Exhibit 10.44
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LOAN AGREEMENT
AMONG
RAINBOW MEDIA GROUP, LLC, AS BORROWER;
THE GUARANTORS PARTY HERETO, AS GUARANTORS;
TD SECURITIES (USA) INC.
AND
BANC OF AMERICA SECURITIES LLC,
AS CO-LEAD ARRANGERS AND CO-BOOK RUNNERS;
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT;
THE BANK OF NOVA SCOTIA, BARCLAYS BANK PLC
AND
FLEET NATIONAL BANK, AS CO-DOCUMENTATION AGENTS;
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
AND
THE OTHER CREDIT PARTIES PARTY HERETO
DATED AS OF MARCH 25, 2002
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LOAN AGREEMENT
AMONG
RAINBOW MEDIA GROUP, LLC, AS BORROWER;
THE GUARANTORS PARTY HERETO, AS GUARANTORS;
TD SECURITIES (USA) INC.
AND
BANC OF AMERICA SECURITIES LLC,
AS CO-LEAD ARRANGERS AND CO-BOOK RUNNERS;
BANK OF AMERICA, N.A., AS SYNDICATION AGENT;
THE BANK OF NOVA SCOTIA, BARCLAYS BANK PLC AND
FLEET NATIONAL BANK, AS CO-DOCUMENTATION AGENTS;
TORONTO DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
AND
THE OTHER CREDIT PARTIES PARTY HERETO
W I T N E S S E T H:
WHEREAS, Cablevision Systems Corporation, a Delaware corporation
("CSC"), through its majority-owned indirect subsidiary, Rainbow Media Holdings,
Inc., a Delaware corporation ("RMHI"), owns and operates certain national and
regional programming networks and sports and entertainment businesses; and
WHEREAS, in connection with the issuance by CSC of its Cablevision
Systems Corporation-Rainbow Media Group Class A Common Stock (the "RMG TRACKING
STOCK"), RMHI formed a wholly-owned subsidiary, Rainbow Media Group, LLC, a
Delaware limited liability company (the "BORROWER"), to hold all of the
interests in the assets and businesses comprising the RMG Tracking Stock; and
WHEREAS, the Borrower has requested that the Credit Parties (as
defined below) establish a $400,000,000 senior secured credit facility in favor
of the Borrower;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties to this Agreement hereby agree as
follows:
ARTICLE 1 - DEFINITIONS.
For the purposes of this Agreement:
"ACCRUED TAX LIABILITIES" shall mean, for any period, payments accrued
from and after January 1, 2002, and allocable to the Borrower in accordance with
the Tax Sharing Policy, which payments shall be determined on the basis of the
financial income, taxable income, credits and other amounts directly related to
the members of the RMG Tracking Stock Group which would generally be comparable
to those payments that would have resulted if the Borrower had filed a separate
tax return.
"ACQUISITION" shall mean (a) any acquisition of all or substantially
all of the assets of a business or a business unit, (b) any acquisition of all
or substantially all of the capital stock or other ownership interest of any
other Person, or (c) any merger by any RMG Company of or with any other Person,
such that, in any such case, such Person shall become consolidated with such RMG
Company in accordance with GAAP after consummating such transaction.
"ADDITIONAL AMOUNTS" shall have the meaning set forth in Section
2.10(c)(ii) hereof.
"ADJUSTED STOCK INCENTIVE CHARGES" shall mean, for the MGM Operating
Companies on a consolidated basis, the result, to the extent positive, of (a)
Employee Stock Incentive Expense, MINUS (b) seven percent (7%) of Calendar
Operating Cash Flow for the immediately preceding fiscal year of the MGM
Operating Companies, MINUS (c) the lesser of (i) Employee Stock Incentive Income
attributable to the MGM Operating Companies during such period and (ii)
$25,000,000, in each case for the most recently completed twelve (12) month
period.
"ADMINISTRATIVE AGENT" shall mean Toronto Dominion (Texas), Inc., a
Delaware corporation, acting as administrative agent for the Credit Parties,
together with any successor administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" shall mean the office of the
Administrative Agent located at the address set forth in Section 12.1 hereof, or
such other office as may be designated pursuant to the provisions of Section
12.1 hereof.
"ADVANCE" or "ADVANCES" shall mean amounts advanced to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing.
"AFFILIATE" shall mean any Person (other than a Person whose sole
relationship with any RMG Company is as an employee) directly or indirectly
controlling, controlled by, or under common control with any of the RMG
Companies, and to the extent not otherwise so deemed an Affiliate, each
Unrestricted Subsidiary shall be deemed an Affiliate of the RMG Companies. For
purposes of this definition, "control" when used with respect to any Person
includes the power to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"AGENTS" shall mean, collectively, the Administrative Agent, the
Syndication Agent, the Co-Documentation Agents and the Arrangers, and "AGENT"
shall mean any one of the foregoing Agents.
"AGREEMENT" shall mean this Loan Agreement.
"AGREEMENT DATE" shall mean March 25, 2002.
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"AMC" shall mean American Movie Classics Company, a New York general
partnership.
"AMC CONSULTING AGREEMENT" shall mean that certain Consulting
Agreement dated as of March 29, 2001, among CSC, AMC and WE, pursuant to which
CSC has agreed to provide consulting services to AMC and WE for an annual fee
equal to three and one-half percent (3.50%) of the gross revenues of AMC and WE
during the applicable year and reimbursement of the cost and expenses incurred
by CSC in connection with the consulting services.
"AMC/BRAVO CREDIT PARTIES" shall mean "Credit Parties" as such term is
defined in the AMC/Bravo Loan Agreement.
"AMC/BRAVO LOAN AGREEMENT" shall mean that certain Second Amended and
Restated Loan Agreement dated as of the Agreement Date among AMC and Bravo, as
borrowers, TD Securities (USA) Inc. and Banc of America Securities LLC, as
co-lead arrangers and co-book runners, Bank of America, N.A., as syndication
agent, Toronto Dominion (Texas), Inc., as administrative agent, and the other
AMC/Bravo Credit Parties party thereto.
"AMC/BRAVO INTERCOMPANY INDEBTEDNESS" shall mean up to $100,000,000 of
Indebtedness owing by any of the RMG Companies in favor of either AMC or Bravo
as further described on SCHEDULE 1 attached hereto.
"ANNUALIZED CASH FLOW" shall mean, as of any calculation date for the
MGM Operating Companies on a consolidated basis, eighty percent (80%) of (a) the
product of (i) the result of (A) Cash Flow, PLUS (B) Employee Stock Incentive
Expense, MINUS (C) Employee Stock Incentive Income, in each case for the most
recently completed six (6) month period, TIMES (ii) two (2), MINUS (b) Adjusted
Stock Incentive Charges.
"APPLICABLE LAW" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person and all orders 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.
"ARRANGERS" shall mean, collectively, TD Securities (USA) Inc. and
Banc of America Securities LLC, in their respective capacities as co-lead
arrangers and co-book runners under this Agreement, and "ARRANGER" shall mean
any one of the foregoing Arrangers.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean that certain form of
Assignment and Assumption Agreement in substantially the form of EXHIBIT A
attached
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hereto, pursuant to which each Lender may, as further provided in Section 12.5
hereof, sell a portion of its Revolving Loans or Revolving Loan Commitment.
"AUTHORIZED DEBT ISSUANCE" shall mean, with respect to the issuance of
any Indebtedness For Money Borrowed by the Borrower, up to $200,000,000 in Net
Cash Proceeds raised by the Borrower on or before March 25, 2004, on terms and
conditions which shall (i) have a maturity date no earlier than one (1) year
after the Maturity Date, (ii) be unsecured, (iii) be no more restrictive on the
RMG Companies and the MGM Companies than the terms and conditions of this
Agreement and the other Loan Documents, and (iv) be otherwise reasonably
satisfactory to the Arrangers.
"AUTHORIZED SIGNATORY" shall mean, with respect to any Person, such
senior personnel of such Person as may be duly authorized and designated in
writing by such Person to execute documents, agreements and instruments on
behalf of such Person.
"AVAILABLE BASKET AMOUNT" shall mean, with respect to each year during
the term of this Agreement, the amount set forth below with respect to such year
ending during the relevant period set forth below:
PERIOD AVAILABLE BASKET AMOUNT
Agreement Date through $250,000,000
December 31, 2002
January 1, 2003 through $ 75,000,000
December 31, 2003
January 1, 2004 through $ 65,000,000
December 31, 2004
January 1, 2005 through $ 50,000,000
December 31, 2005
January 1, 2006 through the $ 35,000,000
Maturity Date
Notwithstanding the foregoing, (a) to the extent that amounts available under
the Available Basket Amount with respect to any calendar year are not used, such
amounts may, subject to the clause (b) below, be carried forward to increase the
Available Basket Amount during the immediately following year (but only such
immediately following year and not any subsequent year), and (b) amounts
available under the Available Basket Amount during the current year must be used
before any amounts carried forward pursuant to the immediately preceding clause
(a) may be used.
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"AVAILABLE REVOLVING LOAN COMMITMENT" shall mean, as of any date, the
excess of (a) the Revolving Loan Commitment, over (b) the aggregate amount of
Revolving Loans outstanding on such date.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code (11
U.S.C. Section 101 ET SEQ.), as now or hereafter amended, and any successor
statute, or any other applicable federal or state bankruptcy law or other
similar law.
"BASE RATE" shall mean, as of any date, a fluctuating interest rate
per annum equal to the greater of (a) the Prime Rate and (b) the sum of (i) the
Federal Funds Rate, plus (ii) one-half of one percent (0.50%). The Base Rate
shall be adjusted automatically as of the opening of business on the effective
date of each change in the Prime Rate or the Federal Funds Rate, as the case may
be.
"BASE RATE ADVANCE" shall mean an Advance (other than a Swing Loan)
which the Borrower requests to be made as a Base Rate Advance or which is
converted to a Base Rate Advance in accordance with the provisions of Section
2.2 hereof.
"BASE RATE APPLICABLE MARGIN" shall mean, at any time, with respect to
any Base Rate Advance, the per annum rate of interest determined as follows:
If the Leverage Ratio
as of the end of any Then the Base Rate
Calendar Quarter Is: Applicable Margin Shall Be:
-------------------- ---------------------------
Greater than or equal to 2.25 to 1.00 2.25%
Less than 2.25 to 1.00 2.00%
Any increase in the Base Rate Applicable Margin shall take effect on the second
(2nd) Business Day after the performance certificate is required to be provided
pursuant to Section 7.3 hereof. Any decrease in the Base Rate Applicable Margin
shall take effect on the later of (a) the second (2nd) Business Day after the
performance certificate is required to be provided pursuant to Section 7.3
hereof or (b) the date on which the performance certificate is actually provided
pursuant to Section 7.3 hereof.
"BORROWER" shall have the meaning ascribed thereto in the recitals to
this Agreement.
"BORROWER PLEDGE AGREEMENT" shall mean that certain Pledge Agreement
between the Borrower and the Administrative Agent, dated as of the Agreement
Date, in substantially the form of EXHIBIT B attached hereto, pursuant to which
the Borrower has pledged to the Administrative Agent, for the ratable benefit of
the Credit Parties, all of the stock and other equity interests owned directly
by the Borrower (other than the stock or other equity interests of any
Unrestricted Subsidiary).
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"BORROWER SECURITY AGREEMENT" shall mean that certain Security
Agreement between the Borrower and the Administrative Agent, dated as of the
Agreement Date, in substantially the form of EXHIBIT C attached hereto.
"BRAVO" shall mean Bravo Company, a
New York general partnership.
"BUSINESS DAY" shall mean a day on which banks are not authorized or
required to be closed and foreign exchange markets are open for the transaction
of business required for this Agreement in London, England, Houston, Texas, and,
in each case,
New York,
New York, as relevant to the determination to be made or
the action to be taken.
"CABLEVISION-NY GROUP STOCK" shall mean the series of common stock of
CSC designated as "Cablevision Systems Corporation-Cablevision NY Group Class A
Common Stock" and traded on the
New York Stock Exchange under the symbol "CVC".
"CALENDAR OPERATING CASH FLOW" shall mean, as of each fiscal year end
for the MGM Operating Companies on a consolidated basis, (a) the result of (i)
Cash Flow, PLUS (ii) Employee Stock Incentive Expense, MINUS (iii) Employee
Stock Incentive Income, in each case for the twelve (12) month period then
ended, MINUS (b) Adjusted Stock Incentive Charges.
"CAPITAL EXPENDITURES" shall mean expenditures for the purchase of
assets of long-term use which are capitalized in accordance with GAAP (excluding
any expenditures for and under Film Rights Agreements of the RMG Companies).
"CAPITALIZED LEASE OBLIGATION" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"CASH EQUIVALENTS" shall mean the following:
(a) marketable, direct obligations of the United States of America
maturing within three hundred ninety-seven (397) days of the date of
purchase;
(b) commercial paper issued by any Lender (or any Lender Affiliate) or
by corporations, each of which shall have a consolidated net worth of at
least $250,000,000 and each of which conducts a substantial part of its
business in the United States of America, maturing within one hundred
eighty (180) days from the date of the original issue thereof, and rated
"P-1" or better by Xxxxx'x Investors Service, Inc.;
(c) fully collateralized repurchase agreements in such amounts and
with such financial institutions having a rating of Baa or better from
Xxxxx'x Investors Service, Inc., as the Borrower may select from time to
time;
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(d) certificates of deposit, banker's acceptances and time deposits
maturing within three hundred ninety-seven (397) days of the date of
purchase, which are issued by any Lender or by a United States national or
state bank or foreign bank having capital, surplus and undivided profits
totaling more than $100,000,000, and having a rating of Baa or better from
Xxxxx'x Investors Service, Inc.; and
(e) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by Standard & Poor's and Aaa by Moody's and (iii) have portfolio assets of
at least $5,000,000,000.
"CASH FLOW" shall mean, for any period, the sum of (a) Net Income
(excluding any unusual, non-recurring or extraordinary items), plus (b) the sum,
in each case to the extent deducted in calculating Net Income, of (i) Interest
Expense, (ii) depreciation, (iii) amortization (excluding Film Rights
Amortization and Deferred Carriage Fees) and (iv) taxes.
"CO-DOCUMENTATION AGENTS" shall mean collectively, The Bank of Nova
Scotia, Barclays Bank PLC and Fleet National Bank, in their respective
capacities as co-documentation agents under this Agreement, and
"CO-DOCUMENTATION AGENT" shall mean any one of the foregoing Co-Documentation
Agents.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean any assets in which any Credit Party may have
a security interest pursuant to any Security Document.
"COMMITMENT PERCENTAGES" shall mean the percentages in which the
Lenders are severally bound to satisfy the Revolving Loan Commitment to make
Advances to the Borrower as shall be in effect from time to time, which
percentages as of the Agreement Date are set forth on SCHEDULE 2 attached
hereto.
"COMMITMENTS" shall mean, collectively, the Revolving Loan Commitment
and any Incremental Facility Commitments issued hereunder.
"COMPANY" shall mean any corporation, partnership, limited liability
company or other legal entity.
"CONSTITUENT DOCUMENTS" shall mean, (a) with respect to any
corporation, such corporation's certificate or articles of incorporation and
by-laws, (b) with respect to any partnership, such partnership's partnership
agreement and certificate of limited partnership (if applicable), and (c) with
respect to any limited liability company, such
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limited liability company's operating agreement and certification of
organization (or other similar document, as the case may be).
"CONTRIBUTION AGREEMENT" shall mean that certain Contribution
Agreement among CSC, CSC Holdings, RMHI and the Administrative Agent, dated as
of the Agreement Date, in substantially the form of EXHIBIT D attached hereto,
providing for the equity contribution of Net Cash Proceeds received in
connection with the issuance of any additional RMG Tracking Stock to the
Borrower to the extent that the Borrower is required to make a prepayment of the
Loans as a result of a permanent reduction of the Revolving Loan Commitment
pursuant to Section 2.6(a) hereof.
"CREDIT PARTIES" shall mean, collectively, the Administrative Agent,
the Syndication Agent, the Co-Documentation Agents, the Arrangers, the Lenders,
the Swing Loan Lender and the Incremental Facility Lenders.
"CSC" shall have the meaning ascribed thereto in the recitals to this
Agreement.
"CSC HOLDINGS" shall mean CSC Holdings, Inc., a Delaware corporation.
"CUBS GUARANTY" shall mean the backup guaranty provided by the
Borrower as support for the guaranty obligations of RMHI in respect of those
certain payments to be made under a programming rights agreement dated as of
March 4, 1999, by SC-CHI, pursuant to which SC-CHI obtained the right to
broadcast certain games of the Chicago Cubs, a Major League Baseball franchise.
"DEFAULT" shall mean any Event of Default, and any of the events
specified in Section 9.1 hereof which with any passage of time or giving of
notice (or both) would constitute such event an Event of Default.
"DEFAULT RATE" shall mean a simple per annum interest rate equal to
the sum of (a) the Base Rate, (b) the Base Rate Applicable Margin, and (c) two
percent (2%).
"DEFERRED CARRIAGE FEES" shall mean the amortization of expenditures
of the MGM Operating Companies made in respect of launch support payments under
carriage agreements, which expenditures shall, at all times, be amortized in
accordance with GAAP.
"XXXXX" shall mean Xxxxxxx X. Xxxxx.
"XXXXX FAMILY INTERESTS" shall mean (a) any Xxxxx Family Member, (b)
any trusts for the benefit of any Xxxxx Family Members, (c) any estate or
testamentary trust of any Xxxxx Family Member for the benefit of any Xxxxx
Family Members, (d) any executor, administrator, conservator or legal or
personal representative of any Person or Persons specified in clauses (a),(b)
and (c) above to the extent acting in such capacity on
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behalf of any Xxxxx Family Member or Members and not individually, and (e) any
corporation, partnership, limited liability company or other similar entity, in
each case, eighty percent (80%) of which is owned and controlled by any of the
foregoing or combination of the foregoing.
"XXXXX FAMILY MEMBERS" shall mean Xxxxx, his spouse, his descendants
and any spouse of any of such descendants.
"DOLLARS" or "$" shall mean the basic unit of the lawful currency of
the United States of America.
"EMPLOYEE STOCK INCENTIVE EXPENSE" shall mean, with respect to any
Person, the expense incurred for the respective period in respect of the
employee stock incentive programs of such Person, as determined in accordance
with GAAP.
"EMPLOYEE STOCK INCENTIVE INCOME" shall mean, with respect to any
Person, income attributable to such Person for the respective period as a result
of the reversal of any Employee Stock Incentive Expense accrued during a prior
period, as determined in accordance with GAAP
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as in effect from time to time.
"ERISA AFFILIATE" shall mean any "affiliate" of the Borrower and its
Subsidiaries within the meaning of Section 414 of the Code.
"EURODOLLAR ADVANCE" shall mean an Advance (other than a Swing Loan)
which the Borrower requests to be made as a Eurodollar Advance or which is
continued as or converted to a Eurodollar Advance in accordance with the
provisions of Section 2.3 hereof.
"EURODOLLAR ADVANCE PERIOD" shall mean, in connection with any
Eurodollar Advance, the term of such Advance selected by the Borrower, which may
be one (1), two (2), three (3) or six (6) months, and subject to the last
proviso of this definition nine (9) or twelve (12) months, or otherwise
determined in accordance with this Agreement; PROVIDED, HOWEVER, notwithstanding
the foregoing, (a) any applicable Eurodollar Advance Period which would
otherwise end on a day which is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Eurodollar Advance Period shall end on the next
preceding Business Day, (b) any applicable Eurodollar Advance Period which
begins on a day for which there is no numerically corresponding day in the
calendar month during which such Eurodollar Advance Period is to end shall
(subject to clause (a) above) end on the last day of such calendar month, and
(c) no Eurodollar Advance Period shall extend beyond the Maturity Date or such
earlier date as would interfere with the repayment obligations of the Borrower
under Section 2.7 hereof; PROVIDED FURTHER,
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HOWEVER, the Borrower may not select a Eurodollar Advance Period in excess of
six (6) months unless the Administrative Agent has notified the Borrower that
(i) that each of the Lenders has available to it funds for such Lender's share
of the proposed Advance which are not required for other purposes, (ii) such
funds are available to each Lender at a rate (exclusive of reserves and other
adjustments) at or below the Eurodollar Rate for such proposed Advance and
Eurodollar Advance Period, and (iii) each Lender has, in its sole discretion,
agreed to fund such Advance.
