Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from any action or withholding
any approval under any of the Loan Documents (i) if such action or omission
would, in the reasonable opinion of such Agent, violate any Applicable Law
or
any provision of this Agreement or any other Loan Document, or (ii) until it
shall have received such instructions from Requisite Lenders or all of the
Lenders, as applicable. Without limiting the foregoing, no Lender shall have
any
right of action whatsoever against either Agent as a result of such Agent acting
or refraining from acting under this Agreement, the Notes, or any of the other
Loan Documents in accordance with the instructions of Requisite Lenders, except
in connection with its own gross negligence, bad faith or willful
misconduct.
(D) Reliance.
Each
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any written or oral notices, statements, certificates, orders or other documents
or any telephone message or other communication (including any writing, telex,
telecopy or telegram) believed by it in good faith to be genuine and correct
and
to have been signed, sent or made by the proper Person, and with respect to
all
matters pertaining to this Agreement or any of the Loan Documents and its duties
hereunder or thereunder, upon advice of counsel selected by it in connection
with the preparation, negotiation, execution, delivery, administration,
amendment, modification, waiver or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan
Documents.
(E) Indemnification.
The
Lenders will reimburse and indemnify each Agent and their respective Affiliates
and their Affiliates’ officers, directors, employees, agents, and
attorneys-in-fact (collectively, “Representatives”),
on
demand (to the extent not actually reimbursed under Subsection
9.1,
but
without limiting the obligations of the Borrower under such Subsection
9.1)
for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including, without limitation,
attorneys’ fees and expenses), advances or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against any Agent
or their respective Representatives (i) in any way relating to or arising out
of
this Agreement or any of the Loan Documents or any action taken or omitted
by
such Agent or its Representatives under this Agreement or any of the Loan
Documents, and (ii) in connection with the preparation, negotiation, execution,
delivery, administration, amendment, modification, waiver or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement or any
of
the other Loan Documents in proportion to each Lender’s Pro Rata Share;
provided,
that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements resulting from such Agent’s or its Representatives’ gross
negligence, bad faith or willful misconduct. If any indemnity furnished to
any
Agent or their respective Representatives for any purpose shall, in the opinion
of such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The obligations of the
Lenders under this Subsection
8.2(E)
shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(F) The
Administrative Agent and the Lead Arranger Individually.
With
respect to its obligations under the Term Loan Commitment, the Loans made by
it,
and the Notes issued to it, each of the Administrative Agent and the Lead
Arranger shall have and may exercise the same rights and powers hereunder and
is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender. The terms “Lenders”
or
“Requisite
Lenders”
or
any
similar terms shall, unless the context clearly otherwise indicates, include
each of the Administrative Agent and the Lead Arranger, in its individual
capacity as a Lender or as one of the Requisite Lenders. Each of the
Administrative Agent and the Lead Arranger may lend money to, and generally
engage in any kind of banking, trust or other business with, the Borrower as
if
it were not acting as an Agent pursuant hereto.
(G) Notice
of Default.
No Agent
shall be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement
or
any of the Loan Documents or the financial condition of the Borrower or any
of
its Subsidiaries, or the existence or possible existence of any Default or
Event
of Default. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless such Agent shall have
received written notice from the Borrower or a Lender referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default.” In the event that an Agent receives such a
notice, such Agent will give notice thereof to the Lenders as soon as reasonably
practicable; provided,
that if
any such notice has also been furnished to the Lenders, such Agent shall have
no
obligation to notify the Lenders with respect thereto. The Agents shall (subject
to this Subsection
8.2)
take
such action with respect to such Default or Event of Default as shall reasonably
be directed by Requisite Lenders; provided,
further,
that,
unless and until the Agents shall have received such directions, the Agents
may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as they shall deem
advisable and in the best interests of the Lenders.
(H) Successor
Agents.
(1) Resignation.
Any
Agent may resign from the performance of all its agency functions and duties
hereunder at any time by giving at least 30 Business Days’ prior written notice
to the Borrower and the Lenders. Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant to clause (2) below
or
as otherwise provided below.
(2) Appointment
of Successor.
Upon
any such notice of resignation pursuant to clause (1) above, Requisite Lenders
shall (and if no Event of Default or Default shall have occurred and be
continuing, upon receipt of the Borrower’s prior consent, which shall not be
unreasonably withheld), appoint a successor Agent from among the Lenders or
another financial institution. If a successor Agent shall not have been so
appointed within the 30 Business Day period referred to in Subsection
8(H)(1),
the
retiring Agent, upon notice to the Borrower, shall then appoint a successor
Agent from among the Lenders who shall serve as Agent until such time, if any,
as Requisite Lenders, upon receipt of the Borrower’s prior written consent (if
required under the first sentence of this paragraph), which shall not be
unreasonably withheld, appoint a successor Agent as provided above.
(3) Successor
Agent.
Upon
the acceptance of any appointment as Agent under the Loan Documents by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
under
the Loan Documents. After any retiring Agent’s resignation as Agent under the
Loan Documents, the provisions of this Subsection
8.2
shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under the Loan Documents.
8.3 Amendments,
Consents and Waivers for Certain
Actions.
(1) Except
as
otherwise provided in this Agreement (including this Subsection 8.3
and
Subsection
9.2)
or any
other Loan Document, the consent of Requisite Lenders and the Borrower will
be
required to amend, modify, terminate, or waive any provision of this Agreement
or any of the other Loan Documents.
(2) In
the
event either Agent requests the consent of a Lender and does not receive a
written consent or denial thereof within ten Business Days after such Lender’s
receipt of such request, then such Lender will be deemed to have denied the
giving of such consent.
8.4 Disbursement
of Funds.
The
Administrative Agent shall advise each Lender by telephone or telecopy of the
amount of such Lender’s Pro Rata Share of any Loan requested by the Borrower no
later than 11:00 a.m. (Denver, Colorado time) at least two Business Days
immediately preceding the Funding Date applicable thereto (in the case of LIBOR
Loans), otherwise on the Business Day immediately preceding the Funding Date
applicable thereto, and each such Lender shall pay the Administrative Agent
such
Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire
transfer to the Administrative Agent’s account by no later than 1:00 p.m.
