SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF FEBRUARY 13, 2008 among SUREWEST COMMUNICATIONS as Borrower, COBANK, ACB, as Administrative Agent, Lead Arranger, Issuing Lender, Swingline Lender and a Lender and the other Lenders referred to...
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
DATED
AS
OF FEBRUARY 13, 2008
among
as
Borrower,
COBANK,
ACB,
as
Administrative Agent, Lead Arranger, Issuing Lender, Swingline Lender and a
Lender
and
the
other
Lenders referred to herein
TABLE
OF CONTENTS
|
SECTION
1 AMOUNTS AND TERMS OF LOANS
|
2
|
|||
|
1.1
|
.
|
Loans
|
2
|
|
|
(A)
|
Term
Loan A Facility
|
2
|
||
|
(B)
|
Term
Loan B Facility
|
2
|
||
|
(C)
|
Revolving
Loan Facility
|
2
|
||
|
(D)
|
Swingline
Loan Facility
|
2
|
||
|
(E)
|
Letters
of Credit
|
3
|
||
|
(F)
|
Notes
|
6
|
||
|
(G)
|
Loans
|
6
|
||
|
1.2
|
.
|
Interest
|
6
|
|
|
(A)
|
Interest
Options
|
7
|
||
|
(B)
|
Applicable
Margins
|
7
|
||
|
(C)
|
Interest
Periods
|
8
|
||
|
(D)
|
Calculation
and Payment
|
8
|
||
|
(E)
|
Default
Rate of Interest
|
9
|
||
|
(F)
|
Excess
Interest
|
9
|
||
|
(G)
|
Selection,
Conversion or Continuation of Loans; LIBOR Availability
|
9
|
||
|
1.3
|
.
|
Notice
of Borrowing, Conversion or Continuation of Loans
|
10
|
|
|
1.4
|
.
|
Fees
and Expenses
|
10
|
|
|
(A)
|
Commitment
Fees
|
10
|
||
|
(B)
|
Certain
Other Fees
|
11
|
||
|
(C)
|
Breakage
Fee
|
11
|
||
|
(D)
|
Expenses
and Attorneys Fees
|
11
|
||
|
(E)
|
Letter
of Credit Fees
|
11
|
||
|
1.5
|
.
|
Payments
|
12
|
|
|
1.6
|
.
|
Repayments
and Reduction of Term Loan Commitments and
|
||
|
Revolving
Loan Commitment and Related Mandatory
|
||||
|
Repayments
|
13
|
|||
|
(A)
|
Scheduled
Repayments and Reductions of Term Loan
|
|||
|
Commitments,
Revolving Loan Commitment and Swingline
|
||||
|
Loan
Commitment
|
13
|
|||
|
(B)
|
Voluntary
Reduction of Loan Commitments
|
13
|
||
|
(C)
|
Mandatory
Repayments
|
14
|
||
|
1.7
|
.
|
Voluntary
Prepayments and Other Mandatory Repayments
|
14
|
|
|
(A)
|
Voluntary
Prepayment of Loans
|
14
|
||
|
(B)
|
Repayments
from Insurance Proceeds
|
14
|
||
|
(C)
|
Repayments
from Asset Dispositions
|
14
|
||
|
1.8
|
.
|
Application
of Prepayments and Repayments; Payment of
|
||
|
Breakage
Fees, Etc
|
15
|
|||
|
1.9
|
.
|
Loan
Accounts
|
15
|
|
|
1.10
|
.
|
Changes
in LIBOR Rate Availability
|
15
|
|
|
1.11
|
.
|
Capital
Adequacy and Other Adjustments
|
16
|
|
|
1.12
|
.
|
Optional
Prepayment/Replacement of Lender in Respect of
|
||
|
Increased
Costs
|
17
|
|||
|
1.13
|
.
|
Taxes:
No Deductions
|
18
|
|
i
|
(A)
|
No
Deductions
|
18
|
||
|
(B)
|
Foreign
Lenders
|
18
|
||
|
1.14
|
.
|
Changes
in Tax Laws
|
19
|
|
|
1.15
|
.
|
Treatment
of Certain Refunds
|
19
|
|
|
1.16
|
.
|
Mitigation
Obligations
|
20
|
|
|
1.17
|
.
|
Term
of This Agreement
|
20
|
|
|
1.18
|
.
|
Letter
of Credit Liability
|
20
|
|
|
SECTION
2 AFFIRMATIVE
COVENANTS
|
21
|
|||
|
2.1
|
.
|
Compliance
With Laws
|
21
|
|
|
2.2
|
.
|
Maintenance
of Books and Records; Properties; Insurance
|
21
|
|
|
2.3
|
.
|
Inspection
|
22
|
|
|
2.4
|
.
|
Legal
Existence, Etc
|
22
|
|
|
2.5
|
.
|
Use
of Proceeds
|
22
|
|
|
2.6
|
.
|
Further
Assurances
|
22
|
|
|
2.7
|
.
|
CoBank
Patronage Capital
|
22
|
|
|
2.8
|
.
|
Investment
Company Act
|
23
|
|
|
2.9
|
.
|
Payment
of Obligations
|
23
|
|
|
2.10
|
.
|
Environmental
Laws
|
23
|
|
|
2.11
|
.
|
ERISA
Compliance
|
24
|
|
|
SECTION
3 NEGATIVE
COVENANTS
|
24
|
|||
|
3.1
|
.
|
Indebtedness
|
24
|
|
|
3.2
|
.
|
Liens
and Related Matters
|
25
|
|
|
3.3
|
.
|
Investments
|
25
|
|
|
3.4
|
.
|
Restricted
Junior Payments
|
25
|
|
|
3.5
|
.
|
Restriction
on Fundamental Changes
|
25
|
|
|
3.6
|
.
|
Disposal
of Assets or Subsidiary Stock
|
26
|
|
|
3.7
|
.
|
Transactions
with Affiliates
|
27
|
|
|
3.8
|
.
|
Conduct
of Business
|
27
|
|
|
3.9
|
.
|
Fiscal
Year
|
27
|
|
|
3.10
|
.
|
Inconsistent
Agreements
|
27
|
|
|
SECTION
4 FINANCIAL
COVENANTS AND REPORTING
|
27
|
|||
|
4.1
|
.
|
Leverage
Ratio
|
28
|
|
|
4.2
|
.
|
Interest
Coverage Ratio
|
28
|
|
|
4.3
|
.
|
Net
Worth
|
28
|
|
|
4.4
|
.
|
Financial
Statements and Other Reports
|
28
|
|
|
(A)
|
Quarterly
Financials
|
28
|
||
|
(B)
|
Year-End
Financials
|
28
|
||
|
(C)
|
Borrower
Compliance Certificate
|
28
|
||
|
(D)
|
Budgets
|
29
|
||
|
(E)
|
SEC
Filings
|
29
|
||
|
(F)
|
Events
of Default, Etc
|
29
|
||
|
(G)
|
Litigation
|
29
|
||
|
(H)
|
Environmental
Notices
|
29
|
||
|
(I)
|
ERISA
Events
|
29
|
||
ii
|
(J)
|
Other
Information
|
30
|
||
|
4.5
|
.
|
Accounting
Terms; Utilization of GAAP for Purposes of
|
||
|
Calculations
Under Agreement
|
30
|
|||
|
SECTION
5 REPRESENTATIONS
AND WARRANTIES
|
30
|
|||
|
5.1
|
.
|
Disclosure
|
30
|
|
|
5.2
|
.
|
No
Material Adverse Effect
|
31
|
|
|
5.3
|
.
|
Organization,
Powers, Authorization and Good Standing
|
31
|
|
|
(A)
|
Organization
and Powers
|
31
|
||
|
(B)
|
Authorization;
Binding Obligation
|
31
|
||
|
(C)
|
Qualification
|
31
|
||
|
5.4
|
.
|
Compliance
of Agreement, Loan Documents and Borrowings with
|
||
|
Applicable
Law
|
31
|
|||
|
5.5
|
.
|
Compliance
with Law; Governmental Approvals
|
32
|
|
|
5.6
|
.
|
Tax
Returns and Payments
|
32
|
|
|
5.7
|
.
|
Environmental
Matters
|
32
|
|
|
5.8
|
.
|
Financial
Statements
|
33
|
|
|
5.9
|
.
|
Intellectual
Property
|
33
|
|
|
5.10
|
.
|
Litigation,
Investigations, Audits, Etc
|
33
|
|
|
5.11
|
.
|
Employee
Labor Matters
|
33
|
|
|
5.12
|
.
|
ERISA
Compliance
|
34
|
|
|
5.13
|
.
|
Communications
Regulatory Matters
|
34
|
|
|
5.14
|
.
|
Solvency
|
35
|
|
|
5.15
|
.
|
Investment
Company Act
|
35
|
|
|
5.16
|
.
|
Certain
Agreements and Material Contracts
|
35
|
|
|
5.17
|
.
|
Title
to Properties
|
35
|
|
|
5.18
|
.
|
Transactions
with Affiliates
|
35
|
|
|
5.19
|
.
|
OFAC
|
36
|
|
|
5.20
|
.
|
Patriot
Act
|
36
|
|
|
SECTION
6 EVENTS
OF DEFAULT AND RIGHTS AND REMEDIES
|
36
|
|||
|
6.1
|
.
|
Event
of Default
|
36
|
|
|
(A)
|
Payment
|
36
|
||
|
(B)
|
Default
in Other Agreements
|
36
|
||
|
(C)
|
Breach
of Certain Provisions
|
36
|
||
|
(D)
|
Breach
of Warranty
|
37
|
||
|
(E)
|
Other
Defaults Under Loan Documents
|
37
|
||
|
(F)
|
Involuntary
Bankruptcy; Appointment of Receiver; Etc
|
37
|
||
|
(G)
|
Voluntary
Bankruptcy; Appointment of Receiver; Etc
|
37
|
||
|
(H)
|
Judgment
and Attachments
|
37
|
||
|
(I)
|
Dissolution
|
38
|
||
|
(J)
|
Solvency
|
38
|
||
|
(K)
|
Injunction
|
38
|
||
|
(L)
|
ERISA;
Pension Plans
|
38
|
||
|
(M)
|
Invalidity
of Loan Documents
|
38
|
||
|
(N)
|
Licenses
and Permits
|
38
|
||
|
(O)
|
Change
in Control
|
38
|
||
iii
|
6.2
|
.
|
Suspension
of Commitments
|
38
|
|
|
6.3
|
.
|
Acceleration
|
39
|
|
|
6.4
|
.
|
Rights
of Collection
|
39
|
|
|
6.5
|
.
|
Consents
|
39
|
|
|
6.6
|
.
|
Performance
by Administrative Agent
|
39
|
|
|
6.7
|
.
|
Set
Off and Sharing of Payments
|
40
|
|
|
6.8
|
.
|
Application
of Payments
|
40
|
|
|
6.9
|
.
|
Adjustments
|
41
|
|
|
SECTION
7 CONDITIONS
TO LOANS
|
41
|
|||
|
7.1
|
.
|
Conditions
to the Loan on the Amendment Date
|
41
|
|
|
(A)
|
Executed
Loan and Other Documents
|
41
|
||
|
(B)
|
Closing
Certificates; Opinions
|
41
|
||
|
(C)
|
Consents
|
42
|
||
|
(D)
|
Fees,
Expenses, Taxes, Etc
|
42
|
||
|
(E)
|
Miscellaneous
|
43
|
||
|
7.2
|
.
|
Conditions
to All Loans
|
43
|
|
|
SECTION
8 ASSIGNMENT
AND PARTICIPATION
|
44
|
|||
|
8.1
|
.
|
Assignments
and Participations in Loans and Notes
|
44
|
|
|
(A)
|
General
|
44
|
||
|
(B)
|
Assignments
by the Lenders
|
44
|
||
|
(C)
|
Register
|
46
|
||
|
(D)
|
Participations
|
46
|
||
|
(E)
|
Limitations
upon Participant Rights
|
47
|
||
|
(F)
|
Certain
Pledges
|
47
|
||
|
8.2
|
.
|
Administrative
Agent
|
47
|
|
|
(A)
|
Appointment
|
47
|
||
|
(B)
|
Nature
of Duties
|
48
|
||
|
(C)
|
Rights,
Exculpation, Etc
|
48
|
||
|
(D)
|
Reliance
|
49
|
||
|
(E)
|
Indemnification
|
49
|
||
|
(F)
|
Administrative
Agent Individually
|
50
|
||
|
(G)
|
Notice
of Default
|
50
|
||
|
(H)
|
Successor
Administrative Agent
|
50
|
||
|
(I)
|
Dissemination
of Information
|
51
|
||
|
8.3
|
.
|
Consents;
Notices
|
51
|
|
|
8.4
|
.
|
Disbursement
of Funds
|
51
|
|
|
8.5
|
.
|
Disbursements
of Loans; Payments
|
52
|
|
|
(A)
|
Pro
Rata Treatment; Application
|
52
|
||
|
(B)
|
Availability
of Lender’s Pro Rata Share
|
52
|
||
|
(C)
|
Return
of Payments
|
52
|
||
iv
|
SECTION
9 MISCELLANEOUS
|
53
|
|||
|
9.1
|
.
|
Indemnities
|
53
|
|
|
9.2
|
.
|
Amendments
and Waivers
|
53
|
|
|
9.3
|
.
|
Notices
|
54
|
|
|
9.4
|
.
|
Failure
or Indulgence Not Waiver; Remedies Cumulative
|
55
|
|
9.5
|
.
|
Payments
Set Aside
|
55
|
|
9.6
|
.
|
Severability
|
55
|
|
9.7
|
.
|
Lenders’
Obligations Several; Independent Nature of Lenders’
|
|
|
Rights
|
55
|
||
|
9.8
|
.
|
Headings
|
56
|
|
9.9
|
.
|
Governing
Law
|
56
|
|
9.10
|
.
|
Successors
and Assigns
|
56
|
|
9.11
|
.
|
No
Fiduciary Relationship
|
56
|
|
9.12
|
.
|
Construction
|
56
|
|
9.13
|
.
|
Confidentiality
|
56
|
|
9.14
|
.
|
Consent
to Jurisdiction and Service of Process
|
57
|
|
9.15
|
.
|
Waiver
of Jury Trial
|
57
|
|
9.16
|
.
|
Survival
of Warranties and Certain Agreements
|
58
|
|
9.17
|
.
|
Entire
Agreement
|
58
|
|
9.18
|
.
|
Counterparts;
Effectiveness
|
58
|
|
9.19
|
.
|
Patriot
Act
|
58
|
|
9.20
|
.
|
Effectiveness
of Amendment and Restatement; No Novation
|
58
|
|
SECTION
10 DEFINITIONS
|
59
|
||
|
10.1
|
.
|
Certain
Defined Terms
|
59
|
|
10.2
|
.
|
Other
Definitional Provisions
|
73
|
v
SCHEDULES
|
Schedule
3.7
|
Transactions
with Affiliates
|
|
Schedule
5.3(A)
|
Jurisdiction
of Organization
|
|
Schedule
5.3(C)
|
Qualification
to Transact Business
|
|
Schedule
5.4
|
Governmental
Approvals
|
|
Schedule
5.6
|
Tax
Returns and Payments
|
|
Schedule
5.10
|
Litigation,
Etc.
|
|
Schedule
5.11
|
Employee
Labor Matters
|
EXHIBITS
|
Exhibit
1.3
|
Form
of Notice of Borrowing/Conversion/Continuation
|
|
Exhibit
4.4(C)
|
Form
of Compliance Certificate
|
|
Exhibit
10.1(A)
|
Form
of Assignment and Assumption
|
|
Exhibit
10.1(B)
|
Form
of Second Amended and Restated Revolving Loan
|
|
|
Promissory
Note
|
|
Exhibit
10.1(C)
|
Form
of Second Amended and Restated Term Loan A Note
|
|
Exhibit
10.1(D)
|
Form
of Term Loan B Note
|
|
Exhibit
10.1(E)
|
Form
of Swingline Promissory Note
|
vi
INDEX
OF
DEFINED TERMS
|
Defined
Term
|
Defined
in Section
|
|
Accounting
Changes
|
§4.5
|
|
Acquired
Indebtedness
|
§10.1
|
|
Adjusted
Consolidated Net Worth
|
§10.1
|
|
Adjustment
Date
|
§10.1
|
|
Administrative
Agent
|
§10.1
|
|
Affected
Lender
|
§1.12
|
|
Affiliate
|
§10.1
|
|
Agreement
|
Preamble
|
|
Amendment
Date
|
§10.1
|
|
Applicable
Law
|
§10.1
|
|
Asset
Disposition
|
§10.1
|
|
Available
Revolving Loan Commitment
|
§10.1
|
|
Banking
Day
|
§10.1
|
|
Bankruptcy
Code
|
§10.1
|
|
Base
Rate
|
§10.1
|
|
Base
Rate Loan
|
§10.1
|
|
Base
Rate Margin
|
§10.1
|
|
Borrower
|
Preamble
|
|
Breakage
Fees
|
§1.4(C)
|
|
Budget
|
§10.1
|
|
Business
Day
|
§10.1
|
|
Calculation
Period
|
§10.1
|
|
Capital
Leases
|
§10.1
|
|
Cash
Equivalents
|
§10.1
|
|
Change
of Law
|
§1.10
|
|
Closing
Date
|
§10.1
|
|
CoBank
|
Preamble
|
|
Communications
Act
|
§10.1
|
|
Compliance
Certificate
|
§4.4(C)
|
|
Consolidated
Net Assets
|
§10.1
|
|
Consolidated
Net Worth
|
§10.1
|
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Contingent
Obligation
|
§10.1
|
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Xxxxxxx
|
§00.0
|
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Defaulting
Lender
|
§10.1
|
|
Directories
Sale
|
§10.1
|
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EBITDA
|
§10.1
|
|
Electing
Lenders
|
§1.8
|
|
Environmental
Laws
|
§10.1
|
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ERISA
|
§10.1
|
vii
|
ERISA
Affiliate
|
§10.1
|
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ERISA
Event
|
§10.1
|
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Event
of Default
|
§6.1
|
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Everest
Acquisition
|
§10.1
|
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Everest
Material Adverse Change
|
§10.1
|
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Evergreen
Letter of Credit
|
§1.1(E)(8)
|
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Excluded
Taxes
|
§1.13(A)
|
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Existing
Credit Agreement
|
Preamble
|
|
Facility(ies)
|
§10.1
|
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FCC
|
§10.1
|
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Fixed
Rate Loan
|
§1.2(B)
|
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Fixed
Rate Period
|
§1.2(B)
|
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Foreign
Lender
|
§1.13(A)
|
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Funding
Date
|
§7.2
|
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GAAP
|
§10.1
|
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Governmental
Approvals
|
§10.1
|
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Governmental
Authority
|
§10.1
|
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Incremental
Increase
|
Recitals
|
|
Xxxxxxxxxxxx
|
§00.0
|
|
Indemnitees
|
§9.1
|
|
Intellectual
Property Rights
|
§5.9
|
|
Interest
Coverage Ratio
|
§10.1
|
|
Interest
Period
|
§1.2(C)
|
|
Interest
Rate Agreement
|
§10.1
|
|
Investment
|
§10.1
|
|
Issuing
Lender
|
§10.1
|
|
Lender(s)
|
§10.1
|
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Assignment
and Assumption
|
§10.1
|
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IRC
|
§10.1
|
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ISP
|
§1.1(E)(7)
|
|
Letter
of Credit Liability
|
§10.1
|
|
Letter(s)
of Credit
|
§1.1(D)
|
|
Leverage
Ratio
|
§10.1
|
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LIBOR
|
§10.1
|
|
LIBOR
Loans
|
§10.1
|
|
LIBOR
Margin
|
§10.1
|
|
Licenses
|
§10.1
|
|
Lien
|
§10.1
|
|
Loan(s)
|
§10.1
|
|
Loan
Commitment(s)
|
§10.1
|
|
Loan
Documents
|
§10.1
|
|
Material
Adverse Effect
|
§10.1
|
|
Material
Contracts
|
§10.1
|
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Multi-employer
Plan
|
§10.1
|
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Net
Proceeds
|
§10.1
|
viii
|
Non-Consenting
Lender
|
§9.2
|
|
Nonrenewal
Notice Date
|
§1.1(E)(8)
|
|
Note(s)
|
§10.1
|
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Note
Purchase Agreement
|
§10.1
|
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Notice
of Borrowing/Conversion/Continuation
|
§1.3
|
|
Obligations
|
§10.1
|
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Overnight
LIBOR
|
§10.1
|
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Patriot
Act
|
§9.16
|
|
PBGC
|
§10.1
|
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Permitted
Acquisitions
|
§3.5
|
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Permitted
Encumbrances
|
§10.1
|
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Person
|
§10.1
|
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Plan
|
§10.1
|
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Priority
Debt
|
§10.1
|
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Pro
Rata Share
|
§10.1
|
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Proposed
Change
|
§9.2
|
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XXX
|
§00.0
|
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Register
|
§8.1(C)
|
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Related
Interest Rate Agreement
|
§10.1
|
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Replacement
Lender
|
§1.12
|
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Reportable
Event
|
§10.1
|
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Requisite
Lenders
|
§10.1
|
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Restricted
Investments
|
§10.1
|
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Restricted
Junior Payment
|
§10.1
|
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Revolving
Loan(s)
|
§10.1
|
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Revolving
Loan Commitment
|
§10.1
|
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Revolving
Loan Expiration Date
|
§10.1
|
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Revolving
Loan Facility
|
§10.1
|
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Revolving
Note(s)
|
§10.1
|
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SEC
|
§4.4(A)
|
|
Statement
|
§4.4(B)
|
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Swingline
Facility
|
§10.1
|
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Swingline
Funding Date
|
§7.3
|
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Swingline
Lender
|
§10.1
|
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Swingline
Loan Commitment
|
§10.1
|
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Swingline
Loans
|
§10.1
|
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Swingline
Note(s)
|
§10.1
|
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Subsidiary
|
§10.1
|
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Tax
Liabilities
|
§1.13(A)
|
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Telecommunications
System
|
§10.1
|
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Term
Loan A
|
§10.1
|
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Term
Loan A Availability Period
|
§10.1
|
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Term
Loan A Commitment
|
§10.1
|
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Term
Loan A Facility
|
§10.1
|
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Term
Loan A Maturity Date
|
§10.1
|
ix
|
Term
Loan A Note(s)
|
§10.1
|
|
Term
Loan B
|
§10.1
|
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Term
Loan B Commitment
|
§10.1
|
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Term
Loan B Facility
|
§10.1
|
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Term
Loan B Maturity Date
|
§10.1
|
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Term
Loan B Note(s)
|
§10.1
|
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Term
Loan Commitments
|
§10.1
|
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Term
Loan Facilities
|
§10.1
|
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Term
Loan Note(s)
|
§10.1
|
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Term
Loans
|
§10.1
|
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Total
Lender Loan Commitment
|
§10.1
|
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Loan
Commitment(s)
|
§10.1
|
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Wireless
Sale
|
§10.1
|
x
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND
AMENDED AND RESTATED CREDIT
AGREEMENT
(as
amended, supplemented, modified, extended or restated as permitted herein from
time to time, and including all schedules and exhibits hereto, this
“Agreement”)
is
entered into as of February 13, 2008, among SUREWEST
COMMUNICATIONS,
a
California corporation (“Borrower”),
COBANK,
ACB
(individually, “CoBank”
and,
as
Administrative Agent, “Administrative
Agent”),
in
its capacity as Administrative Agent, as Lead Arranger, as Issuing Lender,
as
Swingline Lender and as a Lender, and each such other Lender as may from time
to
time become a party to this Agreement. Capitalized terms used and not otherwise
defined herein shall have the meanings given to them in Subsection 10.1
of this
Agreement.