"EURODOLLAR APPLICABLE MARGIN" shall mean, at any time, with respect
to any Eurodollar Advance, the per annum rate of interest determined as follows:
If the Leverage Ratio
as of the end of any Then the Eurodollar
Calendar Quarter Is: Applicable Margin Shall Be:
-------------------- ---------------------------
Greater than or equal to 2.25 to 1.00 3.25%
Less than 2.25 to 1.00 3.00%
Any increase in the Eurodollar Applicable Margin shall take effect on the second
(2nd) Business Day after the performance certificate is required to be provided
pursuant to Section 7.3 hereof. Any decrease in the Eurodollar Applicable Margin
shall take effect on the later of (a) the second (2nd) Business Day after the
performance certificate is required to be provided pursuant to Section 7.3
hereof or (b) the date on which the performance certificate is actually provided
pursuant to Section 7.3 hereof.
"EURODOLLAR BASIS" shall mean a simple per annum interest rate
(rounded upward, if necessary, to the nearest one-hundredth of one percent
(1/100%)) equal to the quotient of (a) the Eurodollar Rate divided by (b) one
minus the Eurodollar Reserve Percentage, stated as a decimal, and once
determined, shall be subject to Article 11 hereof and shall remain unchanged
during the applicable Eurodollar Advance Period, except for changes to reflect
adjustments in the Eurodollar Reserve Percentage.
"EURODOLLAR RATE" shall mean, for any Eurodollar Advance Period, the
rate per annum determined by the Administrative Agent to be the arithmetic mean
of the interest rates per annum (rounded upward to the nearest one-sixteenth of
one percent (1/16%)) which appear on Telerate Page 3750 as of 11:00 a.m. (London
time), or, if unavailable, the Reuters Screen LIBO Page, two (2) Business Days
before the first day of such Eurodollar Advance Period, in an amount
approximately equal to the principal amount of, and for a length of time
approximately equal to the Eurodollar Advance Period for, the Eurodollar Advance
sought by the Borrower.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the percentage
which is in effect from time to time under Regulation D of the Board of
Governors of the Federal
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Reserve System, as such regulation may be amended from time to time, as the
actual reserve requirement applicable with respect to Eurocurrency liabilities
(as that term is defined in Regulation D), to the extent any Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time. The
Eurodollar Basis for any Eurodollar Advance shall be adjusted as of the
effective date of any change in the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" shall mean any of the events specified in Section
9.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"EXCESS FUNDING GUARANTOR" shall have the meaning ascribed thereto in
Article 3 hereof.
"EXCESS PAYMENT" shall have the meaning ascribed thereto in Article 3
hereof.
"EXEMPTION CERTIFICATE" shall have the meaning set forth in Section
2.10(c)(iii) hereof.
"EXISTING INVESTMENT GUARANTIES" shall mean, collectively, the Cubs
Guaranty, the Sportsvision Guaranty and the Sterling Digital Guaranty.
"FCC" shall mean the Federal Communications Commission, or any
successor thereto.
"FEDERAL FUNDS RATE" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of
New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"FEE LETTERS" shall mean those certain Fee Letters by and between the
Borrower and each of the Administrative Agent, the Arrangers and the Lenders
setting forth the applicable fees relating to this Agreement.
"FILM RIGHTS AGREEMENTS" shall mean, collectively, each agreement
between any of the RMG Companies or any of the MGM Companies and any other
Person for the agreement to use, produce, exhibit or distribute programming.
"FILM RIGHTS AMORTIZATION" shall mean the amortization of expenditures
of the MGM Operating Companies for the acquisition of film rights and broadcast
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programming, which expenditures shall, at all times, be amortized in accordance
with GAAP.
"FINANCIAL COVENANTS" shall mean the financial covenants applicable to
the Borrower from time to time as set forth in Sections 8.8 and 8.9 hereof.
"FINANCIAL STATEMENTS DELIVERY DATE" shall mean (a) with respect to
the delivery of quarterly financial statements and information pursuant to
Section 7.1 hereof, the date which is ninety (90) days after the last day of
each quarter in each fiscal year of the Borrower, and (b) with respect to the
delivery of annual financial statements and information pursuant to Section 7.2
hereof, the date which is one hundred twenty (120) days after the end of each
fiscal year of the Borrower; PROVIDED, HOWEVER, in the event the SEC shall
reduce the time period during which the Borrower may file its quarterly or
annual financial statements with the SEC, the ninety (90) day and one hundred
twenty (120) day time periods set forth in this definition shall be reduced by a
like number of days.
"FOREIGN LENDER" shall have the meaning set forth in Section
2.10(c)(iii) hereof.
"GAAP" shall mean generally accepted accounting principles in the
United States, as in effect from time to time, consistently applied.
"GUARANTEE SUPPLEMENT" shall have the meaning set forth in Section
6.14 hereof.
"GUARANTORS" shall mean all of the now or hereafter existing direct
and indirect Subsidiaries of the Borrower.
"GUARANTY" or "GUARANTEED" as applied to an obligation (each a
"primary obligation"), shall mean and include (a) any guaranty, direct or
indirect, in any manner, of any part or all of such primary obligation, and (b)
any agreement, direct or indirect, contingent or otherwise, the practical effect
of which is to assure in any way the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such primary
obligation, including, without limiting the foregoing, any reimbursement
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit and any obligation of a Person (the "primary obligor"), whether or not
contingent, (i) to purchase any such primary obligation or any property or asset
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of such primary obligation or (B) to
maintain working capital, equity capital or the net worth, cash flow, solvency
or other balance sheet or income statement condition of any other Person, (iii)
to purchase property, assets, securities or services primarily for the purpose
of assuring the owner or holder of any primary obligation of the ability of the
primary obligor with respect to such primary obligation to
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make payment thereof, or (iv) otherwise to assure or hold harmless the owner or
holder of such primary obligation against loss in respect thereof.
"INCREMENTAL FACILITY COMMITMENT" shall mean the commitment of any of
the Incremental Facility Lenders to make Incremental Facility Loans to the
Borrower in accordance with Section 2.14 hereof. The Borrower may obtain
Incremental Facility Commitments from more than one Incremental Facility Lender,
which commitments shall be several obligations of each such Incremental Facility
Lender.
"INCREMENTAL FACILITY INDEBTEDNESS" shall mean all principal,
interest, fees, and other amounts from time to time due or accrued in connection
with the Incremental Facility Loans.
"INCREMENTAL FACILITY LENDERS" shall mean any lenders having an
Incremental Facility Commitment or making Incremental Facility Loans pursuant
thereto.
"INCREMENTAL FACILITY LOANS" shall mean the amounts advanced by the
Incremental Facility Lenders to the Borrower as Incremental Facility Loans under
the Incremental Facility Commitment, not to exceed the amount of the Incremental
Facility Commitment, and evidenced by the Incremental Facility Notes.
"INCREMENTAL FACILITY NOTES" shall mean those certain Incremental
Facility Notes described in Section 2.14 hereof.
"INDEBTEDNESS" shall mean, with respect to any Person, (a) all items
(except items of shareholders' and partners' equity or capital stock or surplus
or general contingency or deferred tax reserves) which in accordance with GAAP
would be included in determining total liabilities as shown on the liability
side of a balance sheet of such Person, (b) all direct or indirect obligations
secured by any Lien to which any property or asset owned by such Person is
subject, whether or not the obligation secured thereby shall have been assumed,
(c) to the extent not otherwise included, all Capitalized Lease Obligations of
such Person, (d) all reimbursement obligations with respect to outstanding
letters of credit, and (e) all net obligations in respect of Interest Hedge
Agreements.
"INDEBTEDNESS FOR MONEY BORROWED" shall mean, with respect to any
Person, all money borrowed by such Person and all Indebtedness represented by
notes payable by such Person and drafts accepted representing extensions of
credit to such Person, all obligations of such Person evidenced by bonds,
debentures, notes, or other similar instruments, all net obligations in respect
of Interest Hedge Agreements, all reimbursement obligations with respect to
letters of credit, all Indebtedness of such Person upon which interest charges,
commitment fees or letter of credit fees are customarily paid, and all
Indebtedness of such Person issued or assumed as full or partial payment for
property or services, whether or not any such notes, drafts, obligations, or
Indebtedness represent Indebtedness for money borrowed (excluding accounts
payable and other accruals incurred in the ordinary cause of business). For
purposes of this
13
definition, interest which is accrued but not paid on the original due date or
within any applicable cure or grace period as provided by the underlying
contract for such interest shall be deemed Indebtedness For Money Borrowed.
"INDEMNIFIED PARTIES" shall have the meaning given thereto in Section
6.13 hereof.
"INSOLVENCY PROCEEDING" shall mean, with respect to any Person, any
insolvency, receivership, bankruptcy, dissolution, liquidation or reorganization
proceeding, or any other proceeding, whether voluntary or involuntary, by or
against such Person, under the Bankruptcy Code or any other bankruptcy or
insolvency law or laws, federal or state, relating to the relief of debtors of
any jurisdiction, whether now or hereafter in effect, and any out-of-court
composition, assignment for the benefit of creditors, readjustment of
Indebtedness, reorganization, extension or other debt arrangement of any kind.
"INTEREST COVERAGE RATIO" shall mean, on any calculation date, the
ratio of (a) Six Month Cash Flow to (b) Trailing Six Month Interest Expense.
"INTEREST EXPENSE" shall mean, for any period with respect to any
Person, an amount equal to the sum of (a) the interest and commitment fees
accrued during such period with respect to the aggregate amount of Indebtedness
For Money Borrowed and (b) the interest component of Capitalized Lease
Obligations.
"INTEREST HEDGE AGREEMENT" shall mean any interest rate swap, cap,
collar, floor, caption or swaption agreement, or any similar arrangement
designed to hedge the risk of variable interest rate volatility or to reduce
interest costs, arising at any time between the Borrower, on the one hand, and
any other Person, on the other hand, as such agreement or arrangement may be
modified, supplemented, amended, and in effect from time to time.
"INVESTMENT" shall mean (a) any capital contributions to, loans to,
repurchase agreements with or investments in securities of, or Guaranties (other
than the Existing Investment Guaranties and the Janus Guaranty) issued for the
benefit of, a Person (including, without limitation, any of the Unrestricted
Subsidiaries or any of the MGM Companies), but in any case shall not include any
Acquisition, (b) payments made under each of the Existing Investment Guaranties,
and (c) payments made under the Janus Guaranty.
"JANUS GUARANTY" shall mean the backup guaranty provided by the
Borrower as support for the guaranty obligations of RMHI in respect of certain
payments to be made by Bravo or Rainbow Films Holdings, LLC, as its assignee,
under a Television Rights Purchase Agreement, dated as of March 14, 1995, among
City Entertainment Corporation, Janus Films Company and Bravo.
14
"LENDER AFFILIATE" shall mean with respect to any Lender, (i) an
Person directly or indirectly controlling, controlled by or under common control
with such Lender or (ii) any entity (whether a corporation, partnership, trust
or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is wholly-owned by a Lender or a Lender Affiliate of such
Lender.
"LENDERS" shall mean those lenders whose names are set forth on the
signature pages hereof under the heading "Lenders" (including the Swing Loan
Lender) and any assignees of the Lenders which hereafter become parties hereto
pursuant to and in accordance with Section 12.5 hereof, and "LENDER" shall mean
any one of the foregoing Lenders.
"LEVERAGE RATIO" shall mean, on any calculation date, the ratio of (a)
Total Debt to (b) Annualized Cash Flow.
"LIEN" shall mean, with respect to any property, any mortgage, lien,
pledge, assignment, charge, security interest, title retention agreement, levy,
execution, seizure, attachment, garnishment, or other encumbrance of any kind in
respect of such property, whether or not xxxxxx, vested, or perfected.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Fee
Letters, the Security Documents, all Incremental Facility Notes, the
Subordination of Intercompany Obligations Agreement, the Subordination of Tax
Liabilities Agreement, the Contribution Agreement and other documents executed
in connection with the Incremental Facility Loans, all Requests for Advance, all
documents executed by any of the RMG Companies pursuant to Section 6.14 hereof
and all Interest Hedge Agreements between the Borrower, on the one hand, and any
Credit Party (or any Lender Affiliate thereof or any Person that was a Credit
Party (or a Lender Affiliate thereof) on the date of entering into such Interest
Hedge Agreement), on the other hand, and all other documents, instruments,
certificates and agreements executed or delivered in connection with or
contemplated by this Agreement.
"LOANS" shall mean, collectively, the Revolving Loans and the Swing
Loans and if any Incremental Facility Commitments have been issued, the
Incremental Facility Loans made under such Incremental Facility Commitments, and
"LOAN" shall mean any of the foregoing.
"MAJORITY LENDERS" shall mean, at any time, (a) prior to the
occurrence of an Event of Default and termination of the Commitments, Lenders
the sum of whose Undrawn Commitments plus Loans then outstanding equals or
exceeds fifty and one-tenth percent (50.1%) of the sum of the Undrawn
Commitments plus the Loans then outstanding for all Lenders, or (b) at any time
that there exists an Event of Default hereunder, and the Commitments have been
terminated, Lenders the total of whose Loans
15
outstanding equals or exceeds fifty and one-tenth percent (50.1%) of the total
principal amount of the Loans then outstanding hereunder.
"MANDATORY BORROWING" shall have the meaning given thereto in Section
2.8(b) hereof.
"MATERIAL FILM RIGHTS AGREEMENT" shall mean any Film Rights Agreement
of any RMG Company pursuant to which such RMG Company is obligated to make
payments of $5,000,000 or more in the aggregate.
"MATERIAL MSO AGREEMENT" shall mean any agreement between any RMG
Company and a cable television operator covering 1,000,000 or more subscribers
pursuant to which such operator agrees, among other things, to distribute and
exhibit to its subscribers programming of such RMG Company.
"MATERIAL SUBSIDIARIES" shall mean, collectively, (a) the Guarantors
and (b) any other Subsidiaries of the Borrower having (either individually or
collectively, in the case of any holding company Subsidiaries, with their
respective operating Subsidiaries) a "fair market value" of $5,000,000 or more,
as determined by the Arrangers in their reasonable discretion.
"MATERIALLY ADVERSE EFFECT" shall mean any materially adverse effect
upon the business, assets, financial condition or results of operations of the
RMG Companies, taken as a whole on a consolidated basis in accordance with GAAP,
or upon the ability of the RMG Companies, taken as a whole, to perform their
respective Obligations under this Agreement or any other Loan Document.
"MATURITY DATE" shall mean December 31, 2006, or such earlier date as
payment of the Loans shall be due (whether by acceleration or otherwise);
PROVIDED, HOWEVER, notwithstanding anything to the contrary contained in this
Agreement, in the event that (a) the Indebtedness outstanding under AMC/Bravo
Loan Agreement shall be repaid in full and the commitment of the AMC/Bravo
Credit Parties to make loans thereunder shall be terminated or cancelled or (b)
the maturity of the Indebtedness outstanding under the AMC/Bravo
Loan Agreement
shall be accelerated, the Maturity Date shall be accelerated such that the Loans
and the Obligations outstanding under this Agreement shall mature concurrently
with the Indebtedness outstanding under the AMC/Bravo
Loan Agreement.
"MGM COMPANIES" shall mean, collectively, AMC, Bravo and each of their
respective Subsidiaries, and "MGM COMPANY" shall mean any one of the foregoing
MGM Companies.
"MGM OPERATING COMPANIES" shall mean all MGM Companies which are
designated as of the Agreement Date as MGM Operating Companies on SCHEDULE
5.1(c)-2 hereto and which have been likewise designated as "MGM Operating
Companies"
16
under the AMC/Bravo
Loan Agreement, and "MGM OPERATING COMPANY" shall mean any
one of the foregoing MGM Operating Companies; PROVIDED, HOWEVER, that so long as
no Default or Event of Default then exists or would be caused thereby, the
Borrower may designate additional MGM Companies as MGM Operating Companies after
the Agreement Date, upon five (5) Business Days' prior written notice to the
Administrative Agent and subject to such MGM Companies being concurrently
designated as "MGM Operating Companies" under the AMC/Bravo Loan Agreement;
PROVIDED FURTHER, HOWEVER, that notwithstanding the foregoing, no Company which
is or becomes a MGM Operating Company shall cease to be a MGM Operating Company
for purposes of this Agreement without the consent of the Majority Lenders. To
the extent that additional MGM Companies shall be designated as "MGM Operating
Companies" under the AMC/Bravo Loan Agreement, such MGM Companies shall likewise
be designated as MGM Operating Companies under this Agreement, and to the extent
that any Company shall cease to be a MGM Operating Company for purposes of the
AMC/Bravo Loan Agreement, such Company shall likewise cease to be a MGM
Operating Company for purposes of this Agreement.
"MGM OPERATING COMPANY INTEREST EXPENSE" shall mean, for any period,
eighty percent (80%) of Interest Expense for the MGM Operating Companies on a
consolidated basis.
"MGM OPERATING COMPANY TOTAL DEBT" shall mean, as of any date with
respect to the MGM Operating Companies on a consolidated basis, eighty percent
(80%) of (a) all outstanding Indebtedness For Money Borrowed (excluding
obligations in respect of Interest Hedge Agreements), (b) all obligations
Guaranteed by the MGM Operating Companies in respect of Indebtedness For Money
Borrowed, and (c) all Capitalized Lease Obligations (other than obligations
under Film Rights Agreements of the MGM Operating Companies).
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NECESSARY AUTHORIZATIONS" shall mean all authorizations, consents,
permits, approvals, licenses and exemptions from, and all filings and
registrations with, and all reports to, any governmental or other regulatory
authority whether federal, state or local, and all agencies thereof necessary
for the conduct of the businesses and the ownership (or lease) of the properties
and assets of each of the RMG Companies.
"NET CASH PROCEEDS" shall mean, with respect to any issuance or sale
by any Person of Indebtedness or stock or other equity interests, and with
respect to any sale, lease, transfer or other disposition of assets, the amount
equal to (a) the gross cash consideration (including, without limitation, any
payments received in respect of covenants not to compete, consulting or
management fees, and any portion of the amount received in cash upon payment of
a buyer promissory note or other evidence of Indebtedness) in connection with
such issuance, sale, lease, transfer or other disposition,
17
minus (b) the sum of (i) any underwriting or commitment fees or sales
commissions required to be paid on the closing of such transaction, (ii) any
attorneys fees incurred by such Person in connection with such transaction, and
(iii) cash taxes related to the transaction to the extent payable by such
Person.
"NET INCOME" shall mean, with respect to any Person for any period,
the aggregate amount of net income of such Person, after taxes (unless such
Person is a partnership or limited liability company), for such period as
determined in accordance with GAAP.
"NEW AFFILIATED EQUITY" shall mean any infusion of equity by RMHI,
CSC, any affiliate of either of them or any other Person satisfactory to the
Majority Lenders into the Borrower after the Agreement Date (whether the amount
of such equity shall have been obtained by any such Person in connection with
the public issuance of stock or other equity interests by such Person
(including, without limitation, the issuance of any RMG Tracking Stock) or
otherwise) to the extent the Net Cash Proceeds received in connection with the
issuance of any such equity are not required to be used to repay the Loans under
Section 2.6 hereof.
"NOTES" shall mean, collectively, the Revolving Notes and the Swing
Loan Note.
"NOTICE OF CONTINUATION/CONVERSION" shall mean a notice in
substantially the form of EXHIBIT E attached hereto.
"OBLIGATIONS" shall mean (a) all payment and performance obligations
of the Borrower and all other obligors to the Lenders, the Swing Loan Lender,
the Incremental Facility Lenders, the Administrative Agent and the other Credit
Parties under this Agreement and the other Loan Documents, as they may be
amended from time to time, or as a result of making the Loans or the Incremental
Facility Loans, including, without limitation, obligations of the Borrower under
Interest Hedge Agreements (only to the extent that such Interest Hedge
Agreements are permitted pursuant to Section 8.1(d) hereof) with any Credit
Party or any Lender Affiliate of a Credit Party (or any Person that was a Credit
Party (or a Lender Affiliate thereof) on the date of entering into such Interest
Hedge Agreement), and (b) the obligation to pay an amount equal to the amount of
any and all damages which the Lenders, the Swing Loan Lender, the Incremental
Facility Lenders, the Administrative Agent or the other Credit Parties, or any
of them, or any of their Lender Affiliates, may suffer by reason of a breach by
the Borrower or any other obligor of any obligation, covenant or undertaking
with respect to this Agreement or any other Loan Document.
"PARTNERSHIP PLEDGE AGREEMENT" shall mean that certain Partnership
Pledge Agreement among RMHI, the RMG Partners and the Administrative Agent, for
the ratable benefit of the Credit Parties, dated as of the Agreement Date, in
substantially the form of EXHIBIT F attached hereto, pursuant to which RMHI and
the RMG Partners
18
have pledged to the Administrative Agent, for the ratable benefit of the Credit
Parties, all of their respective rights in and to the Constituent Documents of
AMC and Bravo, including, without limitation, the equity interests owned by each
of the RMG Partners in AMC and Bravo.