(Denver, Colorado time) on such Funding Date. If any Lender fails to pay the
amount of its Pro Rata Share forthwith upon the Administrative Agent’s demand,
the Administrative Agent shall promptly notify the Borrower, and the
Administrative Agent shall disburse to the Borrower, by wire transfer of
immediately available funds, that portion of such Loan as to which the
Administrative Agent has received funds. In such event, the Administrative
Agent
may, on behalf of any Lender not timely paying the Administrative Agent,
disburse funds to the Borrower for Loans requested, subject to the provisions
of
Subsection
8.5(B).
Each
such Lender shall reimburse the Administrative Agent on demand for all funds
disbursed on its behalf by the Administrative Agent. Nothing in this
Subsection
8.4
or
elsewhere in this Agreement or the other Loan Documents, including the
provisions of Subsection
8.5,
shall
be deemed to require the Administrative Agent (or any other Lender) to advance
funds on behalf of any Lender or to relieve any Lender from its obligation
to
fulfill its commitments hereunder or to prejudice any rights that the
Administrative Agent or the Borrower may have against any Lender as a result
of
any default by such Lender hereunder.
(A) Pro
Rata Treatment; Application.
Upon
receipt by the Administrative Agent of each payment from the Borrower hereunder,
other than as described in the succeeding sentence, the Administrative Agent
shall promptly credit each Lender’s account with its Pro Rata Share of such
payment in accordance with such Lender’s Pro Rata Share and shall promptly wire
advice of the amount of such credit to each Lender. Each payment to the
Administrative Agent of its fees shall be made in like manner, but for the
account of the Administrative Agent.
(B) Availability
of Lender’s Pro Rata Share.
(1) Unless
the Administrative Agent has been notified by a Lender prior to a Funding Date
of such Lender’s intention not to fund its Pro Rata Share of the Loan amount
requested by the Borrower, and the Administrative Agent has given notice
pursuant to Subsection
8.4,
the
Administrative Agent may assume that such Lender will make such amount available
to the Administrative Agent on the Funding Date. If such amount is not, in
fact,
made available to the Administrative Agent by such Lender when due, and the
Administrative Agent disburses funds to the Borrower on behalf of such Lender,
such Lender and the Borrower severally agree to repay such amount to the
Administrative Agent, without set-off, counterclaim or deduction of any kind,
with interest thereon at the rate per annum then applicable to such
Loan.
(2) Nothing
contained in this Subsection
8.5(B)
will be
deemed to relieve a Lender of its obligation to fulfill its commitments or
to
prejudice any rights the Administrative Agent or the Borrower may have against
such Lender as a result of a default by such Lender under this
Agreement.
(C) Return
of Payments.
(1) If
the
Administrative Agent pays an amount to a Lender under this Agreement in the
belief or expectation that a related payment has been or will be received by
the
Administrative Agent from the Borrower and such related payment is not received
by the Administrative Agent, then the Administrative Agent will be entitled
to
recover such amount from such Lender without set-off, counterclaim or deduction
of any kind.
(2) If
the
Administrative Agent determines at any time that any amount received by the
Administrative Agent under this Agreement must be returned to the Borrower
or
paid to any other Person pursuant to any solvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement, the
Administrative Agent will not be required to distribute any portion thereof
to
any Lender. In addition, each Lender will repay to the Administrative Agent
on
demand any portion of such amount that the Administrative Agent has distributed
to such Lender, together with interest at such rate, if any, as the
Administrative Agent is required to pay to the Borrower or such other Person,
without set-off, counterclaim or deduction of any kind.
MISCELLANEOUS
9.1 Indemnities.
The
Borrower agrees to indemnify, pay, and hold each Agent and each Lender and
their
respective Affiliates and the respective officers, directors, employees, agents,
and attorneys of each Agent, Lender and their respective Affiliates (the
“Indemnitees”)
harmless from and against any and all liabilities, obligations, losses
(including reasonable fees of attorneys and consultants), damages, penalties,
actions, judgments, suits and claims of any kind or nature whatsoever that
may
be imposed on, incurred by, or asserted against the Indemnitee as a result
of
each Agent and each Lender being a party to this Agreement or otherwise in
connection with this Agreement, any of the other Loan Documents or any of the
transactions contemplated hereby or thereby; provided,
that
the Borrower shall have no obligation to an Indemnitee hereunder with respect
to
liabilities arising from the gross negligence or willful misconduct of that
Indemnitee, in each such case as determined by a final non appealable judgment
of a court of competent jurisdiction. This Subsection
9.1
and all
indemnification provisions contained within any other Loan Document shall
survive the termination of this Agreement.
9.2 Amendments
and Waivers.
Except
as otherwise provided herein, no amendment, modification, termination or waiver
of any provision of this Agreement, the Notes or any of the other Loan
Documents, or consent to any departure by the Borrower therefrom, shall in
any
event be effective unless the same shall be in writing and signed by the
Borrower and the Requisite Lenders (or the Administrative Agent, if expressly
set forth herein, in any Note or in any other Loan Document); provided,
that,
notwithstanding any other provision of this Agreement to the contrary and
except, with respect to an assignee or assignor hereunder, to the extent
permitted by any applicable Assignment and Assumption, no amendment,
modification, termination or waiver shall, unless in writing and signed by
the
Borrower and all the Lenders affected thereby, do any of the following: (i)
increase any Lender’s Pro Rata Share of the Term Loan Commitment or the Term
Loan or change a pro rata payment of any Lender; (ii) reduce the principal
of,
rate of interest on or fees payable with respect to the Term Loan made by such
Lender; (iii) extend the Term Loan Maturity Date or extend any other fixed
date
on which any Obligation is to be paid; (iv) change the percentage of the
Lenders which shall be required for the Lenders or any of them to take any
action hereunder; (v) amend or waive this Subsection
9.2
or the
definitions of the terms used in this Subsection
9.2
insofar
as the definitions affect the substance of this Subsection
9.2;
or (vi)
consent to the assignment, delegation or other transfer by the Borrower of
any
of its rights and obligations under any Loan Document; and provided,
further,
that no
amendment, modification, termination or waiver affecting the rights or duties
of
the Administrative Agent under any Loan Document shall in any event be
effective, unless in writing and signed by the Administrative Agent in addition
to the Lenders required hereinabove to take such action. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No amendment,
modification, termination or waiver shall be required for the Administrative
Agent to take additional collateral pursuant to any Loan Document. No amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the holder of that Note. No notice
to or demand on the Borrower or any other Person in any case shall entitle
the
Borrower or such Person to any other or further notice or demand in similar
or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Subsection
9.2
shall be
binding upon each holder of the Notes at the time outstanding and each future
holder of the Notes.