RECITALS:
WHEREAS,
Borrower
and CoBank previously entered into a Credit Agreement, dated as of May 1, 2006
(the “Original
Credit Agreement”),
pursuant to which CoBank extended certain financial accommodations to Borrower
consisting of a revolving loan facility and a term loan facility;
and
WHEREAS,
Borrower and CoBank entered into an Amended and Restated Credit Agreement,
dated
as of May 14, 2007 (the “Existing
Credit Agreement”),
pursuant to which Borrower and CoBank amended and restated the Original Credit
Agreement as described therein; and
WHEREAS,
Borrower, CoBank, Administrative Agent and Lenders have agreed to amend and
restate the Existing Credit Agreement as described herein, including, without
limitation, to increase
the amount of the Term Loan A Facility by $80,000,000 (such increase, the
“Incremental
Increase”)
and to
add a new Term Loan B Facility,
the
proceeds of the which together with the proceeds of the Revolver will be used
to
provide funds for (a) the Everest Acquisition, (b) general corporate purposes
of
Borrower and its Subsidiaries, including, without limitation, capital
expenditures, permitted acquisitions, working capital needs and the issuance
of
Letters of Credit, and (c) costs associated with the Loans, and to provide
for
certain other amendments described herein; provided that the proceeds of the
new
Term Loan B Facility will be used solely for the Everest
Acquisition.
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 agree, and amend and
restate the Existing Credit Agreement in its entirety, as follows:
SECTION
1
AMOUNTS
AND TERMS OF LOANS
1.1. Loans.
Subject
to the terms and conditions of this Agreement and in reliance upon the
representations, warranties and covenants of Borrower contained herein and
in
the other Loan Documents:
(A) Term
Loan A Facility.
CoBank
has previously lent to Borrower $40,000,000 under the Term Loan A Facility.
Each
Lender, severally and not jointly, agrees to lend to the Borrower, in one or
more advances during the Term Loan A Availability Period, a portion of the
additional $80,000,000 of the Term Loan A Commitment as increased on the
Amendment Date such that each Lender shall have advanced to Borrower its Pro
Rata Share of the Term Loan A 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) Term
Loan B Facility.
Each
Lender, severally and not jointly, agrees to lend to Borrower, in a single
advance on the Amendment Date, its Pro Rata Share of the Term Loan B
Commitment;
provided
all
conditions precedent set forth in Subsections
7.1
and
7.2
are
satisfied or waived by Administrative Agent as provided herein. Amounts borrowed
under this Subsection
1.1(B)
that are
repaid or prepaid may not be reborrowed.
(C) Revolving
Loan Facility.
Each
Lender, severally and not jointly, agrees to lend to Borrower, from time to
time
during the period commencing on the date all conditions precedent set forth
in
Subsections
7.1
and
7.2
are
satisfied or waived as provided herein and ending on the Business Day
immediately preceding the Revolving Loan Expiration Date, its Pro Rata Share
of
each Revolving Loan; provided
that no
Lender shall be required at any time to lend more than its respective Pro Rata
Share of the Available Revolving Loan Commitment; and provided,
further,
that at
any one time the aggregate principal amount of all Revolving Loans outstanding
may not exceed the Revolving Loan Commitment less
the sum
of (i) the outstanding Letter of Credit Liability and (ii) the aggregate
principal amount of the Swingline Loans then outstanding. Within the limits
of
the Revolving Loan Commitment and this Subsection 1.1(C)
and
Subsections 1.6,
1.7
and
1.8,
amounts
borrowed under this Subsection 1.1(C)
may be
prepaid and reborrowed at any time prior to the Revolving Loan Expiration
Date.
(D) Swingline
Loan Facility.
The
Swingline Lender agrees to lend to Borrower, during the period commencing on
the
date all conditions precedent set forth in Subsections
7.1
and
7.2
are
satisfied or waived and ending on the Business Day immediately preceding the
Revolving Loan Expiration Date, Swingline Loans; provided,
that
the aggregate principal amount of all Swingline Loans outstanding may not exceed
the Swingline Loan Commitment and provided,
further,
that
the Swingline Lender shall not be required at any time to lend more than the
Revolving Loan Commitment less
the sum
of (i) the outstanding Letter of Credit Liability and (ii) the aggregate
principal amount of the Revolving Loans and Swingline Loans then outstanding.
Within the limits of the Swingline Loan Commitment and this Subsection
1.1(D)
and
Subsections 1.6,
1.7
and
1.8,
amounts
borrowed under this Subsection
1.1(D)
may be
prepaid and reborrowed at any time prior to the Revolving Loan Expiration
Date.
(E) Letters
of Credit.
The
Revolving Loan Commitment may, in addition to advances as Revolving Loans,
be
utilized, upon the request of Borrower, for the issuance of irrevocable letters
of credit (individually, a “Letter
of Credit”
and,
collectively, the “Letters
of Credit”)
by
Issuing Lender for the account of Borrower or any of its Subsidiaries.
Immediately upon the issuance by Issuing Lender of a Letter of Credit, and
without further action on the part of Administrative Agent or any Lender with
a
Pro Rata Share of the Revolving Loan Commitment, each such Lender shall be
deemed to have purchased from Issuing Lender a participation in such Letter
of
Credit equal to such Lender’s Pro Rata Share of the Revolving Loan Commitment of
the aggregate amount available to be drawn under such Letter of Credit. Each
Letter of Credit shall reduce the amount available under the Revolving Loan
Commitment by the maximum amount capable of being drawn under such Letter of
Credit.
(1) Maximum
Amount.
The
aggregate amount of Letter of Credit Liability with respect to all Letters
of
Credit outstanding at any time for the account of Borrower or any of its
Subsidiaries may not exceed $25,000,000, and the aggregate amount of Letter
of
Credit Liability with respect to all Letters of Credit outstanding for the
account of Borrower or any of its Subsidiaries plus
the
aggregate principal amount of Revolving Loans and Swingline Loans outstanding
at
any time may not exceed the Revolving Loan Commitment.
(2) Reimbursement.
Borrower is irrevocably and unconditionally obligated without presentment,
demand, protest or other formalities of any kind to reimburse Issuing Lender
in
immediately available funds for any amounts paid by Issuing Lender with respect
to a Letter of Credit issued hereunder for the account of Borrower or any of
its
Subsidiaries. Borrower hereby authorizes and directs Administrative Agent,
at
Administrative Agent’s option, to make a Revolving Loan in the amount of any
payment made by Issuing Lender with respect to any Letter of Credit issued
for
the account of Borrower or any of its Subsidiaries. If the Letter of Credit
is
payable in a foreign currency, the amount owed by Borrower in connection with
such Letter of Credit shall equal an amount in United States Dollars equivalent
to Issuing Lender’s actual cost of settling its obligation under such Letter of
Credit in such foreign currency. All amounts paid by Issuing Lender with respect
to any Letter of Credit that are not immediately repaid by Borrower or that
are
not repaid with a Revolving Loan shall bear interest at the sum of the Base
Rate
plus
the Base
Rate Margin applicable from time to time as provided in Subsection
1.2(B).
Each
Lender agrees to fund its Pro Rata Share of any Revolving Loan made pursuant
to
this Subsection
1.1(E)(2).
In the
event Administrative Agent elects not to debit Borrower's account and Borrower
fails to reimburse Issuing Lender in full on the date of any payment in respect
of a Letter of Credit issued for the account of Borrower or any of its
Subsidiaries, Administrative Agent shall promptly notify each Lender the amount
of such unreimbursed payment and the accrued interest thereon and each such
Lender, on the next Business Day, shall deliver to Administrative Agent an
amount equal to its Pro Rata Share thereof in same day funds. Each Lender hereby
absolutely and unconditionally agrees to pay to Issuing Lender upon demand
by
Issuing Lender such Lender's Pro Rata Share of each payment made by Issuing
Lender in respect of a Letter of Credit and not immediately reimbursed by
Borrower. Each Lender acknowledges and agrees that its obligations to acquire
participations pursuant to this Subsection
1.1(E)(2)
in
respect of Letters of Credit and to make the payments to Issuing Lender required
by the preceding sentence are absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
occurrence and continuance of a Default or an Event of Default or any failure
by
Borrower to satisfy any of the conditions set forth in Subsection
7.2.
If any
Lender fails to make available to Issuing Lender the amount of such Lender's
Pro
Rata Share of any payments made by Issuing Lender in respect of a Letter of
Credit as provided in this Subsection
1.1(E)(2),
Issuing
Lender shall be entitled to recover such amount on demand from such Lender
together with interest at the Base Rate.
(3) Conditions
of Issuance of Letters of Credit.
In
addition to all other terms and conditions set forth in this Agreement, the
issuance by the Issuing Lender of any Letter of Credit shall be subject to
the
conditions precedent that the Letter of Credit shall support a transaction
entered into in the ordinary course of Borrower’s or any of its Subsidiaries’
businesses, shall be in an amount equal to or greater than $50,000 and shall
be
in such form and contain such terms and conditions as are reasonably
satisfactory to the Administrative Agent and the Issuing Lender. The expiration
date of each Letter of Credit must be on a date which is the earlier of one
year
from its date of issuance or the 30th day before the date set forth in
clause (iii) of the definition of the term Revolving Loan Expiration Date,
or such other date as agreed to by both Administrative Agent and Issuing Lender,
in their sole discretion.
(4) Request
for Letters of Credit.
Borrower must give Administrative Agent and Issuing Lender at least three
Business Days’ prior written notice specifying the date a Letter of Credit is
requested to be issued and the amount and the currency in which such Letter
of
Credit is payable, identifying the beneficiary and describing the nature of
the
transactions proposed to be supported thereby. Any notice requesting the
issuance of a Letter of Credit shall be accompanied by the form of the Letter
of
Credit to be provided by Issuing Lender. Borrower must also complete any
application procedures and documents required by Issuing Lender in connection
with the issuance of any Letter of Credit, including a certificate regarding
Borrower’s compliance with the provisions of Subsection
7.2
of this
Agreement.
(5) Borrower
Obligations Absolute.
The
obligations of Borrower under this Subsection 1.1(E)
are
irrevocable, will remain in full force and effect until Issuing Lender and
the
Lenders have no further obligations to make any payments or disbursements under
any circumstances with respect to any Letter of Credit, shall be absolute and
unconditional, shall not be subject to counterclaim, setoff or other defense
or
any other qualification or exception whatsoever and shall be paid in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(a) Any
lack
of validity or enforceability of this Agreement, any of the other Loan Documents
or any documents or instruments relating to any Letter of Credit;
(b) Any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the obligations in respect of any Letter of Credit or any other
amendment, modification or waiver of or any consent to or departure from any
Letter of Credit, any documents or instruments relating thereto, or any Loan
Document in each case whether or not Borrower or its Subsidiaries has notice
or
knowledge thereof;
(c) The
existence of any claim, setoff, defense or other right that Borrower or its
Subsidiaries may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any
such
transferee may be acting), Administrative Agent, Issuing Lender, any Lender
or
any other Person, whether in connection with this Agreement, any other Loan
Document, any Letter of Credit, the transactions contemplated hereby or any
other related or unrelated transaction or transactions (including any underlying
transaction between Borrower or its Subsidiaries and the beneficiary named
in
any such Letter of Credit);
(d) Any
draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any
statement therein being untrue or inaccurate in any respect, any errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, telecopier or otherwise, or any errors in translation or in
interpretation of technical terms;
(e) Payment
under any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such
Letter of Credit;
(f) Any
defense based upon the failure of any drawing under any Letter of Credit to
conform to the terms of such Letter of Credit (provided
that any
draft, certificate or other document presented pursuant to such Letter of Credit
appears on its face to comply with the terms thereof), any nonapplication or
misapplication by the beneficiary or any transferee of the proceeds of such
drawing or any other act or omission of such beneficiary or transferee in
connection with such Letter of Credit;
(g) The
exchange, release, surrender or impairment of any collateral or other security
for the obligations;
(h) The
occurrence of any Default or Event of Default; or
(i) Any
other
circumstance or event whatsoever, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or any Subsidiary.
Any
action taken or omitted to be taken by the Issuing Lender under or in connection
with any Letter of Credit, if taken or omitted in the absence of negligence
or
willful misconduct, is binding upon Borrower and its Subsidiaries and shall
not
create or result in any liability of the Issuing Lender to Borrower or any
of
its Subsidiaries. It is expressly agreed that, for purposes of determining
whether a wrongful payment under a Letter of Credit resulted from the Issuing
Lender’s negligence or willful misconduct, none of the following shall be deemed
to constitute negligence or willful misconduct by the Issuing Lender: (i)
Issuing Lender’s acceptance of documents that appear on their face to comply
with the terms of such Letter of Credit, without responsibility for further
investigation, (ii) Issuing Lender’s exclusive reliance on the documents
presented to it under such Letter of Credit as to any and all matters set forth
therein, including the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals
the
amount of such draft and whether or not any document presented pursuant to
such
Letter of Credit proves to be insufficient in any respect (so long as such
document appears on its face to comply with the terms of such Letter of Credit),
and whether or not any other statement or any other document presented pursuant
to such Letter of Credit proves to be forged or invalid or any statement therein
proves to be inaccurate or untrue in any respect whatsoever, and (iii) any
noncompliance in any immaterial respect of the documents presented under such
Letter of Credit with the terms thereof.
(6) Obligations
of Issuing Lender.
Issuing
Lender (if other than Administrative Agent) hereby agrees that it will not
issue
a Letter of Credit hereunder until it has provided Administrative Agent with
written notice specifying the amount and intended issuance date of such Letter
of Credit and Administrative Agent has returned a written acknowledgment of
such
notice to Issuing Lender. Issuing Lender (if other than Administrative Agent)
further agrees to provide to Administrative Agent: (i) a copy of each Letter
of
Credit issued by Issuing Lender promptly after its issuance; (ii) a monthly
report summarizing available amounts under Letters of Credit issued by Issuing
Lender, the dates and amounts of any draws under such Letters of Credit, the
effective date of any increase or decrease in the face amount of any Letters
of
Credit during such month and the amount of any unreimbursed draws under such
Letters of Credit; and (iii) such additional information reasonably requested
by
Administrative Agent from time to time with respect to the Letters of Credit
issued by Issuing Lender.
(7) ISP. Unless
otherwise expressly agreed by Issuing Lender and the Borrower when a Letter
of
Credit is issued, the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance)
(“ISP”)
shall
apply to each Letter of Credit.
(8) Evergreen
Letters of Credit.
If
Borrower so requests in any applicable Letter of Credit application, the Issuing
Lender agrees to issue a Letter of Credit that has automatic renewal provisions
(each, an “Evergreen
Letter of Credit”);
provided that any such Evergreen Letter of Credit must permit the Issuing Lender
to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Nonrenewal
Notice Date”)
in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the Issuing Lender, Borrower
shall not be required to make a specific request to the Issuing Lender for
any
such renewal. Notwithstanding anything to the contrary contained herein, the
Issuing Lender shall have no obligation to permit the renewal of any Evergreen
Letter of Credit at any time.
(F) Notes.
Borrower shall execute and deliver to each requesting Lender a Revolving Note,
a
Term Loan A Note, a Term Loan B Note and a Swingline Note, each dated the
Amendment Date, in the principal amount of such Lender’s Pro Rata Share of the
Revolving Loan Commitment, the Term Loan A Commitment, the Term Loan B
Commitment and the Swingline Loan Commitment, respectively.
(G) Loans.
Loans
will be made available by wire transfer of immediately available funds. Wire
transfers will be made to such account or accounts as may be authorized by
Borrower.
1.2. Interest.
(A) Interest
Options.
From
the date each Loan is made, based upon Borrower’s election 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
1.3
and
Subsection 1.2
(C)),
each
Loan shall accrue interest as follows:
(1) as
a
portion of the Base Rate Loan, at the sum of the Base Rate plus
the Base
Rate Margin applicable from time to time as provided in Subsection 1.2(B);
or
(2) as
a
LIBOR Loan, for the applicable Interest Period, at the sum of LIBOR plus
the
LIBOR Margin applicable from time to time as provided in Subsection 1.2(B);
provided,
further,
that
for each Swingline Loan, such Swingline Loan shall accrue interest at the sum
of
the Overnight LIBOR Rate applicable from time to time plus
the
LIBOR Margin applicable from time to time as provided in Subsection 1.2(B);
and
provided,
further,
that
$40,000,000 of the principal amount of the Term Loan A (the “Fixed
Rate Loan”)
shall
be subject to a fixed rate of 6.2860% for the period from and including the
Amendment Date through and including May 31, 2011 (the “Fixed
Rate Period”).
Except
as
otherwise provided in Subsections
1.2(E)
and
6.6,
interest on all Obligations (other than the interest payments required pursuant
to this Subsection
1.2(A))
not
paid when due will accrue interest at the Base Rate plus
0.75%
per annum.
(B) Applicable
Margins.
Initially, and continuing through the day immediately preceding the first
Adjustment Date, the applicable Base Rate Margin and LIBOR Margin shall be
0.75%
and
1.75% per annum, respectively. Commencing on such Adjustment Date, the
applicable Base Rate Margin and LIBOR Margin shall be for each Calculation
Period the applicable per annum percentage set forth in the pricing table below
opposite the applicable Leverage Ratio of Borrower; provided,
that at
the election of Requisite Lenders, effective upon the occurrence of an Event
of
Default pursuant to Subsection
6.1(A)
or
Subsection
6.1(C)
with
respect to failure to comply with a financial covenant in Section
4
and for
so long as it continues the applicable Base Rate Margin and LIBOR Margin shall
be 0.75% and 1.75% per annum, respectively.
TERM
LOAN A, TERM LOAN B AND REVOLVING LOAN PRICING TABLE
|
Leverage Ratio
|
Base
Rate Margin
|
LIBOR
Margin
|
|
≥
3.00:1
|
0.75%
|
1.75%
|
|
≥
2.00:1 < 3.00:1
|
0.50%
|
1.50%
|
|
≥
1.00:1< 2.00:1
|
0.25%
|
1.25%
|
|
<
1.00:1
|
0.00%
|
1.00%
|
;
provided,
that
with
respect to Term Loan B outstanding on and after May 13, 2008, the applicable
Base Rate Margin and LIBOR Margin shall be the Base Rate Margin and LIBOR Margin
set forth in the pricing table above plus
an
additional 0.25%;
provided,
further,
that
unless the outstanding principal amount of the Term Loan B has been reduced
to
$30,000,000 or less from the proceeds of the Wireless Sale on or before May
31,
2008, then with respect to Term Loan B outstanding on and after such date the
applicable Base Rate Margin and LIBOR Margin shall be the Base Rate Margin
and
LIBOR Margin set forth in the pricing table above plus
an
additional 3.00%; and provided,
further,
that if
the outstanding principal amount of the Term Loan B has been reduced to
$30,000,000 or less from the proceeds of the Wireless Sale on or before May
31,
2008, then with respect to Term Loan B outstanding on and after August 12,
2008,
the applicable Base Rate Margin and LIBOR Margin shall be the Base Rate Margin
and LIBOR Margin set forth in the pricing table above plus
an
additional 0.75%.
(C) Interest
Periods.
Each
LIBOR Loan may be obtained for a one, two, three, six, nine or 12 month period
(each such period being an “Interest
Period”).
With
respect to all LIBOR Loans:
(1) the
Interest Period will commence on the date that any LIBOR Loan is made or the
date on which any portion of the 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;
(2) 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;
(3) 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
(4) no
Interest Period shall be selected for any LIBOR Loan if, in order to make
repayments required pursuant to Subsection
1.6
in
connection with scheduled installments on either Term Loan or scheduled
reductions of the Revolving Loan Commitment pursuant to Subsection
1.6,
repayment of all or any portion of a Loan prior to the expiration of such
Interest Period would be necessary.
(D) Calculation
and Payment.
Interest on all Loans and all other Obligations and the amount of any fees
set
forth in Subsection 1.4
shall
be
calculated on the basis of a 360-day year (of twelve 30-day months) for the
actual number of days elapsed. The date of funding or conversion to the Base
Rate Loan or a Swingline 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, the last day of an Interest Period with respect
to
a LIBOR Loan and the last day of the Fixed Rate Period 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 each Base Rate Loan and Swingline Loan and on the Fixed Rate Loan
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)
and
(iii) the Term Loan A Maturity Date, the Term Loan B Maturity Date or the
Revolving Loan Expiration Date, as applicable, whether by acceleration or
otherwise. 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) and (iv) the Term Loan A
Maturity Date, the Term Loan B Maturity Date or the Revolving Loan Expiration
Date, as applicable, whether by acceleration or otherwise.
Interest
accruing pursuant to Subsection
1.2(E)
is
payable on demand.
(E) Default
Rate of Interest.
At the
election of Requisite Lenders, after the occurrence of an Event of Default
pursuant to Subsection
6.1(A)
or
Subsection
6.1(C)
with
respect to failure to comply with a financial covenant in Section
4
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, including,
without limitation, rates in effect pursuant 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 Borrower to Lenders
or
any Lender hereunder are hereby expressly limited so that in no contingency
or
event whatsoever, whether by reason of acceleration of maturity of the
Indebtedness evidenced hereby or otherwise, shall the amount paid or agreed
to
be paid to 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 as is 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 any circumstances whatsoever 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 Administrative Agent. This provision
shall
control every other provision of this Agreement and all provisions of every
other Loan Document.
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Second
Amended and Restated Credit Agreement/SureWest
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(G) Selection,
Conversion or Continuation of Loans; LIBOR Availability.
Borrower shall have the option to (i) select all or any part of a new borrowing
to be (a) a portion of the Base Rate Loan in a principal amount equal to
$100,000 or any whole multiple of $5,000 in excess thereof, (b) a LIBOR Loan
in
a principal amount equal to $500,000 or any whole multiple of $100,000 in excess
thereof or (c) a Swingline Loan in a principal amount equal to $50,000 or any
whole multiple of $5,000 in excess thereof, (ii) convert at any time all or
any portion of the Base Rate Loan or of the Fixed Rate Loan in a principal
amount equal to $500,000 or any whole multiple of $100,000 in excess thereof
into a LIBOR Loan, and (iii) upon the expiration of its Interest Period,
continue any LIBOR Loan in a principal amount equal to $500,000 or any whole
multiple of $100,000 in excess thereof into one or more LIBOR Loans for such
new
Interest Period(s) as selected by 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 the Base Rate Loan and the LIBOR
option will not be available to Borrower until all Events of Default are cured
or waived. Each LIBOR Loan must be made under a single Facility. In the event
Borrower fails to elect a LIBOR Loan upon any advance hereunder or upon the
termination of any Interest Period or of the Fixed Rate Period, Borrower shall
be deemed to have elected to have such amount constitute a portion of the Base
Rate Loan. Notwithstanding the foregoing, there may be no more than a total
of
ten LIBOR Loans outstanding under the Facilities at any one time.
1.3. Notice
of Borrowing, Conversion or Continuation of Loans.
Whenever
Borrower desires to request a Loan pursuant to Subsection 1.1
or to
convert or continue Base Rate or LIBOR Loans pursuant to Subsection 1.2(G),
Borrower shall give 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 the 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, (ii) if requesting a borrowing of a Swingline
Loan, not later than 2:00 p.m. (Denver, Colorado time) on the date the proposed
borrowing is to be effective or (iii) 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 Banking 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 converted or continued and, with respect to any LIBOR Loan to
be
converted or continued, the last day of the current Interest Period therefore,
(b) the effective date of such borrowing, conversion or continuation (which
shall be a Business Day, and in the case of a LIBOR Loan, also a Banking Day),
(c) the principal amount of such Loan to be borrowed, converted or
continued, (d) the Interest Period to be applicable to any new LIBOR Loan,
and
(e) the Facility under which such borrowing, conversion or continuation is
to be made. Upon satisfaction of the notice requirement set forth in this
Subsection
1.3,
and the
other applicable conditions set forth in this Agreement, Administrative Agent
shall make the Loan, or requested conversion or continuation, on the requested
effective date.
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1.4. Fees
and Expenses.
(A) Commitment
Fees.
(1) Revolving
Loan Commitment Fee.