"PAYMENT DATE" shall mean the last day of each Eurodollar Advance
Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED INVESTMENTS" shall mean Investments described in and
permitted to be made under Section 8.2 hereof.
"PERMITTED LIENS" shall mean, as applied to any Person:
(a) Any Lien in favor of any Credit Party given to secure the
Obligations;
(b) Liens in favor of the AMC/Bravo Credit Parties on the rights of
RMHI and the RMG Partners under the Constituent Documents of AMC and Bravo and
on the equity interests owned by the RMG Partners in AMC and Bravo, all of which
Liens are subordinated to the Liens on such Collateral granted to the
Administrative Agent pursuant to the Partnership Pledge Agreement;
(c) (i) Liens on real estate for real estate taxes not yet delinquent
and (ii) Liens for taxes, assessments, judgments, governmental charges or
levies, or claims the non-payment of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been set aside on
such Person's books, but only so long as no foreclosure, distraint, sale, or
similar proceedings have been commenced with respect thereto and remain unstayed
for a period of thirty (30) days after their commencement;
(d) Liens of carriers, warehousemen, mechanics, laborers, and
materialmen incurred in the ordinary course of business for sums not yet due or
being contested in good faith, if such reserve or appropriate provision, if any,
as shall be required by GAAP shall have been made therefor;
(e) Liens incurred in the ordinary course of business in connection
with worker's compensation and unemployment insurance;
(f) Restrictions on the transfer of assets imposed by any agreement
(other than any agreement relating to Indebtedness), or by any federal, state or
local statute, regulation or ordinance applicable to such Person;
19
(g) Easements, rights-of-way, restrictions, and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person, or Liens on real property
incidental to the conduct of the business of such Person or to the ownership of
its real properties which were not incurred in connection with Indebtedness or
other extensions of credit and which do not in the aggregate materially detract
from the value of such properties or materially impair their use in the
operation of the business of such Person; and
(h) Liens in respect of Capitalized Lease Obligations permitted under
this Agreement.
"PERSON" shall mean an individual, Company, unincorporated
organization, or a government or any agency or political subdivision thereof.
"PLAN" shall mean, with respect to the Borrower and its Subsidiaries,
an employee benefit plan within the meaning of Section 3(3) of ERISA sponsored
or maintained by or contributed to by the Borrower or any of its Subsidiaries
for the benefit of employees of the Borrower or such Subsidiaries, as the case
may be, but excluding any Multiemployer Plan.
"PRIME RATE" shall mean, at any time, the rate of interest adopted by
The Toronto-Dominion Bank,
New York Branch, as its reference rate for the
determination of interest rates for loans of varying maturities in United States
dollars to United States residents of varying degrees of creditworthiness and
being quoted at such time by such bank as its "prime rate." The Prime Rate is
not necessarily the lowest rate of interest charged to borrowers of The
Toronto-Dominion Bank,
New York Branch.
"PRO RATA SHARE" shall have the meaning ascribed thereto in Article 3
hereof.
"RAH" shall mean Rainbow Advertising Holdings, LLC, a Delaware limited
liability company.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
on or after the Agreement Date in United States Federal, state or foreign laws
or regulations (including, without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making on or after
such date of any interpretations, directives or requests applying to a class of
banks including such Lender of or under any United States Federal or state, or
any foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"REPORTABLE EVENT" shall have the meaning set forth in Section 4043 of
ERISA, other than an event for which the reporting requirement has been waived
by regulations promulgated under such Section.
20
"REQUEST FOR ADVANCE" shall mean any certificate signed by an
Authorized Signatory of the Borrower requesting an Advance (other than a Swing
Loan) hereunder, which certificate shall be in substantially the form of EXHIBIT
G attached hereto.
"RESTRICTED PAYMENT" shall mean (a) any direct or indirect
distribution, dividend or other payment to any Person on account of any shares
of capital stock or other securities of any of the RMG Companies, (b) any
payment of consulting or management fees, or any interest thereon, by any of the
RMG Companies to CSC or to any other Affiliate of the RMG Companies (including,
without limitation, payments under the Services Agreement), (c) any payment of
amounts due in respect of any Accrued Tax Liabilities pursuant to the Tax
Sharing Policy, and (d) any payment of principal or interest on account of any
Indebtedness of any of the RMG Companies issued in connection with an Authorized
Debt Issuance.
"RESTRICTED PURCHASE" shall mean any payment on account of the
purchase, redemption, or other acquisition or retirement of any shares of
capital stock or other securities of any of the RMG Companies, including,
without limitation, any warrants or other rights or options to acquire shares of
capital stock or other securities of any of the RMG Companies.
"REVOLVING LOAN COMMITMENT" shall mean the several obligations of the
Lenders to advance the sum of up to $400,000,000 to the Borrower, on or after
the Agreement Date, in accordance with their respective Commitment Percentages
and as such amount may be reduced from time to time, all pursuant to the terms
hereof.
"REVOLVING LOANS" shall mean, collectively, the amounts advanced by
the Lenders to the Borrower under the Revolving Loan Commitment, not to exceed
the amount of the Revolving Loan Commitment, and evidenced by the Revolving
Notes.
"REVOLVING NOTES" shall mean those certain promissory notes in the
aggregate original principal amount of $400,000,000, one such note issued by the
Borrower to each of the Lenders in accordance with such Lender's Commitment
Percentage, each one in substantially the form of EXHIBIT H attached hereto, and
any extensions, modifications, renewals or replacements of or amendments to any
of the foregoing.
"RMG COMPANIES" shall mean, collectively, the Borrower and the
Guarantors, and "RMG COMPANY" shall mean any one of the foregoing RMG Companies.
"RMG INTEREST EXPENSE" shall mean, for any period, Interest Expense
for the RMG Companies on a consolidated basis. For purposes of the fiscal
quarters ending March 31, 2002 and June 30, 2002, RMG Interest Expense shall be
calculated based on the assumption that the full amount of the Loans hereunder
was outstanding during the
21
six (6) month period then ended at the rate of interest applicable to Base Rate
Advances made on the last day of such period.
"RMG PARTNERS" shall mean, collectively, American Movie Classics
Holding Corporation, a
New York corporation, AMC II Holding Corporation, a
Delaware corporation, Bravo Holding Corporation, a Delaware corporation, and
Bravo II Holding Corporation, a Delaware corporation, and "RMG PARTNER" shall
mean any one of the foregoing RMG Partners.
"RMG TOTAL DEBT" shall mean, as of any date with respect to the RMG
Companies on a consolidated basis, (a) all outstanding Indebtedness For Money
Borrowed (excluding obligations in respect of Interest Hedge Agreements), (b)
all obligations Guaranteed by the RMG Companies in respect of Indebtedness For
Money Borrowed, (c) all Capitalized Lease Obligations (other than obligations
under Film Rights Agreements of the RMG Companies), and (d) all Accrued Tax
Liabilities.
"RMG TRACKING STOCK" shall have the meaning ascribed thereto in the
recitals to this Agreement.
"RMG TRACKING STOCK GROUP" shall mean, collectively, the RMG
Companies, the MGM Companies and the Unrestricted Subsidiaries, in each case to
the extent that such Companies hold assets and businesses comprising the RMG
Tracking Stock.
"RMHI" shall have the meaning ascribed thereto in the recitals to this
Agreement.
"RMHI PLEDGE AGREEMENT" shall mean that certain Pledge Agreement
between RMHI and the Administrative Agent, dated as of the Agreement Date, in
substantially the form of EXHIBIT I attached hereto, pursuant to which RMHI
shall pledge to the Administrative Agent all of the equity interests in the
Borrower owned by RMHI to secure the Obligations.
"RNSH" shall mean Rainbow National Sports Holding LLC, a Delaware
limited liability company.
"RPP" shall mean Regional Programming Partners, a
New York general
partnership.
"RRH" shall mean Rainbow Regional Holdings LLC, a Delaware limited
liability company.
"XXX XX" xxxxx xxxx XXX XX, X.X.X. a Delaware limited liability
company.
22
"SC-CHI" shall mean Sports Channel Chicago Associates, a New York
general partnership.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency thereof.
"SECURITY DOCUMENTS" shall mean the Borrower Pledge Agreement, the
Borrower Security Agreement, the Partnership Pledge Agreement, the RMHI Pledge
Agreement, the Subsidiary Pledge Agreement, the Subsidiary Security Agreement,
the Trademark Security Agreement, any other agreement or instrument providing
Collateral for the Obligations whether now or hereafter in existence, and any
filings, instruments, agreements and documents related thereto and providing the
Administrative Agent, for the ratable benefit of the Credit Parties, with
Collateral for the Obligations.
"SERVICES AGREEMENT" shall mean, collectively, those certain Services
Agreements identified on SCHEDULE 8.10 attached hereto.
"SIX MONTH CASH FLOW" shall mean the result of (a) Annualized Cash
Flow, divided by (b) two (2).
"SOLVENT" shall mean, with respect to any Person on any date, that on
such date (a) the fair value of the property (tangible or intangible) of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the amount that will be
required to pay the probable liabilities of such Person on its debts as they
become absolute and matured will not be greater than the fair salable value of
the assets of such Person at such time, (c) such Person is able to realize upon
its assets and pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, and (d) such
Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person's property would
constitute unreasonably small capital after giving due consideration to
prevailing practices in the industry in which such Person is engaged. In
computing the amount of any contingent liability at any time, it is intended
that such liability will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount that might
reasonably be expected to become an actual or matured liability.
"SPORTSVISION GUARANTY" shall mean the backup guaranty provided by the
Borrower as support for the guaranty obligations of RMHI in respect of those
certain payments to be made under the programming rights agreement, dated as of
March 4, 1999, entered into by SC-CHI, pursuant to which SC-CHI obtained the
right to broadcast certain games of the Chicago White Sox, a Major League
Baseball franchise, the Chicago Blackhawks, a National Hockey League franchise,
and the Chicago Bulls, a National Basketball Association franchise.
23
"STERLING DIGITAL GROUP" shall mean, collectively, Sterling Digital
Holdings LLC, a Delaware limited liability company (formerly known as CSC
Sterling Holdings LLC), Sterling Digital LLC, a Delaware limited liability
company, and their respective Subsidiaries.
"STERLING DIGITAL GUARANTY" shall mean the guaranty obligations of the
Borrower in respect of those certain Guaranties described on SCHEDULE 3 attached
hereto.
"SUBORDINATED TAX LIABILITIES" shall mean payments accrued prior to
January 1, 2002, and allocable to the Borrower in accordance with the Tax
Sharing Policy, which payments shall be determined on the basis of the financial
income, taxable income, credits and other amounts directly related to the
members of the RMG Tracking Stock Group which would generally be comparable to
those payments that would have resulted if the Borrower had filed a separate tax
return, which payments have been subordinated to the Obligations pursuant to the
Subordination of Tax Liabilities Agreement.
"SUBORDINATION OF INTERCOMPANY OBLIGATIONS AGREEMENT" shall mean that
certain Subordination of Intercompany Obligations Agreement, dated as of the
Agreement Date, among the Administrative Agent, CSC Holdings, and the Borrower,
in substantially the form of EXHIBIT J attached hereto, pursuant to which (a)
the payment of fees under the AMC Consulting Agreement and the Services
Agreement and (b) any payments due from any of the RMG Companies in respect of
any of the Existing Investment Guaranties or the Janus Guaranty have, in each
case, been subordinated to the Obligations as provided therein.
"SUBORDINATION OF TAX LIABILITIES AGREEMENT" shall mean that certain
Subordination of Tax Liabilities Agreement, dated as of the Agreement Date,
among the Administrative Agent, RMG and RMHI, in form and substance satisfactory
to the Arrangers.
"SUBSIDIARY" shall mean, as applied to any Person, (a) any corporation
of which fifty percent (50%) or more of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or other Company of which fifty percent (50%) or more of the
outstanding partnership or other equity interests, is at the time owned directly
or indirectly by such Person, or by one or more Subsidiaries of such Person, or
by such Person and one or more Subsidiaries of such Person, and (b) any other
entity which is controlled or capable of being controlled by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person; PROVIDED that, in the case of the Borrower and its
Subsidiaries, the term "Subsidiary" shall exclude the Unrestricted Subsidiaries
and the MGM Companies, except that (a) solely with respect to Sections 5.1(h),
5.1(m), 6.6, 6.10, 7.5(d), 8.12 and
24
9.1(m), RRH II, RRH, RAH, RNSH and members of the Sterling Digital Group shall
be considered "Subsidiaries" and (b) with respect to the definition of "Material
Subsidiaries," RRH II, RRH, RAH, RNSH and members of the Sterling Digital Group
will be considered Material Subsidiaries to the extent such Companies would have
constituted Material Subsidiaries but for application of the foregoing
exclusion.
"SUBSIDIARY PLEDGE AGREEMENT" shall mean that certain Subsidiary
Pledge Agreement between each Guarantor having one or more Subsidiaries (other
than Subsidiaries constituting MGM Companies) and the Administrative Agent, for
the ratable benefit of the Credit Parties, dated as of the Agreement Date, in
substantially in the form of EXHIBIT K attached hereto, and any similar pledge
agreement or any pledge agreement supplement delivered pursuant to Section 6.14
hereof, pursuant to which each such Guarantor has pledged to the Administrative
Agent, for the ratable benefit of the Credit Parties, all of the stock and other
equity interests owned by it (other than the stock or other equity interests of
any MGM Company or any Unrestricted Subsidiary).
"SUBSIDIARY SECURITY AGREEMENT" shall mean that certain Subsidiary
Security Agreement between each Guarantor and the Administrative Agent, for the
ratable benefit of the Credit Parties, dated as of the Agreement Date, in
substantially the form of EXHIBIT L attached hereto, and any similar security
agreement or any security agreement supplement delivered pursuant to Section
6.14 hereof.
"SUPER-MAJORITY LENDERS" shall mean, at any time, (a) prior to the
occurrence of an Event of Default and termination of the Commitments, Lenders
the sum of whose Undrawn Commitments plus Loans then outstanding equals or
exceeds sixty-six and two-thirds percent (66-2/3%) of the sum of the Undrawn
Commitments plus Loans then outstanding for all Lenders, or (b) at any time
there exists an Event of Default hereunder, and the Commitments, have been
terminated, Lenders the total of whose Loans outstanding equals or exceed
sixty-six and two-thirds percent (66-2/3%) of the total principal amount of the
Loans then outstanding hereunder.
"SWING LOAN COMMITTED AMOUNT" shall mean $10,000,000.
"SWING LOANS" shall mean revolving loans made to the Borrower by the
Swing Loan Lender from time to time in the Swing Loan Lender's sole discretion
and for the Swing Loan Lender's account, which revolving loans shall be made in
accordance with Sections 2.1(b) and 2.8 hereof.
"SWING LOAN LENDER" shall mean any Lender or the Administrative Agent
as agreed to at any time by the Borrower and such Lender or the Administrative
Agent, in either case as designated in accordance with this Agreement. The
initial Swing Loan Lender shall be Toronto Dominion (Texas), Inc.
"SWING LOAN NOTE" shall mean that certain Swing Loan Note dated as of
the Agreement Date, in the principal amount of $10,000,000, issued by the
Borrower to
25
the Swing Loan Lender, substantially in the form of EXHIBIT M attached hereto,
and any amendments, replacements, extensions or renewals thereof.
"SWING LOAN REQUEST" shall have the meaning set forth in Section
2.8(a)(i).
"SYNDICATION AGENT" shall mean Bank of America, N.A., in its capacity
as syndication agent under this Agreement.
"TAXES" shall have the meaning set forth in Section 2.10(c)(i) hereof.
"TAX SHARING POLICY" shall mean the policy applicable to CSC, RMHI and
the Borrower, among others, with respect to the allocation of tax liabilities
and other tax-related items between the "Cablevision NY Group" and the RMG
Tracking Stock Group, based principally upon the financial income, taxable
income, credits and other amounts directly related to the respective parties as
set forth in the Cablevision Systems Corporation Proxy Statement dated October
10, 2000, as amended and supplemented, as in effect on the Agreement Date.
"TOTAL DEBT" shall mean, as of any date without duplication, the sum
of (a) RMG Total Debt, plus (b) MGM Operating Company Total Debt.
"TRADEMARK SECURITY AGREEMENT" shall mean that certain Trademark
Security Agreement between each RMG Company owning any trademarks or trademark
applications and the Administrative Agent, for the ratable benefit of the Credit
Parties, dated as of the Agreement Date, substantially in the form of EXHIBIT N
attached hereto, and any similar pledge agreement or any pledge agreement
supplement delivered pursuant to Section 6.14 hereof.
"TRAILING SIX MONTH INTEREST EXPENSE" shall mean the sum of (a) RMG
Interest Expense, plus (ii) MGM Operating Company Interest Expense, in each
case, for the most recently completed six (6) month period.
"TRANSPONDER LEASE AGREEMENT" shall mean any agreement by and between
any of the RMG Companies and any other Person for the license, lease or other
agreement to use telecommunications satellites for purposes of broadcasting the
programming of such RMG Companies and any other agreement related to the
transmission, origination and production of such programming and the related
technical services.
"UNDRAWN COMMITMENTS" shall mean, collectively, the unfunded portion
of the Revolving Loan Commitment, together with the undrawn amount of all
Incremental Facility Commitments issued hereunder.
26
"UNRESTRICTED SUBSIDIARIES" shall mean, collectively, each of the
Companies designated as Unrestricted Subsidiaries as of the Agreement Date on
SCHEDULE 5.1(c)-3 hereto, and "UNRESTRICTED SUBSIDIARY" shall mean any one of
the foregoing Unrestricted Subsidiaries; PROVIDED, HOWEVER, that the Borrower
may designate (a) members of the Sterling Digital Group formed after the
Agreement Date as additional Unrestricted Subsidiaries and (b) other additional
Unrestricted Subsidiaries after the Agreement Date with the approval of the
Majority Lenders.
"UNUSED PERCENTAGE" shall mean, on any date, the ratio, expressed as a
percentage, of (a) the Available Revolving Loan Commitment to (b) the Revolving
Loan Commitment.
"WE" shall mean WE: Women's Entertainment, LLC, a Delaware limited
liability company.
Each definition of an agreement in this Article 1 shall include such
agreement as amended, restated, supplemented or otherwise modified (and, to the
extent applicable, as renewed or extended) from time to time provided that, if
required pursuant to the terms of this Agreement, the prior written consent of
the Majority Lenders (or such other composition of Lenders as may be required
under Section 12.12 hereof) shall have been given with respect to such
amendment, restatement, supplement or other modification. Except where the
context otherwise requires, definitions imparting the singular shall include the
plural and vice versa. Except where otherwise specifically restricted, reference
to a party to a Loan Document includes that party and its successors and
assigns. An Event of Default shall "exist", "continue" or be "continuing" until
such Event of Default has been waived in writing in accordance with Section
12.12 hereof. All terms used herein which are defined in Article 9 of the
Uniform Commercial Code in effect in the State of New York on the date hereof
and which are not otherwise defined herein shall have the same meanings herein
as set forth therein.
All accounting terms used herein without definition shall be used as
defined under GAAP. In the event that changes in GAAP during the term of this
Agreement would result in the defined terms set forth in this Article 1 or the
Financial Covenants being calculated in a different manner or with different
components or rendering the same not meaningful criteria for evaluating the MGM
Operating Companies' financial condition, the Borrower and the Arrangers agree
to propose to the Credit Parties, and to vote affirmatively with respect to, any
amendments to this Agreement that the Borrowers and the Arrangers shall
determine are reasonably necessary to conform the defined terms set forth in
this Article 1 and the Financial Covenants so that the criteria for evaluating
the matters contemplated by Sections 8.8 and 8.9 hereof are substantially the
same criteria as were effective prior to such change in GAAP. Unless otherwise
expressly stated herein, all references to financial information and results of
the Borrower shall be determined on a consolidated basis among the RMG
Companies, and all references to financial information and results of the MGM
Operating
27
Companies shall be determined on a consolidated basis among the MGM Operating
Companies.
ARTICLE 2 - LOANS.
Section 2.1 THE LOANS. Subject to the terms and conditions of, and in
reliance upon the representations and warranties made in, this Agreement and the
other Loan Documents, the Lenders have extended the Revolving Loan Commitment
and agree, severally in accordance with their respective Commitment Percentages
and not jointly, to make Loans to the Borrower in an aggregate principal amount
not to exceed Four Hundred Million Dollars ($400,000,000).