9.3 Notices.
Any
required notice or other communication shall be in writing addressed to the
respective party as set forth below and may be personally delivered, telecopied,
sent by overnight courier service or U.S. mail (except, to the extent that
the
Borrower and the Administrative Agent shall expressly agree, specified notices
and communications may be delivered or furnished by electronic communications
(including emails and internet communications) pursuant to procedures agreed
to
between the Borrower and the Administrative Agent) and shall be deemed to have
been given: (i) if delivered in person, when delivered; (ii) if delivered by
telecopy, on the date of transmission if transmitted on a Business Day before
2:00 p.m. (Denver, Colorado time) and otherwise on the Business Day next
succeeding the date of transmission; (c) if delivered by overnight courier,
two
days after delivery to the courier properly addressed; or (d) if delivered
by
U.S. mail, four Business Days after deposit with postage prepaid and proper
address.
|
Notices
shall be addressed as follows:
|
|
If
to the Borrower:
|
Citizens
Communications Company
|
|
|
0
Xxxx Xxxxx Xxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Attn:
Treasurer
|
||
|
Fax:
(000) 000-0000
|
|
With
a copy to:
|
Citizens
Communications Company
|
|
|
0
Xxxx Xxxxx Xxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Attn:
General Counsel
|
||
|
Fax:
(000) 000-0000
|
|
If
to a Lender
|
||
|
or
any Agent:
|
To
the address set forth on the signature page hereto or in the applicable
Assignment and Assumption
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9.4 Failure
or Indulgence Not Waiver; Remedies
Cumulative.
No
failure or delay on the part of any Agent or any Lender to exercise, nor any
partial exercise of, any power, right or privilege hereunder or under any other
Loan Documents shall impair such power, right, or privilege or be construed
to
be a waiver of any Default or Event of Default. All rights and remedies existing
hereunder or under any other Loan Document are cumulative to and not exclusive
of any rights or remedies otherwise available.
9.5 Marshaling;
Payments Set Aside.
Neither
any Agent nor any Lender shall be under any obligation to marshal any assets
in
payment of any or all of the Obligations. To the extent that the Borrower or
any
other Person makes payment(s) or the Administrative Agent enforces its Liens
or
any Agent or any Lender exercises its right of set-off, and such payment(s)
or
the proceeds of such enforcement or set-off is subsequently invalidated,
declared to be fraudulent or preferential, set aside, or required to be repaid
by anyone (whether by demand, litigation, settlement or otherwise), then to
the
extent of such recovery, the Obligations or part thereof originally intended
to
be satisfied, and all Liens, rights and remedies therefor, shall be revived
and
continued in full force and effect as if such payment had not been made or
such
enforcement or set-off had not occurred.
9.6 Severability.
The
invalidity, illegality, or unenforceability in any jurisdiction of any provision
under the Loan Documents shall not affect or impair the remaining provisions
in
the Loan Documents or any such invalid, unenforceable or illegal provision
in
any jurisdiction in which it is not invalid, unenforceable or
illegal.
9.7 The
Lenders’ Obligations Several;
Independent Nature of the Lenders’ Rights.
The
obligation of each Lender hereunder is several and not joint and no Lender
shall
be responsible for the obligation or commitment of any other Lender hereunder.
In the event that any Lender at any time should fail to make a Loan as herein
provided, the Lenders, or any of them, at their sole option, may make the
Loan that was to have been made by the Lender so failing to make such Loan.
Nothing contained in any Loan Document and no action taken by any Agent or
any
Lender pursuant hereto or thereto shall be deemed to constitute the Lenders
to
be a partnership, an association, a joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Lender shall be a separate
and
independent debt.
9.8 Headings.
Section
and Subsection headings are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other purposes or
be
given substantive effect.
9.9 Applicable
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO CONFLICTS
OF
LAW PRINCIPLES THAT REQUIRE OR PERMIT APPLICATION OF THE LAWS OF ANY OTHER
STATE
OR JURISDICTION.
9.10 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns except that the Borrower may not
assign its respective rights or obligations hereunder without the written
consent of all the Lenders.
9.11 No
Fiduciary Relationship.
No
provision in the Loan Documents and no course of dealing between the parties
shall be deemed to create any fiduciary duty owing to the Borrower or its
Subsidiaries or Affiliates by any Agent or any Lender.
9.12 Construction.
Each of
the Agents, Lenders and the Borrower acknowledges that each of them has had
the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review the Loan Documents with its legal counsel and that the Loan Documents
shall be constructed as if jointly drafted by each of the Agents, Lenders and
the Borrower.
9.13 Confidentiality.
The
Agents and the Lenders agree to hold any confidential information sufficiently
identified as being confidential or proprietary that they may receive from
or on
behalf of the Borrower or any of its Subsidiaries pursuant to this Agreement
in
confidence, except for disclosure: (i) on a confidential basis, to directors,
officers, employees, agents or legal counsel, independent public accountants
and
other professional advisors of the Agents or the Lenders or their respective
Affiliates in connection with the transactions contemplated hereby; (ii) to
regulatory officials having jurisdiction over the Agents or the Lenders or
their
Affiliates as required by such officials; (iii) as required by Applicable Law
or
legal process; (iv) in connection with any legal proceeding between or among
the
Agents or the Lenders and the Borrower or its Subsidiaries (provided
that, in
the event the Agents or the Lenders are so required to disclose such
confidential information pursuant to clauses
(iii)
or
(iv)
of this
Subsection 9.13,
the
Agents or the Lenders shall promptly notify the Borrower (unless legally
prohibited from so doing), so that the Borrower or any of its Subsidiaries
may
seek, at their sole cost and expense, a protective order or other appropriate
remedy); or (v) to another Person in connection with a disposition or proposed
disposition to that Person of all or part of that Lender’s interests hereunder
or a participation interest in its Pro Rata Share, provided
that
such disclosure is made subject to an appropriate confidentiality agreement
on
terms substantially similar to this Subsection
9.13.