From
the Amendment Date through the Revolving Loan Expiration Date, Borrower shall
pay to Administrative Agent, for the benefit of all Lenders that are not
Defaulting Lenders (based upon their respective Pro Rata Shares of the Revolving
Loan Commitment) a fee in an amount equal to (i) the Revolving Loan Commitment
less
the sum
of (a) the average daily outstanding balance of Revolving Loans plus
(b) the average daily outstanding balance of Swingline Loans plus (c) the
average daily outstanding Letter of Credit Liability, in each case during the
preceding calendar quarter multiplied by
0.375%
per annum. Such fee is to be paid quarterly in arrears on the last day of each
calendar quarter for such calendar quarter (or portion thereof),
with
the final such payment due on the Revolving Loan Expiration Date.
(2) Term
Loan A Commitment Fee.
Borrower shall pay to Administrative Agent, for the benefit of all Lenders
that
are not Defaulting Lenders (based upon their respective Pro Rata Shares of
the
Term Loan A Commitment) a fee in an amount equal to the average daily
unused portion of the Term Loan A Commitment during the Term Loan A Availability
Period at the rate of 0.50% per annum.
Such
fee is to be paid quarterly in arrears on the last day of each calendar quarter
for such calendar quarter (or portion thereof), with the final such payment
due
on the last day of the calendar quarter end immediately following the last
day
of the Term Loan A Availability Period.
(B) Certain
Other Fees.
Borrower shall pay to Administrative Agent the fees specified in that certain
letter agreement, dated February 6, 2008, from Administrative Agent to Borrower,
in such amounts and at such times as specified in such letter
agreement.
(C) Breakage
Fee.
Upon
any repayment or payment of a LIBOR Loan or the Fixed Rate Loan on any day
that
is not the last day of the Interest Period or the Fixed Rate Period applicable
thereto (regardless of the source of such repayment or prepayment and whether
voluntary, mandatory, by acceleration or otherwise), Borrower shall pay to
Administrative Agent, for the benefit of all affected Lenders, an amount (the
“Breakage
Fee”)
equal
to the greater of (i) $300 or (ii) the sum of (a) present value of any losses,
expenses and liabilities (including any loss (including interest paid but
excluding the loss of any applicable margin) sustained by each such affected
Lender in connection with the good faith re-employment of such funds) that
any
such affected Lender may sustain as a result of the payment of such LIBOR Loan
or the Fixed Rate Loan on such day
plus
(b) in
the case of the Fixed Rate Loan only, a per annum yield of ½ of 1 percent
(0.50%) on the amount of the Fixed Rate Loan for the remaining Fixed Rate
Period.
(D) Expenses
and Attorneys Fees.
Borrower agrees to pay promptly all reasonable out-of-pocket fees, costs and
expenses (including those of external attorneys) incurred by Administrative
Agent and Lead Arranger in connection with any matters contemplated by or
arising out of the Loan Documents. In addition to fees due under Subsections 1.4(A)
and
(B),
Borrower shall also reimburse on demand Administrative Agent for its
out-of-pocket expenses (including reasonable attorneys’ fees and expenses and
expenses) incurred in connection with the transactions contemplated herein.
In
addition to fees due under Subsections 1.4(A)
and
(B),
Borrower agrees to pay promptly (i) all reasonable fees, costs and expenses
incurred by Administrative Agent in connection with any amendment, supplement,
waiver or modification of any of the Loan Documents and (ii) all reasonable
out-of-pocket fees, costs and expenses incurred by each of Administrative Agent
and 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
Borrower. All fees, costs and expenses for which Borrower is responsible under
this Subsection 1.4(D)
shall be
deemed part of the Obligations when incurred, payable upon demand and in
accordance with the second paragraph of Subsection 1.5.
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(E) Letter
of Credit Fees.
Borrower shall pay Administrative Agent for the account of all Lenders (other
than Defaulting Lenders) committed to make Revolving Loans (based upon their
respective Pro Rata Shares) an annual fee for each Letter of Credit from the
date of issuance to the date of termination in an amount equal to the applicable
LIBOR Margin multiplied by
the face
amount of such Letter of Credit. Such fee shall be payable to Administrative
Agent for the benefit of all Lenders committed to make Revolving Loans (based
upon their respective Pro Rata Shares). Such fee is to be paid quarterly in
arrears on the last day of each calendar quarter and upon the termination of
the
Letter of Credit. With respect to each Letter of Credit, Borrower shall also
pay
Administrative Agent, for the benefit of Issuing Lender issuing such Letter
of
Credit an issuance fee equal to 0.125% of the face amount of such Letter of
Credit, which amount shall be paid upon the date of issuance and, if the
expiration date of such Letter of Credit is later than one year from its date
of
issuance, upon each anniversary of the date of issuance during the term of
such
Letter of Credit.
1.5. Payments.
All
payments by Borrower of the Obligations shall be made in same day funds and
delivered to Administrative Agent, for the benefit of Administrative Agent
and
Lenders, as applicable, by wire transfer to the following account or such other
place as Administrative Agent may from time to time designate:
CoBank,
ACB
Greenwood
Village, Colorado
ABA
Number 0000-0000-0
Account
No. 00000000 (indicate whether a payment on
Term
Loan
A Facility, Term Loan B Facility, Swingline Facility or the Revolving Loan
Facility)
Reference:
CoBank for the benefit of SureWest Communications
Borrower
shall receive credit on the day of receipt for funds received by 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.
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Second
Amended and Restated Credit Agreement/SureWest
Communications
At
any
time that funds have been drawn thereunder, Borrower authorizes Lenders to
make
(but the Lenders shall not be obligated to make) a Loan constituting a portion
of the Base Rate Loan under the Revolving Loan Facility, on the basis of their
respective Pro Rata Shares of the Revolving Loan Commitment, for Letter of
Credit Liability payments. Following an Event of Default, Borrower authorizes
Lenders to make (but the Lenders shall not be obligated to make) a Loan
constituting a portion of the Base Rate Loan under the Revolving Loan Facility
for the payment of interest, commitment fees and Breakage Fees. Prior to an
Event of Default, other fees, costs and expenses (including those of attorneys)
reimbursable pursuant to Subsections
1.4(A),
1.4(B),
1.4(D)
and
1.4(E)
or
elsewhere in any Loan Document may be debited to the Base Rate Loan under the
Revolving Loan Facility after 15 days’ notice. After the occurrence of an Event
of Default, any such other fees, costs and expenses may be debited to the Base
Rate Loan under the Revolving Loan Facility without notice.
To
the
extent Borrower makes a payment or payments to Administrative Agent for the
ratable benefit of Lenders or for the benefit of 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, 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 Administrative
Agent.
Each
payment received by Administrative Agent under this Agreement or any Note for
the account of any Lender shall be remitted by Administrative Agent to such
Lender promptly after 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. Repayments
and Reduction of Term Loan Commitments and Revolving Loan Commitment and Related
Mandatory Repayments.
(A) Scheduled
Repayments and Reductions of Term Loan Commitments, Revolving Loan Commitment
and Swingline Loan Commitment.
(1) Term
Loans.
In
addition to any prepayments or repayments made or required pursuant to
Subsection
1.7,
the
outstanding principal balance of Term Loan A and Term Loan B not sooner due
and
payable shall become due and payable on the Term Loan A Maturity Date and Term
Loan B Maturity Date, respectively.
(2) Revolving
Loan Commitment and Swingline Loan Commitment.
In
addition to any reductions pursuant to Subsection
1.6(B),
the
Revolving Loan Commitment and the Swingline Loan Commitment shall be permanently
reduced and terminated in full on the Revolving Loan Expiration Date, and any
outstanding principal balance of the Revolving Loans and the Swingline Loans
not
sooner due and payable will become due and payable on the Revolving Loan
Expiration Date.
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Second
Amended and Restated Credit Agreement/SureWest
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(B) Voluntary
Reduction of Loan Commitments.
Borrower shall have the right, upon at least three Business Days’ notice to
Administrative Agent, to permanently reduce the then unused portion of the
Revolving Loan Commitment or the Swingline Loan Commitment. Each reduction
shall
be in a minimum amount of at least $1,000,000, or any whole multiple of $250,000
in excess thereof, and shall be applied as to each Lender based upon its Pro
Rata Share. Notwithstanding the foregoing, no reduction of the Revolving Loan
Commitment shall be permitted if, after giving effect thereto and to any
prepayment made therewith, the aggregate principal balance of the Revolving
Loans and the Swingline Loans then outstanding plus the amount of the Letter
of
Credit Liability then outstanding, would exceed the Revolving Loan Commitment,
as so reduced. Notwithstanding the foregoing, no reduction of the Swingline
Loan
Commitment shall be permitted if, after giving effect thereto and to any
prepayment made therewith, the aggregate principal balance of the Swingline
Loans then outstanding would exceed the Swingline Loan Commitment, as applicable
as so reduced.
(C) Mandatory
Repayments.
On the
date of any Revolving Loan Commitment reduction provided for in this
Subsection
1.6,
Borrower shall repay Revolving Loans and the Swingline Loans or reduce the
Letter of Credit Liability pursuant to Subsection
1.18
in an
amount at least sufficient to reduce the aggregate principal balance of
Revolving Loans and the Swingline Loans then outstanding plus
the
amount of the Letter of Credit Liability then outstanding to the amount of
the
Revolving Loan Commitment as so reduced. If at any time the aggregate
outstanding amount of Revolving Loans and the Swingline Loans plus
the
amount of the Letter of Credit Liability then outstanding exceeds the Revolving
Loan Commitment, Borrower shall repay Revolving Loans and Swingline Loans or
reduce the Letter of Credit Liability pursuant to Subsection
1.18
in an
amount at least sufficient to reduce the aggregate principal balance of
Revolving Loans and Swingline Loans then outstanding plus
the
amount of the Letter of Credit Liability then outstanding to the amount of
the
Revolving Loan Commitment, and until such repayment is made, Lenders shall
not
be obligated to make any Loans or issue any Letters of Credit. Any repayments
pursuant to this Subsection
1.6(C)
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. If at any time the aggregate outstanding amount of the Swingline
Loans outstanding exceeds the Swingline Loan Commitment, Borrower shall repay
Swingline Loans in an amount at least sufficient to reduce the aggregate
principal balance of Swingline Loans then outstanding to the amount of the
Swingline Loan Commitment, and until such repayment is made, Administrative
Agent shall not be obligated to make any Loans or issue any Letters of Credit.
Any repayments pursuant to this Subsection
1.6(C)
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.
1.7. Voluntary
Prepayments and Other Mandatory Repayments.
(A) Voluntary
Prepayment of Loans.
Subject
to the provisions of Subsection
1.8,
at any
time, Borrower may prepay the Base Rate Loan, in whole or in part, without
penalty. Subject to the provisions of Subsection 1.8,
payment
of applicable Breakage Fees and the notice requirement in the following
sentence, at any time Borrower may prepay any LIBOR Loan or the Fixed Rate
Loan,
in whole or in part. Notice of any prepayment of a LIBOR Loan or of the Fixed
Rate 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 prepayment
notices shall be irrevocable. All prepayments shall be accompanied by accrued
interest on the amount prepaid and any applicable Breakage Fees.
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Amended and Restated Credit Agreement/SureWest
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(B) Repayments
from Insurance Proceeds.
Borrower shall repay the Term Loans in an amount equal to the Net Proceeds
received by Borrower or any of its Subsidiaries which are insurance proceeds
from any Asset Disposition to the extent that such proceeds are not reinvested
in equipment or other assets that are used or useful in the business of Borrower
or any of its Subsidiaries within 180 days of receipt by Borrower or such
Subsidiary of such proceeds. All such repayments shall be applied in accordance
with Subsection 1.8.
All
such repayments shall be accompanied by accrued interest on the amount repaid
and any applicable Breakage Fees.
(C) Repayments
from Asset Dispositions.
Promptly upon receipt by Borrower or any of its Subsidiaries of Net Proceeds
of
an Asset Disposition, other than insurance proceeds reinvested pursuant to
Subsection
1.7(B)
or Net
Proceeds of Asset Dispositions permitted pursuant to Subsection
3.6,
without
the consent of Administrative Agent (unless pursuant to Subsection 3.6(vi)
Borrower
is required to apply such proceeds to the repayment of the Term Loans pursuant
to this Subsection
1.7(C)),
Borrower shall repay the Term Loans in an amount equal to the Net Proceeds
received by Borrower or any of its Subsidiaries; provided,
however,
the Net
Proceeds of the Wireless Sale shall be used to reduce the outstanding principal
amount of Term Loan B to $30,000,000, unless at the time of the receipt of
such
Net Proceeds the outstanding principal amount of Term Loan B has previously
been
reduced to $30,000,000 or less in which case such Net Proceeds shall be used
solely to repay Term Loan B in full, and to the extent the Net Proceeds
therefrom exceed the amount required to be applied to Term Loan B pursuant
to
this proviso, such Net Proceeds shall be not be required to be applied to repay
Term Loan A. All such repayments shall be applied in accordance with
Subsection 1.8.
All
such repayments shall be accompanied by accrued interest on the amount repaid
and any applicable Breakage Fees.
1.8. Application
of Prepayments and Repayments; Payment of Breakage Fees, Etc.
All
prepayments
and repayments made pursuant to Subsection
1.7
with
respect to the Term Loans shall applied
to the Term Loan A and then to the Term Loan B, with the exception of the
application of the Net Proceeds of the Wireless Sale which shall be used solely
to repay Term Loan B (as and to the extent expressly provided in Subsection
1.7) but
shall
be not be required to be applied to repay Term Loan A. All other prepayments
and
repayments made pursuant to Subsections
1.6 and
1.7
shall be
applied as directed in writing by Borrower. All prepayment and repayments made
pursuant to Subsections
1.6
and
1.7
shall
first be applied to such of the applicable type of Loans of a Facility as
Borrower shall direct in writing and, in the absence of such direction, shall
first be applied to the Base Rate Loan and then to such LIBOR Loans or the
Fixed
Rate Loan as Borrower and CoBank shall agree (in the absence of agreement,
such
prepayments and repayments shall be applied to the LIBOR Loans and the Fixed
Rate Loan on which the lowest amount of Breakage Fees would be
due).
1.9. Loan
Accounts.
Administrative Agent will maintain loan account records for (i) all Loans,
interest charges and payments thereof, (ii) all Letter of Credit Liability,
(iii) the charging and payment of all fees, costs and expenses and (iv) all
other debits and credits pursuant to this Agreement. Absent manifest error,
the
balance in the loan accounts shall be presumptive evidence of the amounts due
and owing to Lenders, provided
that any
failure by Administrative Agent to maintain such records shall not limit or
affect Borrower’s obligation to pay. During the continuance of an Event of
Default, Borrower irrevocably waives the right to direct the application of
any
and all payments and Borrower hereby irrevocably agrees that Administrative
Agent shall have the continuing exclusive right to apply and reapply payments
in
any manner it deems appropriate.
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1.10. Changes
in LIBOR Rate Availability.
If with
respect to any proposed Interest Period, Administrative Agent or any Lender
(after consultation with Administrative Agent) determines that deposits in
dollars (in the applicable amount) are not being offered in the relevant market
for such Interest Period, or Lenders having a Pro Rata Share of more than 50%
under a Facility determine (and notify Administrative Agent) that the LIBOR
Rate
applicable pursuant to Subsection
1.2(A)
for any
requested Interest Period with respect to a proposed LIBOR Loan under such
Facility does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, Administrative Agent shall forthwith give notice thereof
to
Borrower and Lenders, whereupon and until such affected Lender or Lenders
notifies Administrative Agent, and Administrative Agent notifies Borrower and
the other Lenders that the circumstances giving rise to such situation no longer
exist, the obligations of any affected Lender to make its portion of such type
of LIBOR Loan shall be suspended and such affected Lender shall make its Pro
Rata Share of such type of LIBOR Loans as a Base Rate Loan or such other type
of
Loan as permitted by Administrative Agent. Any Lender may, in its sole
discretion, waive the benefits and provisions of this Subsection with respect
to
any proposed Interest Period.
If
the
introduction of, or any change in, any Applicable Law or treaty or any change
in
the interpretation or administration thereof by any Governmental Authority,
central bank, quasi-governmental entity 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, quasi-governmental agency or comparable
agency (collectively, a “Change
of Law”),
shall
make it unlawful or impossible for one or more Lenders to honor its obligations
hereunder to make or maintain any LIBOR Loan, such Lender shall promptly give
notice thereof to Administrative Agent, and Administrative Agent shall promptly
give notice thereof to Borrower and all other Lenders. Thereafter, until such
Lender or Lenders notifies Administrative Agent, and Administrative Agent
notifies Borrower and the other Lenders that such circumstances no longer exist,
(i) the obligations of such Lender or Lenders to make LIBOR Loans and the right
of Borrower to convert any Loan of such Lender or Lenders to a LIBOR Loan or
continue any Loan of such Lender or Lenders as a LIBOR Loan shall be suspended
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, such Lender’s Loan
shall immediately be converted to the Base Rate Loan.
1.11. Capital
Adequacy and Other Adjustments.
(A) If
any
Change of Law would increase the reserve requirement or otherwise increase
the
cost to Administrative Agent of making or maintaining a LIBOR Loan, then
Administrative Agent, on behalf of all affected Lenders, shall submit a
certificate to Borrower setting forth the amount and demonstrating the
calculation of such increased cost. Administrative Agent may seek recovery
of
such additional amounts from Borrower only to the extent it seeks recovery
for
such amounts from similarly situated borrowers. Borrower shall pay the amount
of
such increased cost to Administrative Agent for the benefit of the affected
Lenders 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.
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(B) In
the
event that any Lender shall have determined that any Change of Law regarding
capital adequacy, reserve requirements or similar requirements or compliance
by
any Lender or any entity 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 entity controlling such Lender and thereby reducing the rate of return
on
such Lender’s or such entity’s capital as a consequence of its obligations
hereunder, then Borrower shall 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 Administrative Agent), pay to Administrative Agent,
for the account of such Lender, additional amounts sufficient to compensate
such
Lender for such reduction. A Lender may seek recovery of such additional amounts
from Borrower only to the extent it seeks recovery for such amounts from
similarly situated borrowers. A certificate as to the amount of such cost and
showing the basis of the computation of such cost submitted by such Lender
to
Borrower and Administrative Agent shall, absent manifest error, be final,
conclusive and binding for all purposes. There shall be no limitation on the
number of times such a certificate may be submitted.
(C) Notwithstanding
any other provision of this Agreement, Borrower shall not be obligated to pay
any increased costs suffered or incurred by a Lender under this Subsection
1.11
more
than 180 days prior to the date that such Lender obtained knowledge of the
circumstances giving rise to such increased costs. Any Lender which becomes
aware of (i) any Change of Law that will make it unlawful or impossible for
such
Lender to make or maintain any LIBOR Loan or (ii) any Change of Law or other
event or condition that will obligate Borrower to pay any amount pursuant to
this Subsection
1.11
shall
notify Borrower and Administrative Agent thereof as promptly as practical.
If
any Lender has given notice of any such Change of Law or other event or
condition and thereafter becomes aware that such Change of Law or other event
or
condition has ceased to exist, such Lender shall notify Borrower and
Administrative Agent thereof as promptly as practical. Each Lender affected
by
any Change of Law which makes it unlawful or impossible for such Lender to
make
or maintain any LIBOR Loan or to which Borrower is obligated to pay any amount
pursuant to this Subsection
1.11
shall
use reasonable commercial efforts (including changing the jurisdiction of its
applicable lending office) to avoid the effect of such Change of Law or to
avoid
or materially reduce any amounts which Borrower is obligated to pay pursuant
to
this Subsection
1.11
if, in
the reasonable opinion of such Lender, such efforts would not be disadvantageous
to such Lender or contrary to such Lender’s normal lending practices.
1.12. Optional
Prepayment/Replacement of Lender in Respect of Increased Costs.
If (a)
any Lender shall become a Defaulting Lender at any time, (b) any Lender shall
suspend its obligation to make or maintain LIBOR Loans pursuant to Subsection
1.11
for a
reason which is not applicable to any other Lender, or (c) any Lender shall
demand any payment under Subsection
1.11,
1.13
or
1.14
for a
reason which is not applicable to any other Lender, then, unless such Lender
(an
“Affected
Lender”)
has
theretofore taken steps to remove or cure, and has removed or cured, the
conditions creating the cause for such obligation to pay such additional amounts
or for such illegality or impossibility, Borrower may, at its option, notify
Administrative Agent and such Affected Lender of its intention to do the
following: Borrower may obtain, at Borrower’s expense, a replacement Lender
(“Replacement
Lender”)
for
such Affected Lender, which Replacement Lender shall be reasonably satisfactory
to Administrative Agent. In the event Borrower obtains a Replacement Lender
within 180 days following notice of its intention to do so, the Affected Lender
shall sell and assign its Loans and its obligations under the Loan Commitments
to such Replacement Lender at a price of par plus accrued interest and other
amounts due to such Affected Lender, provided that 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.
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1.13. Taxes:
No Deductions.
(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,
provided,
however,
that
Borrower shall not be required to make any additional payment pursuant to this
Subsection
1.13 for
or on
account of (all of the following in clauses (i) and (ii), “Excluded
Taxes”)
(i)
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto (a) which are payable other than by withholding from
payments or reimbursements made hereunder or under the Notes, (b) which are
imposed on the payments to, or revenues, income or net income of, a Lender
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 is located or in which such Lender has or had a connection (other
than a connection arising solely as a result of such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document), or by any jurisdiction or taxing
authority thereof or therein or (c) which would not have been imposed but for
the failure of the Lender to comply with certification, information or other
reporting requirements concerning the nationality, residence, identity or
connection with the United States of the Lender if such compliance is necessary
by statute or by regulation of the United States Treasury Department as a
precondition to relief or exemption from such taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
or (ii) in the case of a Lender that is organized under the laws of a
jurisdiction other than the United States (a “Foreign
Lender”),
any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the
time such Foreign Lender becomes a party hereto (or designates a new lending
office), except to the extent that such Foreign Lender (or its assignor, if
any)
was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to this Subsection
1.13
(all
such non-excluded taxes, levies, imposts, deductions or withholdings, and all
liabilities with respect thereto, collectively, “Tax
Liabilities”).
If
Borrower shall be required by law to deduct any Tax Liabilities from or in
respect of any sum payable hereunder to any Lender, then the sum payable
hereunder shall be increased as may be necessary so that, after making all
required deductions, such Lender receives an amount equal to the sum it would
have received had no such deductions been made.
(B) Foreign
Lenders.
Each
Foreign Lender as to which payments made under this Agreement or under the
Notes
are exempt from withholding tax under the IRC or other applicable tax law or
are
subject to withholding tax at a reduced rate under an applicable statute or
tax
treaty shall provide to Borrower and Administrative Agent a properly completed
and executed United States Internal Revenue Service Form W-8ECI or W-8BEN or
other applicable form, certificate or document prescribed by the Internal
Revenue Service of the United States or other taxing authority 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 (a “Certificate
of Exemption”).
Prior to becoming a Lender under this Agreement and within 15 days after a
reasonable written request of Borrower or Administrative Agent from time to
time
thereafter, each Foreign Lender that becomes a Lender under this Agreement
shall
provide a Certificate of Exemption to Borrower and Administrative Agent. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver a properly completed United States Internal Revenue Service Form
W-9 or other applicable form as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.
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If
a
Foreign Lender is entitled to an exemption with respect to payments to be made
to such Foreign Lender under this Agreement (or to a reduced rate of
withholding) and does not provide a Certificate of Exemption to Borrower and
Administrative Agent within the time periods set forth in the preceding
paragraph, Borrower shall withhold taxes from payments to such Foreign Lender
at
the applicable statutory rates and Borrower shall not be required to pay any
additional amounts as a result of such withholding, provided
that all
such withholding from subsequent payments shall cease or be reduced, as
appropriate, upon delivery by such Foreign Lender of a Certificate of Exemption
to Borrower and Administrative Agent.