(a) THE REVOLVING LOANS. The Lenders agree, severally in
accordance with their respective Commitment Percentages and not jointly, upon
the terms and subject to the conditions of this Agreement, to lend and re-lend
to the Borrower, on and after the Agreement Date, but prior to the Maturity
Date, amounts which, in the aggregate, together with the principal amount of any
Swing Loans outstanding at any time, do not exceed the Revolving Loan
Commitment. Subject to the terms and conditions hereof and prior to the Maturity
Date, Advances under the Revolving Loan Commitment may be repaid and reborrowed
from time to time on a revolving basis or may be continued or converted pursuant
to a Notice of Continuation/Conversion as provided in Section 2.2 hereof.
(b) THE SWING LOANS. Subject to the terms and conditions
hereinafter set forth, including, without limitation, Section 2.8 hereof, the
Swing Loan Lender, in its individual capacity, may in its sole discretion make
revolving loans to the Borrower (each a "SWING LOAN" and, collectively, the
"SWING LOANS") from time to time on and after the Agreement Date, but prior to
the Maturity Date, for the purposes hereinafter set forth; PROVIDED, HOWEVER,
that (i) the aggregate amount of Swing Loans outstanding at any time shall not
exceed the Swing Loan Committed Amount, and (ii) the sum of Revolving Loans,
plus Swing Loans outstanding at any time shall not exceed the Revolving Loan
Commitment. Swing Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
(c) USE OF PROCEEDS. The proceeds of the Loans may be used
solely (i) to refinance the AMC/Bravo Intercompany Indebtedness, (ii) to make
Permitted Investments and Acquisitions, and (iii) for working capital and other
general corporate purposes of the RMG Companies. The proceeds of the Loans may
not be used to fund Interest Expense accruing after December 31, 2002, or any
principal payments (whether mandatory or optional) with respect to the Loans.
Section 2.2 MANNER OF BORROWING AND DISBURSEMENT.
(a) CHOICE OF INTEREST RATE, Etc. Any Advance of the
Revolving Loans shall, at the option of the Borrower, be made as a Base Rate
Advance or
28
a Eurodollar Advance; PROVIDED, HOWEVER, that (i) if the Borrower fails to give
the Administrative Agent telephonic notice specifying whether a Eurodollar
Advance is to be repaid, continued or converted on a Payment Date, such
Eurodollar Advance shall be converted to a Base Rate Advance on such Payment
Date, and (ii) the Borrower may not select a Eurodollar Advance if, at the time
of such selection, a Default or Event of Default has occurred and is continuing.
Eurodollar Advances shall in all cases be subject to Article 11 hereof. Any
notice given to the Administrative Agent in connection with a requested Advance
hereunder shall be given to the Administrative Agent prior to 11:00 a.m. (New
York time) in order for such Business Day to count toward the minimum number of
Business Days required.
(b) BASE RATE ADVANCES.
(i) INITIAL AND SUBSEQUENT ADVANCES. The Borrower
shall give the Administrative Agent in the case of Base Rate Advances,
irrevocable notice not later than 11:00 a.m. (New York time) on the date of the
requested Advance by telephone followed immediately by a Request for Advance.
Upon receipt of such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents thereof.
(ii) REPAYMENTS AND CONVERSIONS. The Borrower may (A)
repay or prepay a Base Rate Advance upon prior irrevocable telephonic notice to
the Administrative Agent not later than 11:00 a.m. (New York time) on the date
of repayment or prepayment, or (B) convert all or a portion of the principal
amount of a Base Rate Advance to one or more Eurodollar Advances upon prior
irrevocable written notice to the Administrative Agent not later than 11:00 a.m.
(New York time) on the date three (3) Business Days prior to such conversion in
the form of a Notice of Conversion/Continuation, or notice by telephone or
telecopy followed immediately by a Notice of Conversion/Continuation. On the
date indicated by the Borrower, such Base Rate Advance shall be so repaid or, as
applicable, converted.
(iii) MISCELLANEOUS. Notwithstanding any term or
provision of this Agreement which may be construed to the contrary, each Base
Rate Advance shall be in a principal amount of at least $1,000,000 and in
integral multiples of $500,000 in excess thereof, or the remaining amount of the
Revolving Loan Commitment.
(c) EURODOLLAR ADVANCES.
(i) INITIAL AND SUBSEQUENT ADVANCES. The Borrower
shall give the Administrative Agent, in the case of Eurodollar Advances,
irrevocable telephonic notice followed by a Request for Advance prior to 11:00
a.m. (New York time) on the date three (3) Business Days prior to the date of
the requested Advance. The Administrative Agent, whose determination shall be
conclusive, shall determine the available Eurodollar Basis and shall notify the
Borrower of such Eurodollar Basis. The
29
Borrower shall promptly notify the Administrative Agent by telecopy or by
telephone, and shall immediately confirm any such telephonic notice in writing,
of its selection of a Eurodollar Basis and a Eurodollar Advance Period for such
Advance. Upon receipt of such notice from the Borrower, the Administrative Agent
shall promptly notify each Lender by telephone or telecopy of the contents
thereof.
(ii) REPAYMENTS, CONTINUATIONS AND CONVERSIONS. The
Borrower shall give the Administrative Agent irrevocable written notice in the
form of a Notice of Conversion/Continuation, or notice by telephone or telecopy
followed immediately by a Notice of Conversion/Continuation, (A) not later than
11:00 a.m. (New York time) at least three (3) Business Days prior to each
applicable Payment Date, specifying whether all or a portion of any Eurodollar
Advance outstanding on such Payment Date is to be continued in whole or in part
as a Eurodollar Advance, in which case such notice shall also specify the
Eurodollar Advance Period which the Borrower shall have selected for such
continued Eurodollar Advance, (B) not later than 11:00 a.m. (New York time) on
each applicable Payment Date, specifying whether all or any portion of any
Eurodollar Advance outstanding on such Payment Date, is to be converted in whole
or in part to a Base Rate Advance, or (C) not later than 11:00 a.m. (New York
time) on each applicable Payment Date, specifying whether all or any portion of
any Eurodollar Advance outstanding on such Payment Date, is to be repaid and not
continued or converted. Upon such Payment Date, such Eurodollar Advance will,
subject to the provisions hereof, be so repaid, continued or converted, as
applicable.
(iii) MISCELLANEOUS. Notwithstanding any term or
provision of this Agreement which may be construed to the contrary, each
Eurodollar Advance shall be in a principal amount of at least $1,000,000 and in
integral multiples of $500,000 in excess thereof, and at no time shall the
aggregate number of all Eurodollar Advances exceed twelve (12).
(d) TELEPHONE NOTICE. The failure by the Borrower to confirm
any notice by telephone or telecopy with a Request for Advance or a Notice of
Conversion/Continuation, as applicable, shall not invalidate any notice so
given. The Administrative Agent may rely upon telephonic instructions reasonably
believed given by any Authorized Signatory of the Borrower and shall have no
obligation to inquire into the propriety of any such instructions.
(e) NOTIFICATION OF LENDERS. Upon receipt of a Request for
Advance or a Notice of Conversion/Continuation under this Section 2.2 from the
Borrower, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof and the amount of such Lender's
portion of the applicable Advance. Each Lender shall, not later than 1:00 p.m.
(New York time) on the date specified in such notice, make available to the
Administrative Agent at the Administrative Agent's Office, or at such account as
the Administrative Agent shall
30
designate, the amount of its portion of the applicable Advance in immediately
available funds.
(f) DISBURSEMENT. Prior to 3:00 p.m. (New York time) on the
date of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in this Section 2.2 and in Article 4
hereof, disburse the amounts made available to the Administrative Agent by the
Lenders in immediately available funds by (i) transferring the amounts so made
available by wire transfer pursuant to the instructions of the Borrower, or (ii)
in the absence of such instructions, crediting the amounts so made available to
the account of the Borrower maintained with the Administrative Agent or an
affiliate of the Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender prior to 2:00 p.m. (New York time) on the
date of any Advance that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Advance, and so long
as notice has been given as provided in Section 2.2(e) hereof, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Advance and the Administrative
Agent may, in its sole discretion and in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at a rate equal to
the daily average Federal Funds Rate for such period. If such Lender shall repay
to the Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's portion of the applicable Advance for purposes of
this Agreement. If such Lender does not repay such corresponding amount
immediately upon the Administrative Agent's demand therefor, the Administrative
Agent shall notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent, together with all interest
accrued thereon at the interest rate that would have applied to such Advance had
such Lender funded its portion thereof. The failure of any Lender to fund its
portion of any Advance shall not relieve any other Lender of its obligation, if
any, hereunder to fund its respective portion of the Advance on the date of such
borrowing, but no Lender shall be responsible for any such failure of any other
Lender. In the event that, at any time when the Borrower is not in Default and
has otherwise satisfied all of the conditions to funding set forth in this
Agreement, a Lender for any reason fails or refused to fund its portion of an
Advance, then, until such time as such Lender has funded its portion of such
Advance, or all other Lenders have received payment in full (whether by
repayment or prepayment) of the principal and interest due in respect to such
advance, such non-funding Lender shall (i) have no right to vote regarding any
issue on which voting is required or advisable under this Agreement or any other
Loan Document and the calculation of Majority Lenders with respect solely to
such votes shall be adjusted as if such non-funding Lender has no Revolving Loan
Commitment and no Loans outstanding, and (ii) be entitled to receive no payments
of
31
principal, interest or fees from the Borrower in respect of such Loans which
such Lender failed to make. Nothing in this subsection shall be deemed to
prejudice any rights that the Borrower may have against any Lender as a result
of any failure by such Lender to fund its portion of any Advance.
Section 2.3 INTEREST.
(a) ON BASE RATE ADVANCES. Interest on each Base Rate Advance
shall be computed on the basis of a year of 365/366 days when the Base Rate is
determined by reference to the Prime Rate and on the basis of a year of 360 days
when the Base Rate is determined by reference to the Federal Funds Rate, in each
case for the actual number of days elapsed and shall be payable in arrears on
the last Business Day of each calendar quarter during the term of this
Agreement. Interest on Base Rate Advances then outstanding shall also be due and
payable on the date of any repayment made under Sections 2.5, 2.6 or 2.7 hereof
and on the Maturity Date. Interest shall accrue and be payable on each Base Rate
Advance at the simple per annum interest rate equal to the sum of (i) the Base
Rate and (ii) the Base Rate Applicable Margin.
(b) ON EURODOLLAR ADVANCES. Interest on each Eurodollar
Advance shall be computed on the basis of a 360-day year for the actual number
of days elapsed and shall be payable in arrears (i) on the applicable Payment
Date for such Eurodollar Advance, and (ii) if the Eurodollar Advance Period for
such Eurodollar Advance exceeds three (3) months, on each three (3) month
anniversary of the making of such Eurodollar Advance. Interest on Eurodollar
Advances then outstanding shall also be due and payable on the date of any
repayment made under Sections 2.5, 2.6 or 2.7 hereof and on the Maturity Date.
Interest shall accrue and be payable on each Eurodollar Advance at the simple
per annum interest rate equal to the sum of (A) the Eurodollar Basis applicable
to such Eurodollar Advance and (B) the Eurodollar Applicable Margin.
(c) INTEREST IF NO NOTICE OF SELECTION OF INTEREST RATE. If
the Borrower fails to give the Administrative Agent timely notice of its
selection of a Eurodollar Basis, or if for any reason a determination of a
Eurodollar Basis for any Eurodollar Advance is not timely concluded, the Base
Rate shall apply to such Advance and if the Borrower fails to elect to repay,
continue or convert any Eurodollar Advance then outstanding prior to the last
Payment Date applicable thereto in accordance with the provisions of Section 2.2
hereof, as applicable, the Base Rate shall apply to such Advance commencing on
and after such Payment Date.
(d) INTEREST UPON DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, the Majority Lenders shall have the option
(but shall not be required to give prior notice thereof to the Borrower,
accelerate the maturity of the Loans or exercise any other rights or remedies
hereunder in connection with the exercise of this right) to charge interest on
the outstanding principal balance of the Loans at the Default Rate from the date
of such Event of Default. Such interest shall be payable on the earlier of
demand or the Maturity Date and shall accrue until the earlier of (i) waiver
32
or cure (to the satisfaction of the Majority Lenders) of the applicable Event of
Default, (ii) agreement by the Majority Lenders to rescind the charging of
interest at the Default Rate, or (iii) payment in full of the Obligations.
(e) COMPUTATION OF INTEREST. In computing interest on any
Advance, the date of making the Advance shall be included and the date of
payment shall be excluded; PROVIDED, HOWEVER, that if an Advance is repaid on
the date that it is made, one (1) day's interest shall be due with respect to
such Advance.
Section 2.4 FEES.
(a) FEES PAYABLE UNDER THE FEE LETTERS. The Borrower agrees
to pay such fees as are described in the Fee Letters.
(b) COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent on behalf of the Lenders, in accordance with their
respective Commitment Percentages, a commitment fee on the Available Revolving
Loan Commitment for each day from (and including) the Agreement Date to the
Maturity Date, at a rate of (i) in the event that the Unused Percentage shall be
greater than or equal to fifty percent (50%), three-quarters of one percent
(0.750%) per annum and (ii) in the event that the Unused Percentage shall be
less than fifty percent (50%), one-half of one percent (0.50%) per annum. Such
commitment fees shall be computed on the basis of a year of 365/366 days for the
actual number of days elapsed, shall be payable quarterly in arrears on the last
Business Day of each quarter, commencing with respect to the quarter ending
March 31, 2002 (for the period from the Agreement Date to such Business Day),
and continuing on the last Business Day of each successive quarter, and shall be
fully earned when due and nonrefundable when paid.
Section 2.5. OPTIONAL PREPAYMENTS AND REDUCTIONS.
(a) PREPAYMENT OF ADVANCES UNDER THE REVOLVING LOAN
COMMITMENT. The principal amount of any Base Rate Advance under the Revolving
Loan Commitment may be prepaid in full or in part at any time, without penalty,
upon prior written notice prior to 11:00 a.m. (New York time) to the
Administrative Agent on the date of such prepayment, and the principal amount of
any Eurodollar Advance under the Revolving Loan Commitment may be prepaid prior
to the applicable Payment Date, upon telephonic notice to the Administrative
Agent (promptly confirmed in writing) prior to 11:00 a.m. (New York time) on the
date three (3) Business Days prior thereto, provided that the Borrower shall
reimburse the Lenders and the other Credit Parties, on the earlier of demand or
the Maturity Date, for any loss or out-of-pocket expense incurred by the Lenders
or the other Credit Parties in connection with such prepayment as set forth in
Section 2.11 hereof. Each notice of prepayment shall be irrevocable. Partial
prepayments shall be in a principal amount of not less than $500,000 or an
integral multiple of $100,000 in excess thereof. Upon receipt of any notice of
prepayment, the
33
Administrative Agent shall promptly notify each Lender of the contents thereof
by telephone or telecopy and of such Lender's portion of the prepayment.
(b) PERMANENT REDUCTIONS. Optional permanent reductions of
the Revolving Loan Commitment hereunder may be made by the Borrower, at any time
and from time to time, following irrevocable written notice to the
Administrative Agent prior to 11:00 a.m. (New York time) on the date three (3)
Business Days prior thereto, without premium or penalty, on a pro rata basis
among the Lenders, provided that the Borrower shall reimburse the Lenders and
the other Credit Parties, on the earlier of demand or the Maturity Date, for any
loss or out-of-pocket expense incurred by the Lenders or the other Credit
Parties in connection with such reduction as set forth in Section 2.11 hereof.
Each notice of reduction shall be irrevocable. Partial reductions shall be in a
principal amount of not less than $500,000 or an integral multiple of $100,000
in excess thereof. Upon receipt of any notice of reduction, the Administrative
Agent shall promptly notify each Lender of the contents thereof by telephone or
telecopy and of such Lender's portion of the reduction.
(c) APPLICATION OF REDUCTIONS. As of the date of cancellation
or reduction of the Revolving Loan Commitment pursuant to Section 2.5(b) hereof
set forth in any notice thereof, (i) the Revolving Loan Commitment shall be
permanently reduced to the amount stated in the Borrower's notice for all
purposes herein, (ii) the amount of such reduction shall be applied to reduce
the remaining scheduled reductions of the Revolving Loan Commitment as set forth
in Section 2.7 hereof in the inverse order of reduction, and (iii) the Borrower
shall, subject to Section 2.11 hereof, pay to the Administrative Agent, for the
account of the applicable Lenders, the amount necessary to reduce the principal
amount of the Revolving Loans and the Swing Loans then outstanding to not more
than the amount of the Revolving Loan Commitment as so reduced, together with
accrued interest on the amount so prepaid and the commitment fee set forth in
Section 2.4(b) hereof accrued through the date of the reduction with respect to
the amount reduced.
Section 2.6 MANDATORY COMMITMENT REDUCTIONS AND PREPAYMENTS. In
addition to the reductions provided for in Section 2.7 hereof, the Revolving
Loan Commitment shall be permanently reduced as follows:
(a) ISSUANCE OF EQUITY. If CSC shall issue any RMG Tracking
Stock for cash, the Revolving Loan Commitment shall be permanently and
automatically reduced by an amount equal to fifty percent (50%) of the Net Cash
Proceeds received by CSC in connection with such issuance effective on the
Business Day following the receipt of such Net Cash Proceeds by CSC.
(b) ISSUANCE OF PUBLIC DEBT. If the Borrower shall conduct
any issuance of Indebtedness For Money Borrowed (other than in connection with
any Authorized Debt Issuance or any obligations under Interest Hedge
Agreements), such issuance shall be only in exchange for cash and the Revolving
Loan Commitment shall be
34
permanently and automatically reduced by an amount equal to one hundred percent
(100%) of the Net Cash Proceeds received by the Borrower in connection with such
issuance.
(c) DISPOSITION OF ASSETS. If (i) any RMG Company shall sell,
transfer or otherwise dispose of any assets or (ii) RRH II shall sell, transfer
or otherwise dispose of any assets constituting capital stock, partnership
interests or other equity interests in RRH, in each case for cash and except as
permitted under Section 8.5 hereof, the Revolving Loan Commitment shall be
permanently and automatically reduced by an amount equal to one hundred percent
(100%) of the Net Cash Proceeds received by any such Company in connection with
such sale, transfer or other disposition.
(d) APPLICATION OF REDUCTIONS. The amount of any permanent
reduction of the Revolving Loan Commitment required pursuant to this Section 2.6
shall be applied to reduce the Revolving Loan Commitment in inverse order of
scheduled reduction set forth in Section 2.7 hereof, and a corresponding
prepayment of the outstanding principal amount of the Revolving Loans and Swing
Loans in excess of the Revolving Loan Commitment as so reduced shall be made by
the Borrower. Accrued interest and fees on the principal amount of the Revolving
Loan Commitment being reduced pursuant to this Section 2.6 to the date of such
reduction shall be paid by the Borrower concurrently with such reduction and
prepayment.
Section 2.7 REPAYMENT. The Revolving Loan Commitment shall be
reduced automatically and permanently on the last Business Day of each quarter
and on the Maturity Date (which reduction shall be inclusive of any reduction
pursuant to Section 2.5 hereof during such quarter) as set forth below:
Amount of Quarterly
Reduction (which shall
include any reductions made
during such quarter pursuant TOTAL ANNUAL REDUCTION
QUARTERS ENDED TO SECTION 2.5) PERCENTAGE
-------------- --------------- ----------
September 30, 2004 and $10,000,000 5.00%
December 31, 2004
March 31, 2005 through $40,000,000 40.00%
December 31, 2005
March 31, 2006 through $55,000,000 55.00%
December 31, 2006
As of the date of each reduction of the Revolving Loan Commitment as set forth
above, the Borrower shall pay to the Administrative Agent, for the benefit of
the Lenders, the amount necessary to reduce the principal amount of the
Revolving Loans, plus Swing Loans, then outstanding to not more than the amount
of the Revolving Loan Commitment as so reduced, together with accrued interest
on the amount so prepaid and the
35
commitment fee set forth in Section 2.4(b) hereof accrued through the date of
the reduction with respect to the amount reduced. In addition to the foregoing,
if, at any time, the amount of the Revolving Loans plus Swing Loans then
outstanding shall exceed the Revolving Loan Commitment, the Borrower shall
immediately make a repayment of principal in an amount equal to such excess,
which repayment shall be applied to the Revolving Loans and the Swing Loans as
set forth in Section 2.12 hereof. Any unpaid principal and accrued interest of
the Revolving Loans and the Swing Loans and any other outstanding Obligations
shall be due and payable in full on the Maturity Date.