For
purposes of the foregoing, “confidential information” shall mean all information
respecting the Borrower or its Subsidiaries, other than (A) information
previously filed by the Borrower or its respective Affiliates or Subsidiaries
with any Governmental Authority and available to the public or otherwise made
available to third parties on a non-confidential basis, (B) information
previously published in any public medium from a source other than, directly
or
indirectly, the Agents or the Lenders in violation of this Subsection
9.13
and (C)
information obtained by the Agents or the Lenders from a source independent
of
the Borrower or its Subsidiaries. The obligations of the Agents and the Lenders
under this Subsection
9.13
shall
survive the payment in full of the Obligations and the termination of this
Agreement.
9.14 Consent
to Jurisdiction and Service of
Process.
(A) EACH
OF THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT OR STATE COURT
IN
THE STATE OF COLORADO, HAVING SUBJECT MATTER JURISDICTION OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS. EACH OF THE
BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS
TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT,
PERSONAL JURISDICTION OF ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY PARTY HERETO TO BRING
PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN THE COURTS OF ANY OTHER
JURISDICTION.
(B) EACH
OF
THE BORROWER, THE AGENTS AND THE LENDERS HEREBY AGREES THAT SERVICE OF THE
SUMMONS AND COMPLAINT AND ALL OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING BY REGISTERED MAIL, RETURN
RECEIPT REQUESTED, A COPY OF SUCH PROCESS TO THE BORROWER, AN AGENT OR A LENDER
AT THE ADDRESS TO WHICH NOTICES TO THE BORROWER, SUCH AGENT AND SUCH LENDER
ARE
THEN TO BE SENT PURSUANT TO SUBSECTION
9.3
AND THAT
PERSONAL SERVICE OF PROCESS SHALL NOT BE REQUIRED. NOTHING HEREIN SHALL BE
CONSTRUED TO PROHIBIT SERVICE OF PROCESS BY ANY OTHER METHOD PERMITTED BY
LAW.
9.15 Waiver
of Jury Trial.
EACH OF
THE BORROWER, THE AGENTS AND THE LENDERS HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN OR AMONG
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND ANY
RELATIONSHIP THAT IS BEING ESTABLISHED AMONG ANY OF THEM. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE BORROWER,
THE
AGENTS AND THE LENDERS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER
IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE
WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF THE BORROWER, AGENTS AND THE
LENDERS FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THE
LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT. EACH OF THE BORROWER, THE AGENTS AND THE
LENDERS ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT,
BUT FOR THIS WAIVER, BE REQUIRED OF EACH AGENT AND EACH LENDER.
9.16 Survival
of Warranties and Certain
Agreements.
All
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement, the making of the Loans, and the
execution and delivery of the Notes. Notwithstanding anything in this Agreement
or implied by law to the contrary, the agreements of the Borrower set forth
in
Subsections
1.4(D),
1.11,
1.14,
9.1,
9.9,
9.14
and
9.15
and the
agreements of the Lenders set forth in Subsection
8.2(E)
(together with any other Sections and Subsections stated herein to so survive)
shall survive the payment of the Loans and the termination of this Agreement;
provided,
however,
that
the Borrower shall have no payment obligation under Subsections
1.11
or
1.14
after
termination of this Agreement unless notice of such obligation pursuant to
Subsection
1.11
or
1.14
was
delivered to the Borrower prior to termination of this Agreement.
9.17 Entire
Agreement.
This
Agreement, the Notes and the other Loan Documents referred to herein embody
the
final, entire agreement among the parties hereto and supersede any and all
prior
commitments, agreements, representations, understandings, whether oral or
written, relating to the subject matter hereof and may not be contradicted
or
varied by evidence of prior, contemporaneous or subsequent oral agreements
or
discussions of the parties hereto.
9.18 Counterparts;
Effectiveness.
This
Agreement and any amendments, waivers, consents or supplements may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
an
original, but all of which counterparts together shall constitute but one and
the same instrument. This Agreement shall become effective upon the execution
of
a counterpart hereof by each of the parties hereto.
9.19 Patriot
Act.
The
Lenders hereby notify Borrower and its Subsidiaries that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Patriot
Act”),
they
are required to obtain, verify and record information that identifies each
of
Borrower and its Subsidiaries, which information includes the name and address
of such entity and other information that will allow the Lenders to identify
such in accordance with the Patriot Act. Each of Borrower and its Subsidiaries
shall provide to the extent commercially reasonable, such information and take
such other actions as are reasonably requested by any Lender in order to assist
such Lender in maintaining compliance with the Patriot Act.
DEFINITIONS
10.1 Certain
Defined Terms.
The
terms defined below are used in this Agreement as so defined. Terms defined
in
the preamble and recitals to this Agreement are used in this Agreement as so
defined.
“Adjustment
Date”
means
each date which is the Business Day after the receipt by the Administrative
Agent of each Compliance Certificate delivered by the Borrower pursuant to
Subsection
4.2(C)
and
related financial statements.
“Administrative
Agent”
means
CoBank in its capacity as the Administrative Agent for the Lenders under this
Agreement and each of the other Loan Documents and any successor in such
capacity appointed pursuant to Subsection 8.2.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
when used with respect to a specified Person, another Person that directly,
or
indirectly through one or more intermediaries, Controls or is Controlled by
or
is under common Control with the Person specified.
“Agent”
and
“Agents”
mean,
respectively, each of the Administrative Agent and the Lead Arranger and,
collectively, the Administrative Agent and the Lead Arranger.
“Agreement”
means
this Credit Agreement (including all schedules and exhibits hereto), as amended,
modified, supplemented, extended and restated from time to time as permitted
herein.
“Applicable
Law”
means,
in respect of any Person, all provisions of constitutions, statutes, rules,
regulations and orders of governmental bodies or regulatory agencies applicable
to such Person, including the Licenses, the Communications Act and all
Environmental Laws, and all orders, decisions, judgments and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question
is a party or by which it is bound.
“Approved
Fund”
means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers
or
manages a Lender.