1.14. Changes
in Tax 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 Administrative Agent or any
Lender with any request or directive (whether or not having the force of law)
from any Governmental Authority:
(a) does
or
shall subject any Lender to any tax of any kind whatsoever with respect to
this
Agreement, the other Loan Documents or any Loans made or any Letters of Credit
issued hereunder, or change the basis of taxation of payments to such Lender
of
principal, fees, interest or any other amount payable hereunder (except Tax
Liabilities covered by Subsection
1.13
and the
imposition or, or any change in the rate of, any Excluded Tax payable by such
Lender); or
(b) does
or
shall impose on any Lender any other condition or increased cost in connection
with the transactions contemplated hereby;
and
the
result of any of the foregoing is to increase the cost to such Lender of making
or continuing any Loan or of issuing any Letters of Credit hereunder, or to
reduce any amount receivable hereunder, then, in any such case, Borrower shall
promptly pay to Administrative Agent (for the account of such Lender), upon
its
demand, any additional amounts necessary to compensate such Lender, on an
after-tax basis, for such additional cost or reduced amount receivable, as
determined by such Lender with respect to this Agreement or the other Loan
Documents. If any Lender becomes entitled to claim any additional amounts
pursuant to this Subsection
1.14,
it
shall promptly notify Borrower (through Administrative Agent) of the event
by
reason of which such Lender has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by
a
Lender to Borrower 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.
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1.15. Treatment
of Certain Refunds.
If
Administrative Agent, a Lender or an Issuing Lender determines, in its sole
discretion, that it has received a refund of any Taxes as to which it has been
indemnified by Borrower or with respect to which Borrower has paid additional
amounts pursuant to Subsection
1.13
or
1.14,
it
shall pay to Borrower an amount equal to such refund (but only to the extent
of
indemnity payments made, or additional amounts paid, by Borrower under
Subsection
1.13
or
1.14
with
respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or such Issuing Lender, as
the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that Borrower,
upon the request of Administrative Agent, such Lender or such Issuing Lender,
agrees to repay the amount paid over to Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to
Administrative Agent, such Lender or such Issuing Lender in the event the
Administrative Agent, such Lender or such Issuing Lender is required to repay
such refund to such Governmental Authority. This Subsection
1.15
shall
not be construed to require Administrative Agent, any Lender or any Issuing
Lender to make available its tax returns (or any other information relating
to
its taxes that it deems confidential) to Borrower or any other
Person.
1.16. Mitigation
Obligations.
If any
Lender requires Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Subsection
1.13 or
1.14,
then
such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if,
in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Subsection
1.13
or
1.14,
as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or
assignment.
1.17. 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 A Maturity Date. Until all Obligations have been indefeasibly
and
irrevocably paid and satisfied in full, all Letters of Credit have been
terminated and the Revolving Loan Commitment has been terminated, this Agreement
shall remain in full force and effect.
1.18. Letter
of Credit Liability.
Upon
the occurrence and during the continuance of an Event of Default, and in the
event any Letters of Credit are outstanding at the time that Borrower terminates
the Revolving Loan Commitment, then (a) with respect to each such Letter of
Credit, Borrower shall either (i) deliver to Administrative Agent for the
benefit of all Lenders with a Revolving Loan Commitment a letter of credit
in
the same currency that such Letter of Credit is payable, with a term that
extends 60 days beyond the expiration date of such Letter of Credit, issued
by a
bank satisfactory to Administrative Agent and in an amount equal to 105% of
the
aggregate outstanding Letter of Credit Liability with respect to such Letter
of
Credit, which letter of credit shall be drawable by Administrative Agent to
reimburse payments of drafts drawn under such Letter of Credit and to pay any
fees and expenses related thereto or (ii) immediately deposit with
Administrative Agent an amount equal to the aggregate outstanding Letter of
Credit Liability to enable Administrative Agent to make payments under the
Letters of Credit when required and such amount shall become immediately due
and
payable, and (b) Borrower shall prepay the fees payable under
Subsection 1.4(E)
with
respect to all such Letters of Credit for the full remaining terms of such
Letters of Credit. Upon termination of any such Letter of Credit, the unearned
portion of such prepaid fee attributable to such Letter of Credit shall be
refunded to Borrower.
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SECTION
2
AFFIRMATIVE
COVENANTS
Borrower
covenants and agrees that so
long
as the Loan Commitments remain in effect, or any Letter of Credit, any Loan,
any
interest on any Loan or any fee payable to Administrative Agent or any Lender
hereunder remains outstanding, or any other amount then due and payable is
owing
to Administrative Agent or any Lender hereunder,
and
unless the Requisite Lenders shall otherwise give their prior written consent,
Borrower shall and shall cause its Subsidiaries to, perform and comply with
all
covenants in this Section
2.
2.1. Compliance
With Laws.
Borrower will (i) comply with and will cause its Subsidiaries to comply with
the
requirements of all Applicable Laws (including laws, rules, regulations and
orders relating to taxes, employer and employee contributions, securities,
employee retirement and welfare benefits, environmental protection matters
and
employee health and safety) as now in effect and which may be imposed in the
future in all jurisdictions in which Borrower or any of its Subsidiaries is
now
or hereafter doing business, other than those Applicable Laws the noncompliance
with which could not reasonably be expected to have, either individually or
in
the aggregate, a Material Adverse Effect, (ii) obtain and maintain and will
cause its Subsidiaries to obtain and maintain all licenses, qualifications
and
permits (including the Licenses) now held or hereafter required to be held
by
Borrower or any of its Subsidiaries, the loss, suspension or revocation of
which
or which the failure to obtain or renew could reasonably be expected to have
a
Material Adverse Effect and (iii) comply with and will cause its Subsidiaries
to
comply with all Material Contracts, other than, in all such cases, as would
not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. This Subsection 2.1
shall
not preclude Borrower or any of its Subsidiaries from contesting any taxes
or
other payments, if they are being diligently contested in good faith and if
adequate reserves therefor are maintained in conformity with GAAP.
2.2. Maintenance
of Books and Records; Properties; Insurance.
Borrower will keep and will cause each of its Subsidiaries to keep adequate
records and books of account, in which full, true and correct entries will
be
made in accordance with GAAP consistently applied, reflecting all financial
transactions of such Persons. Borrower will maintain or cause to be maintained
and will cause each of its Subsidiaries to maintain or cause to be maintained
in
good repair, working order and condition all material property used in its
business and the business of its Subsidiaries, and will make or cause to be
made
all appropriate repairs, renewals and replacements thereof. Borrower will and
will cause each of its Subsidiaries to maintain complete, accurate and
up-to-date books, records, accounts and other information relating to all
property in such form and in such detail as may be reasonably satisfactory
to
Administrative Agent. Borrower will maintain or cause to be maintained and
will
cause each of its Subsidiaries to maintain or cause to be maintained, with
financially sound and reputable insurers, commercial general liability, property
loss and damage, business interruption and workers’ compensation insurance with
respect to its business and properties and the business and properties of its
Subsidiaries against loss and damage of the kinds customarily carried or
maintained by corporations of established reputation engaged in similar
industries, which may include self-insurance, if determined by Borrower to
be
reasonably prudent, and will deliver evidence thereof to Administrative Agent
on
or prior to the Closing Date, and thereafter at least 30 days prior to any
expiration thereof, evidence of renewal of such insurance. All property loss
and
damage insurance shall be on an all risk basis and shall insure property for
the
full replacement cost thereof.
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Administrative
Agent shall be entitled, upon reasonable advance notice, to review and/or
receive copies of, the insurance policies of Borrower and its Subsidiaries
carried and maintained with respect to Borrower’s obligations under this
Subsection
2.2.
Notwithstanding anything to the contrary herein, no provision of this
Subsection
2.2
or any
provision of this Agreement shall impose on Administrative Agent and Lenders
any
duty or obligation to verify the existence or adequacy of the insurance coverage
maintained by Borrower and its Subsidiaries, nor shall Administrative Agent
and
Lenders be responsible for any representations or warranties made by or on
behalf of Borrower and its Subsidiaries to any insurance broker, company or
underwriter. Administrative Agent, at its sole option, may obtain such insurance
if not provided by Borrower and in such event, Borrower shall reimburse
Administrative Agent upon demand for the cost thereof.
2.3. Inspection.
Borrower will and will cause its Subsidiaries to permit any authorized
representatives of Administrative Agent (i) to visit and inspect any of the
properties of Borrower and its Subsidiaries, including its financial and
accounting records, and to make copies and take extracts therefrom, and
(ii) to discuss its affairs, finances and business with its officers,
employees and certified public accountants, all upon at least five days notice,
at such reasonable times during normal business hours and, unless
a
Default or Event of Default has occurred and is continuing, not more than twice
a year.
2.4. Legal
Existence, Etc.
Except
as otherwise permitted by Subsection 3.5,
Borrower will and will cause its Subsidiaries to at all times preserve and
keep
in full force and effect its or their legal existence and good standing and
all
rights and franchises material to its or their business.
2.5. Use
of
Proceeds.
Borrower will use and will cause its Subsidiaries to use the proceeds of the
Loans solely for the purposes described in the recital paragraphs to this
Agreement; provided, however, Borrower will solely use the proceeds under the
Incremental Increase and Term Loan B Facility for purposes of the Everest
Acquisition. No part of any Loan will be used to purchase any margin securities
or otherwise in violation of the regulations of the Federal Reserve
System.
2.6. Further
Assurances.
Borrower will, and will cause each of its Subsidiaries to, from time to time,
do, execute and deliver all such additional and further acts, documents and
instruments as Administrative Agent reasonably requests to consummate the
transactions contemplated hereby and to vest completely in and assure
Administrative Agent of its rights under this Agreement and the other Loan
Documents.
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2.7. CoBank
Patronage Capital.
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 Borrower may be required
to purchase in CoBank in connection with the Loans may not exceed the maximum
amount permitted by the Bylaws 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
Borrower’s patronage with CoBank shall be governed by CoBank’s Bylaws. Borrower
hereby consents and agrees that the amount of any distributions with respect
to
its patronage with CoBank that are made in qualified written notices of
allocation (as defined in 26 U.S.C. § 1388) and that are received by Borrower
from CoBank, will be taken into account by Borrower at the stated dollar amounts
whether the distribution is evidenced by a participation certificate or other
form of written notice that such distribution has been made and recorded in
the
name of Borrower on the records of CoBank. The Obligations shall be secured
by a
statutory first lien on all equity which Borrower may now own or hereafter
acquire in CoBank.
2.8. Investment
Company Act.
Neither
Borrower nor any of its Subsidiaries shall be or become an “investment company”
as that term is defined in and is not otherwise subject to regulation under,
the
Investment Company Act of 1940, as amended.
2.9. Payment
of Obligations.
Unless
contested in good faith by appropriate proceedings and then only to the extent
reserves required by GAAP have been set aside therefore, Borrower will, and
will
cause each of its Subsidiaries to, (i) pay, discharge or otherwise satisfy
at or
before maturity all liabilities and obligations as and when due (subject to
any
applicable subordination provisions), and any additional costs that are imposed
as a result of any failure to so pay, discharge or otherwise satisfy such
obligations, except to the extent failure to do so would not be reasonably
likely to have a Material Adverse Effect, and (ii) pay and discharge all taxes,
assessments, claims and governmental charges or levies imposed upon it, upon
its
income or profits or upon any of its properties, prior to the date on which
penalties would attach thereto or a lien would attach to any of the properties
of Borrower if unpaid unless the same are being contested in good faith and
by
appropriate proceedings and then only if and to the extent reserves required
by
GAAP have been set aside therefor.
2.10. Environmental
Laws.
Borrower will, and will at all times cause each of its Subsidiaries
to:
(A) Comply
in
all material respects with, and ensure compliance in all material respects
by
all its tenants and subtenants, if any, with, all applicable Environmental
Laws
and obtain and comply in all material respects with and maintain, and ensure
that all its tenants and subtenants obtain and comply in all material respects
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;
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(B) Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect.
(C) Defend,
indemnify and hold harmless Administrative Agent and Lenders, and their
Affiliates and their and their Affiliates’ respective employees, agents,
officers and directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind
or
nature known or unknown, contingent or otherwise, arising out of, or in any
way
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of Borrower or any of its
Subsidiaries or their respective properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney’s and consultant’s fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except
to
the extent that any of the foregoing is determined by a final judgment of a
court of competent jurisdiction or pursuant to arbitration as set forth herein
to have resulted from the gross negligence or willful misconduct of the party
seeking indemnification therefor. The agreements in this Subsection
2.10
shall
survive repayment of the Obligations and the termination of this
Agreement.
2.11. ERISA
Compliance.
With
respect to any Plan that is intended to qualify under Section 401(a) of the
IRC,
Borrower will apply for and obtain a favorable determination letter within
the
period required by Applicable Law.
SECTION
3
NEGATIVE
COVENANTS
Borrower
covenants and agrees that so
long
as the Loan Commitments remain in effect, or any Letter of Credit, any Loan,
any
interest on any Loan or any fee payable to Administrative Agent or any Lender
hereunder remains outstanding, or any other amount then due and payable is
owing
to Administrative Agent or any Lender hereunder,
and
unless Requisite Lenders (or (x) such other number of Lenders as is required
by
Subsection
9.2
or (y)
Administrative Agent if expressly set forth in this Section
3)
shall
otherwise give their prior written consent, Borrower shall, and shall cause
its
Subsidiaries to, perform and comply with all covenants in this Section
3.
3.1. Indebtedness.
Borrower will not and will not permit its Subsidiaries directly or indirectly
to
create, incur, assume, guaranty or otherwise become or remain liable with
respect to any Indebtedness other than:
(A) the
Obligations;
(B) Acquired
Indebtedness if after giving effect to the incurrence the Acquired Indebtedness,
Borrower, on a combined and consolidated basis with its Subsidiaries as set
forth in Section
4,
are in
compliance on a pro forma basis with the covenants set forth in Section 4
recomputed
for the most recently ended fiscal quarter for which information is
available;
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(C) Indebtedness
issued or incurred by any of Borrower’s Subsidiaries if after giving effect
thereto and the application of proceeds therefrom, the aggregate of all Priority
Debt incurred after December 8, 1998 would not exceed 10% of Consolidated Net
Assets as of the most recently completed fiscal quarter of
Borrower;
(D) secured
Indebtedness issued by Borrower secured by a Lien described in clause (9) of
the
definition of Permitted Encumbrances;
(E) Other
unsecured Indebtedness issued by Borrower, provided,
that no
Default or Event of Default exists at the time of or will result in the
succeeding 12 months after such issuance, including under Subsections
4.1
and
4.2,
taking
such additional Indebtedness (and a reasonable estimate of its related interest
expense into account);
(F) Indebtedness
incurred in connection with any Related Interest Rate Agreement;
and
(G) Indebtedness
under purchase money security agreements and Capital Leases not to exceed
$40,000,000 in the aggregate principal at any one time.
3.2. Liens
and Related Matters..
Borrower will not and will not permit its Subsidiaries directly or indirectly
to
create, incur, assume or permit to exist any Lien on or with respect to any
property or asset (including any document or instrument with respect to goods
or
accounts receivable) of Borrower or its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, except Permitted
Encumbrances.
3.3. Investments.
Borrower will not make or own and will not permit its Subsidiaries to make
or
own any Investment in any Person that is prohibited by its investment policy
as
then in effect, except equities in Administrative Agent, as set forth in
Subsection
2.7,
Permitted Acquisitions and Investments acquired in connection with Permitted
Acquisitions.
3.4. Restricted
Junior Payments.
Borrower will not directly or indirectly declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; provided,
however,
that so
long as no Default or Event of Default exists before or will result in the
succeeding 12 months after such distributions and repurchases, based upon
Borrower’s Budget delivered to Administrative Agent pursuant to Subsection
4.4(D),
Borrower may (i) declare or pay lawful distributions to its shareholders and
(ii) repurchase its issued and outstanding stock so long as the aggregate amount
of such distributions and repurchases does not exceed (A) during the fiscal
year
ending December 31, 2008, $25,000,000 and (B) during each fiscal year
thereafter, the higher of $25,000,000 or 100% of the net income of the
immediately preceding fiscal year; provided,
further,
however,
that
Borrower may satisfy on a non-cash basis the exercise of any stock option or
similar award under a stock-based compensation plan.
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3.5. Restriction
on Fundamental Changes.
Borrower will not and will not permit its Subsidiaries directly or indirectly
to: (i) unless and only to the extent required by law, amend, modify or
waive any term or provision of its articles of organization, partnership
agreement, operating agreement, management agreements, articles of incorporation
or certificates of designations pertaining to preferred stock or by-laws without
the consent of Administrative Agent (which consent shall not be unreasonably
withheld), other than an amendment, modification or waiver that is solely
ministerial or administrative in nature or the reincorporation of Borrower
in
the State of Delaware; provided,
however,
Borrower shall promptly give Administrative Agent notice of any such amendment,
modification or waiver; (ii) enter into any transaction of merger or
consolidation or acquire by purchase or otherwise all or any substantial part
of
the business or assets of any other Person, except (each of the following,
a
“Permitted Acquisition”) (a) any Subsidiary of Borrower may be merged with or
into Borrower or any wholly owned Subsidiary of Borrower
provided
that
Borrower or such wholly owned Subsidiary of Borrower is the surviving entity,
(b) Borrower may consummate the Everest Acquisition and (c) Borrower or its
Subsidiaries may consolidate or merge with or into any other Person or acquire
by purchase or otherwise all or any substantial part of the business or assets
of any other Person, provided
that no
Default or Event of Default then exists or would result from such transaction,
Borrower or such Subsidiary is the surviving or continuing entity and the
consideration for each such transaction provided by Borrower (whether in the
form of stock, cash or other consideration) does not exceed $100,000,000 and
such consideration for all such transactions under this subclause (c) does
not
in the aggregate exceed $200,000,000; or (iii) liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution).
3.6. Disposal
of Assets or Subsidiary Stock.
Borrower will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, convey, sell (including, without limitation, pursuant to a sale
and
leaseback transaction), lease (including, without limitation, pursuant to a
lease and leaseback transaction), sublease, transfer or otherwise dispose of,
or
grant any Person an option to acquire, in one transaction or a series of
transactions, any of its property, business or assets, or the capital stock
of
or other equity interests in any of its Subsidiaries, except for (i) the
Wireless Sale, (ii) bona fide sales or leases of inventory to customers in
the ordinary course of business, dispositions of equipment not used or useful
in
the business or otherwise obsolete and any sale, conveyance, lease, sublease,
transfer or other disposition of assets of any of Borrower or its Subsidiaries
to Borrower or any wholly owned Subsidiary; (iii) fair market value sales of
Cash Equivalents or other Investments permitted by Subsection
3.3;
(iv)
leasing or subleasing of its property in the ordinary course of business; (v)
other Asset Dispositions if all of the following conditions are met: (a) the
aggregate book value of such assets sold in any one transaction or series of
related transactions (excluding the Directories Sales) for any 12-month period
does not exceed 20% of Consolidated Net Assets determined as of the end of
the
immediately preceding fiscal year in the aggregate for Borrower and its
Subsidiaries, (b) the consideration received by Borrower or such Subsidiary
is
at least equal to the fair market value of such assets, (c) the sole
consideration received is cash or other assets (other than a note or other
delayed payment transaction), (d) after giving effect to the Asset
Disposition, Borrower, on a combined and consolidated basis with its
Subsidiaries as set forth in Section
4,
are in
compliance on a pro forma basis with the covenants set forth in Section 4
recomputed for the most recently ended fiscal quarter for which information
is
available and Borrower is in compliance with all other terms and conditions
contained in this Agreement, and (e) no Default or Event of Default then exists
or would result from the Asset Disposition; (vi) the sale by Borrower or any
Subsidiary of property and the subsequent lease, as lessee, of the same
property, within 180 days following the acquisition or construction of such
property, in an aggregate amount not to exceed $25,000,000; and (vii) an Asset
Disposition if (a) the aggregate Net Proceeds of such assets disposed of under
this clause (vii) does not exceed $100,000,000 from and after the Amendment
Date, (b) the consideration received is at least equal to the fair market value
of such assets, (c) the sole consideration received is cash or other assets
(other than a note or other delayed payment transaction), (d) no Default or
Event of Default then exists or would result from the Asset Disposition, (e)
after giving effect to the Asset Disposition, Borrower, on a combined and
consolidated basis with its Subsidiaries as set forth in Section
4,
are in
compliance on a pro forma basis with the covenants set forth in Section
4
recomputed for the most recently ended fiscal quarter for which information
is
available and Borrower is in compliance with all other terms and conditions
contained in this Agreement, and (f) the proceeds from any sale under this
clause (vii) are promptly used to repay the Term Loan pursuant to Subsection
1.7(C),
provided
that if
at the time of such disposition under this clause (vii) Borrower’s Leverage
Ratio is less than or equal to 2.2:1.0 for a disposition occurring on or before
December 31, 2007 and less than or equal to 2.0:1.0 for a disposition occurring
on or after January 1, 2008, Borrower may in lieu of repaying the Term Loan
apply such proceeds to the acquisition of fixed assets or other property useful
and intended to be used in the operation of the business of Borrower is
Subsidiaries within 365 days of the date of sale of such assets, any remaining
unapplied proceeds after such 365 days to be applied promptly to repay the
Term
Loan pursuant to
Subsection 1.7(C).
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3.7. Transactions
with Affiliates.
Borrower will not and will not permit its Subsidiaries directly or indirectly
to
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
Affiliate or with any director, officer or employee of Borrower or any
Affiliate, except (i) as set forth on Schedule
3.7;
(ii) transactions between Borrower or any wholly owned Subsidiaries with
Borrower or any wholly owned Subsidiaries; (iii) pursuant to the reasonable
requirements of the business of Borrower or such Subsidiary and upon fair and
reasonable terms and are no less favorable to Borrower or such Subsidiary than
would be obtained in a comparable arm’s length transaction with a Person that is
not an Affiliate; or (iv) payment of compensation to directors, officers and
employees in the ordinary course of business for services actually rendered
in
their capacities as directors, officers and employees, provided such
compensation is reasonable and comparable with compensation paid by companies
of
like nature and similarly situated.
3.8. Conduct
of Business.
Borrower will not and will not permit its Subsidiaries directly or indirectly
to
engage in any business other than businesses of owning, constructing, managing
and operating Telecommunications Systems, or other lines of business necessary
to or ancillary to the foregoing or consistent with advances in the
Telecommunications Systems industry.
3.9. Fiscal
Year.
Borrower will not and will not permit its Subsidiaries to change its or their
fiscal year from a fiscal year ending on December 31 of each year.
3.10. Inconsistent
Agreements.
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement containing any provision which would (a) be violated or breached
by any borrowing by Borrower hereunder or by the performance by Borrower or
such
Subsidiary of any of its obligations hereunder or under any other Loan Document,
or (b) create or permit to exist or become effective any encumbrance or
restriction on the ability of such Subsidiary to (i) pay dividends or make
other
distributions to Borrower or pay any Indebtedness owed to Borrower, (ii) make
loans or advances to Borrower or (iii) transfer any of its assets or properties
to Borrower, the effect of which encumbrance or restriction would reasonably
be
to have a Material Adverse Effect; provided,
however,
that
the foregoing shall not apply to restrictions and conditions imposed by
applicable governmental rules or by this Agreement.
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SECTION
4
FINANCIAL
COVENANTS AND REPORTING
Borrower
covenants and agrees that so
long
as the Loan Commitments remain in effect, or any Letter of Credit, any Loan,
any
interest on any Loan or any fee payable to Administrative Agent or any Lender
hereunder remains outstanding, or any other amount then due and payable is
owing
to Administrative Agent or any Lender hereunder,
and
unless the Requisite Lenders (or Administrative Agent if expressly set forth
in
this Section
4)
shall
otherwise give their prior written consent, Borrower shall perform and comply
with, and shall cause its Subsidiaries to perform and comply with, all covenants
in this Section
4.