Section 2.8 SWING LOANS.
(a) SWING LOAN ADVANCES.
(i) NOTICES; DISBURSEMENT. Whenever the Borrower
desires an Advance of the Swing Loans hereunder it shall give irrevocable notice
to the Swing Loan Lender not later than 1:00 p.m. (New York time) on the date of
the requested Advance by telephone, followed immediately by a confirmation of
such request in writing in the form of EXHIBIT O hereto (a "SWING LOAN
REQUEST"). The Swing Loan Lender shall initiate the transfer of funds
representing the Swing Loan advance to the Borrower by 3:00 p.m. (New York time)
on the Business Day specified by the Borrower in the applicable Swing Loan
Request.
(ii) MINIMUM AMOUNTS. Each Advance of the Swing Loans
shall be in a minimum principal amount of $500,000 and integral multiples of
$250,000, in excess thereof.
(b) REPAYMENT OF SWING LOANS. Each Advance of the Swing Loans
shall be due and payable on the earliest of (i) seven (7) days from the date of
such Advance, (ii) the date of the next Advance of the Revolving Loans, or (iii)
the Maturity Date; PROVIDED, HOWEVER, the Borrower may prepay any Swing Loan
Advance prior to the date it is due upon notice to the Swing Loan Lender not
later than 1:00 p.m. (New York time) on the date of prepayment of such Advance.
If such notice is given by the Borrower, the Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the
date specified therein, together with accrued interest to such date on the
amount prepaid. If, and to the extent, any Swing Loans shall be outstanding on
the date of any Advance of the Revolving Loans, such Swing Loans shall be repaid
from the proceeds of such Advance of the Revolving Loans prior to any
distribution of such proceeds to the Borrower. If, and to the extent, an Advance
of the Revolving Loans is not requested prior to earlier of (A) the Maturity
Date or (B) the last day of any such seven (7) day period from the date of any
Advance of the Swing Loans, the Borrower shall be deemed to have requested a
Base Rate Loan on the Business Day immediately preceding the Maturity Date or
the last day of such seven (7) day period, as applicable, in the amount of the
Swing Loans then outstanding, the proceeds of which shall be used to repay the
Swing Loan Lender for such Swing Loans. In addition, the Swing Loan Lender may,
at any time, in its sole discretion by written
36
notice to the Borrower and the Administrative Agent, require repayment of its
Swing Loans by way of a Revolving Loan, in which case the Borrower shall be
deemed to have requested a Base Rate Advance of the Revolving Loans in the
amount of such Swing Loans; PROVIDED, HOWEVER, that any such demand shall be
deemed to have been given one (1) Business Day prior to the Maturity Date and
upon the occurrence of any Event of Default described in Section 9.1(j) or
9.1(k) hereof and also upon acceleration of the Obligations, whether on account
of an Event of Default described in Section 9.1(j) or 9.1(k) hereof or any other
Event of Default, in accordance with the provisions of Section 9.2 hereof
following an Event of Default (each such Revolving Loan made on account of any
such deemed request therefor as provided herein being hereinafter referred to as
a "MANDATORY BORROWING"). Each Lender hereby irrevocably agrees to make its
Commitment Percentage of such Revolving Loans promptly upon any such request or
deemed request on account of each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the same such date,
notwithstanding (I) the amount of Mandatory Borrowing may not comply with the
minimum amount for advances of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Article 4 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV) failure for any such
request or deemed request for Revolving Loans to be made by the time otherwise
required in Section 2.2, (V) the date of such Mandatory Borrowing, or (VI) any
reduction in the Revolving Loan Commitment or termination of the Revolving Loan
Commitment relating thereto immediately prior to such Mandatory Borrowing or
contemporaneously therewith; PROVIDED, HOWEVER, that no Lender shall be required
to make such Revolving Loans if, at the time that the Swing Loan Lender agreed
to fund any Swing Loan Request, the Swing Loan Lender had knowledge of the
existence of an Event of Default or such Mandatory Borrowing would cause a
Lender to exceed its Revolving Loan Commitment. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of any
Insolvency Proceeding with respect to the Borrower or any other obligor
hereunder), then each Lender hereby agrees that it shall forthwith purchase (as
of the date the Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the Borrower on or after such date and prior to
such purchase) from the Swing Loan Lender such participations in the outstanding
Swing Loans as shall be necessary to cause each such Lender to share in such
Swing Loans ratably based upon its respective Commitment Percentage (determined
before giving effect to any termination of the Commitments pursuant to Section
9.2), provided that (A) all interest payable on the Swing Loans shall be for the
account of the Swing Loan Lender until the date as of which the respective
participation is purchased, and (B) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Lender shall be
required to pay (to the extent not paid by the Borrower) to the Swing Loan
Lender interest on the principal amount of participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred but excluding the date of payment for such participation, at the
rate equal to, if paid within two (2) Business Days of the date of the Mandatory
Borrowing, the Federal Funds Rate, and thereafter at a rate equal to the Base
Rate.
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(c) INTEREST ON SWING LOANS. Swing Loans shall bear interest
at the simple per annum interest rate equal to the sum of (x) the Base Rate and
(y) the Base Rate Applicable Margin, computed on the basis of a year of 365/366
days when the Base Rate is determined by reference to the Prime Rate and on the
basis of a year of 360 days when the Base Rate is determined by reference to the
Federal Funds Rate, in each case for the actual number of days elapsed;
PROVIDED, HOWEVER, that (i) from and after any failure to make any payment of
principal or interest in respect of any of the Loans hereunder when due (after
giving effect to any applicable grace period), whether at scheduled or
accelerated maturity or on account of any mandatory prepayment or (ii) while any
Swing Loans in which the Lenders have acquired participations pursuant to
Section 2.8(b) hereof remain outstanding, the principal of and, to the extent
permitted by law, interest on, Swing Loans shall bear interest, payable on
demand, at the Default Rate. Interest on each Swing Loan shall be payable in
arrears on the date payment of such Swing Loan is due pursuant to Section 2.8(b)
hereof.
(d) REPORTING. Unless the Swing Loan Lender is the
Administrative Agent, the Swing Loan Lender shall provide to the Administrative
Agent, on Friday of each week and on each date the Administrative Agent notifies
the Swing Loan Lender that the Borrower has made a Request for Advance or the
Administrative Agent otherwise requests the same, an accounting for the
outstanding Swing Loans in form reasonably satisfactory to the Administrative
Agent.
(e) TERMINATION OF SWING LOANS; DESIGNATION OF SWING LOAN
LENDER. Unless a Default or an Event of Default then exists, the Swing Loan
Lender shall give the Borrower and the Administrative Agent at least seven (7)
days prior written notice before exercising its discretion herein not to make
Swing Loans. The Borrower must give ten (10) days prior written notice to the
Administrative Agent of any change in designation of the Swing Loan Lender. The
replaced Swing Loan Lender shall continue to be a "Swing Loan Lender" for
purposes of repayment of any Swing Loans made prior to such replacement and
outstanding after such replacement.
Section 2.9 NOTES; LOAN ACCOUNTS.
(a) The Loans shall be repayable in accordance with the terms
and provisions set forth herein, and shall be evidenced by the Notes. One
Revolving Note shall be payable to the order of each Lender in accordance with
such Lender's Commitment Percentage. The Swing Loan Note shall be payable to the
order of the Swing Loan Lender in the amount of the Swing Loan Committed Amount.
The Revolving Notes shall be issued by the Borrower to each of the Lenders, and
the Swing Loan Note shall be issued by the Borrower to the Swing Loan Lender.
Each of the Notes shall be duly executed and delivered by Authorized Signatories
of the Borrower.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account with respect to the Loans and interest
thereon. Each Lender which opens such loan account or accounts shall debit the
applicable loan
38
account for the principal amount of each Advance made by it and accrued interest
thereon, and shall credit such loan account for each payment on account of
principal of or interest on the Loans. The records of each Lender with respect
to the loan accounts maintained by it shall be prima facie evidence of the Loans
and accrued interest thereon, but the failure to maintain such records shall not
impair the obligation of the Borrower to repay Indebtedness hereunder.
(c) Each Advance from the Lenders (other than the Swing Loan
Lender) under this Agreement shall be made pro rata by the Lenders on the basis
of their respective Commitment Percentages.
Section 2.10 MANNER OF PAYMENT.
(a) Each payment (including any prepayment) by the Borrower
on account of the principal of or interest on the Loans, commitment fees, and
any other amount owed to the Lenders and the Administrative Agent under this
Agreement, the Notes or the other Loan Documents shall be made not later than
2:00 p.m. (New York time) on the date specified for payment under this Agreement
or such other Loan Document to the Administrative Agent to an account designated
by the Administrative Agent for the account of the Lenders or the Administrative
Agent, as the case may be, in lawful money of the United States of America in
immediately available funds. Any payment received by the Administrative Agent
after 2:00 p.m. (New York time) shall be deemed received on the next Business
Day for purposes of interest accrual. In the case of a payment for the account
of a Lender, the Administrative Agent will promptly thereafter distribute the
amount so received in like funds to such Lender. If the Administrative Agent
shall not have received any payment from the Borrower as and when due, the
Administrative Agent will promptly notify the Lenders accordingly.
(b) If any payment under this Agreement or any of the Notes
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day, and such extension
of time shall in such case be included in computing interest and fees, if any,
in connection with such payment.
(c) Except as otherwise provided below, any and all payments
by the Borrower to the Administrative Agent or any other Credit Party under this
Agreement or the Notes shall be made without set-off or counterclaim or
deduction whatsoever.
(i) Unless otherwise required by Applicable Law, any and
all payments by the Borrower to the Administrative Agent and the other Credit
Parties, or any of them, under this Agreement or the Notes shall be made without
any deduction or withholding for present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, excluding, however,
franchise, withholding, branch or
39
other similar Taxes, duties, fees or charges imposed on or measured by any
Credit Party's net income or receipts (such non-excluded items being called
"TAXES").
(ii) If the Borrower shall be required by Applicable
Law to deduct any Taxes from or in respect of any amounts payable hereunder or
under any Note to the Administrative Agent or any other Credit Party, (A) except
as otherwise provided in this Section, the sum payable shall be increased
("ADDITIONAL AMOUNTS") as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.10(c)), the Administrative Agent or such other Credit Party, as the
case may be, receives an amount equal to the sum it would have received had no
deductions been made, (B) the Borrower shall make such deductions, and (C) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with Applicable Law. Moreover, if any Taxes
(which for purposes of this sentence shall include taxes and charges imposed on
or measured by net income or receipts of any Credit Party by any jurisdiction to
the extent imposed on Additional Amounts) are directly asserted against any
Credit Party with respect to any payment received by such Credit Party
hereunder, such Credit Party may pay such Taxes, and, except as otherwise
provided in this Section, the Borrower will promptly pay such additional amount
(including any penalties, interest or expenses) as is necessary in order that
the net amount received and retained by such Credit Party after the payment of
such Taxes (including any Taxes on such additional amount) shall equal the
amount such Credit Party would have received and retained had no such Taxes been
asserted; provided, however, such Credit Party shall give written notice to the
Borrower, accompanied by, to the extent provided by the relevant taxing
authority, a calculation in reasonable detail of the amount demanded and
evidence of the Taxes imposed on such Credit Party, after such Credit Party has
actual knowledge of the imposition of any Taxes. Where notice is not given to
the Borrower within forty-five (45) days after the Credit Party receives written
notice of the assertion of Taxes and the Borrower does not otherwise have notice
of such assertion, the Borrower shall not be required to pay penalties,
additions to taxes, expenses, and interest accruing on such Taxes from the date
forty-five (45) days after the receipt by the Credit Party of written notice of
the assertion of such Taxes until the date that the Borrower receives such
notice. The Borrower shall furnish to such Credit Party within forty-five (45)
days (or as soon thereafter as available) after the date the payment of any
Taxes is due pursuant to Applicable Law true and correct copies of tax receipts
evidencing payment by the Borrower. Except as otherwise provided in this Section
, if the Borrower fails to pay any Taxes that it is required to pay pursuant to
the terms of this Agreement when due to the appropriate taxing authority or fail
to remit to any of the Credit Parties the required receipts or other required
documentary evidence, the Borrower shall indemnify the Credit Parties for any
incremental Taxes, interest or penalties that may become payable by the Credit
Parties primarily as a result of any such failure.
(iii) Each Lender that is not a United States person
within the meaning of Section 7701 of the Code (a "FOREIGN LENDER") shall
deliver to the
40
Borrower and the Administrative Agent, no later than the date hereof (or if
such Foreign Lender becomes a party to this Agreement (whether by assignment or
otherwise) after the date hereof, the date upon which such Foreign Lender
becomes a party hereto), (A) two (2) complete, duly executed original IRS Forms
W-8ECI or IRS Forms W-8BEN, or any successors thereto, establishing that such
Foreign Lender is on the date of delivery thereof entitled to receive any and
all payments from the Borrower under this Agreement free from withholding of
United States federal income tax or (B) in the case of such Foreign Lender that
is not legally entitled to deliver either form listed in clause (b)(iii)(A), (I)
a certificate of a duly authorized officer of such Foreign Lender to the effect
that such Foreign Lender is not (x) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (y) a "10 percent shareholder" of the Borrower within
the meaning of Section 881(c)(3)(B) of the Code or (z) a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an "EXEMPTION CERTIFICATE")
and (II) two (2) duly completed copies of Internal Revenue Service Form W-8BEN
or successor applicable form, certifying that such Foreign Lender is entitled to
an exemption from United States federal withholding tax on payments of interest.
Each Foreign Lender shall, from time to time, deliver updated or corrected IRS
Forms W-8ECI, IRS Forms W-8BEN or Exemption Certificates, or any successors
thereto, to the Borrower and the Administrative Agent to the extent and in the
manner required under United States federal tax law. The Borrower shall not be
required to pay any Additional Amounts under Section 2.10(c)(ii) hereof to a
Foreign Lender if such Foreign Lender (I) fails to comply with the requirements
of this Section 2.10(c)(iii) hereof or, (II) fails to qualify for a complete
reduction or exemption of United States federal tax withholding for any reason
other than a change in the United States federal tax law, or the official
interpretation thereof, in each case, after the delivery of IRS Forms W-8ECI,
IRS Forms W-8BEN or an Exemption Certificate, or any successors thereto, or
(III) is treated as a "conduit entity" within the meaning of U.S. Treasury
Regulations Section 1.881-3 or any successor provision. Notwithstanding the
foregoing, if at the date of an assignment pursuant to which a Foreign Lender
becomes a party to this Agreement, the assignor was entitled to payments under
Section 2.10(c)(ii) hereof, then, to such extent, the assignee, shall not be
required to deliver IRS Forms W-8ECI, IRS Forms W-8BEN or an Exemption
Certificate, or any successors thereto, establishing a withholding rate for such
Foreign Lender that is less than the rate the assignor was subject to, and the
assignee shall be entitled to receive Additional Amounts to such extent the
assignor was so entitled.
(iv) Each of the Credit Parties agrees that it will,
to the extent reasonable and without material cost or risk to it, (A) take all
actions reasonably requested by the Borrower to maintain all exemptions, if any,
available to it from United States federal withholding taxes (whether available
by treaty, statute, or existing administrative waiver) and (B) otherwise
cooperate with the Borrower to minimize any amounts payable by the Borrower
under this Section 2.10(c), including the contest of any asserted tax liability.
41
(v) Any Credit Party that becomes aware that it is
entitled to receive a refund (whether by way of a direct payment or by offset)
in respect of Additional Amounts paid by the Borrower, which refund, would
reasonably be considered allocable to or resulting from such payment or
indemnification made pursuant to this Section 2.10, shall promptly notify the
Borrower of the availability of such refund and shall, within thirty (30) days
after the receipt of a request from the Borrower, apply for such refund with the
Borrower being responsible for any incremental costs associated with such refund
request; PROVIDED, HOWEVER, that (A) the Borrower shall not be entitled to any
damages as a result of the failure of such Credit Party to so notify the
Borrower of the availability of such refund and (B) the Borrower shall not have
the right to examine the books or records of any Credit Party. If any Credit
Party receives any such refund (as described in the preceding sentence), it
shall promptly repay the amount of such refund (together with any interest
received thereon) to the Borrower; provided, however, that the Borrower, upon
the request of the applicable Credit Party, shall repay the amount paid over to
the Borrower in the event such Credit Party is required to repay such refund to
the applicable authority.
(vi) If the Borrower is or becomes required to pay any
Additional Amounts to a Credit Party pursuant to this Section 2.10, the Borrower
shall have the right, upon notice to the Administrative Agent and such Credit
Party to (A) prepay without penalty, on non-pro rata basis, all or any portion
of a Loan held by such Credit Party plus all interest and Additional Amounts
owing to such Credit Party as of the date of such prepayment, (B) require such
Credit Party to use reasonable efforts to designate a different lending office
for funding or booking its Loan under this Agreement or to assign its rights and
obligations under this Agreement to another of its offices, branches or
affiliates, or (C) require such Credit Party to effect an assignment all of its
rights and obligations under this Agreement to another Credit Party designated
by the Borrower if, in the case of clause (B) or (C) such designation or
assignment (x) would eliminate or reduce amounts payable pursuant to this
Section 2.10 in the future and (y) would not cause the imposition on such Credit
Party of any additional costs or legal or regulatory burdens deemed by such
Credit Party to be material or otherwise disadvantageous to such Credit Party.
Section 2.11 REIMBURSEMENT. Whenever any Lender shall actually
incur any losses or out-of-pocket expenses in connection with (a) the failure by
the Borrower to convert, continue or borrow any Eurodollar Advance after having
given notice of its intention to convert, continue or borrow such Eurodollar
Advance in accordance with Section 2.2 hereof (whether by reason of the election
of the Borrower not to proceed or the non-fulfillment of any of the conditions
set forth in Article 4 hereof) other than a failure to borrow resulting from an
unavailability which occurs after notice from the Administrative Agent to the
Borrower pursuant to Section 11.1 or 11.2 hereof, (b) the prepayment of any
Eurodollar Advance in whole or in part (including a prepayment pursuant to
Sections 11.2 and 11.3(b) hereof), or (c) the failure by the Borrower to prepay
any Advance after notice of prepayment has been given by the Borrower to the
42
Administrative Agent in accordance with Section 2.5 hereof, the Borrower agrees
to pay to such Lender, upon the earlier of such Lender's demand or the Maturity
Date, an amount sufficient to compensate such Lender for all such losses and
out-of-pocket expenses. Such Lender's good faith determination of the amount of
such losses and out-of-pocket expenses, absent manifest error, shall be binding
and conclusive. Upon request of the Borrower, any Lender seeking reimbursement
under this Section 2.11 shall provide a certificate setting forth the amount to
be paid to it by the Borrower hereunder and calculations therefor.
Section 2.12 APPLICATION OF PAYMENTS.
(a) Other than with respect to payments required to be made
pursuant to Section 2.5 or 2.6 hereof (which shall be applied, as applicable, as
set forth in Section 2.5 or 2.6 respectively), payments made to any Credit
Party, or otherwise received by any Credit Party (from realization on Collateral
or otherwise), shall be distributed as follows: FIRST, to the costs and
expenses, if any, incurred by the Credit Parties, or any of them, to the extent
permitted by Section 12.2 hereof, in the collection of such amounts under this
Agreement or any of the other Loan Documents, including, without limitation, any
reasonable costs incurred in connection with the sale or disposition of any
Collateral for the Obligations; SECOND, pro rata among the Credit Parties based
on the total amount of fees then due and payable, to any fees then due and
payable hereunder or under any other Loan Document and to any other fees then
due and payable to the Lenders under this Agreement or any other Loan Document;
THIRD, to the Swing Loan Lender, to any unpaid interest which may have accrued
on the Swing Loans; FOURTH, pro rata among the Lenders based on the principal
amount of the Revolving Loans outstanding immediately prior to such payment, to
any unpaid interest which may have accrued on the Revolving Loans; FIFTH, to the
Swing Loan Lender, to any unpaid principal of the Swing Loans; SIXTH, pro rata
among the Lenders based on the principal amount of the Revolving Loans
outstanding immediately prior to such payment, to any unpaid principal of the
Revolving Loans (with such payment to permanently reduce the Revolving Loan
Commitment in inverse order of scheduled reduction); SEVENTH, to any other
Obligations not otherwise referred to in this Section 2.12(a) until all such
Obligations are paid in full; EIGHTH, pro rata among the Credit Parties based on
the amount of damages outstanding immediately prior to such payment, to damages
incurred by the Credit Parties, or any of them, by reason of any breach hereof
or of any other Loan Documents; and NINTH, to the Borrower or as otherwise
required by law.