“Asset Exchange” shall
mean the exchange or other transfer of telecommunications assets between or
among the Borrower and another Person or other Persons in connection with which
the Borrower would transfer telecommunications assets and/or other property
in
consideration of the receipt of telecommunications assets and/or other property
having a fair market value substantially equivalent to those transferred by
the
Borrower (as determined
in good faith by the Borrower’s Board of Directors); provided
that
the
principal value of the assets being transferred to the Borrower shall be
represented by telecommunications assets.
“Assignment
and Assumption”
means
an assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Subsection
8.1)
and
accepted by the Administrative Agent, in substantially the form of Exhibit
10.1(A)
or any
other form approved by the Administrative Agent.
“Availability
Period”
the
period commencing on the Closing Date and ending at 12:00 noon (Denver, Colorado
time) on the earlier to occur of (a) the Funding Date and (b) January
31, 2007.
“Bankruptcy
Code”
means
Title 11 of the United States Code entitled “Bankruptcy,” as amended from time
to time or any applicable bankruptcy, insolvency or other similar federal or
state law now or hereafter in effect and all rules and regulations promulgated
thereunder.
“Base
Rate”
means,
a variable rate of interest per annum equal, on any day, to the rate of interest
published on such day in the Eastern Edition of The
Wall Street Journal
as the
average prime lending rate for 75% of the United States’ 30 largest commercial
banks, or if the Eastern Edition of The
Wall Street Journal
or such
rate is not published on such day, such rate as last published in the Eastern
Edition of The
Wall Street Journal.
In the
event the Eastern Edition of The
Wall Street Journal ceases
to
publish such rate or an equivalent, the term “Base Rate” shall be determined by
reference to such other regularly published prime rate based upon any averaging
of such 30 banks, as the Administrative Agent shall determine, or if no such
published average prime rate is available, then the term “Base Rate” shall mean
a variable rate of interest per annum as determined by the Administrative Agent
equal to the highest of the “prime rate,” “reference rate,” “base rate” or other
similar rate announced from time to time by any money center bank as selected
by
the Administrative Agent (with the understanding that any such rate may merely
be a reference rate and may not necessarily represent the lowest or best rate
actually charged to any customer by such bank). Any change in Base Rate shall
be
automatic, without the necessity of notice being provided to the Borrower or
any
of its Subsidiaries.
“Base
Rate Loans”
means
Loans accruing interest at the rate determined by reference to the Base
Rate.
“Board” means
the
Board of Governors of the Federal Reserve System of the United
States.
“Budget”
means,
for the Borrower and its Subsidiaries on a consolidated basis, forecasted;
(i)
balance sheets; (ii) profit and loss statements; (iii) cash flow statements;
(iv) operating budget; and (v) capital budget, all prepared on a consistent
basis with the Borrower’s historical financial statements, together with
appropriate supporting details and a statement of underlying assumptions. The
Budget represents and will represent as of the date thereof the good faith
estimate of the Borrower and its senior management concerning the most probable
course of its business.
“Business
Day”
means
(i) for all purposes other than as covered by clause (ii) below, any day
excluding Saturday, Sunday and any day which is a legal holiday under the laws
of the State of Colorado or New York, or is a day on which banking institutions
located in such state are closed or which the Federal Reserve Banks are closed,
and (ii) with respect to all notices, determinations, fundings and payments
in
connection with LIBOR Loans, any day that is a Business Day described in clause
(a) above and that is also a day for trading by and between banks in U.S. dollar
deposits in the applicable interbank LIBOR market.
“Calculation
Period”
means
each period commencing on each Adjustment Date and ending on the day preceding
each subsequent Adjustment Date.
“Capital
Lease Obligations” of
any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real
or
personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as
capital leases on a balance sheet of such Person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any time shall
be
the capitalized amount thereof at such time determined in accordance with
GAAP.
“Change
in Control” means
the
occurrence of any of the following: (a) any Person or group (within the meaning
of Rule 13d-5 of the Securities and Exchange Commission as in effect on the
date
hereof) shall own directly or indirectly, beneficially or of record, shares
representing 50% or more of the aggregate ordinary voting power represented
by
the issued and outstanding capital stock of the Borrower; or (b) a majority
of
the seats (other than vacant seats) on the board of directors of the Borrower
shall at any time have been occupied by Persons who were neither (i) nominated
by the board of directors (or any committee thereof) of the Borrower, nor (ii)
appointed by directors so nominated; or (c) any Person or group shall otherwise
directly or indirectly Control the Borrower.
“Closing
Date”
means
the date of this Agreement.
“Communications
Act”
means
the Communications Act of 1934, as amended and any similar or successor federal
statute, and the rules and regulations of the FCC thereunder, all as the same
may be in effect from time to time.
“Communications
System”
means
a
land-line telephone system, a cable television system, a cellular mobile radio
telephone system, a long distance telecommunications system or a PCS System,
and
shall include a microwave system or a paging system operated in connection
with
(and in the same general service area as) any of the foregoing
systems.
“Consolidated
Net Worth” shall
mean, as at any date of determination, the consolidated stockholders’
equity of the Borrower and its consolidated Subsidiaries, including redeemable
preferred securities where the redemption date occurs after the Term Loan
Maturity Date, mandatorily redeemable convertible preferred securities,
mandatorily convertible Indebtedness (or Indebtedness subject to mandatory
forward purchase contracts for equity or similar securities) and minority equity
interests in other persons, as determined on a consolidated basis in conformity
with GAAP consistently applied.
“Consolidated
Tangible Assets” of
any
Person shall mean total assets of such Person and its consolidated Subsidiaries,
determined on a consolidated basis, less goodwill, patents, trademarks and
other
assets classified as intangible assets in accordance with GAAP.
“Control” shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and “Controlling” and
“Controlled” shall have meanings correlative thereto.
“Default”
means
a
condition or event that, after notice or lapse of time or both, would constitute
an Event of Default if that condition or event were not cured or removed within
any applicable grace or cure period.