For
purposes of this Section
4,
all
covenants calculated for Borrower shall be calculated on a consolidated basis
for Borrower and its Subsidiaries.
4.1. Leverage
Ratio.
Borrower shall have at each fiscal quarter end a Leverage Ratio less than or
equal to 3.75:1.0.
4.2. Interest
Coverage Ratio.
Borrower shall have at each fiscal quarter end an Interest Coverage Ratio
greater than or equal to 3.0:1.0.
4.3. Net
Worth.
Borrower shall have at each fiscal quarter end an Adjusted Consolidated Net
Worth not less than $160,000,000.
4.4. Financial
Statements and Other Reports.
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 (it being
understood that quarterly financial statements are not required to have footnote
disclosures or reflect year end adjustments). Borrower will deliver each of
the
financial statements and other reports described below to Administrative
Agent.
(A) Quarterly
Financials.
As soon
as available and in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, Borrower will deliver consolidated
balance sheets of Borrower and its Subsidiaries, as at the end of such fiscal
quarter, and the related consolidated statements of income and cash flow for
such fiscal quarter and for the period from the beginning of the then current
fiscal year of Borrower to the end of such quarter; provided
that
delivery within the time period specified above of copies of Borrower’s
Quarterly Report on Form 10-Q prepared in compliance with the requirements
therefore and filed with the Securities and Exchange Commission (the
“SEC”)
will
be deemed to satisfy the requirements of this Subsection
4.4(A).
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(B) Year-End
Financials.
As soon
as available and in any event within 105 days after the end of each fiscal
year
of Borrower, Borrower will deliver (i) consolidated balance sheets of
Borrower and its Subsidiaries, as at the end of such year, and the related
consolidated statements of income, stockholders’ equity and cash flow for such
fiscal year and (ii) a report with respect to the financial statements from
Ernst & Young LLP, or another firm of certified public accountants selected
by Borrower and reasonably acceptable to Administrative Agent, which report
shall be prepared in accordance with Statement of Auditing Standards No. 58
(the “Statement”),
as
amended, entitled “Reports on Audited Financial Statements” and such report
shall be “Unqualified” (as such term is defined in such Statement) ;
provided
that
delivery within the time period specified above of copies of Borrower’s Annual
Report on Form 10-K prepared in compliance with the requirements therefore
and
filed with the SEC will be deemed to satisfy the requirements of this
Subsection
4.4(B).
(C) Borrower
Compliance Certificate.
Together with each delivery of financial statements of Borrower and its
Subsidiaries pursuant to Subsections
4.4(A)
and
4.4(B),
Borrower will deliver a fully and properly completed compliance certificate
in
substantially the same form as Exhibit
4.4(C)
(each, a
“Compliance
Certificate”)
signed
by the chief financial officer of Borrower.
(D) Budgets.
As soon
as available and in any event no later than 45 days following the first day
of
each of Borrower’s fiscal years, Borrower will deliver a final Budget of
Borrower and its Subsidiaries for such fiscal year approved by Borrower’s senior
management and Board of Directors.
(E) SEC
Filings.
Promptly upon their becoming available, Borrower will deliver copies of (i)
all
financial statements, reports, notices and proxy statements sent or made
available by Borrower or its Subsidiaries to its or their security holders
and
(ii) all regular and periodic reports and all registration statements and
prospectuses, if any, filed by Borrower or any of its Subsidiaries with any
securities exchange or with the SEC or any governmental or private regulatory
authority, provided,
that,
such financial statements and reports shall be deemed to have been delivered
upon the filing of such financial statements and reports by Borrower through
the
SEC's XXXXX system or publication by Borrower of such financial statements
and
reports on its website.
(F) Events
of Default, Etc.
Promptly upon any executive officer of Borrower obtaining knowledge of any
of
the following events or conditions, Borrower shall deliver copies of all notices
given or received by Borrower or any of its Subsidiaries with respect to any
such event or condition and a certificate of Borrower’s chief executive officer
specifying the nature and period of existence of such event or condition and
what action Borrower has taken, is taking and proposes to take with respect
thereto: (i) any condition or event that constitutes an Event of Default or
Default; (ii) any notice that any Person has given to Borrower or any of
its Subsidiaries or any other action taken with respect to a claimed default
or
event or condition of the type referred to in Subsection
6.1(B);
or
(iii) any event or condition that could reasonably be expected to have a
Material Adverse Effect.
(G) Litigation.
Promptly upon any executive officer of Borrower obtaining knowledge of
(i) the institution of any action, suit, proceeding, governmental
investigation or arbitration against or affecting Borrower or any of its
Subsidiaries not previously disclosed by Borrower to Administrative Agent which,
in each case, could reasonably be expected to have a Material Adverse Effect
or
(ii) any material development in any action, suit, proceeding, governmental
investigation or arbitration at any time pending against or affecting Borrower
or any of its Subsidiaries which, in each case, could reasonably be expected
to
have a Material Adverse Effect, Borrower will give notice thereof to
Administrative Agent and provide such other information as may be reasonably
available to Borrower to enable Administrative Agent and its counsel to evaluate
such matter.
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(H) Environmental
Notices.
Immediately after becoming aware of any material violation by Borrower or any
Signficant Subsidiary of Environmental Laws or immediately upon receipt of
any
notice that a Governmental Authority has asserted that Borrower or any
Subsidiary is not in material compliance with Environmental Laws or that its
compliance is being investigated, which, in each case, could reasonably be
expected to have a Material Adverse Effect, Borrower will give notice to
Administrative Agent thereof and provide such other information as may be
reasonably available to Borrower to enable Administrative Agent and its counsel
to reasonably evaluate such matter.
(I) ERISA
Events.
Promptly after becoming aware of any ERISA Event, accompanied by any materials
required to be filed with the PBGC with respect thereto; promptly after any
Borrower’s or any of its Subsidiaries’ receipt of any notice concerning the
imposition of any withdrawal liability under Section 4042 of ERISA with respect
to a Plan; promptly upon the establishment of any Pension Plan not existing
at
the Closing Date or the commencement of contributions by any Borrower or any
of
its Subsidiaries to any Pension Plan to which any Borrower or any of its
Subsidiaries was not contributing at the Closing Date; and promptly upon
becoming aware of any other event or condition regarding a Plan or any
Borrower’s, or any of its Subsidiaries’ or an ERISA Affiliate’s compliance with
ERISA which could reasonably be expected to have a Material Adverse Effect,
such
Borrower will give notice to Administrative Agent thereof and provide such
other
information as may be reasonably available to such Borrower to enable
Administrative Agent and its counsel to reasonably evaluate such
matter.
(J) Other
Information.
With
reasonable promptness, Borrower will deliver such other information and data
with respect to Borrower or any of its Subsidiaries as from time to time may
be
reasonably requested by Administrative Agent.
4.5. 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 Administrative Agent pursuant to this Agreement shall be prepared
in accordance with GAAP as in effect at the time of such preparation. No
“Accounting Changes” (as defined below) shall affect financial covenants,
standards or terms in this Agreement; provided
that
Borrower shall prepare footnotes to each Compliance Certificate and the
financial statements required to be delivered hereunder that show the
differences between the financial statements delivered (which reflect such
Accounting Changes) and the basis for calculating financial covenant compliance
(without reflecting such Accounting Changes). “Accounting
Changes”
means:
(i) changes occurring after the Amendment Date in accounting principles required
by GAAP and implemented by Borrower; (ii) changes occurring after the Amendment
Date in accounting principles recommended by Borrower’s certified public
accountants and implemented by Borrower; and (iii) changes occurring after
the
Amendment Date in the method of determining carrying value of Borrower’s or any
of its Subsidiaries’ assets, liabilities or equity accounts. All such
adjustments resulting from expenditures made subsequent to the Amendment Date
(including, but not limited to, capitalization of costs and expenses or payment
of pre-Amendment Date liabilities) shall be treated as expenses in the period
the expenditures are made.
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SECTION
5
REPRESENTATIONS
AND WARRANTIES
In
order
to induce Administrative Agent and Lenders to enter into this Agreement and
to
make Loans, Borrower hereby represents and warrants to Administrative Agent
and
each Lender that the following statements are true and correct on the Amendment
Date (assuming consummation of the Acquisition) and on the date of each request
for a Loan or the issuance of a Letter of Credit unless another date is
expressly noted below:
5.1. Disclosure.
The
information furnished by or on behalf of Borrower and its Subsidiaries contained
in this Agreement, the financial statements referred to in Subsection
5.8
and any
other document, certificate, opinion or written statement furnished to
Administrative Agent pursuant to this Agreement or any other Loan Document
(other than projections), taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements contained herein or therein not misleading in light
of
the circumstances in which the same were made. Any projections provided by
or on
behalf of Borrower and its Subsidiaries have been prepared by management in
good
faith and based upon assumptions believed by management to be reasonable at
the
time the projections were prepared. Borrower is not aware of any fact which
it
has not disclosed in writing to Administrative Agent having or which could
reasonably be expect to have a Material Adverse Effect.
5.2. No
Material Adverse Effect.
Since
December 31, 2006, there has been no event or change in facts or circumstances
affecting Borrower or any of its Subsidiaries which individually or in the
aggregate have had or could reasonably be expected to have a Material Adverse
Effect and that have not been disclosed herein or in the attached
Schedules.
5.3. Organization,
Powers, Authorization and Good Standing.
(A) Organization
and Powers.
Each of
Borrower and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization (which
jurisdiction is set forth on Schedule
5.3(A)
as of
the Amendment Date). Each of Borrower and its Subsidiaries has all requisite
legal power and authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, to enter into each
Loan
Document to which it is a party and to carry out its respective obligations
with
respect thereto.
(B) Authorization;
Binding Obligation.
Each of
Borrower and its Subsidiaries has taken all necessary corporate and other action
to authorize the execution, delivery and performance of this Agreement and
each
of the other Loan Documents to which it is a party. This Agreement is, and
the
other Loan Documents when executed and delivered will be, the legally valid
and
binding obligations of the applicable parties thereto (other than Administrative
Agent and Lenders), each enforceable against each of such parties, as
applicable, in accordance with their respective terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debt or relief laws from time to time in effect
which affect the enforcement of creditors’ rights in general and general
principles of equity.
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(C) Qualification.
Each of
Borrower and its Subsidiaries is duly qualified and authorized to do business
and in good standing in each jurisdiction where the nature of its business
and
operations requires such qualification and authorization, except where the
failure to be so qualified, authorized and in good standing could not reasonably
be expected to have a Material Adverse Effect. All jurisdictions in which each
such Person is qualified and authorized to do business are set forth on
Schedule
5.3(C)
as of
the Amendment Date.
5.4. Compliance
of Agreement, Loan Documents and Borrowings with Applicable Law.
Except
as set forth on Schedule
5.4
hereto,
the execution, delivery and performance by Borrower and its Subsidiaries of
the
Loan Documents to which each is a party, the borrowings hereunder and the
transactions contemplated hereby and thereby do not and will not, by the passage
of time, the giving of notice or otherwise, (i) require any Governmental
Approval or violate any Applicable Law relating to Borrower or any of its
Subsidiaries, the violation of which could reasonably be expected to have a
Material Adverse Effect, (ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or other
organizational documents of Borrower or any of its Subsidiaries, (iii) conflict
with, result in a breach of or constitute a default under any Material Contract
to which such Person is a party or by which any of its properties may be bound
or any Governmental Approval relating to such Person, the breach or default
of
which could reasonably be expected to have a Material Adverse Effect, or (iv)
result in or require the creation or imposition of any Lien upon or with respect
to any property now owned or hereafter acquired by such Person, the creation
or
imposition of which could reasonably be expected to have a Material Adverse
Effect.
5.5. Compliance
with Law; Governmental Approvals.
Each of
Borrower and its Subsidiaries (i) has, or has the right to use, all material
Governmental Approvals, including the Licenses, required by any Applicable
Law
for it to conduct its business and (ii) is in material compliance with each
Governmental Approval, including the Licenses, applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties the violation of which could reasonably be expected to
have a Material Adverse Effect. Each such Governmental Approval is in full
force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or threatened attack by direct or collateral
proceeding.
5.6. Tax
Returns and Payments.
Each of
Borrower and its Subsidiaries has duly filed or caused to be filed, except
as
set forth on Schedule
5.6,
all
federal, state, local and other tax returns required by Applicable Law to be
filed, and has paid, or made adequate provision for the payment of, all federal,
state, local and other taxes, assessments and governmental charges or levies
upon it and its property, income, profits and assets which are due and payable,
except
where
the payment of such tax is being diligently contested in good faith and adequate
reserves therefor have been established in compliance with GAAP. The charges,
accruals and reserves on the books of Borrower and its Subsidiaries in respect
of federal, state, local and other taxes for all fiscal years and portions
thereof are in the judgment of Borrower adequate.
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5.7. Environmental
Matters.
Each of
Borrower and its Subsidiaries is in compliance in all material respects with
all
applicable Environmental Laws, and there is no contamination at, under or about
the properties or operations of Borrower and its Subsidiaries, which interfere
in any material respect with the continued operation of such properties or
impair in any material respect the fair saleable value thereof or with such
operations, except for any such violations or contamination as could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
5.8. Financial
Statements.
(A) Except
as
set forth on Schedule
5.8,
all
financial statements concerning Borrower and its Subsidiaries which have been
furnished to Administrative Agent pursuant to this Agreement have been prepared
in accordance with GAAP consistently applied (except as disclosed therein)
and
present fairly the financial condition of the Persons covered thereby as of
the
date thereof and the results of their operations for the periods covered thereby
and disclose all material liabilities of Borrower or its Subsidiaries as at
the
dates thereof. Neither Borrower nor any of its Subsidiaries has outstanding,
as
of the Amendment Date, and after giving effect to the initial Loans hereunder
on
the Amendment Date, any Indebtedness for borrowed money other than (i) the
Loans
and (ii) the Indebtedness permitted under Subsection
3.1.
(B) All
Budgets concerning Borrower and its Subsidiaries which have been furnished
to
Administrative Agent were prepared in good faith by or on behalf of Borrower
and
such Subsidiaries. No fact is known to Borrower which materially and adversely
affects or is reasonably expected to have a Material Adverse Effect which has
not been set forth in the financial statements referred to in Subsection
5.8(A)
or in
such information, reports, papers and data or otherwise disclosed in writing
to
Administrative Agent prior to the date hereof.
5.9. Intellectual
Property.
Each of
Borrower and its Subsidiaries owns, or possesses through valid licensing
arrangements, the right to use all patents, copyrights, trademarks, trade names,
service marks, technology know-how and processes used in or necessary for the
conduct of its business as currently or anticipated to be conducted
(collectively, the “Intellectual
Property Rights”),
to
its knowledge, without infringing upon any validly asserted rights of others,
except for any Intellectual Property Rights the absence of which could not
reasonably be expected to have a Material Adverse Effect. No event has occurred
which permits, or after notice or lapse of time or both would permit, the
revocation or termination of any such rights the absence of which could not
reasonably be expected to have a Material Adverse Effect.
5.10. Litigation,
Investigations, Audits, Etc.
Except
as set forth on Schedule
5.10,
there
is no action, suit, proceeding or investigation pending against, or, to the
knowledge of Borrower, threatened against or in any other manner relating
adversely to, Borrower or any of its Subsidiaries or any of their respective
properties, including the Licenses, in any court or before any arbitrator of
any
kind or before or by any Governmental Authority (including the FCC), except
such
as affect the telecommunications industry generally which, in each case or
in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
None of the actions, suits, proceedings or investigations disclosed on
Schedule
5.10
(i)
calls into question the validity of this Agreement or any other Loan Document,
or (ii) individually or collectively could reasonably be expected to result
in a
judgment or liability not fully covered by insurance which, if determined
adversely to Borrower or any of its Subsidiaries, could reasonably be expected
to have a Material Adverse Effect. Neither Borrower nor any of its Subsidiaries
is the subject of any review or audit by the Internal Revenue Service or any
investigation by any Governmental Authority concerning the violation or possible
violation of any law.
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5.11. Employee
Labor Matters.
Except
as set forth on Schedule
5.11,
(i)
none of Borrower, its Subsidiaries nor any of their respective employees is
subject to any collective bargaining agreement, (ii) no petition for
certification or union election is pending with respect to the employees of
any
such Person and no union or collective bargaining unit has sought such
certification or recognition with respect to the employees of any such Person
and (iii) there are no strikes, slowdowns, unfair labor practice complaints,
work stoppages or controversies pending or, to the best knowledge of Borrower
after due inquiry, threatened between any such Person and its respective
employees, other than employee grievances arising in the ordinary course of
business which could not reasonably be expected to have, either individually
or
in the aggregate, a Material Adverse Effect.
5.12. ERISA
Compliance.
(A) Each
Plan
is in compliance with the applicable provisions of ERISA, the IRC and other
federal or state law except for failures to comply that would not reasonably
be
expected to have a Material Adverse Effect. Except as would not reasonably
be
expected to have a Material Adverse Effect, Borrower and each ERISA Affiliate
has made all required contributions to any Plan subject to Section 412 of the
IRC, and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the IRC has been made with respect to any
Plan.
(B) There
are
no pending or, to the best knowledge of Borrower, threatened claims, actions
or
lawsuits, or action by any Governmental Authority, with respect to any Plan
which has resulted or could reasonably be expected to have a Material Adverse
Effect. There has been no prohibited transaction or violation of the fiduciary
responsibility rules by Borrower or any of its ERISA Affiliates with respect
to
any Plan which has resulted or could reasonably be expected to have a Material
Adverse Effect.
(C) (i)
No
ERISA Event has occurred or is reasonably expected to occur that could
reasonably be expected to have a Material Adverse Effect; (ii) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA) that could
reasonably be expected to have a Material Adverse Effect; (iii) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multi-employer Plan; and (iv) neither Borrower
nor any ERISA Affiliate has engaged in a transaction that could subject any
Person to Section 4069 or 4212(c) of ERISA.
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5.13. Communications
Regulatory Matters.
(A) The
Licenses are valid and in full force and effect without conditions except for
such conditions as are generally applicable to holders of such Licenses. No
event has occurred and is continuing which could reasonably be expected to
(i)
result in the imposition of a material forfeiture or the revocation, termination
or adverse modification of any such License or (ii) materially and
adversely affect any rights of Borrower or its Subsidiaries or any other holder
thereunder. Borrower has no reason to believe and has no knowledge that any
License will not be renewed in the ordinary course. Except as disclosed on
Schedule
5.10,
neither
Borrower nor any of its Subsidiaries is a party to any investigation, notice
of
violation, order or complaint issued by or before the FCC or any applicable
Governmental Authority, and there are no proceedings pending by or before the
FCC or any applicable Governmental Authority, which could in any manner threaten
or adversely affect the validity of any License.
(B) All
of
the material properties, equipment and systems owned, leased or managed by
Borrower or its Subsidiaries are, and (to the best knowledge of Borrower) all
such property, equipment and systems to be acquired or added in connection
with
any contemplated system expansion or construction will be, in good repair,
working order and condition (reasonable wear and tear excepted) and are and
will
be in material compliance with all terms and conditions of the Licenses and
all
standards or rules imposed by any Governmental Authority or as imposed under
any
agreements with telephone companies and customers.
(C) Each
of
Borrower and its Subsidiaries has paid all material franchise, license or other
fees and charges which have become due pursuant to any Governmental Approval
in
respect of its business and has made appropriate provision as is required by
GAAP for any such material fees and charges which have accrued.
5.14. Solvency.
Each of
Borrower and its Subsidiaries: (i) owns and will own assets the present fair
saleable value of which are (a) greater than the total amount of liabilities
(including contingent liabilities) of Borrower or its Subsidiaries and (b)
greater than the amount that will be required to pay the probable liabilities
of
its then existing debts and liabilities as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to Borrower or such Subsidiary; (ii) has capital that is not
unreasonably small in relation to its business as presently conducted or after
giving effect to any contemplated transaction; and (iii) does not intend to
incur and does not believe that it will incur debts and liabilities beyond
its
ability to pay such debts and liabilities as they become due.
5.15. Investment
Company Act.
None of
Borrower or any of its Subsidiaries is an “investment company” as that term is
defined in and is not otherwise subject to regulation under, the Investment
Company Act of 1940, as amended.
5.16. Certain
Agreements and Material Contracts.
Each of
Borrower and its Subsidiaries has performed all of its material obligations
under all loan agreements, indentures, guarantees, capital leases and Material
Contracts and, to the best knowledge of Borrower, each other party thereto
is in
compliance with each such agreement or Material Contract. Each such agreement
or
Material Contract is in full force and effect in accordance with the terms
thereof.
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5.17. Title
to Properties.
Borrower and each of its Subsidiaries has such title or leasehold interest
in
and to the real property or interests therein, including material easements,
licenses and similar rights in real estate, owned or leased by it as is
necessary or desirable to the conduct of its business and valid and legal title
or leasehold interest in and to all of its personal property, including those
reflected on the balance sheets of Borrower delivered pursuant to Subsection 5.8,
except
those which have been disposed of by Borrower subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
5.18. Transactions
with Affiliates.
No
Affiliate of Borrower is a party to any agreement, contract, commitment or
transaction with Borrower or has any material interest in any material property
used by Borrower, except as permitted by Subsection
3.7.
5.19. OFAC.
None of
Borrower or its Subsidiaries (i) is a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive
Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg.
49079 (2001)), (ii) engages in any dealings or transactions prohibited by
Section 2 of such executive order, or is otherwise associated with any such
person in any manner violative of Section 2, or (iii) is a person on the list
of
Specially Designated Nationals and Blocked Persons or subject to the limitations
or prohibitions under any other U.S. Department of Treasury’s Office of Foreign
Assets Control regulation or executive order.
5.20. Patriot
Act.
Each of
Borrower and its Subsidiaries is in compliance, in all material respects, with
the (i) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) and any other enabling legislation or
executive order relating thereto, and (ii) Uniting And Strengthening America
By
Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA
Patriot Act of 2001). No part of the proceeds of the Loans will be used,
directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as
amended.
SECTION
6
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.
Failure
to repay any outstanding amount of the Loans at the time required pursuant
to
this Agreement, or to reimburse Administrative Agent (for the account of Issuing
Lender) for any payment made by Issuing Lender under or with respect to any
Letter of Credit when due, or failure to pay, within five days after the due
date, any interest on any Loan or failure to pay, within five days after receipt
by Borrower of notice from Administrative Agent, any other amount due under
this
Agreement or any of the other Loan Documents; or
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(B) Default
in Other Agreements.
(i)
Failure of Borrower or any of its Subsidiaries to pay when due or within any
applicable grace period any principal or interest on Indebtedness (other than
the Loans) in excess of $5,000,000 or (ii) any other breach or default of
Borrower or any of its Subsidiaries with respect to the Note Purchase Agreement,
any Indebtedness (other than the Loans), if the effect of such breach or default
is to cause or to permit the holder or holders then to cause such Indebtedness
having an aggregate principal amount for Borrower and its Subsidiaries in excess
of $5,000,000 to become or be declared due prior to its stated maturity;
or
(C) Breach
of Certain Provisions.
Failure
of Borrower or any of its Subsidiaries to perform or comply with any term or
condition contained in that portion of
Subsection 2.2
relating
to Borrower’s or any of its Subsidiaries’ obligation to maintain insurance,
Subsection
2.4,
Section
3
or
Section
4;
or
(D) Breach
of Warranty.
Any
representation, warranty, certification or other statement made by Borrower
or
any of its Subsidiaries in any Loan Document or in any statement or certificate
at any time given by Borrower or any of its Subsidiaries in writing pursuant
to
any Loan Document is false in any material respect on the date made or deemed
made; or
(E) Other
Defaults Under Loan Documents.
Borrower, any of its Subsidiaries or any other party (other than Administrative
Agent or a Lender) 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 receipt by Borrower,
any
such Subsidiary or such other party of notice from Administrative Agent 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.