(b) If any Lender shall obtain any payment on any date (whether
involuntary or otherwise) on account of the Loans (excluding any Swing Loans)
made by it in excess of its ratable share of the payments made by the Borrower
to the Credit Parties on such date (in the aggregate), such that, after giving
effect thereto, such Lender's outstanding Loans (excluding any Swing Loans) are
less than such Lender's ratable share of all the Loans then outstanding (in the
aggregate) in accordance with such
43
Lender's Commitment Percentage, such Lender shall forthwith purchase from the
other Lenders such participations in the Loans made by such other Lenders as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to each
purchasing Lender the purchase price to the extent of such recovery. The
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.12(b) may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation so long as the Obligations are not increased as a result
of such participation. If the Swing Loan Lender shall receive any payment on any
date on account of its Swing Loans in excess the amount to which it is entitled
in accordance with Section 2.8(a), the Swing Loan Lender shall remit the amount
of such excess to the other Lenders as the Administrative Agent may direct in
accordance with Section 2.8(a).
Section 2.13 CAPITAL ADEQUACY. In the event that any Lender shall
have determined that a Regulatory Change has the effect of reducing the rate of
return on such Lender's capital as a consequence of its obligations hereunder to
a level below that which such Lender could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, ten (10) days after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, together with a certificate (which shall be conclusive absent manifest
error), setting forth the calculations evidencing such requested additional
amount, and the law or regulation with respect thereto and certifying that such
request is consistent with such Lender's treatment of other similar customers
having similar provisions generally in their agreements with such Lender and
that such request is being made on the basis of a reasonable allocation of the
costs resulting from such law or regulation, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Allocations shall not be deemed reasonable unless made ratably, to
the extent practicable, to all affected assets, commitments, activities or other
relevant aspects of such Lender's business, whether or not the Lender is
entitled to compensation with respect thereto. Notwithstanding the foregoing,
the Borrower shall only be obligated to compensate such Lender for any amount
under this subsection arising or occurring during (a) in the case of each such
request for compensation, any time or period commencing not more than ninety
(90) days prior to the date on which such Lender submits such request and (b)
any other time or period during which, because of the unannounced retroactive
application of such law, regulation, interpretation, request or directive, such
Lender reasonably could not have known that the resulting reduction in return
might arise. Each Lender will notify the Borrower that it is entitled to
compensation pursuant to this subsection as promptly as practicable after it
determines to request such compensation; PROVIDED, HOWEVER, that the
44
failure to provide such notice shall not restrict the ability of such Lender to
be reimbursed under this Section 2.13.
Section 2.14 INCREMENTAL FACILITY LOANS.
(a) Subject to the terms and conditions of this Agreement, the
Borrower may request Incremental Facility Commitments on any Business Day;
PROVIDED, HOWEVER, that the Borrower may not request Incremental Facility
Commitments or an Incremental Facility Loan during the continuance of a Default
or Event of Default, including, without limitation, any Default or Event of
Default that would result after giving effect to any Incremental Facility Loan;
and PROVIDED FURTHER, that the Borrower may request up to two (2) Incremental
Facility Commitments (each of which commitments may be from more than one
Lender) which may be no less than $60,000,000 and no more than $120,000,000 in
the aggregate. The final maturity date for all Incremental Facility Loans shall
be no earlier than the Maturity Date. In requesting Incremental Facility
Commitments, the Borrower shall offer each of the Lenders an opportunity to
provide an Incremental Facility Commitment; PROVIDED that none of the Lenders
shall be required to issue an Incremental Facility Commitment and the decision
of any Lender to issue or not issue an Incremental Facility Commitment to the
Borrower shall be at such Lender's sole discretion after being offered such
right of first refusal (and the failure to respond to any such offer by the
requested deadline shall be deemed a refusal). Persons not then Lenders may be
included as Lenders having Incremental Facility Commitments with the written
approval of the Borrower and the Administrative Agent. The Incremental Facility
Commitments (i) may be in the form of a revolving or a term credit facility and
may be structured as an institutional tranche, (ii) must not (A) have scheduled
amortization providing for principal repayments or commitment reductions earlier
than, or in an amount on a percentage basis larger than, those dates or amounts
set forth in the reduction schedule for the Revolving Loan Commitment set forth
herein, or (B) be secured by more or different collateral than the Loans
hereunder, and (iii) must be governed by this Agreement and the other Loan
Documents and be subject to terms and conditions not more restrictive than those
set forth herein and therein for the Loans.
(b) Prior to the effectiveness of any Incremental Facility
Commitment, the Borrower shall (i) deliver to the Administrative Agent and the
Lenders a notice, in form and substance satisfactory to the Administrative
Agent, setting forth terms and provisions with respect to interest rates and
scheduled amortization with respect to the proposed Incremental Facility Loan
and (ii) provide revised projections to the Administrative Agent and the
Lenders, which shall be in form and substance reasonably satisfactory to the
Administrative Agent and which shall demonstrate the Borrower's ability to
timely repay such Incremental Facility Commitment and any Incremental Facility
Loans thereunder and to comply with the terms and conditions of this Agreement
and the other Loan Documents.
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(c) No Incremental Facility Commitment shall by itself result in
any reduction of the Revolving Loan Commitment or of the Commitment Percentage
with respect to the Revolving Loans of such Lender issuing such Incremental
Facility Commitment.
(d) Incremental Facility Loans (i) shall bear interest at the
Base Rate or the Eurodollar Rate or such other reasonable rate agreed to by the
Lenders making such Incremental Facility Loans; (ii) subject to Section 2.14(a)
hereof, shall be repaid as agreed to by the Borrower and the Lenders making such
Incremental Facility Loans; (iii) shall for all purposes be Obligations
hereunder and under the Loan Documents; (iv) shall be represented by promissory
notes which set forth terms and provisions with respect to interest rates and
scheduled amortization with respect to such Incremental Facility Loans and are
in form and substance acceptable to the Administrative Agent and the Borrower
(each, an "INCREMENTAL FACILITY NOTE"), and (v) shall rank pari passu with the
Loans for purposes of Sections 2.12 and 9.2 hereof (unless the applicable
Incremental Facility Lender shall otherwise agree in writing to have its
Incremental Facility Loans be junior to the Loans).
(e) Incremental Facility Loans shall be requested by the Borrower
pursuant to a request (which shall be substantially in the form of a Request for
Advance) delivered in the same manner as a Request for Advance, but shall be
funded pro rata only by those Lenders that hold the Incremental Facility
Commitments.
ARTICLE 3 - GUARANTEE
Section 3.1 GUARANTEE. Each of the Guarantors, jointly and
severally, hereby unconditionally guarantees to the Credit Parties and their
respective permitted successors and assigns and the subsequent holders of the
Obligations (including, without limitation, any interest on the Loans accruing
after the filing of a petition initiating any Insolvency Proceeding, whether or
not such interest accrues or is recoverable against the Borrower after the
filing of such petition for purposes of the Bankruptcy Code or is an allowed
claim in such proceeding), irrespective of the validity and enforceability of
this Agreement, the Notes or the other Loan Documents or the Obligations of the
Borrower or any of the other Guarantors hereunder or thereunder, the value or
sufficiency of any Collateral or any other circumstance that might otherwise
affect the liability of a guarantor, that: (a) the principal of and interest on
the Loans, the Notes and all other Obligations of the RMG Companies to the
Credit Parties under this Agreement, the Notes and the other Loan Documents
shall be promptly paid in full when due, whether at stated maturity, by
acceleration or otherwise, in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other Obligations, the same shall be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The foregoing guaranty is a guaranty of
payment and not of collection.
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Failing payment when due of any amount so guaranteed for whatever reason, the
Guarantors will be obligated, jointly and severally, to pay the same
immediately.
Section 3.2 WAIVERS AND RELEASES. Each of the Guarantors hereby
waives notice of, and consents to, any extension of time of payment, renewals,
releases of Collateral, delays in obtaining or realizing upon or failures to
obtain, perfect, or maintain perfection of, or realize upon Collateral or other
indulgence from time to time granted by any of the Credit Parties in respect of
this Agreement, the Notes or any other Loan Document. Each of the Guarantors
hereby releases the Borrower from all, and agrees not to assert or enforce
(whether by or in a legal or equitable proceeding or otherwise), any "claims"
(as defined in 11 U.S.C. Section 101(4)), whether arising under Applicable Law
or otherwise, to which such Guarantors are or would be entitled by virtue of
their obligations hereunder, any payment made pursuant hereto or the exercise by
the Credit Parties of their rights with respect to any Collateral, including any
such claims to which such Guarantors may be entitled as a result of any right of
subrogation, exoneration or reimbursement. To the extent not released by such
Guarantors under this Article 3, each of the Guarantors agrees that it shall not
be entitled to any right of subrogation, exoneration, reimbursement or
contribution in respect of any Obligations guaranteed hereby. With respect to
this Agreement and the Notes, each of the Guarantors hereby waives presentment,
protest, demand of payment, notice of dishonor and all other notices and demands
whatsoever. Each of the Guarantors further agrees that, as between such
Guarantor, on the one hand, and the Credit Parties, on the other hand, (a) the
maturity of the Obligations guaranteed hereby may be accelerated as provided in
Section 9.2 hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (b) in the event of any declaration of
acceleration of such Obligations as provided in Section 9.2 hereof, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by each of the Guarantors for purposes of this guarantee. The
obligations of the Guarantors under this Article 3 shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of the Borrower is rescinded or must otherwise be restored by any holder of any
of the Obligations guaranteed hereunder, whether as a result of any Insolvency
Proceeding or otherwise, and each Guarantor agrees that it will, jointly and
severally, indemnify the Credit Parties on demand for reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Credit Parties in connection with such rescission or
restoration. Each Guarantor further agrees with the Borrower for the benefit of
each of its creditors (including, without limitation, the Credit Parties) that
any payment referred to in this Article 3 by a Guarantor shall constitute a
contribution of capital by such Guarantor to the Borrower (or an investment in
the equity capital of the Borrower by such Guarantor).
Section 3.3 MISCELLANEOUS.
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(a) Upon the bankruptcy or winding up or other distribution of
assets of the Borrower or any Material Subsidiary of the Borrower or of any
surety or guarantor of any of the Obligations of the Borrower to the Credit
Parties, the rights of the Credit Parties against the Guarantors shall not be
affected or impaired by the omission of any Credit Party to prove its claim, or
to prove its full claim, and the Administrative Agent may prove such claims as
it sees fit and may refrain from proving any claim and in its discretion may
value as it sees fit or refrain from valuing any security held by it without in
any way releasing, reducing or otherwise affecting the liability to the Credit
Parties of any Guarantor.
(b) Each of the Guarantors absolutely, unconditionally and
irrevocably waives any and all right to assert any defense, set-off,
counterclaim or cross-claim of any nature whatsoever with respect to this
Article 3 or the obligations of the Guarantors hereunder or the obligations of
any other Person or party (including, without limitation, the Borrower) relating
to this Article 3 or the obligations of any other guarantor with respect to the
Obligations in any action or proceeding brought by any Credit Party to collect
the Obligations or any portion thereof, or to enforce the obligations of the
Guarantors under this Article 3.
(c) If a claim is ever made upon any of the Credit Parties for
the repayment or recovery of any amount or amounts received by such Person in
payment of any of the Obligations and such Person repays all or part of such
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Person or any of its property,
or (ii) any settlement or compromise of any such claim effected by such Person
with any such claimant, including the Borrower, then in such event the
Guarantors agree that any such judgment, decree, order, settlement or compromise
shall be binding upon the Guarantors, notwithstanding any revocation hereof or
the cancellation of any promissory note or other instrument evidencing any of
the Obligations, and the Guarantors shall be and remain obligated to such Person
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by such Person.
(d) The Guarantors expressly represent and acknowledge that any
financial accommodations by the Credit Parties, or any of them, to the Borrower,
including, without limitation, the extension of the Loans, are and will be of
direct interest, benefit and advantage to the Guarantors.
(e) The Guarantors hereby agree among themselves that if any
Guarantor shall become an Excess Funding Guarantor by reason of the payment by
such Guarantor of any Obligations, each other Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such Excess
Funding Guarantor an amount equal to such Guarantor's Pro Rata Share (as
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment in respect
of such Obligations. The payment
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obligation of a Guarantor to any Excess Funding Guarantor under this Section
3.3(e) shall be subordinate and subject in right of payment to the prior payment
in full of the obligations of such Guarantor under the other provisions of this
Article 3, and such Excess Funding Guarantor shall not exercise any right or
remedy with respect to such excess until payment and satisfaction in full of all
Obligations. For purposes of this Section 3.3(e), (i) "EXCESS FUNDING GUARANTOR"
shall mean, in respect of any Obligations, a Guarantor that has paid an amount
in excess of its Pro Rata Share of such Obligations, (ii) "Excess Payment" shall
mean, in respect of any Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Obligations, and (iii) "PRO
RATA SHARE" shall mean, for any Guarantor, the ratio (expressed as a percentage)
of (A) the amount by which the aggregate present fair saleable value of all
properties of such Guarantor (excluding any shares of stock of any other
Guarantor) exceeds the amount of all the debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Guarantor hereunder and any obligations of any
other Guarantor that have been guaranteed by such Guarantor) to (B) the amount
by which the aggregate fair saleable value of all properties of the Borrower and
all of the Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the RMG Companies hereunder) of all of the RMG
Companies, all as of the Agreement Date. If any Subsidiary becomes a Guarantor
hereunder subsequent to the Agreement Date, then for purposes of this Section
3.3(e) such subsequent Guarantor shall be deemed to have been a Guarantor as of
the Agreement Date and the aggregate present fair saleable value of the
properties, and the amount of the debts and liabilities, of such subsequent
Guarantor as of the Agreement Date shall be deemed to be equal to such value and
amount on the date such subsequent Guarantor becomes a Guarantor hereunder.
(f) Pursuant to Section 6.14 hereof, any new Subsidiary of the
Borrower is required to enter into this Agreement for purposes of joining in
this Guarantee by executing and delivering in favor of the Credit Parties a
Guarantee Supplement. Upon the execution and delivery of a Guaranty Supplement
by such new Subsidiary, such Subsidiary shall become a Guarantor hereunder with
the same force and effect as if originally named as a Guarantor herein. The
execution and delivery of any instrument adding an additional Guarantor
hereunder shall not require the consent of any party of this Agreement. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor hereunder.
ARTICLE 4 - CONDITIONS PRECEDENT
Section 4.1 CONDITIONS PRECEDENT TO CLOSING. The obligation of
each of the Lenders to undertake its respective Revolving Loan Commitment and to
make the initial Advance of the Loans hereunder is subject to the prior
fulfillment of each of the following conditions:
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(a) The Administrative Agent shall have received each of the
following, in form and substance reasonably satisfactory to the Arrangers and
their counsel and to the Majority Lenders:
(i) this duly executed Agreement;
(ii) the duly executed Notes;
(iii) the duly executed Contribution Agreement;
(iv) the duly executed Borrower Security Agreement,
together with evidence of the filing of appropriate UCC-1 financing statements
forms;
(v) the duly executed Borrower's Pledge Agreement,
together with appropriate original securities certificates and undated
securities powers with respect thereto executed in blank and evidence of the
filing of appropriate UCC-1 financing statement forms;
(vi) the duly executed Partnership Pledge Agreement,
together with evidence of the filing of appropriate UCC-1 financing statement
forms;
(vii) a loan certificate of the Borrower, including a
certificate of incumbency with respect to the signature of each Authorized
Signatory of the Borrower, which loan certificate shall be in substantially the
form of EXHIBIT P attached hereto, together with appropriate attachments which
shall include, without limitation, the following items: (A) a true, complete and
correct copy of the articles of organization of the Borrower, certified by the
Secretary of State of Delaware, (B) a true, complete and correct copy of the
limited liability company or operating agreement of the Borrower, (C) a copy of
the resolutions of the sole member of the Borrower, authorizing the Borrower
with respect to the borrowing hereunder and the execution, delivery and
performance by the Borrower of this Agreement and the other Loan Documents to
which it is a party, and (D) certificates of existence for the Borrower issued
by the Secretary of State or similar state official for the State of Delaware
and for each state in which the Borrower is, or is required to be, qualified to
do business;
(viii) the duly executed RMHI Pledge Agreement, together
with appropriate original securities certificates and undated securities powers
with respect thereto executed in blank and evidence of the filing of appropriate
UCC-1 financing statement forms;
(ix) a loan certificate of RMHI, including a
certificate of incumbency with respect to the signature of each Authorized
Signatory of RMHI, which loan certificate shall be in substantially the form of
EXHIBIT Q attached hereto, together with appropriate attachments which shall
include, without limitation, the following items: (A) a true, complete and
correct copy of the articles of incorporation of RMHI, certified
50
by the Secretary of State of Delaware, (B) a true, complete and correct copy of
the bylaws of RMHI, (C) a copy of the resolutions of the board of directors of
RMHI, authorizing RMHI with respect to the execution, delivery and performance
by RMHI of the Loan Documents to which it is a party, and (D) certificates of
existence for RMHI issued by the Secretary of State or similar state official
for the State of Delaware and for each state in which RMHI is, or is required to
be, qualified to do business;
(x) the duly executed Subsidiary Pledge Agreement
from each Guarantor which has one or more Subsidiaries, together with
appropriate original securities certificates and undated securities powers with
respect thereto executed in blank and evidence of the filing of appropriate
UCC-1 financing statement forms;
(xi) the duly executed Subsidiary Security Agreement
from each Guarantor, together with evidence of the filing of appropriate UCC-1
financing statement forms;
(xii) a certificate of each Guarantor, including a
certificate of incumbency with respect to the signature of each Authorized
Signatory of such Subsidiary, which loan certificate shall be in substantially
the form of EXHIBIT R attached hereto, together with appropriate attachments
which shall include, without limitation, the following items: (A) a true,
complete and correct copy of the articles of incorporation, certificate of
limited partnership or certificate of organization of such Guarantor, certified
by the Secretary of State of such Guarantor's organization, (B) a true, complete
and correct copy of by-laws, partnership agreement or limited liability company
or operating agreement of such Guarantor, (C) a copy of the resolutions of the
board of directors, or other appropriate entity, of such Guarantor, authorizing
such Guarantor with respect to the execution, delivery and performance by such
Guarantor of this Agreement and the other Loan Documents to which it is a party,
(D) certificates of existence for such Guarantor issued by the Secretary of
State or similar state official for the state of such Guarantor's organization
and for each state in which such Guarantor is, or is required to be, qualified
to do business, and (E) a true, complete and correct copy of any agreement in
effect with respect to the voting rights, ownership interests or management of
such Guarantor;
(xiii) the duly executed Fee Letters, together with
evidence of receipt of all fees due on the Agreement Date from the Borrower to
the Credit Parties in accordance therewith;
(xiv) the duly executed Subordination of Intercompany
Obligations Agreement and the duly executed Subordination of Tax Liabilities
Agreement;
(xv) the duly executed Trademark Security Agreement,together
with an appropriate filing coversheet and evidence of the filing of appropriate
UCC-1 financing statement forms;
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(xvi) opinions of counsel to the Borrower, RMHI and the
Guarantors addressed to each Credit Party and in form and substance satisfactory
to the Arrangers and their counsel;
(xvii) a copy of the corporate organizational chart of the RMG
Companies, the MGM Companies and the Unrestricted Subsidiaries;
(xviii) a copy of (A) the audited consolidated balance sheets,
income statements and cash flow statements submitted to the SEC as a part of
CSC's 10-K filing setting forth the financial information of the RMG Tracking
Stock Group, (B) the audited combined balance sheets and income statements for
the MGM Companies and (C) the unaudited combining balance sheets and income
statements for the MGM Companies, in each case for the year ended December 31,
2000, and a copy of (A) the unaudited consolidated balance sheets, income
statements and cash flow statements submitted to the SEC as part of the CSC's
10-Q filing setting forth the financial information of the RMG Tracking Stock
Group and (B) the unaudited combined balance sheets and income statements for
the MGM Companies, in each case for the quarter ended September 30, 2001;
(xix) copies of insurance binders or certificates covering the
assets of the RMG Companies, and otherwise meeting the requirements of, and to
the extent required by, Section 6.5 hereof; and
(xx) the duly executed Request for Advance for the initial
Advance of the Loans.
(b) All of the representations and warranties of the RMG
Companies under this Agreement shall be true and correct in all material
respects, both before and after giving effect to the application of the proceeds
of the initial Advance of the Loans, and the Administrative Agent shall have
received a certificate of an Authorized Signatory of the Borrower so stating.