“EBITDA”
means,
for the period of calculation, the sum of (a) (i) net income or deficit, as
the
case may be (excluding extraordinary gains, extraordinary non-cash losses,
the
write up of any assets, any gain or loss on the sale of assets), (ii) total
interest expense, (iii) depreciation and amortization expense, (iv) dividends
on
preferred stock, (v) accrued income or franchise taxes, federal state or local
(whether paid or accrued as a liability), and (vi) losses attributable to
minority interests, investment losses and non-recurring charges for severance,
restructuring and acquisition costs, minus
(b) the
sum of (I) investment income, (II) interest income, (III) dividend and patronage
income, (IV) income from unconsolidated subsidiaries, partnerships and joint
ventures, and (V) other income (not otherwise included in clauses (I), (II),
(III) and (IV)); in all cases in clauses (a) and (b) only to the extent
otherwise included in calculating net income or deficit. For any period of
calculation, EBITDA shall be adjusted to give effect to any Material Transaction
during the period of calculation as if such Material Transaction occurred on
the
first day of such period of calculation.
“Eligible
Assignee”
means
(a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any
other Person (other than a natural person) approved by (i) the Administrative
Agent, and (ii) unless a Default or an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld
or
delayed); provided
that
notwithstanding the foregoing, “Eligible
Assignee”
shall
not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.
“Environmental
Laws”
means
all national, federal, state, provincial, municipal or local laws, statutes,
ordinances, orders, judgments, decrees, injunctions, writs, policies and
guidelines (having the force of law), directives, approvals, notices, rules
and
regulations and other applicable laws relating to environmental or occupational
health and safety matters, including those relating to the Release or threatened
Release of Specified Substances and to the generation, use, storage or
transportation of Specified Substances, each as in effect as of the date of
determination.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
“ERISA
Affiliate”
shall
mean each trade or business (whether or not incorporated) which
together with the Borrower or a Subsidiary of the Borrower would be deemed
to
be a
“single
employer” within the meaning of Section 4001(b)(l) of ERISA.
“ERISA
Event”
means,
with respect to the Borrower, any ERISA Affiliate or any Pension Plan, the
occurrence of any of the following: (a) a Reportable Event; (b) a withdrawal
by
a substantial employer (as defined in Section 4001(a)(12) of ERISA) subject
to
Section 4063 of ERISA; (c) the filing of a notice of intent to terminate a
Pension Plan under 4041 of ERISA; (d) the treatment of an amendment of a Pension
Plan as a termination under 4041 of ERISA; (e) the termination of a
Multi-employer Plan under Section 4041A of ERISA; (f) the commencement of
proceedings by the PBGC to terminate a Pension Plan under 4042 of ERISA; or
(g)
an event or condition which could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, a Pension Plan.
“FCC”
means
the Federal Communications Commission, or any other similar or successor agency
of the federal government administering the Communications Act.
“Fund”
means
any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“GAAP”
means
United States generally accepted accounting principles, applied on a consistent
basis.
“Governmental
Approvals”
means
all authorizations, consents, approvals, licenses and exemptions of,
registrations and filings with, and reports to, all Governmental
Authorities.
“Governmental
Authority”
means
any nation, province, or state or any political subdivision of any of the
foregoing, and any government or any Person exercising executive, legislative,
regulatory or administrative functions of or pertaining to government, and
any
corporation or other entity exercising such functions owned or controlled,
through stock or capital ownership or otherwise, by any of the foregoing,
including the FCC and any PUC.
“Guarantee” means,
as
to any Person, any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness
or
other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services
for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow
of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation
of
the payment or performance thereof or
to
protect such obligee against loss in respect thereof (in whole or in part).
The
amount of
any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of
the
related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect
thereof as determined by the guaranteeing Person in good faith. The term
“Guarantee” as a
verb
has a
corresponding meaning.
“Guaranty
Agreement” means,
collectively, each Guarantee executed and
delivered pursuant
to Subsection
3.7.
“Indebtedness,”
of
any
Person shall mean, without duplication, (a) all obligations of such Person
for borrowed money or with respect to deposits or advances of any kind (other
than customer deposits made in the ordinary course of business), (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges
are
customarily paid, (d) all obligations of such Person under conditional sale
or
other title retention agreements relating to property or assets
purchased by
such
Person, (e) all obligations of such Person issued or assumed as the deferred
purchase price
of
property or services, (f) all Indebtedness of others secured by (or for which
the holder of
such
Indebtedness has an existing right, contingent or otherwise, to be secured
by)
any Lien on property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all Capital Lease Obligations
of such Person, (h) all obligations of
such
Person in respect of Swap Contracts (except to the extent such obligations
are
used as a bona fide
hedge of other Indebtedness of such Person), (i) all obligations of such Person
as an account party in respect of letters of credit and bankers’ acceptances
(except to the extent any such obligations
are incurred in support of other obligations constituting Indebtedness of
such Person
and other than, to the extent reimbursed if drawn, letters of credit in support
of ordinary course performance obligations), (j) obligations under partnership,
organizational or other agreements to fund capital contributions or other equity
calls with respect to any Person or investment, or to redeem, repurchase or
otherwise make payments in respect to capital stock or other securities of
such
Person, and (k) all Guarantees of such Person in respect of any of the
foregoing; provided,
however, that
the
term Indebtedness shall not include endorsements for collection or deposit,
in
either case in the ordinary course of business.
“IRC”
means
the Internal Revenue Code of 1986, as amended from time to time, and all rules
and regulations promulgated thereunder.
“Lead
Arranger”
means
CoBank in its capacity as Lead Arranger.
“LIBOR”
means
for each applicable Interest Period, a fixed annual rate equal to: (a) the
rate
of interest determined by the Administrative Agent at which deposits in U.S.
dollars for the relevant Interest Period are offered based on information
presented by the Telerate Service as quoted by the British Bankers Association
as of 11:00 a.m. (London time) on the day which is two (2) Business Days prior
to the first day of such Interest Period, provided,
that in
the event British Bankers Association ceases to provide such quotations (as
determined by the Administrative Agent), then the Administrative Agent will
notify the Borrower and the Administrative Agent and the Borrower will agree
upon a substitute basis for obtaining such quotations, divided
by (b) a
number equal to 1.0 minus
the
aggregate (but without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on the day which is two Business
Days prior to the beginning of such Interest Period for Eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of such
Board) which are required to be maintained by a member bank of the Federal
Reserve System (including, without limitation, basic, supplemental, marginal
and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with
respect thereto, as now and from time to time in effect); such rate to be
rounded upward to the next whole multiple of one-sixteenth of one percent
(0.0625%).
“LIBOR
Loans”
means
Loans accruing interest at rates determined by reference to the
LIBOR.