(i) A
court enters a decree or order for relief with respect to Borrower or any of
its
Subsidiaries in an involuntary case under the Bankruptcy Code, which decree
or
order is not stayed or other similar relief is not granted under any applicable
federal or state law within 60 days; or (ii) the continuance of any of the
following events for 60 days unless dismissed, bonded or discharged: (a) an
involuntary case is commenced against Borrower or any of its Subsidiaries,
under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in
effect; or (b) a decree or order of a court for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Borrower or any of its Subsidiaries, or over all or a substantial
part of its property, is entered; or (c) an interim receiver, trustee or other
custodian is appointed without the consent of Borrower or any of its
Subsidiaries, for all or a substantial part of the property of Borrower or
any
of its Subsidiaries; or
(G) Voluntary
Bankruptcy; Appointment of Receiver; Etc.
Borrower or any of its Subsidiaries (i) commences a voluntary case under the
Bankruptcy Code, files a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up or composition
for adjustment of debts of Borrower or any of its Subsidiaries, or consents
to,
or fails to contest in a timely and appropriate manner, the entry of an order
for relief in an involuntary case, the conversion of an involuntary case to
a
voluntary case under any such law, or the appointment of or taking possession
by
a receiver, trustee or other custodian of all or a substantial part of the
property of Borrower or any of its Subsidiaries; or (ii) makes any assignment
for the benefit of creditors; or (iii) the Board of Directors or the
shareholders of Borrower or any of its Subsidiaries adopts any resolution or
otherwise authorizes action to approve any of the actions referred to in this
Subsection
6.1(G);
or
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(H) Judgment
and Attachments.
Any
money judgment, writ or warrant of attachment or similar process involving
an
amount in any individual case or in the aggregate for Borrower and its
Subsidiaries at any time in excess of $5,000,000 (in either case not adequately
covered by insurance as to which the insurance company has not denied coverage)
is entered or filed against Borrower or any of its Subsidiaries or any of their
respective assets and remains undischarged, unvacated, unbonded or unstayed
for
a period of 60 days or in any event later than five Business Days prior to
the
date of any proposed sale thereunder; or
(I) Dissolution.
Any
order, judgment or decree is entered against Borrower or any of its Subsidiaries
decreeing the dissolution or split up of Borrower or any of its Subsidiaries
and
such order remains undischarged or unstayed for a period in excess of 15 days;
or
(J) Solvency.
Borrower or any of its Subsidiaries ceases to be solvent or Borrower or any
of
its Subsidiaries admits in writing its present or prospective inability to
pay
its debts as they become due; or
(K) Injunction.
Borrower or any of its Subsidiaries is enjoined, restrained or in any way
prevented by the order of any court or any Governmental Authority from
conducting all of its business or otherwise for more than 60 days to the extent
that the results of such injunction or restraint could reasonably be expected
to
have a Material Adeverse Effect; or
(L) ERISA;
Pension Plans.
(i)
Borrower or any of its Subsidiaries fails to make full payment when due of
all
amounts which, under the provisions of any employee benefit plans or any
applicable provisions of the IRC, any such Person is required to pay as
contributions thereto and such failure results in or could reasonably be
expected to have a Material Adverse Effect; or (ii) an accumulated funding
deficiency occurs or exists, whether or not waived, with respect to any such
employee benefit plans and such accumulated funding deficiency results in or
could reasonably be expected to have a Material Adverse Effect; or (iii) any
employee benefit plan of Borrower or any of its Subsidiaries loses its status
as
a qualified plan under the IRC and such loss results in or could reasonably
be
expected to have a Material Adverse Effect; or
(M) Invalidity
of Loan Documents.
Any of
the Loan Documents for any reason, other than a partial or full release in
accordance with the terms thereof, ceases to be in full force and effect or
is
declared to be null and void and Borrower or any applicable Subsidiary fails
to
promptly correct such cessation or declaration, or Borrower or any of its
Subsidiaries denies that it has any further liability under any Loan Documents
to which it is party, or gives notice to such effect; or
(N) Licenses
and Permits.
The
loss, suspension or revocation of, or failure to renew, any license or permit,
including any License, now held or hereafter acquired by Borrower or any of
its
Subsidiaries, if such loss, suspension, revocation or failure to renew could
reasonably be expected to have a Material Adverse Effect; or
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(O) Change
in Control.
Any
Person acquires or beneficially owns, directly or indirectly, and controls
at
least 35% of the voting equity in Borrower.
6.2. Suspension
of Commitments.
Upon
the occurrence and during the continuation of any Default or Event of Default,
and without limiting any other right or remedy hereunder, Administrative Agent
may with the consent of the Requisite Lenders or shall upon written instructions
from the Requisite Lenders, upon written notice to Borrower, cease making
additional Loans and suspend the Lenders’ obligation to lend their Pro Rata
Share of the Loan Commitments; 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 Loan
Commitments shall be reinstated.
6.3. Acceleration.
Upon
the occurrence and during the continuance 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 Loans, payments
under the Letters of Credit and all other Obligations (other than Obligations
under any Related Interest Rate Agreement to which a Lender or an Affiliate
of a
Lender is a party, which may be accelerated solely in the discretion of the
Lender or Affiliate of a Lender party thereto) 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 Borrower, and the obligations of
Lenders to make Loans and issue Letters of Credit shall thereupon terminate.
Upon the occurrence and during the continuance of any other Event of Default,
Administrative Agent may and upon written demand of Requisite Lenders shall
by
written notice to Borrower declare all or any portion of the Loans, all or
any
Letter of Credit and all or some of the other Obligations (other than
Obligations under any Related Interest Rate Agreement to which a Lender or
an
Affiliate of a Lender is a party, which may be accelerated solely in the
discretion of the Lender or Affiliate of a Lender party thereto) to be, and
the
same shall forthwith become, immediately due and payable together with accrued
interest thereon, and upon such acceleration the obligations of Lenders to
make
Loans and issue Letters of Credit shall thereupon terminate and Borrower shall
immediately comply with the provisions of Subsection
1.18.
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
in
writing by Requisite Lenders, Administrative Agent may exercise on behalf of
Lenders all of its rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of the
Obligations.
6.5. Consents.
Borrower acknowledges that certain transactions contemplated by this Agreement
and the other Loan Documents and certain actions which may be taken by
Administrative Agent or a Lender in the exercise of its rights under this
Agreement and the other Loan Documents may require the consent of a Governmental
Authority. If counsel to 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 Administrative Agent or any Lender in connection
therewith or as a result of any action which may be taken pursuant thereto,
then
Borrower, at Borrower’s sole cost and expense, agrees to use its reasonable
efforts, and to cause its Subsidiaries to use their reasonable efforts, to
secure such consent and to cooperate with Administrative Agent and such Lender
in any action commenced by Administrative Agent or any Lender to secure such
consent.
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6.6. Performance
by Administrative Agent.
If
Borrower shall fail to perform any covenant, duty or agreement contained in
any
of the Loan Documents, Administrative Agent may perform or attempt to perform
such covenant, duty or agreement on behalf of Borrower after the expiration
of
any cure or grace periods set forth herein, subject to Applicable Law. In such
event, Borrower shall, at the request of Administrative Agent, promptly pay
any
amount reasonably expended by Administrative Agent in such performance or
attempted performance to Administrative Agent, together with interest thereon
at
the highest rate of interest in effect upon the occurrence of an Event of
Default as specified in Subsection
1.2(E)
from the
date of such expenditure until paid. Notwithstanding the foregoing, it is
expressly agreed that neither Administrative Agent nor any Lender shall have
any
liability or responsibility for the performance of any obligation of Borrower
under this Agreement or any other Loan Document.
6.7. 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 Borrower at any time or from time
to time, with reasonably prompt subsequent notice to Borrower (any prior or
contemporaneous notice being hereby expressly waived) to set off and to
appropriate and to apply against and on account of any of the Obligations any
and all (A) balances held by such Lender at any of its offices for the account
of Borrower or any of its Subsidiaries (regardless of whether such balances
are
then due to Borrower or any of its Subsidiaries), and (B) all other property
at
any time held or owing by such Lender to or for the credit or for the account
of
Borrower or any of its Subsidiaries; provided,
that no
Lender shall exercise any such right without the prior written consent of
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. 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 Administrative Agent for the benefit of all Lenders
in accordance with their Pro Rata Shares; provided,
that
CoBank may exercise its rights against any equity of CoBank held by Borrower
without complying with this Subsection
6.7.
6.8. Application
of Payments.
Subsequent to the occurrence and during the continuation of any Default or
Event
of Default, all payments received by Lenders (or Affiliates of Lenders party
to
Related Interest Rate Agreements) on the Obligations and on the proceeds from
the enforcement of the Obligations shall be applied among Administrative Agent
and Lenders (and Affiliates of Lenders party to Related Interest Rate
Agreements) as follows: first,
to all
Administrative Agent’s and Lenders’ (and Affiliates of Lenders party to Related
Interest Rate Agreements) fees and expenses then due and payable, other than
such fees and expenses which, in effect, correspond to principal, notional
amount or interest under or with respect to such Related Interest Rate
Agreements; second,
to all
other expenses then due and payable by any Loan Party under the Loan Documents;
third,
to all
indemnitee obligations then due and payable by any Loan Party under the Loan
Documents; fourth,
to all
commitment and other fees and commissions then due and payable by Borrower
under
the Loan Documents; fifth,
pro
rata to (i) accrued and unpaid interest on the Loans (pro rata) in accordance
with all such amounts due on the Loans and (ii) any scheduled payments
(excluding termination, unwind and similar payments) due to a Lender or an
Affiliate of a Lender on any Related Interest Rate Agreements (pro rata with
all
such amounts due); sixth,
pro
rata to (a) the principal amount of the Loans (pro rata among all Loans) and
(b)
any termination, unwind and similar payments due to a Lender or an Affiliate
of
a Lender under Related Interest Rate Agreements (pro rata with all such amounts
due); and seventh,
to any
remaining amounts due under the Obligations, in that order. Any remaining monies
not applied as provided in this Subsection
6.8
shall be
paid to Borrower or any Person lawfully entitled thereto.
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6.9. 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
1.11(B)),
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. 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 6.9
shall
not apply to any action taken by CoBank with respect to equity in it held by
Borrower.
SECTION
7
CONDITIONS
TO LOANS
The
obligations of Lenders to make Loans are subject to satisfaction of all of
the
applicable conditions set forth below.
7.1. Conditions
to the Loan on the Amendment Date.
The
obligations of Lenders to make the Loan on the Amendment Date are subject to
the
satisfaction of each of the following conditions:
(A) Executed
Loan and Other Documents.
(i)
This Agreement, (ii) the Notes and (iii) all other documents and instruments
contemplated by such agreements, shall have been duly authorized and executed
by
Borrower or other Person, as applicable, in form and substance satisfactory
to
Administrative Agent and Lenders, and Borrower or such other Person, as
applicable, shall have delivered original counterparts thereof to Administrative
Agent for delivery to Lenders.
(B) Closing
Certificates; Opinions.
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(1) Officers’
Certificate.
Administrative Agent shall have received a certificate from the chief executive
officer and vice president, treasurer of Borrower, in form and substance
reasonably satisfactory to Administrative Agent, to the effect that, to their
knowledge after reasonable diligence, all representations and warranties of
Borrower and its Subsidiaries contained in this Agreement and the other Loan
Documents are true and correct in all material respects on and as of the date
thereof; that neither Borrower nor any of its Subsidiaries is in violation
of
any of the covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this Agreement,
no
Default or Event of Default has occurred and is continuing; and that Borrower
has satisfied each of the closing conditions to be satisfied
hereby.
(2) Certificate
of Secretary of Borrower.
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of Borrower certifying that attached thereto is a true
and
complete copy of its articles of incorporation, and all amendments thereto,
certified as of a recent date by the Secretary of State of the state of its
organization; that attached thereto is a true and complete copy of its bylaws
as
in effect on the date of such certification; that attached thereto is a true
and
complete copy of resolution of its Board of Directors authorizing the borrowings
contemplated hereunder, and the execution, delivery and performance of this
Agreement and the other Loan Documents; and as to the incumbency and genuineness
of the signature of each of its officers executing Loan Documents.
(3) Closing
Certification.
The
Administrative Agent shall have received a certificate of the chief executive
officer and the chief financial officer of the Borrower, dated the Amendment
Date, in form and substance reasonably acceptable to the Administrative Agent,
to the effect that as of the Amendment Date (i) the Borrower, on a combined
and
consolidated basis with its Subsidiaries as set forth in Section
4,
are in
compliance on a pro forma basis (after giving effect to the Everest Acquisition
and the transactions contemplated by this Agreement, including Loans to be
made
on the Amendment Date) with the covenants set forth in Section
4 for
the
succeeding 12-month period based upon the Budgets delivered pursuant to
Subsection
4.4(D),
projections relating to the financial impact of the Everest Acquisition and
other reasonable and good faith assumptions, which shall be set forth in such
certification, as to transactions, including the proposed Wireless Sale,
contemplated during such 12-month period and (ii) to the best of such officer’s
knowledge, no Everest Material Adverse Change has occurred.
(4) Certificates
of Good Standing.
Administrative Agent shall have received certificates as of a recent date of
the
good standing of Borrower under the laws of its jurisdiction of organization
and
such other jurisdictions as are requested by Administrative Agent.
(5) Opinion
of Counsel.
Administrative Agent shall have received a favorable opinion of counsel to
Borrower addressed to Administrative Agent with respect to Borrower and the
Loan
Documents reasonably satisfactory in form and substance to Administrative
Agent.
(C) Consents.
(1) Governmental
and Third Party Approvals.
Borrower shall have delivered to Administrative Agent all necessary material
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 Administrative Agent.
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(2) No
Injunction, Etc.
No
action, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed 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 Administrative Agent
in its reasonable discretion, is reasonably likely to result in a Material
Adverse Effect.
(D) Fees,
Expenses, Taxes, Etc.
There
shall have been paid by Borrower to Administrative Agent the fees set forth
or
referenced in Subsection
1.4
and any
other accrued and unpaid fees or commissions due hereunder (including legal
fees
and expenses), and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes,
fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(E) Miscellaneous.
(1) Proceedings
and Documents.
All
opinions, certificates and other instruments and all proceedings in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to Administrative Agent. Administrative
Agent
shall have received copies of all other instruments and other evidence as
Administrative Agent or any Lender may request, in form and substance reasonably
satisfactory to Administrative Agent and Lenders, with respect to the
transactions contemplated by this Agreement and the taking of all actions in
connection therewith.
(2) Litigation,
Investigations, Audits, Etc.
There
is no action, suit, proceeding or investigation pending against, or, to the
knowledge of Borrower after due inquiry, threatened against or in any other
manner relating adversely to, Borrower or any of its Subsidiaries or any of
their respective properties, including the Licenses, in any court or before
any
arbitrator of any kind or before or by any Governmental Authority (including
the
FCC), except such as affect the telecommunications industry generally, that
would reasonably be expected to have a Material Adverse Effect.
(3) Conditions
to Everest Acquisition Satisfied.
The
Administrative Agent shall have received evidence, in form and substance
reasonably satisfactory to the Administrative Agent, that all conditions
precedent to the consummation of the Everest Acquisition, other than the payment
of the purchase price thereunder, have been satisfied on substantially the
terms
set forth in the Purchase and Sale Agreement, dated as of December 6, 2007,
relating to the Everest Acquisition, subject only to such amendments,
modifications or changes thereto or waivers as shall have been consented to
by
each of the Lenders.
7.2. Conditions
to All Loans.
The
obligations of Lenders to make Loans, including the Loan on the Amendment Date,
and of Issuing Lenders to issue Letters of Credit, including the initial Letter
of Credit, on any date (each such date a “Funding
Date”),
are
subject to the further conditions precedent set forth below.
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(1) Administrative
Agent shall have received, in accordance with the provisions of Subsection 1.3,
a
Notice of Borrowing requesting an advance of a Loan or such notice as Issuing
Lender shall require for the issuance of a Letter of Credit.
(2) The
representations and warranties contained in Section
5
of this
Agreement and elsewhere herein and in the Loan Documents shall be (and each
request by Borrower for a Loan or a Letter of Credit shall constitute a
representation and warranty by Borrower that such representations and warranties
are) true and correct in all material respects on and as of such Funding Date
to
the same extent as though made on and as of that date, except for any
representation or warranty limited by its terms to a specific date and taking
into account any amendments to the Schedules or Exhibits as a result of any
disclosures made in writing by Borrower to Administrative Agent after the
Amendment Date so long as what is being disclosed does not give rise to a
Default or an Event of Default.
(3) No
event
shall have occurred and be continuing or would result from the consummation
of
the borrowing or issuance contemplated that would constitute an Event of Default
or a Default.
(4) No
order,
judgment or decree of any court, arbitrator or Governmental Authority shall
purport to enjoin or restrain any Lender from making any Loan or Issuing Lender
from issuing any Letter of Credit.
(5) Since
December 31, 2006, there shall not have occurred any event or condition that
has
had or could reasonably be expected to have a Material Adverse
Effect.
(6) All
Loan
Documents shall be in full force and effect.
SECTION
8
ASSIGNMENT
AND PARTICIPATION
8.1. Assignments
and Participations in Loans and Notes.
(A) General.
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
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,
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
Loan Parties and their 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.
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(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
Loan Commitments and the Loans at the time owing to it); provided
that any
such assignment shall be subject to the following conditions:
|
(i)
|
Minimum
Amounts.
|
| (a) |
in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Loan Commitment and the Loans at the time owing to it or in the
case of an assignment to another Lender, an Affiliate of a Lender
or an
Approved Fund, no minimum amount need be assigned;
and
|
| (b) | in any case not described in Subsection 8.1(B)(i)(a), the aggregate amount of the Loan Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Loan Commitment is not then in effect, the principal outstanding balance of the Loans 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 $3,000,000, in the case of any assignment in respect of a revolving facility, or $1,000,000, in the case of any assignment in respect of a term facility, unless each of Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). |
|
(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 Loans or the Loan Commitments assigned,
except that this clause (ii) shall not prohibit any Lender from assigning
all or a portion of its rights and obligations among separate Facilities
on a non-pro rata basis.
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|
(iii)
|
Required
Consents.
No consent shall be required for any assignment except to the extent
required by of Subsection
8.1(B)(i)(b)
and, in addition:
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| (a) | the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default or 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 Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of a Facility if such assignment is to a Person that is not a Lender with a Loan Commitment in respect of such Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender. |
|
(iv)
|
Assignment
and Assumption.
The parties to each assignment shall execute and deliver to 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 Administrative Agent an Administrative
Questionnaire.
|
|
(v)
|
No
Assignment to the Borrower.
No such assignment shall be made to Borrower or any of the Borrower’s
Affiliates or Subsidiaries.
|
|
(vi)
|
No
Assignment to Natural Persons.
No such assignment shall be made to a natural
person.
|
Subject
to acceptance and recording thereof by 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 a 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.
Administrative Agent, acting solely for this purpose as an agent of 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 Loan Commitments of, and
principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive absent manifest error, and Borrower,
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 Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
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(D) Participations.
Any
Lender may at any time, without the consent of, or notice to, Borrower or
Administrative Agent, sell participations to any Person (other than a natural
person or Borrower or any of 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 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) Borrower, 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 each Loan Commitment 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; provided
,
further,
that
with respect to any bank that is a member of the Farm Credit System that has
purchased a participation in excess of $10,000,000 from Administrative Agent,
such member shall have the right to make elections and vote under Subsection
1.8
as to
its portion. Subject to Subsection
8.1(E),
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
6.7
as
though it were a Lender, provided such Participant agrees to be subject to
Subsection
6.7
as
though it were a Lender.
(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 and
after
disclosure in writing of such greater payment to the extent such Participant
has
knowledge of the circumstances giving rise to such greater payment at the time
of such sale.
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
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of 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.
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8.2. Administrative
Agent.
(A) Appointment.
Each
Lender hereby irrevocably appoints and authorizes CoBank, as Administrative
Agent, to act as Administrative Agent hereunder and under any other Loan
Document with such powers as are specifically delegated to Administrative Agent
by the terms of this Agreement and any other Loan Document, together with such
other powers as are reasonably incidental thereto. Administrative Agent is
authorized and empowered to amend, modify or waive any provisions of this
Agreement or the other Loan Documents on behalf of Lenders, subject to the
requirement that the consent of certain Lenders or all Lenders, as appropriate,
be obtained in certain instances as provided in this Agreement. CoBank hereby
agrees to act as 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 Administrative Agent and Lenders, and 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, Administrative Agent
shall act solely as an Administrative Agent of Lenders and Administrative Agent
shall not assume or be deemed to have assumed any obligation toward or
relationship of agency or trust with or for any Loan Party or their respective
Affiliates. Administrative 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 Administrative Agent shall be mechanical and administrative in nature.
Administrative Agent shall not 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 Administrative Agent 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 Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates have
made any representation or warranty to it and that no act by Administrative
Agent or any such Person hereafter taken, including any review of the affairs
of
Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by Administrative Agent to any Lender. Each Lender
represents to Administrative Agent that (i) it has, independently and without
reliance upon Administrative Agent 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 Borrower and its
Subsidiaries and made its own decision to enter into this Agreement and extend
credit to Borrower hereunder, and (ii) it will, independently and without
reliance upon Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to
make its own credit 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 Loan Parties. Administrative Agent 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 Administrative Agent seeks the consent or
approval of any Lenders to the taking or refraining from taking of any action
hereunder, then Administrative Agent shall send notice thereof to each Lender.
Administrative Agent shall promptly notify each Lender any time that Requisite
Lenders have instructed Administrative Agent to act or refrain from acting
pursuant hereto.
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(C) Rights,
Exculpation, Etc.
Administrative Agent, its 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. Administrative Agent shall not 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, Administrative Agent shall
exercise the same care which it would in dealing with loans for its own account,
but Administrative Agent 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 Loan Parties.
Administrative Agent may at any time request instructions from Lenders with
respect to any actions or approvals which by the terms of this Agreement or
of
any of the Loan Documents Administrative Agent is permitted or required to
take
or to grant, and if such instructions are promptly requested, Administrative
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 Administrative 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 Lenders, as applicable.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Administrative Agent as a result of Administrative 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.
Administrative 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.
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(E) Indemnification.
Lenders
will reimburse and indemnify Administrative Agent and its Affiliates and its
and
its Affiliates’ officers, directors, employees, agents, and attorneys-in-fact
(collectively, “Representatives”),
on
demand (to the extent not actually reimbursed by Borrower, but without limiting
the obligations of Borrower under this Agreement) 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 Administrative Agent or its 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 Administrative 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 Administrative Agent’s or its Representatives’
gross negligence, bad faith or willful misconduct. If any indemnity furnished
to
Administrative Agent or its Representatives for any purpose shall, in the
opinion of Administrative Agent, be insufficient or become impaired,
Administrative 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 Lenders under this Subsection
8.2(E)
shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(F) Administrative
Agent Individually.
With
respect to its obligations under the Loan Commitments, the Loans made by it,
and
the Notes issued to it, Administrative Agent 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
Administrative Agent in its individual capacity as a Lender or as one of the
Requisite Lenders. Administrative Agent may lend money to, and generally engage
in any kind of banking, trust or other business with, Loan Parties as if it
were
not acting as Administrative Agent pursuant hereto.
(G) Notice
of Default.
Administrative Agent shall not 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
Borrower or any of its Subsidiaries, or the existence or possible existence
of
any Default or Event of Default. Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
unless Administrative Agent shall have received written notice from 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
Administrative Agent receives such a notice, Administrative Agent will give
notice thereof to Lenders as soon as reasonably practicable; provided,
that if
any such notice has also been furnished to Lenders, Administrative Agent shall
have no obligation to notify Lenders with respect thereto. Administrative Agent
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 Administrative Agent shall have received such directions,
Administrative Agent 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
Lenders.
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(H) Successor
Administrative Agent.
(a) Resignation.