(c) No litigation shall have been commenced against any of the
RMG Companies or any of the MGM Companies since December 31, 2000, which, if
such litigation could reasonably be expected to be determined adversely to any
such Company, could reasonably be expected to have a Materially Adverse Effect.
(d) There shall have been no material adverse change in the
business, assets or financial condition of the RMG Companies and the MGM
Companies from that reflected in the financial statements provided pursuant to
Section 4.1(a)(xviii) hereof.
(e) The Arrangers shall have received the results of lien
searches against each of the RMG Companies from all applicable jurisdictions
which shall be reasonably satisfactory to them and their counsel.
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(f) The Arrangers shall have received evidence satisfactory to
them that all conditions precedent to the consummation of the transactions
contemplated by the AMC/Bravo Loan Agreement shall have been fulfilled to the
satisfaction of the AMC/Bravo Credit Parties and that concurrently with the
closing of this Agreement and the transactions contemplated hereby the
transactions contemplated by the AMC/Bravo Loan Agreement shall be consummated.
(g) The Administrative Agent shall have received a certificate
of an Authorized Signatory of the Borrower demonstrating, on a pro forma basis,
as of the Agreement Date, that the Leverage Ratio calculated as of the Agreement
Date, based on Annualized Cash Flow as of the last day of the fiscal quarter
ending September 30, 2001, and Total Debt after giving effect to the initial
Advance of the Loans hereunder, is less than or equal to 3.50 to 1.00.
(h) The Administrative Agent shall have received copies of the
Janus Guaranty and each of the Existing Investment Guaranties.
Section 4.2 CONDITIONS PRECEDENT TO EACH ADVANCE. The
obligations of the Lenders to make each Advance (including the initial Advance
hereunder) of the Loans (including the Swing Loans) is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) The Administrative Agent, or in the case of a Swing Loan,
the Swing Loan Lender, shall have received a duly executed and completed Request
for Advance or Swing Loan Request, as applicable, signed by an Authorized
Signatory of the Borrower, which Request for Advance or Swing Loan Request, as
applicable, shall (i) certify that, after giving effect to the requested
Advance, no Default or Event of Default shall then exist, (ii) certify that, as
of the date of the requested Advance and after giving effect to the application
of proceeds thereof, the representations and warranties in Section 5.1 hereof
shall be true and correct in all material respects, except to the extent any
representation or warranty is made solely as of the Agreement Date, (iii)
certify that, as of the date of the requested Advance, there shall exist no
litigation commenced against any of the RMG Companies or any of the MGM
Companies since December 31, 2000, which, if such litigation could reasonably be
expected to be determined adversely to any such Company, could reasonably be
expected to have a Materially Adverse Effect, and (iv) provide calculations
demonstrating compliance with Section 8.8 hereof before and after giving effect
to the requested Advance;
(b) There shall have occurred no event which has had or could
reasonably be expected to have a Materially Adverse Effect since the date of the
most recent audited financial statements provided to the Credit Parties; and
(c) Each Request for Advance and each Swing Loan Request shall
constitute a representation and warranty by the Borrower made as of the time of
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requesting such Advance that the conditions specified in this Section 4.2 have
been fulfilled as of the time of such Advance.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES
Section 5.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby
agrees, represents, and warrants that:
(a) ORGANIZATION; POWER; QUALIFICATION. The Borrower is a
limited liability company duly organized and validly existing under the laws of
the State of Delaware, having RMHI as its only member. Each of the Guarantors is
duly organized and validly existing under the laws of the jurisdiction of its
organization. Each of the RMG Companies has the power and authority to own or
lease and operate its properties and to carry on its business as now being and
hereafter proposed to be conducted, and is duly qualified and authorized to do
business in each jurisdiction in which such qualification is necessary in view
of the character of its properties or the nature of its business requires such
qualification or authorization, except for qualifications and authorizations,
the lack of which, singly or in the aggregate, has not had and is not likely to
have a Materially Adverse Effect.
(b) AUTHORIZATION; ENFORCEABILITY. Each of the RMG Companies has
all power, corporate or otherwise, and has taken all necessary action to
authorize it to execute, deliver, and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with the terms thereof
and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by each of the RMG Companies, and
is, and the Notes, when issued for value received will be, and each of the other
Loan Documents to which any RMG Company is a party is, a legal, valid and
binding obligation of such RMG Company enforceable in accordance with its terms,
subject to limitations on enforceability under bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally and
limitations on the availability of the remedy of specific performance imposed by
the application of general equity principles.
(c) SUBSIDIARIES AND UNRESTRICTED SUBSIDIARIES. Except as listed
on SCHEDULE 5.1(C)-1 attached hereto (as amended by the Borrower after the
Agreement Date upon written notice to the Lenders from time to time to the
extent permitted hereunder), the Borrower does not have any Subsidiaries. With
respect to each of the RMG Companies, SCHEDULE 5.1(c)-1 also sets forth, as of
the Agreement Date, the following: (i) the direct owners of such Company and the
extent of such ownership; (ii) the state of such Company's incorporation or
organization; (iii) all jurisdictions in which such Company is qualified to do
business as a foreign corporation, limited liability company or partnership, as
the case may be; (iv) the federal tax identification number, the state
organizational identification number (if issued by the state of such Company's
incorporation or organization), the address of the chief executive office and
principal place of business of such Company, and the name and registered office
of the registered
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agent appointed by such Company. Except as set forth on SCHEDULE 5.1(C)-2,
attached hereto (as amended by the Borrower after the Agreement Date upon
written notice to the Lenders from time to time to the extent permitted
hereunder), there are no MGM Companies. With respect to each MGM Company,
SCHEDULE 5.1(C)-2 also sets forth, as of the Agreement Date, the following: (i)
whether such MGM Company is a MGM Operating Company; (ii) the direct owners of
such MGM Company and the extent of such ownership; (iii) the state of such MGM
Company's incorporation or organization; and (iv) all jurisdictions in which
such MGM Company is qualified to do business as a foreign corporation, limited
liability company or partnership, as the case may be. Except as set forth on
SCHEDULE 5.1(C)-3 attached hereto, there are no Unrestricted Subsidiaries. With
respect to each Unrestricted Subsidiary, SCHEDULE 5.1(C)-3 also sets forth, as
of the Agreement Date, the following: (i) the direct owners of such Unrestricted
Subsidiary and the extent of such ownership; (ii) the state of such Unrestricted
Subsidiary's incorporation or organization; and (iii) all jurisdiction in which
such Unrestricted Subsidiary is qualified to do business as a foreign
corporation, limited liability company or partnership, as the case may be.
(d) COMPLIANCE WITH LAWS, OTHER LOAN DOCUMENTS, AND CONTEMPLATED
TRANSACTIONS. The execution, delivery and performance of this Agreement and each
of the other Loan Documents in accordance with the terms and the consummation of
the transactions contemplated hereby and thereby do not and will not (i) violate
any Applicable Law, (ii) result in a breach of, or constitute a default under
the certificate or articles of incorporation, by-laws or other governing
documents, as the case may be and as amended, of any of the RMG Companies or any
of the MGM Companies, or under any Material MSO Agreement, or under any
indenture, agreement, or other instrument to which any of the RGM Companies or
any of the MGM Companies, is a party or by which it or any of its properties may
be bound, or (iii) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter acquired by any RMG
Company except Permitted Liens; except, with respect to items (i) and (ii)
above, where such violations, breaches or defaults, if any, singly or in the
aggregate, has not had and is not likely to have a Materially Adverse Effect.
(e) NECESSARY AUTHORIZATIONS. No approval or consent of, or
filing or registration with, any federal, state or local commission or other
regulatory authority is required in connection with (i) the execution, delivery
and performance by the Borrower of this Agreement, the Notes and the other Loan
Documents to which it is a party, or (ii) the execution, delivery and
performance by each of the Guarantors of this Agreement and the other Loan
Documents to which such Guarantor is a party. All such described action required
to be taken as a condition to the execution and delivery of each of this
Agreement, the Notes and other Loan Documents to which any of the RMG Companies
is a party has been duly taken by all such commissions and authorities or other
Persons, as the case may be, and all such action required to be taken as a
condition to the initial Advance of the Loans hereunder has been or will be duly
taken prior to such initial Advance.
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(f) TITLE TO PROPERTIES. Each of the RMG Companies has good and
legal title to, or a valid leasehold interest in, all of their respective
material properties and assets free and clear of all Liens, except Permitted
Liens.
(g) COLLECTIVE BARGAINING. None of the RMG Companies has entered
into any collective bargaining agreement with any trade or labor union or other
employee collective bargaining agent.
(h) TAXES. All federal, state, and other tax returns of the
Borrower and each of its Subsidiaries required by law to be filed have been duly
filed, and all federal, state, and other taxes, assessments, and other
governmental charges or levies upon the Borrower, each of its Subsidiaries, and
any of their respective properties, income, profits, and assets, which are due
and payable, have been paid, except any such tax payment of which the Borrower
or such Subsidiary, as the case may be, is contesting in good faith by
appropriate proceedings, and as to which neither any Lien other than a Permitted
Lien has attached nor any foreclosure, distraint, sale, or similar proceedings
have been commenced, and except any such tax payments which the failure to pay,
singly or in the aggregate, has not had and is not likely to have a Materially
Adverse Effect. The charges, accruals, and reserves on the books of the Borrower
and each of its Subsidiaries in respect of taxes are, in the reasonable judgment
of the Borrower, adequate.
(i) FINANCIAL STATEMENTS. The Borrower has furnished, or caused
to be furnished, to the Credit Parties the financial statements required
pursuant to Section 4.1(a)(xviii) hereof, all of which are complete and correct
in all material respects and present fairly in accordance with GAAP the
financial position of the RMG Tracking Stock Group and the MGM Companies as at
the dates thereof, and the results of operations for the periods ended as of
such dates, subject to normal year-end adjustments with respect to such
unaudited statements. Except as disclosed in such financial statements or in
SCHEDULE 5.1(i) attached hereto, none of the RMG Companies nor any of the MGM
Companies had any material liabilities, contingent or otherwise, and there are
no material unrealized or anticipated losses of any such Companies which have
not heretofore been disclosed in writing to the Credit Parties.
(j) NO ADVERSE CHANGE. Since December 31, 2000, there has
occurred no event which has had or could reasonably be expected to have a
Materially Adverse Effect.
(k) INVESTMENTS AND GUARANTIES. None of the RMG Companies has
made Investments in, advances to or guaranties of the obligations of any Person,
except as reflected in the financial statements referred to in Section 5.1(i)
above or disclosed in SCHEDULE 5.1(k) attached hereto.
(l) LIABILITIES, LITIGATION, Etc. Except (i) for liabilities
incurred in the normal course of business, (ii) as disclosed or referred to in
the financial statements
56
described in Section 5.1(i) above, or (iii) as disclosed on SCHEDULE 5.1(1)
attached hereto, none of the RMG Companies has any material (individually or in
the aggregate) direct or contingent liabilities. Except as disclosed on SCHEDULE
5.1(L) attached hereto, there is no litigation, legal or administrative
proceeding, investigation, or other action of any nature pending or, to the
knowledge of the Borrower, threatened against or affecting the any of the RMG
Companies or any of their respective properties which involves the possibility
of any judgment or liability not fully covered by insurance that, singly or in
the aggregate, could reasonably be expected to have a Materially Adverse Effect.
(m) ERISA. Each Plan maintained, or contributed to, by the
Borrower or any of its Subsidiaries, or any of their ERISA Affiliates is listed
on SCHEDULE 5.1(m) attached hereto. Each of such Plans is in compliance in all
material respects with their terms, ERISA and the Code. None of such Plans has a
material "accumulated funding deficiency" within the meaning of ERISA or the
Code. Neither the Borrower nor any of its Subsidiaries nor any of their
respective ERISA Affiliates has incurred any material liability to the PBGC in
connection with any such Plan. The assets of each such Plan which is subject to
Title IV of ERISA are sufficient to provide the benefits under such Plan if such
Plan were determined on an ongoing basis. No Reportable Event, for which the
thirty (30) day notice provision has not been waived in accordance with ERISA
Section 4043(a), has occurred with respect to any such Plan. No party in
interest, fiduciary, trustee or administrator of any such Plan or trust created
thereunder has engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code which is not statutorily or
administratively exempt under Sections 407 or 408 of ERISA or Section 4975 of
the Code, each of which exemptions are disclosed on SCHEDULE 5.1(m)) which would
subject the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates to a material tax on "prohibited transactions" imposed by Section
4975 of the Code; provided that this representation and warranty is based upon
the Borrower's understanding provided by Lenders that the source of the Loans
will not at any time constitute assets of any such Plan. No party in interest,
fiduciary, trustee or administrator of any such Plan or trust created thereunder
has committed a material breach of its fiduciary duty or knowingly participated
in any violation of ERISA which would subject the Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates to a material penalty
under Section 502 of ERISA. Except as set forth on SCHEDULE 5.1(m), none of the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates is
a participant in or obliged to make any payment to a Multiemployer Plan. Except
as required by Sections 601 through 609 of ERISA or as disclosed on SCHEDULE
5.1(m), Section 4980(B) of the Code and applicable state law, neither the
Borrower nor any of its Subsidiaries has made any oral or written commitments to
provide post-employment health or life insurance coverage with respect to any
former or current employee. The Borrower, its Subsidiaries and their respective
ERISA Affiliates have properly classified individuals providing services to the
Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates
as employees and non-employees, except to the extent that a misclassification
would not result in a Materially Adverse Effect.
57
(n) PATENTS, TRADEMARKS, ETC. SCHEDULE 5.1(n) attached hereto
sets forth all registered trademarks and pending applications for trademarks of
each of the RMG Companies. Except as disclosed on SCHEDULE 5.1(n) attached
hereto (as amended by the Borrower upon written notice to the Lenders from time
to time, together with, if necessary, an amendment to the Trademark Security
Agreement reflecting the addition of any new trademarks or trademark
applications), each of the RMG Companies owns, possesses or has the right to use
all licenses and rights to all patents, trademarks, trademark rights, trade
names, trade name rights, service marks, and copyrights, and rights with respect
thereto, necessary to conduct its business in all material respects as now
conducted, without known conflict with any patent, trademark, trade name,
service xxxx, license or copyright of any other Person, and in each case, with
respect to patents, trademarks, trademark rights, trade names, trade name and
copyrights and licenses with respect thereto owned by the RMG Companies, subject
to no mortgage, pledge, lien, lease, encumbrance, charge, security interest,
title retention agreement or option other than as otherwise permitted hereunder.
Except to the extent that there is not likely to be a Materially Adverse Effect
resulting from such ineffectiveness or non-compliance, all such licenses and
rights with respect to patents, trademarks, trademark rights, trade names, trade
name rights, service marks and copyrights are in full force and effect, and to
the extent applicable, each of the RMG Companies is in full compliance in all
material respects with all of the provisions thereof. Except as set forth on
SCHEDULE 5.1(n) attached hereto (as amended by the Borrower upon written notice
to the Lenders from time to time), no such patent, trademark, trademark rights,
trade names, trade name rights, service marks, copyrights or licenses is subject
to any pending or, to the best of the Borrower's knowledge, threatened attack or
revocation. Except as set forth on SCHEDULE 5.1(n) attached hereto, (i) none of
the RMG Companies owns any registered copyrights or patents and (ii) the
business of the RMG Companies is not subject to any license issued by the FCC.
(o) COMPLIANCE WITH LAW; ABSENCE OF DEFAULT. Each of the RMG
Companies is in compliance with all Applicable Laws the non-compliance with
which is likely to have a Materially Adverse Effect and with all of the
provisions of its articles or certificate of incorporation and by-laws, or other
governing documents, as applicable, which would adversely affect any RMG
Company's ability to perform the Obligations, and no event has occurred or has
failed to occur which has not been remedied or waived, the occurrence or
non-occurrence of which constitutes (i) a Default or (ii) a default by any of
the RMG Companies under any other indenture, agreement, or other instrument, or
under any Material MSO Agreement or Material Film Rights Agreement, or any
judgment, decree, or order to which any of the RMG Companies is a party or by
which any of the RMG Companies, or any of their respective properties, may be
bound, which default, judgment, decree or order could reasonably be considered
to have a Materially Adverse Effect.
(p) CASUALTIES; TAKING OF PROPERTIES, Etc. Since the date of the
most recent financial statements provided to the Credit Parties by the Borrower,
neither
58
the business nor the properties of any of the RMG Companies has been materially
and adversely affected as a result of any fire, explosion, earthquake, flood,
drought, windstorm, accident, strike or other labor disturbance, embargo,
requisition or taking of property or cancellation of contracts, permits or
concessions by any domestic or foreign government or any agency thereof, riot,
activities of armed forces, or acts of God or of any public enemy.
(q) ACCURACY AND COMPLETENESS OF INFORMATION. None of the
financial statements or any written statements delivered to any of the Credit
Parties pursuant to this Agreement contains, as at the date of delivery thereof,
any untrue statement of material fact nor do such financial statements, and such
written statements, taken as a whole, omit to state a material fact or any fact
necessary to make the statements contained therein not misleading. As of the
Agreement Date and as supplemented by the Borrower from time to time pursuant to
Section 7.4(f), SCHEDULE 5.1(q) attached hereto sets forth certain summary
information with respect to each Material MSO Agreement and each Material Film
Rights Agreement to which any of the RMG Companies is a party.
(r) COMPLIANCE WITH REGULATIONS U AND X. None of the RMG
Companies is engaged principally or as one of its important activities in the
business of extending credit for the purpose of purchasing or carrying, and the
Borrower does not own or presently intend to acquire, any "margin security" or
"margin stock" as defined in Regulations U and X (12 C.F.R. Parts 221 and 224)
of the Board of Governors of the Federal Reserve System (herein called "margin
stock"). None of the proceeds of the Loans will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which would constitute this
transaction a "purpose credit" within the meaning of said Regulations U and X.
Neither the Borrower nor any bank acting on its behalf has taken or will take
any action which would cause this Agreement or the Notes to violate Regulation U
or X or any other regulation of the Board of Governors of the Federal Reserve
System or to violate the Securities Exchange Act of 1934. If so requested by the
Administrative Agent, the Borrower will furnish the Administrative Agent with
(i) a statement or statements in conformity with the requirements of Federal
Reserve Form U-1 referred to in Regulation U of said Board of Governors and (ii)
other documents evidencing its compliance with the margin regulations,
including, without limitation, an opinion of counsel in form and substance
reasonably satisfactory to the Lenders.
(s) SOLVENCY. The Borrower is, and after giving effect to the
transactions contemplated hereby and by the Loan Documents will be, Solvent.
(t) BROKER'S OR FINDER'S COMMISSIONS. No broker's or finder's
fee or commission will be payable with respect to the issuance of the Notes, and
no other
59
similar fees or commissions will be payable by the Borrower for any other
services rendered to the Borrower ancillary to the transactions contemplated
herein.
(u) BUSINESS. The Borrower is a holding company whose assets
consist of the equity interests of the Guarantors, the MGM Companies and the
Unrestricted Subsidiaries. The business of each of the Guarantors includes
either acting as a holding company whose assets consist of the equity interests
of its Subsidiaries or producing and acquiring various types of programming and
distributing such programming to cable and other non-broadcast delivery systems
and activities directly related thereto.
(v) NAME OF BORROWER. Except as set forth on SCHEDULE 5.1(v)
attached hereto, none of the RMG Companies has (i) changed its name within the
five (5) year period immediately preceding the Agreement Date or (ii) transacted
business under any other name or trade name or acquired any assets except for
valid consideration.
(w) INVESTMENT COMPANY ACT. None of the RMG Companies is
required to register under the provisions of the Investment Company Act of 1940,
as amended, and neither the entering into or performance by the Borrower of this
Agreement nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval, or authorization of, or registration with, any
governmental or public body or authority pursuant to any of the provisions of
such Act.
Section 5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, Etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct in all material respects, at and as of the
Agreement Date and on the date of each Advance, except to the extent any
representation or warranty is made solely as of the Agreement Date in accordance
with the terms hereof. All representations and warranties made under this
Agreement shall survive, and not be waived by, the execution hereof by the
Credit Parties, any investigation or inquiry by any of the Credit Parties or the
making of any Advance under this Agreement.