“LIBOR
Margin”
means
the applicable percent per annum determined in accordance with Subsection
1.2(B).
“Licenses”
shall
mean any landline telephone, cellular telephone, microwave, personal
communications or other telecommunications or similar license, authorization,
waiver, certificate of compliance, franchise, approval or permit, whether for
the acquisition, construction or operation of any Communications System, granted
or issued by the FCC, any applicable PUC or other Governmental authority and
held by the Borrower or any of its Subsidiaries.
“Lien”
means,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge, or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital lease,
or
title retention agreement relating to such asset and (c) in the case of
securities, any purchase option, call, or similar right of a third party with
respect to such securities.
“Loan”
or
“Loans”
means
an advance or advances under the Term Loan Commitment.
“Loan
Documents”
means
this Agreement, the Notes, any Security Documents, and Guaranty Agreement,
and
all other instruments, documents and agreements executed and delivered
concurrently herewith or at any time hereafter to or for the benefit of the
Agents or the Lenders in connection with the Loans and other transactions
contemplated by this Agreement, all as amended, modified, supplemented, extended
or restated from time to time.
“Margin
Regulations” shall
mean Regulations T, U and X of the Board.
“Material
Adverse Effect”
means
a
material adverse effect on the business, assets, operations, financial condition
or results of operations of the Borrower and its Subsidiaries taken as a
whole.
“Material
Transaction” means any
acquisition or disposition outside the ordinary course of business of any
property or assets that (x) constitute assets comprising all or substantially
all of an operating unit of a business or equity interests of a Person
representing a majority of the ordinary voting power or economic interests
in
such Person that are represented by all its outstanding capital stock and (y)
involves aggregate consideration in excess of $50,000,000.
“Multi-employer
Plan”
means
a
Multi-employer plan as defined in Section 4001(a)(3) of ERISA to which the
Borrower or any ERISA Affiliate makes, is making, made, or was at any time
during the current year or the immediately preceding 6 years obligated to make
contributions.
“Note”
or
“Notes”
means
one or more of the Term Loan Notes.
“Obligations”
means
all obligations, liabilities and indebtedness of every nature of the Borrower
under the Loan Documents from time to time owed to the Administrative Agent
and
any Lender, including the principal amount of all debts, claims and
indebtedness, accrued and unpaid interest, and all fees, costs and expenses
hereunder, whether primary, secondary, direct, contingent, fixed or otherwise,
heretofore, now or from time to time hereafter owing, due or payable or any
combination thereof whether before or after the filing of a proceeding under
the
Bankruptcy Code by or against the Borrower or any of its
Subsidiaries.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Pension
Plan”
means
a
pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA
which the Borrower or an ERISA Affiliate sponsors, maintains, or to which it
makes, is making, or is obligated to make contributions or, in the case of
a
Multi-employer Plan, has made contributions at any time during the current
year
or the immediately preceding six plan years.
“Person”
means
and includes natural persons, corporations, limited liability companies, limited
partnerships, limited liability partnerships, general partnerships, joint stock
com-panies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or
not
legal entities, and governments and agencies and political subdivisions thereof
and their respective permitted successors and assigns (or in the case of a
governmental person, the successor functional equivalent of such
Person).
“Plan” means
an
employee benefit plan (as defined in Section 3(3) of ERISA) which the Borrower
or an ERISA Affiliate sponsors or maintains or to which the Borrower or an
ERISA
Affiliate makes, is making, or is obligated to make contributions and includes
any Pension Plan.
“Principal
Subsidiaries” shall
mean any Subsidiary of the Borrower, whose Consolidated Tangible Assets comprise
in excess of 25% of the Consolidated Tangible Assets of the Borrower and its
consolidated Subsidiaries as of the date hereof or at any time
hereafter.
“Pro
Rata Share”
means
(i) prior to the advance of the Term Loan, the percentage obtained by dividing
(a) the commitment of a Lender under the Term Loan Commitment by (b)
the Term Loan Commitment and (ii) after the advance of the Term Loan, the
percentage obtained by dividing (a) the amount of a Lender’s outstanding
advances related to the Term Loan by (b) the aggregate amount of all outstanding
advances related to the Term Loan.
“PUC”
means
any state, provincial or other local regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any Communications System or over Persons who own, construct or
operate a Communications System, in each case by reason of the nature or type
of
the business subject to regulation and not pursuant to laws and regulations
of
general applicability to Persons conducting business in any such
jurisdiction.
“Regulation
D” means
Regulation D of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
T” means
Regulation T of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof
“Regulation
U”
means
Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation
X” means
Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Related
Parties”
means,
with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.
“Release” means
any
spilling, emitting, discharging, depositing, escaping, leaching, dumping or
other releasing, including the movement of any Specified Substance through
the
air, soil, surface water, groundwater or property, and when used as a verb
has a
like meaning.
“Reportable
Event” means
any
of the events set forth in Section 4043(b) of ERISA, other than any such
Reportable Event for which the 30 day notice requirement under ERISA has been
waived.
“Requisite
Lenders”
means
at least two Lenders (to the extent more than one Lender holds any of the Term
Loan Commitment or the outstanding principal amount of the Term Loan) who have
in the aggregate Pro Rata Shares greater than 50.00%.
“Restricted
Payment”
means
any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other equity interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or
other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination
of
any such capital stock or other equity interest, or on account of any return
of
capital to the Borrower’s stockholders.
“Securitization
Transaction”
means
(a) any transfer of accounts receivable or interests therein (i) to a trust,
partnership, corporation or other entity (other than a Subsidiary), which
transfer or pledge is funded by such entity in whole or in part by the issuance
to one or more lenders or investors of indebtedness or other securities that
are
to receive payments principally from the cash flow derived from such accounts
receivable or interests in accounts receivable, or (ii) directly to one or
more
investors or other purchasers (other than any Subsidiary), or (b) any
transaction in which the Borrower or a Subsidiary incurs Indebtedness secured
principally by Liens on accounts receivable. The “amount” of any Securitization
Transaction shall be deemed at any time to be (A) in the case of a transaction
described in clause (a) of the preceding sentence, the aggregate uncollected
amount of the accounts receivable transferred pursuant to such Securitization
Transaction, net of any such accounts receivable that have been written off
as
uncollectible, and (B) in the case of a transaction described in clause (b)
of
the preceding sentence, the aggregate outstanding principal amount of the
Indebtedness secured by Liens on accounts receivable Incurred pursuant to such
Securitization Transaction.