Administrative 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 Borrower and Lenders. Such resignation shall take effect
upon
the acceptance by a successor Administrative Agent of appointment pursuant
to
clause (b) below or as otherwise provided below.
(b) Appointment
of Successor.
Upon
any such notice of resignation or removal pursuant to clause (a) above,
Requisite Lenders shall (and if no Event of Default or Default shall have
occurred and be continuing, upon receipt of Borrower’s prior consent, which
shall not be unreasonably withheld or delayed), appoint a successor
Administrative Agent from among Lenders or another financial institution. If
a
successor Administrative Agent shall not have been so appointed within the
30
Business Day period referred to in clause (a) above, the retiring Administrative
Agent, upon notice to Borrower, shall then appoint a successor Administrative
Agent from among Lenders who shall serve as Administrative Agent until such
time, if any, as Requisite Lenders, upon receipt of Borrower’s prior written
consent (if required under the first sentence of this paragraph), which shall
not be unreasonably withheld or delayed, appoint a successor Administrative
Agent as provided above.
(c) Successor
Agent.
Upon
the acceptance of any appointment as Administrative Agent under the Loan
Documents by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. After any retiring Administrative Agent’s resignation as
Administrative 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 Administrative Agent under the Loan Documents.
(I) Dissemination
of Information.
Administrative Agent will use its best efforts (except where otherwise provided
herein) to provide Lenders with any information received by Administrative
Agent
from Borrower which is required to be provided to a Lender hereunder or which
is
otherwise requested by any Lender, provided
that
Administrative Agent shall not be liable to Lenders for any failure to do so,
except to the extent that such failure is attributable to Administrative Agent’s
or its Representatives’ gross negligence, bad faith or willful
misconduct.
8.3. Consents;
Notices.
In
the
event Administrative 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.
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8.4. Disbursement
of Funds.
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 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 Administrative Agent such
Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire
transfer to 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 Administrative Agent’s demand, Administrative
Agent shall promptly notify Borrower, and Administrative Agent shall disburse
to
Borrower, by wire transfer of immediately available funds, that portion of
such
Loan as to which Administrative Agent has received funds. In such event,
Administrative Agent may, on behalf of any Lender not timely paying
Administrative Agent, disburse funds to Borrower for Loans requested, subject
to
the provisions of Subsection
8.5(B).
Each
such Lender shall reimburse Administrative Agent on demand for all funds
disbursed on its behalf by 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 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 Administrative Agent
or Borrower may have against any Lender as a result of any default by such
Lender hereunder.
8.5. Disbursements
of Loans; Payments.
(A) Pro
Rata Treatment; Application.
Upon
receipt by Administrative Agent of each payment from Borrower hereunder, other
than as described in the succeeding sentence, 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 Administrative Agent
of its fees shall be made in like manner, but for the account of Administrative
Agent.
(B) Availability
of Lender’s Pro Rata Share.
(a) Unless
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 Borrower, and Administrative Agent has given notice pursuant to
Subsection
8.4,
Administrative Agent may assume that such Lender will make such amount available
to Administrative Agent on the Funding Date. If such amount is not, in fact,
made available to Administrative Agent by such Lender when due, and
Administrative Agent disburses funds to Borrower on behalf of such Lender,
Administrative Agent will be entitled to recover such amount on demand from
Borrower, without set-off, counterclaim or deduction of any kind, with interest
thereon at the rate per annum then applicable to such Loan.
(b) 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 Administrative Agent or Borrower may have against such
Lender as a result of a default by such Lender under this
Agreement.
(c) Without
limiting the generality of the foregoing, each Lender shall be obligated to
fund
its Pro Rata Share of any Revolving Loan made after any Event of Default or
acceleration of the Obligations with respect to any draw on a Letter of
Credit.
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(C) Return
of Payments.
(a) If
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
Administrative Agent from Borrower and such related payment is not received
by
Administrative Agent, then Administrative Agent will be entitled to recover
such
amount from such Lender without set-off, counterclaim or deduction of any
kind.
(b) If
Administrative Agent determines at any time that any amount received by
Administrative Agent under this Agreement must be returned to Borrower or paid
to any other Person pursuant to any solvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement, Administrative
Agent will not be required to distribute any portion thereof to any Lender.
In
addition, each Lender will repay to Administrative Agent on demand any portion
of such amount that Administrative Agent has distributed to such Lender,
together with interest at such rate, if any, as Administrative Agent is required
to pay to Borrower or such other Person, without set-off, counterclaim or
deduction of any kind.
SECTION
9
MISCELLANEOUS
9.1. Indemnities.
Borrower agrees to indemnify, pay, and hold Administrative Agent and each Lender
and their respective Affiliates and the respective officers, directors,
employees, agents, and attorneys of Administrative Agent, each Lender and their
respective Affiliates (the “Indemnitees”)
harmless from and against any and all liabilities, obligations, losses, 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 Administrative Agent and each Lender being a party to this Agreement
or otherwise in connection with this Agreement; provided,
that
Borrower shall have no obligation to an Indemnitee hereunder with respect to
liabilities arising from the negligence or willful misconduct of that Indemnitee
as determined by a court of competent jurisdiction; provided further, however,
that Borrower’s obligations to indemnify or compensate any Indemnitee for taxes
shall be subject to Subsection
1.13.
This
Subsection
9.1
and all
indemnification provisions contained within any other Loan Document shall
survive the termination of this Agreement.
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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
(other than any Related Interest Rate Agreement, which may only be amended,
modified or terminated, or any provision thereof waived, in accordance with
the
terms thereof), or consent to any departure by Borrower therefrom, shall in
any
event be effective unless the same shall be in writing and signed by Borrower
and Requisite Lenders (or 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
Borrower and all Lenders affected thereby, do any of the following: (i) increase
any Lender’s Pro Rata Share of any Loan Commitment or change a pro rata payment
of any Lender; (ii) reduce the principal of, rate of interest on (except as
contemplated by Subsection 1.2)
or fees
payable with respect to any Loan; provided, however, that only the consent
of
the Requisite Lenders shall be necessary (a) to amend the definition of “Default
Rate” or to waive any obligation of Borrower to pay interest or fees at the
Default Rate or (b) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce
the
rate of interest on any Loan or to reduce any fee payable hereunder; (iii)
extend the Revolving Loan Expiration Date, the any Term Loan Maturity Date
or
extend any other scheduled date on which any Obligation is to be paid (but
excluding mandatory prepayments); (iv) change the percentage of Lenders
which shall be required for 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 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
Administrative Agent or under any Loan Document shall in any event be effective,
unless in writing and signed by Administrative Agent, in addition to 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 Administrative Agent to take
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, except to the extent that
all Notes have been amended with the consent of Requisite Lenders as permitted
herein. No notice to or demand on Borrower or any other Person in any case
shall
entitle 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, each future
holder of the Notes, and, if signed by Borrower, on Borrower.
In
connection with any such proposed amendment, modification, waiver or termination
requiring the consent of all Lenders (such proposed amendment, modification,
waiver or termination, a “Proposed
Change”),
if
the consent of the Requisite Lenders is obtained to such Proposed Change,
but
the consent of other Lenders whose consent is required is not obtained (any
such
Lender whose consent is not obtained as described in this Subsection
9.2 being
referred to as a “Non-Consenting
Lender”),
then,
so long as the Lender that is acting as Administrative Agent is not a
Non-Consenting Lender and provided no Event of Default has occurred and is
then
continuing, then Borrower shall have the right to cause each such Non-Consenting
Lender to (and such Non-Consenting Lender shall) transfer or assign, without
recourse, all of the rights, obligations and interests of each such
Non-Consenting Lender or with respect to this Agreement to one or more assignees
(in accordance with and subject to the restrictions contained in Subsection
8.1(B))
approved by Administrative Agent, which approval shall not be unreasonably
withheld, so long as at the time of such transfer or assignment, each such
assignee consents to such Proposed Change; provided,
however,
that no
Non-Consenting Lender shall be obligated to make any such assignment unless,
(x)
such assignment shall not conflict with any law or any rule, regulation or
order
of any Governmental Authority and (y) such assignee shall pay to the affected
Non-Consenting Lender in immediately available funds on the date of such
assignment the principal of and interest accrued to the date of payment on
the
Loans made by such Non-Consenting Lender and all fees owed to such
Non-Consenting Lender hereunder and all other amounts accrued for such
Non-Consenting Lender’s account or owed to it hereunder. In furtherance of the
foregoing, each Non-Consenting Lender agrees to execute an Assignment and
Assumption to reflect such assignment, but regardless of whether such Assignment
and Assumption is executed, such Non-Consenting Lender’s rights hereunder,
except rights under Subsection
9.1
with
respect to actions prior to such date, shall cease from and after the date
of
tender by the assignee to such Non-Consenting Lender of the amount specified
by
clause (y) above.
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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 and shall be deemed to have
been
given: (i) if delivered in person, when delivered; (ii) if delivered by
telecopy, on the date of confirmed 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; (iii) if delivered by overnight
courier, two days after delivery to the courier properly addressed; or (iv)
if
delivered by U.S. mail, four Business Days after deposit with postage prepaid
and properly addressed.
Notices
shall be addressed as follows:
|
If
to Borrower:
|
SureWest
Communications
000
Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn:
Chief
Financial Officer
Fax:
(000)
000-0000
|
|
with
a copy to:
|
SureWest
Communications
000
Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn:
Vice
President, Treasurer
Fax:
(000)
000-0000
|
|
If
to Administrative Agent:
|
CoBank,
ACB
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn:
Communications & Energy Banking Group
Fax:
(000) 000-0000
|
9.4. Failure
or Indulgence Not Waiver; Remedies Cumulative.
No
failure or delay on the part of Administrative 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.
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9.5. Payments
Set Aside.
To the
extent that Borrower or any other Person makes payment(s) or Administrative
Agent enforces its Liens or Administrative 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. Lenders’
Obligations Several; Independent Nature of 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 an Loan as herein
provided, 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 Administrative Agent
or
any Lender pursuant hereto or thereto shall be deemed to imply or construe
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 each
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. Governing
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 WOULD 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 Borrower may not assign
its rights or obligations hereunder without the written consent of all
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 Borrower or its Affiliates
by Administrative Agent or any Lender.
9.12. Construction.
Administrative Agent, or each Lender and Borrower acknowledge 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 Administrative
Agent, each Lender and Borrower.
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9.13. Confidentiality.
Administrative Agent and Lenders agree to hold any confidential information
that
they may receive from Borrower or 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 Administrative Agent or Lenders or their
respective Affiliates; (ii) to regulatory officials having jurisdiction over
Administrative Agent or Lenders or their Affiliates; (iii) as required or
requested by Applicable Law or legal process; or (iv) in connection with any
legal proceeding between or among Administrative Agent or Lenders or their
Affiliates and Borrower and/or their respective Subsidiaries or Affiliates
(provided
that, in
the event Administrative Agent or Lenders or their Affiliates are so required
to
disclose such confidential information pursuant to clauses (iii) or (iv) of
this
Subsection 9.13,
Administrative Agent or Lenders shall promptly notify Borrower (unless legally
prohibited from so doing), so that Borrower or any of its Subsidiaries may
seek,
at its sole cost and expense, a protective order or other appropriate remedy);
and (v) to another Person in connection with a disposition or possible
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 Borrower or its Affiliates or Subsidiaries, other than (A)
information previously filed by Borrower or its Affiliates or Subsidiaries
with
any Governmental Authority and available to the public or otherwise made
available by Borrower or any of its Affiliates to third parties on a
non-confidential basis, (B) information previously published in any public
medium from a source other than, directly or indirectly, Lenders in violation
of
this Subsection
9.13
and (C)
information obtained by Administrative Agent or Lenders from a source
independent of Borrower or its Subsidiaries, which source is not actually known
to Administrative Agent or Lenders to be bound by a duty of confidentiality
with
respect to such information.
9.14. Consent
to Jurisdiction and Service of Process.
(1)
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL COURT OR COLORADO 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. BORROWER 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 ADMINISTRATIVE
AGENT
OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
(2)
BORROWER
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
BORROWER AT THE ADDRESS TO WHICH NOTICES TO BORROWER 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.
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9.15. Waiver
of Jury Trial.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER EACH 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 ANY THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND
THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. 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. BORROWER, ADMINISTRATIVE AGENT AND EACH
LENDER EACH 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. BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER EACH
FURTHER WARRANTS AND REPRESENTS 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. BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER
ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR
THIS WAIVER, BE REQUIRED OF EACH OF THEM.
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, the issuances
of Letters of Credit and the execution and delivery of the Notes.
Notwithstanding anything in this Agreement or implied by law to the contrary,
the agreements of Borrower set forth in Subsections
1.4(D), 1.11, 1.13, 1.14, 9.1, 9.14
and
9.15
shall
survive the payment of the Loans, the payment of the Letter of Credit
Liabilities and the 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.
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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.
Administrative Agent notifies 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”),
it is
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 Administrative Agent 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
Administrative Agent in order to assist Administrative Agent in maintaining
compliance with the Patriot Act.
9.20. Effectiveness
of Amendment and Restatement; No Novation.
The
amendment and restatement of the Existing Credit Agreement pursuant to this
Agreement shall be effective as of the Amendment Date. All obligations and
rights of Borrower and its Subsidiaries and Administrative Agent arising out
of
or relating to the period commencing on the Amendment Date shall be governed
by
the terms and provisions of this Agreement; the obligations of and rights of
Borrower, its Subsidiaries, Lenders and Administrative Agent arising out of
or
relating to the period prior to the Amendment Date shall continue to be governed
by the Existing Credit Agreement without giving effect to the amendment and
restatements provided for herein. This Agreement shall not constitute a novation
or termination of Borrower’s or any of its Subsidiary’s obligations under the
Existing Credit Agreement or any document, note or agreement executed or
delivered in connection therewith, but shall constitute an amendment and
restatement of the obligations and covenants of Borrower and its Subsidiaries
under the such documents, notes and agreements, and each Borrower and its
Subsidiaries hereby reaffirms all such obligations and covenants, as amended
and
restated hereby.
SECTION
10
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.
“Acquired
Indebtedness”
shall
mean Indebtedness of a Person or any of its Subsidiaries existing at the time
such Person becomes a Subsidiary or at the time it merges or consolidates with
or into Borrower or any of its Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a party to the Credit Agreement or such acquisition, merger or
consolidation and which Indebtedness is without recourse to Borrower or any
Subsidiary or to any of their respective properties or assets other than the
Person or the assets to which such Indebtedness related prior to the time such
Person became a Subsidiary or the time of such acquisition, merger or
consolidation. Acquired Indebtedness shall not include any Indebtedness that
refinances or replaces any Acquired Indebtedness.
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“Adjusted
Consolidated Net Worth”
means,
as of any date of determination, the result of (i) Consolidated Net Worth
minus
(ii) the
sum of Restricted Investments incurred after December 9, 1998 in excess of
10% of Consolidated Net Worth, all as of the such date of
determination.
“Adjustment
Date”
means
each date which is the fifth (5th)
Business Day after the receipt by Administrative Agent of (i) each Compliance
Certificate delivered by Borrower pursuant to Subsection
4.4(C)
and (ii)
in the case a decrease in an applicable margin is warranted, a written notice
from Borrower to decrease such margin.
“Administrative
Agent”
means
CoBank in its capacity as Administrative Agent for Lenders under this Agreement
and each of the other Loan Documents and any successor in such capacity
appointed pursuant to Subsection 8.2.
“Affiliate”
means
any Person: (i) directly or indirectly controlling, controlled by, or under
common control with, Borrower or any of its Subsidiaries; (ii) directly or
indirectly owning or holding five percent (5%) or more of any equity interest
in
Borrower or any of its Subsidiaries; or (iii) five percent (5%) or more of
whose
voting stock or other equity interest is directly or indirectly owned or held
by
Borrower or any of its Subsidiaries. For purposes of this definition, “control”
(including with correlative meanings, the terms “controlling,” “controlled by”
and “under common control with”) means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of
a
Person, whether through the ownership of voting securities or by contract or
otherwise.
“Amendment
Date”
means
the date hereof.
“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.
“Asset
Disposition”
means
the disposition, whether by sale, lease, transfer, loss, damage, destruction,
condemnation or otherwise, by Borrower or any of its Subsidiaries, of any of
the
following: (i) any of the capital stock or the ownership interests of any of
its
Subsidiaries, or (ii) any or all of its assets.
“Assignment
and Assumption”
means
an agreement among Administrative Agent, a Lender and such Lender’s assignee
regarding their respective rights and obligations with respect to assignments
of
the Loans, the Loan Commitment, the Facilities and other interests under this
Agreement and the other Loan Documents in the form attached hereto as
Exhibit
10.1(A).
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“Available
Revolving Commitment”
means,
at any time, the Revolving Loan Commitment, as it may have been reduced pursuant
to this Agreement, minus
the sum
of (a) aggregate principal balance of all Revolving Loans, (b) the Letter of
Credit Liability then outstanding and (c) the aggregate principal amount of
the
Swingline Loans then outstanding.
“Banking
Day”
means
a
day on which CoBank is open for business, dealings in U.S. dollar deposits
are
being carried out in the London interbank market, and banks are open for
business in New York City and London, England.
“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
established by CoBank from time to time as its CoBank Base Rate, which rate
is
intended by CoBank to be a reference rate and not its lowest rate. The CoBank
Base Rate will change on the date established by CoBank as the effective date
of
any change thereof.
“Base
Rate Loan”
means,
at any time, the aggregate amount of all Loans then bearing interest at the
rate
determined by reference to the Base Rate.
“Base
Rate Margin”
means
the applicable percent per annum determined in accordance with Subsection
1.2(B).
“Budget”
means,
for Borrower prepared on a segment basis, (i) profit and loss statements and
(ii) cash flow statements, all prepared on a consistent basis with Borrower’s or
such Subsidiaries’ 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
Borrower and its senior management concerning the course of its business.
Notwithstanding the foregoing, the Budget for the 2008 fiscal year delivered
on
or prior to the Amendment Date shall not be required to include information
relating to the Everest Acquisition or the Wireless Sale; provided, that
Borrower shall deliver to Administrative Agent an updated Budget for the 2008
fiscal year including such information following the approval of such updated
Budget by Borrower’s Board of Directors.
“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 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.
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“Capital
Lease”
means
any lease of real or personal property which is required to be capitalized
under
GAAP or which is treated as an operating lease under regulations applicable
to
Borrower and its Subsidiaries but which otherwise would be required to be
capitalized under GAAP.
“Cash
Equivalents”
means:
(i) marketable direct obligations issued or unconditionally guarantied by the
United States Government or issued by any agency thereof and backed by the
full
faith and credit of the United States, in each case maturing within one (1)
year
from the date of acquisition thereof; (ii) commercial paper maturing no more
than one (1) year from the date issued and, at the time of acquisition, having
a
rating of at least A-1 from Standard & Poor’s Rating Service or at least P-1
from Xxxxx’x Investors Service, Inc.; (iii) certificates of deposit or bankers’
acceptances maturing within one (1) year from the date of issuance thereof
issued by, or overnight reverse repurchase agreements from, any commercial
bank
organized under the laws of the United States of America or any state thereof
or
the District of Columbia having combined capital and surplus of not less than
$500,000,000; and (iv) time deposits maturing no more than 30 days from the
date
of creation thereof with commercial banks having membership in the Federal
Deposit Insurance Corporation in amounts at any one such institution not
exceeding the lesser of $100,000 or the maximum amount of insurance applicable
to the aggregate amount of Borrower’s deposits at such institution.
“Closing
Date”
means
May 1, 2006.
“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.
“Consolidated
Net Assets”
means,
on a consolidated basis for Borrower and its Subsidiaries, total assets minus
the sum of (a) Restricted Investments and (b) current liabilities.
“Consolidated
Net Worth”
means
the consolidated stockholders’ equity of Borrower and its
Subsidiaries.
“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.
“Defaulting
Lender”
means
any Lender that (a) has failed to fund any portion of any Loan or participation
in any Letter of Credit or Swingline Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder,
(b)
has otherwise failed to pay over to Administrative Agent or any other Lender
any
other amount required to be paid by it hereunder within one Business Day of
the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
“Directories
Sale”
means
the sale of Borrower’s directories business in accordance with the terms of that
certain Share Purchase Agreement, dated as of January 28, 2007, by and among
Borrower, SureWest Directories, a California corporation, and GateHouse Media,
Inc., a Delaware corporation.
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“EBITDA”
means
the sum of (a) net income or deficit, as the case may be (excluding
extraordinary gains, the write up of any asset or any gain realized upon the
sale of an asset and excluding any extraordinary, non-cash losses, the write
down of any asset and the loss realized upon the sale of any asset),
(b) total interest expense (including non-cash interest), (c) depreciation
and amortization expense, (d) income or franchise taxes, federal, state or
local, (e) non-recurring fees and expenses incurred in connection with any
investment, disposition or acquisition permitted by this Agreement or any
issuance of equity interests or incurrence or early extinguishment of
Indebtedness, or refinancing transactions or other modification of any debt
instrument, in each case permitted herein, (f) non-cash compensation charges,
including any such charges resulting from stock options, stock appreciation
rights, restricted stock grants or other equity incentive programs, (g) to
the
extent actually reimbursed, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with Permitted
Acquisitions, and (h) purchase accounting adjustments in connection with
Permitted Acquisitions. For any period of calculation, EBITDA shall be adjusted
to give effect to any acquisition, sale or other disposition of any operation
or
business (or any portion thereof) during the period of calculation as if such
acquisition, sale or other disposition occurred on the first day of such period
of calculation.
“Environmental
Laws”
means
all applicable federal, state or local laws, statutes, rules, regulations or
ordinances, codes, common law, consent agreements, orders, decrees, judgments
or
injunctions issued, promulgated, approved or entered thereunder relating to
public health, safety or the pollution or protection of the environment,
including those relating to releases, discharges, emissions, spills, leaching,
or disposals of hazardous substances (including petroleum, crude oil or any
fraction or derivative thereof, or other hydrocarbons) to air, water, land
or
ground water, to the withdrawal or use of ground water, to the use, handling
or
disposal of polychlorinated biphenyls, asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances (including
petroleum, crude oil or any fraction or derivative thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous
or
other controlled, prohibited, or regulated substances, including, without
limitation, any such provisions under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601
et seq.),
or
the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §
6901 et seq.).
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) which is a member of a
controlled group or under common control with Borrower within the meaning of
Section 414(b) or (c) of the IRC (and Sections 414(m) and (o) of the IRC for
purposes of provisions relating to Section 412 of the IRC).
“ERISA
Event”
means,
with respect to 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) a cessation of operations which is treated as a
withdrawal under Section 4062(e) of ERISA; (d) a complete or partial withdrawal
under Section 4203 or 4205 of ERISA from a Multi-employer Plan; (e) a
notification that a Multi-employer Plan is in reorganization under Section
4242
of ERISA; (f) the filing of a notice of intent to terminate a Pension Plan
under 4041 of ERISA; (g) the treatment of an amendment of a Pension Plan as
a
termination under 4041 of ERISA; (h) the termination of a Multi-employer Plan
under Section 4041A of ERISA; (i) the commencement of proceedings by the PBGC
to
terminate a Pension Plan under 4042 of ERISA; (j) 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; or (k) the imposition of any liability under Title IV of ERISA, other
than
PBGC premiums due but not delinquent under Section 4007 of ERISA.
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“Everest
Acquisition”
means
the acquisition by Borrower of substantially all of the stock of Everest
Broadband, Inc. pursuant to that certain Purchase and Sale Agreement by and
among Everest Broadband, Inc., the equity holders of Everest Broadband, Inc.
and
Borrower dated December 6, 2007.