“Security
Documents” means,
collectively, each security agreement or other instrument or document executed
and delivered pursuant to the proviso to Subsection
3.1
or the
proviso to Subsection
3.2
to
secure any of the Obligations.
“Specified
Substance” means
(i)
any chemical, material or substance defined as or included
in the definition of “hazardous substances”, “hazardous wastes”, “hazardous
materials”, “extremely hazardous waste”, “restricted hazardous waste” or “toxic
substances” or words
of
similar import under any applicable Environmental Laws; (ii) any (A) oil,
natural gas, petroleum or petroleum derived substance, any drilling fluids,
produced waters and other wastes associated with the exploration, development
or
production of crude oil, natural gas or geothermal fluid, any flammable
substances or explosives, any radioactive materials, any hazardous wastes or
substances, any toxic wastes or substances or (B) other materials or pollutants
that, in the case of both (A) and (B), (1) pose a hazard to the property of
the
Borrower or any of its Subsidiaries or any part thereof or to persons on or
about such property or to any other property that may be affected by the Release
of such materials or pollutants from such property or any part thereof or to
persons on or about such other property or (2) cause such property or such
other
property to be in violation of any Environmental Law; (iii) asbestos, urea
formaldehyde foam insulation, toluene, polychlorinated biphenyls and any
electrical equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per million, and
(iv) any sound, vibration, heat, radiation or other form of energy and any
other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Governmental Authority.
“Subsidiary” means,
with respect to any Person (herein referred to as
the
“parent”), any corporation, partnership,
association, or other business entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power
or
more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled, or held by the parent, or (b) which
is,
at
the
time any determination is
made,
otherwise Controlled by the parent or one or more subsidiaries of the parent
or
by the parent and one or more subsidiaries of the parent. Unless otherwise
indicated,
all references in
this
Agreement to “Subsidiaries” shall be construed as references to Subsidiaries of
the Borrower.
“Swap
Contract” means
(a)
any and all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond
index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination
of
any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed
by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.
“Swap
Termination Value” means,
in
respect of any one or more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to such Swap Contracts,
(a) for any date on or after the date such Swap Contracts have been closed
out
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a),
the
amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts,
as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may
include a Lender or any Affiliate of a Lender).
“Term
Loan”
means
any Loan under the Term Loan Commitment.
“Term
Loan Commitment”
means
$150,000,000.
“Term
Loan Facility”
means
the term loan credit facility extended to the Borrower pursuant to Subsection
1.1(A).
“Term
Loan Maturity Date”
means
the earlier of (i) the acceleration of the Obligations pursuant to Subsection
6.3
or (ii)
December 31, 2012.
“Term
Loan Note”
or
“Term
Loan Notes”
means
one or more of the notes of the Borrower substantially in the form of
Exhibit
10.1(B),
or any
combination thereof, and any replacements, restatements, renewals or extensions
of any such notes, in whole or in part.
“Total
Indebtedness”
means,
as of any date, the aggregate principal amount of Indebtedness of the Borrower
and its consolidated Subsidiaries outstanding as of such date, in the amount
and
only to the extent that such Indebtedness would be reflected on a balance sheet
prepared as of such date on a consolidated basis in accordance with GAAP,
minus
the
amount of the cash and cash equivalents of the Borrower and its consolidated
Subsidiaries in excess of $50,000,000 that would be reflected on such balance
sheet.
“Total
Leverage Ratio”
means,
with respect to any fiscal quarter, as of the date ending such fiscal quarter,
the ratio of (a) Total Indebtedness as of such fiscal quarter end to
(b) EBITDA, for the four consecutive fiscal quarters immediately prior to
such fiscal quarter end (including such fiscal quarter).
10.2 Other
Definitional Provisions.
References to “Sections,” “Subsections,” “Exhibits” and “Schedules” shall be to
Sections, Subsections, Exhibits and Schedules, respectively, of this Agreement
unless otherwise specifically provided. Any of the terms defined in Subsection
10.1
may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference. In this Agreement, “hereof,” “herein,” “hereto,”
“hereunder” and the like mean and refer to this Agreement as a whole and not
merely to the specific section, paragraph or clause in which the respective
word
appears; words importing any gender include the other gender; references to
“writing” include printing, typing, lithography and other means of reproducing
words in a tangible visible form; the words “including,” “includes” and
“include” shall be deemed to be followed by the words “without limitation”;
references to agreements and other contractual instruments shall be deemed
to
include subsequent amendments, assignments, and other modifications thereto,
but
only to the extent such amendments, assignments and other modifications are
not
prohibited by the terms of this Agreement or any other Loan Document; references
to Persons include their respective permitted successors and assigns or, in
the
case of governmental Persons, Persons succeeding to the relevant functions
of
such Persons; and all references to statutes and related regulations shall
include any amendments of same and any successor statutes and
regulations.
56
Credit
Agreement/Citizens Communications Company
[Signatures
begin on following page]
57
Credit
Agreement/Citizens Communications Company
Witness
the due execution hereof by the respective duly authorized officers of the
undersigned as of the date first written above.
|
CITIZENS
COMMUNICATIONS COMPANY,
as
the Borrower,
|
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx |
|
Xxxxxx
X. Xxxxxxxx
|
|
|
Chief
Financial Officer
|
|
[Signatures
Continued on Following Page]
Credit
Agreement/Citizens Communications Company
[Signatures
Continued from Previous Page]
|
Commitments
and Commitment Percentages as set forth on Schedule 10.1(A)
attached hereto.
|
COBANK,
ACB,
as the Administrative Agent, the Lead Arranger and a Lender
By:_/s/
Xxxx Franke_______________
Xxxx Xxxxxx
Vice President
|
|
|
Address:
CoBank, ACB
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn:
Xxxx Xxxxxx
Fax:
000-000-0000
Email:
xxxxxxx@xxxxxx.xxx
|
||
|
With
a copy to:
|
||
|
Address:
CoBank, ACB
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Communications
and Energy
Banking Group
Fax:
(000) 000-0000
Email:
xxxxxxxxxxxx@xxxxxx.xxx
|