“Everest
Material Adverse Change”
means
any fact, event, series of events, change, effect or circumstance that has
or is
reasonably likely to have a material adverse effect on the business, assets,
properties, condition (financial or otherwise) or results of operations of
Everest Broadband, Inc. and its Subsidiaries, taken as a whole; provided,
however,
that in
no event shall any of the following constitute an Everest Material Adverse
Change: (a) any fact, event, series of events, change, effect or circumstance
resulting from or relating to changes in economic or financial conditions
generally (except to the extent that such change has had, or is reasonably
likely to have, a disproportionate negative effect on Everest Broadband, Inc.
and its Subsidiaries, taken as a whole, relative to other Persons in their
industry); (b) any fact, event, series of events, change, effect or circumstance
that affects their industry generally (except to the extent that such fact,
event, series of events, change, effect or circumstance has had, or is
reasonably likely to have, a disproportionate negative effect on Everest
Broadband, Inc. and its Subsidiaries, taken as a whole, relative to other
Persons in their industry); (c) any fact, event, series of events, change,
effect or circumstance resulting from or relating to the public announcement
of
the Everest Acquisition; and (d) the engagement by the United States in
hostilities or the escalation thereof, whether or not pursuant to the
declaration of a national emergency or war, or the occurrence or the escalation
of any military or terrorist attack upon the United States, or any of its
territories, possessions, or diplomatic or consular offices or upon any military
installation, equipment or personnel of the United States (except to the extent
that such event or condition has had, or is reasonably likely to have, a
disproportionate negative effect on Everest Broadband, Inc. and its
Subsidiaries, taken as a whole, relative to other Persons in their industry).
“Facility”
and
“Facilities”
mean,
respectively, each of the Term Loan Facility, the Swingline Facility and the
Revolving Loan Facility and, collectively, both of the Term Loan Facilities,
the
Swingline Facility and the Revolving Loan Facility.
“FCC”
means
the Federal Communications Commission, or any other similar or successor agency
of the federal government administering the Communications Act.
“GAAP”
means
generally accepted accounting principles as set forth in statements from
Auditing Standards No. 69, as amended, entitled “The Meaning of ‘Present
Fairly in Conformance with Generally Accepted Accounting Principles in the
Independent Auditors Reports’” issued by the Auditing Standards Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board that are applicable
to the circumstances as of the date of determination.
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“Governmental
Approvals”
means
all authorizations, consents, approvals, licenses and exemptions of,
registrations and filings with, and reports to, all Governmental Authorities,
including all Licenses.
“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 owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing, including the FCC and any
PUC.
“Guarantee Obligation”
means
as to any Person (the “guaranteeing
person”),
any
obligation, including a reimbursement, counterindemnity or similar obligation,
of the guaranteeing person that guarantees any Indebtedness, leases, dividends
or other obligations (the “primary
obligations”)
of any
other third Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of
the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
(iv)
otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof or (v) to reimburse or indemnify an issuer
of a
letter of credit, surety bond or guarantee issued by such issuer in respect
of
primary obligations of a primary obligor other than Borrower or any Subsidiary;
provided,
however,
that
the term Guarantee Obligation shall not include endorsements of instruments
for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to
the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s reasonably anticipated
liability in respect thereof as determined by Borrower in good
faith.
“Indebtedness”
as
applied to any Person, means, without duplication: (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases
or other capitalized agreements that is properly classified as a liability
on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed for all or any part
of
the deferred purchase price of property or services, except trade payables
arising in the ordinary course of business not more than 90 days past due;
(v)
all indebtedness secured by any Lien on any property or asset owned or held
by
that Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that Person,
but
only to the extent of the fair value of such property or asset; (vi) fixed
rate
hedging obligations that are due (after giving effect to any period of grace
or
notice requirement applicable thereto) and remain unpaid; (viii) all
obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds
or
similar arrangements (other than reimbursement obligations, which are not due
and payable on such date, in respect of documentary letters of credit issued
to
provide for the payment of goods and services in the ordinary course of
business);
(ix)
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 (x) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (i) through (ix) above.
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“Interest
Coverage Ratio”
means
the ratio derived by dividing (i) EBITDA (excluding, for the period from
and including the Amendment Date and through and including May 31, 2008, EBITDA
related to the wireless business of Borrower) by
(ii) total interest expense (excluding (A) for the period from and
including the Amendment Date and through and including May 31, 2008, interest
expense on the Term Loan B, and (B) interest expense attributable to
Indebtedness repaid by the seller or otherwise in connection with a Permitted
Acquisition, but including for the applicable calculation period prior to the
date of any such Permitted Acquisition, pro forma interest expense on any
Indebtedness incurred to finance all or a portion of the purchase price for
such
Permitted Acquisition based on the principal amount of such Indebtedness on
the
date of such Permitted Acquisition and the rate of interest thereon on such
date), in each case for the then most recently completed four fiscal
quarters.
“Interest
Rate Agreement”
means
any interest rate swap, hedge, cap, collar or similar agreement or arrangement
designed to protect Borrower against fluctuations in interest
rates.
“Investment”
means
(i) any direct or indirect purchase or other acquisition by Borrower or any
of
its Subsidiaries of any beneficial interest in, including stock, partnership
interest or other equity securities of, any other Person, other than trade
associations and similar organizations purchased or acquired in the ordinary
course of business; and (ii) any direct or indirect loan, advance, guarantee,
assumption of liability or other obligation of liability, or capital
contribution by Borrower or any of its Subsidiaries to any other Person,
including all indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other Person in
the
ordinary course of business. The amount of any Investment shall be the original
cost of such Investment plus
the cost
of all additions thereto, without any adjustments for increases or decreases
in
value, or write-ups, write-downs or write-offs with respect to such
Investment.
“IRC”
means
the Internal Revenue Code of 1986, as amended from time to time, and all rules
and regulations promulgated thereunder.
“Issuing
Lender”
means
CoBank, or any other Lender designated from time to time by Administrative
Agent
or Borrower (and subject to such Lender’s acceptance of such designation), in
such Lender’s capacity as an issuer of Letters of Credit hereunder.
“Lead
Arranger”
means
CoBank in its capacity as Lead Arranger.
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“Lender”
or
“Lenders”
means
one or more of the banks or other financial institutions identified as Lenders
in the first paragraph of this Agreement and their successors and permitted
assigns pursuant to Subsection 8.1.
“Letter
of Credit Liability”
means,
as to each Letter of Credit, all reimbursement obligations of Borrower to
Issuing Lender consisting of (a) the amount available to be drawn or which
may
become available to be drawn; (b) all amounts which have been paid and made
available by Issuing Lender to the extent not reimbursed by Borrower, whether
by
the making of a Revolving Loan or otherwise; and (c) all accrued and unpaid
interest, fees and expenses with respect thereto. In the case of any Letter
of
Credit that is issued in a currency other than United Stated Dollars, the
corresponding Letter of Credit Liability shall be determined in United States
Dollars based on the currency exchange rate from time to time applicable to
the
issuer of such Letter of Credit.
“Leverage
Ratio”
means,
for any period, the ratio derived by dividing all Indebtedness as of the last
day of the applicable period (excluding, for the period from and including
the
Amendment Date and through and including May 31, 2008, the Term Loan B)
by
EBITDA
(excluding, for the period from and including the Amendment Date and through
and
including May 31, 2008, EBITDA related to the wireless business of
Borrower), in each case as determined for the immediately preceding four fiscal
quarters.
“LIBOR”
means
the rate (rounded upward to the nearest sixteenth and adjusted for reserves
required on Eurocurrency Liabilities (as defined in Regulation D as promulgated
by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as
amended) for banks subject to such Regulation D or required by any other federal
law or regulation) quoted by the British Bankers Association at 11:00 a.m.
London time two Banking Days before the commencement of the Interest Period
for
the offering of U.S. dollar deposits in the London interbank market for the
Interest Period designated by Borrower, as published by Bloomberg or another
major information vendor listed on British Bankers Association’s official
website.
“LIBOR
Loans”
means
Loans (excluding Swingline 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”
means
any material telephone, long distance, 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 Telecommunications System,
granted or issued by the FCC or any applicable PUC and held by Borrower or
any
of its Subsidiaries.
“Lien”
means
any lien, mortgage, pledge, security interest, charge or encumbrance of any
kind, whether voluntary or involuntary (including any conditional sale or other
title retention agreement and any lease in the nature thereof), and any
agreement to give any lien, mortgage, pledge, security interest, charge or
encumbrance.
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“Loan”
or
“Loans”
means
an advance or advances under the Term Loan Commitments, the Revolving Loan
Commitment and the Swingline Loan Commitment.
“Loan
Commitment”
or
“Loan
Commitments” mean,
respectively, each of the Term Loan Commitments, the Revolving Loan Commitment
and the Swingline Loan Commitment and collectively, the Term Loan Commitments,
the Revolving Loan Commitment and the Swingline Loan Commitment.
“Loan
Documents”
means
this Agreement, the Notes, the Letters of Credit, any Related Interest Rate
Agreement and all other instruments, documents and agreements executed and
delivered concurrently herewith or at any time hereafter to or for the benefit
of Administrative Agent in connection with the Loans and other transactions
contemplated by this Agreement, all as amended, supplemented or modified from
time to time.
“Material
Adverse Effect”
means
(i) a material adverse effect upon the business, operations, properties, assets
or condition (financial or otherwise) of Borrower and its Subsidiaries, taken
as
a whole, or (ii) the material impairment of the ability of Borrower or any
of its Subsidiaries to perform its obligations under any Loan Document to which
it is a party or of Administrative Agent to enforce any Loan Document or collect
any of the Obligations. In determining whether any individual event could
reasonably be expected to have a Material Adverse Effect, notwithstanding that
such event does not of itself have such effect, a Material Adverse Effect shall
be deemed to have occurred if the cumulative effect of such event and all other
then existing events could reasonably be expected to have a Material Adverse
Effect.
“Material
Contracts”
means
(a) any contract or any other agreement, written or oral, of Borrower or any
of
its Subsidiaries involving monetary liability of or to any such Person in an
amount in excess of $1,000,000 per annum, and (b) any other contract or
agreement, written or oral, of Borrower or any of its Subsidiaries the failure
to comply with which could reasonably be expected to have a Material Adverse
Effect; provided, however, that any (i) vendor contract or (ii) contract or
agreement which is terminable by a party other than Borrower or any of its
Subsidiaries without cause upon notice of 95 days or less shall not be
considered a Material Contract.
“Multi-employer
Plan”
means
a
Multi-employer plan as defined in Section 4001(a)(3) of ERISA to which 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.
“Net
Proceeds”
means
cash proceeds received by Borrower or any of its Subsidiaries from any Asset
Disposition (including insurance proceeds, awards of condemnation, and payments
under notes or other debt securities received in connection with any Asset
Disposition), net of (i) the costs of such sale, lease, transfer or other
disposition (including taxes attributable to such sale, lease or transfer)
and
(ii) amounts applied to repayment of Indebtedness (other than the Obligations)
secured by a Lien on the asset or property disposed.
“Note”
or
“Notes”
means
one or more of the Term Loan Notes, the Revolving Notes and the Swingline
Notes.
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“Note
Purchase Agreement”
means
that certain Note Purchase Agreement, dated as of December 9, 1998, between
Borrower and the purchasers listed on Schedule A thereto, as supplemented by
that certain Supplement to Note Purchase Agreement, dated as of March 13, 2003,
between Borrower and the purchasers listed on Schedule A thereto, and as further
amended, supplemented, modified, extended or restated from time to
time.
“Obligations”
means
all obligations, liabilities and indebtedness of every nature of Borrower from
time to time owed to Administrative Agent or any Lender (or an Affiliate of
a
Lender party to a Related Interest Rate Agreement) under the Loan Documents
including the principal amount of all debts, claims and indebtedness, accrued
and unpaid interest, all reimbursement obligations in respect of any Letters
of
Credit and all fees, costs and expenses thereunder, whether primary, secondary,
direct, contingent, fixed or otherwise, heretofore, now and/or from time to
time
hereafter owing, due or payable whether before or after the filing of a
proceeding under the Bankruptcy Code by or against Borrower or any of its
Subsidiaries.
“Overnight
LIBOR”
with
respect to any Swingline Loans, the per annum rate of interest most recently
announced within CoBank at its principal office in Denver, Colorado as its
Overnight LIBOR Rate, with the understanding that CoBank’s Overnight LIBOR is
one of its base rates and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such internal
publication or publications as CoBank may designate. CoBank shall base its
determination of the Overnight LIBOR upon such offers for deposits on or other
market indicators of the interbank market as CoBank in its discretion deems
appropriate, and the Overnight LIBOR available to Borrower hereunder shall
be
adjusted by CoBank for reserves required on Eurocurrency Liabilities (as defined
in Regulation D as promulgated by the Board of Governors of the Federal Reserve
System, 12 CFR Part 204, as amended). Any change in the Overnight LIBOR shall
become effective on the date on which each such change in the Overnight LIBOR
is
announced within CoBank.
“PBGC”
means
the Pension Benefit Guaranty Corporation or any Person succeeding to the
functions thereof.
“Pension
Plan”
means
a
pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA
which any 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.
“Permitted
Encumbrances”
means
the following:
(1) Liens
for
taxes, assessments or other governmental charges not yet due and payable unless
the same are being diligently contested in good faith and by appropriate
proceedings and then only if and to the extent that adequate reserves therefor
are maintained in accordance with GAAP;
(2) statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen and other
similar liens imposed by law, which are incurred in the ordinary course of
business for sums not more than 90 days delinquent or which are being contested
in good faith; provided
that a
reserve or other appropriate provision shall have been made
therefor;
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(3) Liens
incurred or deposits made in the ordinary course of business in connection
with
workers’ compensation, unemployment insurance and other types of social security
(other than any Lien imposed by the Employee Retirement Income Security Act
of
1974 or any rule or regulation promulgated thereunder), or to secure the
performance of tenders, statutory obligations, surety, stay, customs and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(4) deposits,
in an aggregate amount not to exceed $1,000,000, made in the ordinary course
of
business to secure liability to insurance carriers or others;
(5) any
attachment or judgment Lien not constituting an Event of Default under
Subsection
6.1(H);
(6) easements,
rights of way, restrictions and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business
of
Borrower or any of its Subsidiaries;
(7) Liens
in
favor of CoBank as set forth in Subsection
2.7;
(8) Liens
securing purchase money security agreements and capital leases permitted under
Subsection
3.1(G),
provided that such Liens do not encumber any property other than the items
purchased with the proceeds of such Indebtedness or leased pursuant to such
Indebtedness and such liens do not secure any amounts other than amounts
necessary to purchase or lease such items; and
(9) other
Liens securing Priority Debt of Borrower or any Subsidiary not otherwise
permitted by this definition of Permitted Encumbrances, provided
that
Priority Debt incurred after December 8, 1998 does not exceed (i)
until
the Indebtedness owing by Borrower under the Note Purchase Agreement (and any
debt securities issued thereunder) is repaid in full, 15%
of
Consolidated Net Worth as of the most recently completed fiscal quarter of
Borrower
and (ii)
after the Indebtedness owing by Borrower under the Note Purchase Agreement
(and
any debt securities issued thereunder) is repaid in full, 10% of Consolidated
Net Assets as of the most recently completed fiscal quarter of
Borrower.
“Person”
means
and includes natural persons, corporations, limited liability companies, limited
partnerships, limited liability partnerships, general partnerships, joint stock
companies, 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).
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“Plan”
means
an employee benefit plan (as defined in Section 3(3) of ERISA) which any
Borrower or an ERISA Affiliate sponsors or maintains or to which any Borrower
or
an ERISA Affiliate makes, is making, or is obligated to make contributions
and
includes any Pension Plan.
“Priority
Debt”
means
(without duplication) the sum of (a) unsecured Indebtedness of the Subsidiaries
other than Indebtedness owing to Borrower or any other Subsidiary and (b)
Indebtedness of Borrower and its Subsidiaries secured by a Lien described in
clause (9) of the definition of Permitted Encumbrances.
“Pro
Rata Share”
means
(i) with respect to matters relating to each Facility, the percentage
obtained by dividing (a) the commitment of a Lender under such facility by
(b) the total commitment of all Lenders under such Facility and
(ii) with respect to all other matters, the percentage obtained by dividing
(a) the total commitments of a Lender under all of the Facilities
(b) the aggregate total commitments of all Lenders, in either case as such
percentage may be adjusted by assignments and participations permitted pursuant
to Subsection
8.1;
provided,
however,
if the
commitment under a Facility is terminated pursuant to the terms hereof, in
lieu
of commitments, the calculation of clauses (i) and (ii) above, as they relate
to
or include such Facility, shall be based on the aggregate amount of a Lender’s
outstanding loans related to such Facility and the aggregate amount of all
outstanding loans related to such Facility.
“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 Telecommunications System or over Persons who own, construct
or
operate a Telecommunications 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.
“Related
Interest Rate Agreement”
means
any interest rate swap, hedge, cap, collar or similar agreement or arrangement
designed to protect Borrower against fluctuations in interest rates and will
also include any arrangement that Lenders, in their sole discretion, may offer
to Borrower to effectively fix the interest rate applicable to any portions
of
the Loans.
“Reportable
Event”
means
any of the events set forth in Section 4043(c) of ERISA or the regulations
thereunder, other than any such event for which the 30 day notice requirement
under ERISA has been waived in regulations issued by the PBGC.
“Requisite
Lenders”
means
any Lender or Lenders who have in the aggregate Pro Rata Shares greater than
50.00%; provided that the Pro Rata Share of any Defaulting Lender shall be
excluded for purposes of making a determination of Requisite
Lenders.
“Restricted
Investment”
means
all Investments except (i) property to be used in the ordinary course of
business; (ii) current assets arising from the sale of goods and services in
the
ordinary course of business; (iii) Investments in one or more Subsidiaries
or
any Person that concurrently becomes a Subsidiary; (iv) Investments existing
on
December 9, 1998; (v) Investments in obligations, maturing within one year,
issued by or guaranteed by the United States of America or an agency thereof;
(vi) Investments in municipal securities, maturing within one year, which are
rated in one of the top two ratings classifications by at least one national
rating agency; (vii) Investments in certificates of deposit or banker’s
acceptances issued by Bank of America or other commercial banks which are rated
in one of the top two rating classifications by at least one national rating
agency; (viii) Investments in commercial paper, maturing within 270 days, rating
in one of the top two rating classifications by at least one national rating
agency; and (ix) Investments in money market instrument programs which are
classified as current assets in accordance with GAAP.
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“Restricted
Junior Payment”
means:
(i) any dividend or other distribution, direct or indirect, on account of any
equity interest in Borrower, including any shares of any class of stock of
Borrower now or hereafter outstanding, except a dividend payable solely in
shares of a class of stock to the holders of that class; (ii) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase
or
other acquisition for value, direct or indirect, of any equity interest in
Borrower, including any shares of any class of stock of Borrower now or
hereafter outstanding; (iii) any payment or prepayment of interest on, principal
of, premium, if any, redemption, conversion, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any Indebtedness
subject to subordination provisions for the benefit of Administrative Agent
and
Lenders unless
expressly permitted by such subordination provisions
and
Administrative Agent and Requisite Lenders have consented in writing to such
provisions;
and
(iv) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire any equity interest in Borrower,
including any shares of any class of stock of Borrower now or hereafter
outstanding.
“Revolving
Loan”
or
“Revolving
Loans”
means
an advance or advances under the Revolving Loan Commitment.
“Revolving
Loan Commitment”
means,
initially, $60,000,000, as such amount is reduced from time to time as provided
in this Agreement.
“Revolving
Loan Expiration Date”
means
the earlier of (i) the suspension (subject to reinstatement) of the Lenders’
obligations to make Loans pursuant to Subsection
6.2,
(ii)
the acceleration of the Obligations pursuant to Subsection
6.3
or
(iii) May 1, 2012.
“Revolving
Loan Facility”
means,
the revolving loan credit facility extended to Borrower pursuant to Subsection 1.1(C).
“Revolving
Note”
or
“Revolving
Notes”
means
one or more of the notes of 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.
“Subsidiary”
means,
with respect to any Person, any corporation, partnership, association or other
business entity of which more than fifty percent (50%) of the total voting
power
of shares of stock (or equivalent ownership or controlling interest) entitled
(without regard to the occurrence of any contingency) to vote in the election
of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof.
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“Swingline
Facility”
means
the working capital loan facility extended to Borrower pursuant to Subsection
1.1(D).
“Swingline
Lender”
means
CoBank, and its successors and permitted assigns under the Swingline Loan
Commitment pursuant to Subsection 8.1.
“Swingline
Loan Commitment”
means,
initially $20,000,000, as such amount is reduced from time to time as provided
in this Agreement.
“Swingline
Loans”
means
an advance or advances under the Swingline Loan Commitment.
“Swingline
Note”
or
“Swingline
Notes”
means
one or more of the Notes of Borrower substantially in the form of Exhibit
10.1(E),
or any
combination thereof, and any replacements, reinstatements, renewals or extension
of any such notes, in whole or in part.
“Telecommunications
System”
means
a
telephone, long distance, internet, data services, video and satellite services,
wireless telecommunications, telephone directories, fiber and cable leasing,
telecommunications equipment, including hand sets, rental, leasing,
installation, selling or maintenance system or business 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, and businesses related
thereto.
“Term
Loan A ”
means
the Loan under the Term Loan A Commitment.
“Term
Loan A Availability Period”
means
the period beginning with the Amendment Date and
ending on May 31, 2008.
“Term
Loan A Commitment”
means
$120,000,000, as such amount is reduced from time to time as provided in this
Agreement.
“Term
Loan A Facility”
means
the term loan credit facility extended to Borrower pursuant to Subsection
1.1(A).
“Term
Loan A Maturity Date”
means
the earlier of (i) the acceleration of the Obligations pursuant to Subsection
6.3
or (ii)
May 1, 2012.
“Term
Loan A Note”
or
“Term
Loan A Notes”
means
one or more of the notes of Borrower substantially in the form of Exhibit
10.1(C),
or any
combination thereof, and any replacements, restatements, renewals or extensions
of any such notes, in whole or in part.
“Term
Loan B ”
means
the Loan under the Term Loan B Commitment.
“Term
Loan B Commitment”
means
$60,000,000, as such amount is reduced from time to time as provided in this
Agreement.
“Term
Loan B Facility”
means
the term loan credit facility extended to Borrower pursuant to Subsection
1.1(B).
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“Term
Loan B Maturity Date”
means
the earlier of (i) the acceleration of the Obligations pursuant to Subsection
6.3
or (ii)
February 12, 2009.
“Term
Loan B Note”
or
“Term
Loan B Notes”
means
one or more of the notes of Borrower substantially in the form of Exhibit
10.1(D),
or any
combination thereof, and any replacements, restatements, renewals or extensions
of any such notes, in whole or in part.
“Term
Loan Commitments”
means
the Term Loan A Commitment and the Term Loan B Commitment.
“Term
Loan Facilities”
means
the Term Loan A Facility and the Term Loan B Facility.
“Term
Loan Maturity Date”
means
the Term Loan A Maturity Date and the Term Loan B Maturity Date, as applicable
to the respective Term Loan Facility.
“Term
Loan Note”
or
“Term
Loan Notes”
means,
collectively, the Term Loan A Notes and the Term Loan B Notes.
“Term
Loans”
means
the Term Loan A and the Term Loan B.
“Wireless
Sale”
means
the Borrower’s sale of substantially all of its wireless business assets to
Cellco Partnership, a Delaware general partnership doing business as Verizon
Wireless (“Verizon”),
pursuant to that certain Asset Purchase Agreement dated January 18, 2008 among
SureWest Wireless, West Coast PCS LLC, Verizon and Borrower.
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.
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Witness
the due execution hereof by the respective duly authorized officers of the
undersigned as of the date first written above.
| SUREWEST COMMUNICATIONS | ||
| |
|
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| By: | /s/ Xxxxxx X. Xxxxxx | |
|
Xxxxxx X. Xxxxxx |
||
| President and Chief Executive Officer | ||
[Signatures
Continued on Following Page]
[Signatures
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|
COBANK,
ACB
By:
/s/ Xxx
Xxxxxxx
Xxx
Xxxxxxx
Managing
Director
|