ARTICLE 6 - GENERAL COVENANTS
So long as any of the Obligations is outstanding and unpaid or the
Borrower shall have the right to borrow hereunder (whether or not the conditions
to borrowing have been or can be fulfilled), and unless the Majority Lenders
shall otherwise consent in writing:
Section 6.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS. The
Borrower will, and will cause each of the Guarantors to, (a) preserve and
maintain their respective existence, rights, licenses and privileges in their
respective jurisdictions of organization and (b) qualify and remain qualified
and authorized to do business in each jurisdiction in which such qualification
is necessary in view of the character of their respective properties or in which
the nature of their respective businesses requires such
60
qualification or authorization, except for qualifications and authorizations,
the lack of which, singly or in the aggregate, has not had and is not likely to
have a Materially Adverse Effect; PROVIDED, HOWEVER, any of the RMG Companies
may liquidate or dissolve, or cause the liquidation or dissolution of, any
Subsidiary of the Borrower that holds no assets and conducts no business
activities.
Section 6.2 COMPLIANCE WITH APPLICABLE LAW. The Borrower will
comply, and will cause each of the Guarantors to comply, with the requirements
of all Applicable Law, except where failure to comply has not had and is not
likely to have a Materially Adverse Effect.
Section 6.3 MAINTENANCE OF PROPERTIES. The Borrower will
maintain, and will cause each of the Guarantors to maintain, or cause to be
maintained in the ordinary course of business in good repair, working order, and
condition all properties necessary in their respective businesses (whether owned
or held under lease).
Section 6.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. The
Borrower (or CSC on the Borrower's behalf) will maintain, and will cause each of
the Guarantors to maintain, or will maintain on their behalf, a system of
accounting established and administered in accordance with GAAP, and will (or
CSC on behalf of the Borrower and the Guarantors will), keep and cause each of
the Guarantors to keep adequate records and books of account in which complete
entries will be made in accordance with such accounting principles consistently
applied and reflecting all transactions required to be reflected by such
accounting principles.
Section 6.5 INSURANCE. The Borrower (or CSC on the Borrower's
behalf) will, and will cause each of the Guarantors to:
(a) maintain or cause to be maintained (i) insurance on the
assets and properties and on its operations including, but not limited to,
public liability, business interruption and fidelity coverage insurance, from
responsible insurance companies in such amounts and against such risks as shall
be reasonably acceptable to the Majority Lenders and (ii) maintain insurance
coverage comparable to that in place on the Agreement Date, taking into account
the growth of their respective businesses and operations after the Agreement
Date; and
(b) maintain insurance coverage with respect to the Collateral,
comparable to that in place on the Agreement Date (taking into account any
increase in value with respect to the Collateral) insuring against loss or
damage by fire, theft, burglary, pilferage, loss in transit, explosions and
hazards insured against by extended coverage, all premiums thereon to be paid by
the Borrower; and
(c) require that each insurance policy on its assets and
properties name the Administrative Agent, as administrative agent for the Credit
Parties, as additional insured and loss payee to the extent of the Obligations,
and provide for at
61
least thirty (30) days' prior written notice to the Administrative Agent of any
default under, termination of or proposed cancellation or nonrenewal of, such
policy.
Section 6.6 PAYMENT OF TAXES AND CLAIMS. The Borrower will pay
and discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments, and governmental charges or levies imposed upon them or upon
their respective incomes or profits or upon any properties belonging to them
prior to the date on which penalties attach thereto, and all lawful claims for
labor, materials, and supplies which, if unpaid, would become a Lien other than
a Permitted Lien upon any of their respective properties; except that no such
tax, assessment, charge, levy, or claim need be paid which is being contested in
good faith by appropriate proceedings and for which adequate reserves shall have
been set aside on the appropriate books, but only so long as such tax,
assessment, charge, levy, or claim does not become a Lien or charge other than a
Permitted Lien and no foreclosure, distraint, sale, or similar proceedings shall
have been commenced and remain unstayed for a period of thirty (30) days after
such commencement.
Section 6.7 VISITS AND INSPECTIONS. The Borrower will permit,
and will cause each of the Guarantors to permit, representatives of (a) prior to
a Default, the Arrangers upon three (3) Business Days written notice to the
Borrower, and (b) subsequent to a Default, each Credit Party, upon notice prior
to 10:00 a.m. (New York time) on such date, to (a) visit and inspect the
properties of each of the RMG Companies during normal business hours, (b)
inspect and make extracts from and copies of their respective books and records,
and (c) discuss with their respective principal officers its businesses, assets,
liabilities, financial positions, results of operations, and business prospects
relating to each of the RMG Companies.
Section 6.8 PAYMENT OF INDEBTEDNESS. The Borrower will pay, and
will cause each of the Guarantors to pay, subject to any provisions therein
regarding subordination, any and all of their respective Indebtedness For Money
Borrowed when and as the same becomes due, other than amounts duly disputed in
good faith, the non-payment of which is not likely to have a Materially Adverse
Effect.
Section 6.9 USE OF PROCEEDS. The Borrower will use the proceeds
of the Loans solely as provided in Section 2.1(c).
Section 6.10 ERISA. The Borrower shall, and shall cause each of
its Subsidiaries to, at all times make, or cause to be made, prompt payment of
all material contributions required under the terms of their Plans and to meet
the minimum funding standards set forth in ERISA with respect to such Plans. The
Borrower shall maintain, and shall cause each of its Subsidiaries to maintain,
each of their respective Plans in material compliance with the terms of such
Plans and the applicable provisions of ERISA and the Code.
62
Section 6.11 FURTHER ASSURANCES. The Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of the Notes and the
execution and delivery of the Loan Documents (including, without limitation,
this Agreement), resulting from any act or failure to act by any of the RMG
Companies or any employee or officer thereof. The Borrower at its expense will
promptly execute and deliver to the Credit Parties, or cause to be executed and
delivered to the Credit Parties, all such other and further documents,
agreements, and instruments in compliance with or for the accomplishment of the
covenants and agreements of the Borrower in the Loan Documents (including,
without limitation, this Agreement), or to correct any omissions in the Loan
Documents, or more fully to state the obligations set out herein or in any of
the Loan Documents, or to obtain any consents, all as may be necessary or
appropriate in connection therewith and as may be reasonably requested.
Section 6.12 BROKER'S CLAIMS. The Borrower hereby indemnifies and
agrees to hold each of the Credit Parties harmless from and against any and all
losses, liabilities, damages, costs and expenses which may be suffered or
incurred by the Credit Parties, or any of them, in respect of any claim, suit,
action or cause of action now or hereafter asserted by a broker or any Person
acting in a similar capacity arising from or in connection with the execution
and delivery of this Agreement or any other Loan Document or the consummation of
the transactions contemplated herein or therein.
Section 6.13 INDEMNITY. Each of the RMG Companies, jointly and
severally, will indemnify and hold harmless each of the Credit Parties and each
of their respective Lender Affiliates, employees, representatives, officers and
directors (collectively, the "INDEMNIFIED PARTIES") from and against any and all
claims, liabilities, losses, damages, actions, and demands by any party (other
than with respect to any claims, actions or demands made by other such
indemnified parties or any liabilities, losses or damages caused thereby)
against such Credit Party, resulting from any breach or alleged breach by any of
the RMG Companies of any representation or warranty made hereunder or otherwise
arising out of the Revolving Loan Commitment or the making, administration or
enforcement of the Loan Documents and the Loans, unless, with respect to any of
the above, such Credit Party is finally judicially determined to have acted or
failed to act with gross negligence or willful misconduct.
Section 6.14 COVENANTS REGARDING FORMATION OF SUBSIDIARIES,
INVESTMENTS AND ACQUISITIONS. In connection with the consummation of any
Acquisition or any Investment made by any of the RMG Companies (including,
without limitation, any Acquisition of, or additional Investment in, any MGM
Company), or the formation of any new Subsidiary of any of the RMG Companies, as
soon as available and in any event on or before the effective date thereof, the
Borrower will, and will cause each of the Guarantors to, provide to the
Administrative Agent the following (all of which shall be in such form and
substance as shall be acceptable to the Arrangers): (a) a duly executed joinder
and supplement to this Agreement, in the form of EXHIBIT S attached hereto (each
a "GUARANTEE SUPPLEMENT"), pursuant to which each new Guarantor shall agree to
join as
63
a Guarantor of the Obligations under Article 3 hereof; (b) a duly executed
supplement to the Subsidiary Security Agreement for each new Guarantor, together
with appropriate UCC-1 financing statement forms; (c) a loan certificate for
each new Guarantor, substantially in the form of EXHIBIT R attached hereto,
together with appropriate attachments thereto; (d) in the case of any new
Guarantor holding any issued and outstanding shares of capital stock (or other
instruments or securities evidencing ownership) of any other RMG Company, a duly
executed supplement to the Subsidiary Pledge Agreement, pursuant to which such
new Guarantor shall pledge to the Administrative Agent all of such capital stock
(or other instruments or securities evidencing ownership) held by it, whether
now owned or hereafter acquired; (e) a duly executed amendment to the Borrower
Pledge Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant to
which (i) all of the issued and outstanding capital stock (or other instruments
or securities evidencing ownership) of each new Guarantor shall be pledged to
the Administrative Agent as additional Collateral for the Obligations, and (ii)
to the extent, except with respect to any Investment made pursuant to
Section 8.2(c)(i) hereof, that the pledge of any such shares or other interests
in or with respect to any Company that is not wholly-owned directly or
indirectly by the Borrower will not (A) violate the Constituent Documents
applicable to such Company (and, if the pledge of any such shares or other
interests will violate any of such Constituent Documents, such shares or other
interests shall be held by the RMG Companies subject to the terms and conditions
of this Agreement and the other Loan Documents) and (B) require the consent of
any unaffiliated third party (which consent the Borrower is unable to obtain
after taking reasonable steps to do so), all shares of capital stock (or other
instruments or securities evidencing ownership) with respect to any Investment
(including, without limitation, any Investment made pursuant to Section
8.2(c)(i) hereof, but excluding any equity interests in any of the MGM Companies
or any of the Unrestricted Subsidiaries) beneficially owned or held by any of
the RMG Companies shall be pledged to the Administrative Agent as additional
Collateral for the Obligations, in each case together with all original
securities certificates, duly executed securities powers and appropriate UCC-1
financing statement forms; and (f) all other documentation, including, without
limitation, (i) an amendment to the Trademark Security Agreement covering any
additional registered trademarks or trademark applications owned by any of the
RMG Companies, (ii) to the extent reasonably available, financial information
with respect to the designation of any new MGM Operating Company for the most
recent period ending immediately prior to the date of such designation, and
other financial information, to the extent available, which in the reasonable
opinion of the Arrangers and the Majority Lenders is appropriate with respect to
such designation of a new MGM Operating Company to confirm compliance with the
terms and conditions of this Agreement, and (iii) to the extent reasonably
requested by the Administrative Agent one or more opinions of counsel
satisfactory to the Administrative Agent which in the reasonable opinion of the
Administrative Agent is appropriate with respect to the Acquisition or formation
of any new Guarantor or the addition of any new Collateral as security for the
Obligations. To the extent that any MGM Company shall become wholly-owned
(whether directly or indirectly) by the Borrower at any time during the term of
this Agreement, such MGM
64
Company shall thereupon cease to constitute a MGM Company for purposes of this
Agreement and all of the terms and conditions of this Agreement and the other
Loan Documents applicable to new Subsidiaries of the Borrower shall thereafter
be applicable to such former MGM Company, including, without limitation, the
obligation of any new Subsidiary of the Borrower to become a Guarantor and to
provide additional Collateral as security for the Obligations (subject, in any
case, to the Indebtedness and Liens outstanding in respect of the AMC/Bravo Loan
Agreement). Any document, agreement or instrument executed or issued pursuant to
this Section 6.14 shall be and constitute a "Loan Document" for purposes of this
Agreement.
Section 6.15 INTEREST RATE HEDGING.
(a) So long as the Leverage Ratio is greater than 2.50 to 1.00,
the Borrower shall maintain one or more Interest Hedge Agreements which fix or
place a limit on the Borrower's interest obligations at interest rates
reasonably acceptable to the Arrangers such that, at all times, not less than
forty percent (40%) of Indebtedness For Money Borrowed of the RMG Companies
(excluding any net obligations in respect of Interest Hedge Agreements) shall be
hedged or at a fixed rate basis. The Borrower shall enter into such Interest
Hedge Agreements as required by this Section 6.15 within ninety (90) days after
the delivery of the initial Compliance Certificate indicating the Leverage Ratio
exceeds 2.50 to 1.00.
(b) All obligations of the Borrower to the Credit Parties, or
any of them, or any of their respective Lender Affiliates, pursuant to any
Interest Hedge Agreement involving notional amounts which in the aggregate do
not exceed the Commitments shall rank PARI PASSU with all other Obligations and
shall be entitled to all benefits of the Guaranties provided in Article 3 and be
secured by the Security Documents.
ARTICLE 7 - INFORMATION COVENANTS
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Lenders shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to each of the Credit Parties at their respective offices:
Section 7.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION. On
or before each applicable Financial Statements Delivery Date, with respect to
each fiscal quarter of the Borrower, the following:
(a) a copy of the unaudited consolidated balance sheets, income
statements and cash flow statements submitted to the SEC as a part of CSC's 10-Q
filing setting forth the financial information of the RMG Tracking Stock Group
with respect to the quarter then ended, and the consolidated statement of
retained earnings for
65
the RMG Tracking Stock Group for such quarter and for the elapsed portion of the
year ended with the last day of such quarter; and
(b) a copy of the unaudited combined balance sheet of the MGM
Companies as at the end of the quarter then ended, and the related unaudited
combined statements of income, retained earnings and cash flows for the MGM
Companies, setting forth in the case of the statements of income and retained
earnings the financial performance of the MGM Operating Companies by footnote,
for such quarter and for the elapsed portion of the year ended with the last day
of such quarter.
All of the foregoing financial statements shall set forth in comparative form
such figures for the same period for the prior fiscal year and shall be
certified by an Authorized Signatory of the Borrower to, in his or her opinion,
present fairly, in accordance with GAAP, the consolidated financial position of
the RMG Tracking Stock Group and the combined financial position of the MGM
Companies, in each case as at the end of such period, and the results of
operations for such period, and for the elapsed portion of the year ended with
the last day of such period, subject only to normal year-end adjustments.
Section 7.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION;
CERTIFICATE OF NO DEFAULT. On or before each applicable Financial Statements
Delivery Date, with respect to each fiscal year of the Borrower, the following:
(a) a copy of the audited consolidated balance sheets, and the
related audited consolidated statements of income, retained earnings and cash
flows, submitted to the SEC as a part of CSC's 10-K filing setting forth the
financial information of the RMG Tracking Stock Group as at the end of the
fiscal year then ended; and
(b) a copy of (i) the audited combined balance sheet, and the
related audited combined statements of income, retained earnings and cash flows,
of the MGM Companies, setting forth in the case of the statements of income and
retained earnings the financial performance of the MGM Operating Companies by
footnote, as at the end of the fiscal year then ended, and (ii) the unaudited
combining balance sheet, and the related unaudited combining statements of
income, retained earnings and cash flows, of the MGM Companies, as at the end of
the fiscal year then ended.
All of the foregoing financial statements shall set forth in comparative form
such figures for the same period for the prior fiscal year and, with respect to
the audited financial statements, shall be accompanied by an opinion of KPMG
Peat Marwick or a firm of independent certified public accountants of recognized
standing selected by the Borrower and satisfactory to the Majority Lenders,
together with a statement of such accountants certifying that no Default or
Event of Default, including, without limitation, any Default under Sections 8.8
and 8.9 hereof, was detected during the examination of the RMG Tracking Stock
Group or the MGM Companies and that such accountants have
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authorized the Borrower to deliver such financial statements and opinion thereon
to the Credit Parties pursuant to this Agreement.
Section 7.3 PERFORMANCE CERTIFICATES. Together with the delivery
of the financial statements pursuant to Section 7.1 hereof, a certificate of an
Authorized Signatory of the Borrower, in substantially the form of EXHIBIT T
attached hereto:
(a) setting forth as at the end of such quarter or year, as the
case may be, the arithmetical calculations required to establish (i) the Base
Rate Applicable Margin and the Eurodollar Applicable Margin and (ii) whether or
not the Borrower was in compliance with the requirements of the Financial
Covenants;
(b) stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such quarter or year,
as the case may be, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature, when it
occurred, whether it is continuing, and the steps being taken by the Borrower
with respect to such Default or Event of Default;
(c) setting forth a list updating the information set forth on
SCHEDULE 5.1(c)-1 with respect to the RMG Companies, on SCHEDULE 5.1(C)-2 with
respect to the MGM Companies and on SCHEDULE 5.1(C)-3 with respect to the
Unrestricted Subsidiaries, in each case to the extent that the Borrower shall
have formed or acquired any new Subsidiaries or designated any additional
Unrestricted Subsidiaries during such quarter and to the extent that any
additional MGM Companies have been formed or acquired during such quarter;
(d) setting forth a list and description of all Investments,
Restricted Payments and Restricted Purchases made by the RMG Companies during
such quarter; and
(c) setting forth a list and description of, together with
applicable financial statements, if available, for any designation of any new
MGM Operating Company during the period for which such performance certificate
is being given.
Section 7.4 COPIES OF OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower by its independent public accountants regarding
any of the RMG Companies, including, without limitation, any management report
prepared in connection with the annual audit referred to in Section 7.2 hereof.
(b) Within sixty (60) days after the end of each fiscal year of
the Borrower, the annual budget for the RMG Companies and an updated schedule of
Investments and a statement of anticipated sources and uses of funds for the RMG
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Companies, the MGM Companies and the Unrestricted Subsidiaries, in each case for
the current fiscal year.
(c) Promptly after the sending thereof, copies of all material
statements, reports and other financial information relating to the RMG
Companies that is sent to any of the shareholders of RMHI or CSC.
(d) Promptly after the preparation of the same, copies of all
material reports or financial information filed with any governmental agency,
department, bureau, division or other governmental authority or regulatory body,
or evidencing facts or containing information which could have a Materially
Adverse Effect.
(e) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents, or further information regarding
the business, assets, liabilities, financial position, projections or results of
operations of any of the RMG Companies as the Arrangers or the Majority Lenders
may reasonably request.
(f) At the time audited financial statements are required to be
provided under Section 7.2 hereof, summary information of the type set forth in
SCHEDULE 5.1(q) with respect to each Material MSO Agreement and each Material
Film Rights Agreement then in effect to which any of RMG Companies is a party
(noting any Material MSO Agreements or Material Film Rights Agreements that have
been either added or deleted with respect to the prior year).
Section 7.5 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt
notice of the following events as to which the Borrower has received notice or
otherwise become aware thereof:
(a) The commencement of all material proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator (i) against or, (ii) to the
extent known to the Borrower, in any other way relating adversely and directly
to any of the RMG Companies, or any of their respective properties, assets or
businesses, or which calls into question the validity of this Agreement or any
other Loan Document, except where the adverse outcome of such proceeding or
investigation is not likely to have a Materially Adverse Effect;
(b) Any material adverse change with respect to the business,
assets, liabilities, financial position, or results of operations of any of the
RMG Companies, other than changes in the ordinary course of business which have
not had and are not likely to have a Materially Adverse Effect;
(c) Any Default or Event of Default, or any default by any of
the RMG Companies under any agreement (other than this Agreement) to which any
of the RMG Companies is party or by which any of their respective properties is
bound, or
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the occurrence of any other event which could have a Materially Adverse Effect,
giving in each case the details thereof and specifying the action proposed to be
taken with respect thereto; and
(d) The occurrence of any Reportable Event or "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) which is not statutorily or administratively exempt under Sections 407
or 408 of ERISA or Section 4975 of the Code with respect to any Plan of the
Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates
or the institution or threatened institution by the PBGC of proceedings under
Section 4042 of ERISA to terminate or to partially terminate any such Plan or
the commencement or, to the Borrower's knowledge, threatened commencement of any
litigation regarding any such Plan or naming it or the trustee of any such Plan
with respect to such Plan.
ARTICLE 8 - NEGATIVE COVENANTS
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Lenders shall
otherwise give their prior consent in writing:
Section 8.1 INDEBTEDNESS. The Borrower shall not, and shall not
permit any of the Guarantors to, create, assume, incur or otherwise become or
remain obligated in respect of, or permit to be outstanding any Indebtedness
except:
(a) Indebtedness under this Agreement, the Notes and the other
Loan Documents (including, without limitation, any Incremental Facility
Indebtedness);
(b) accounts payable, accrued expenses, customer advance
payments and other current liabilities (other than Indebtedness For Money
Borrowed) incurred in the ordinary course of business;
(c) Capitalized Lease Obligations of the RMG Companies in an
aggregate amount over the remainder of the term of such obligations not to
exceed $20,000,000 at any one time outstanding;
(d) Indebtedness with respect to Interest Hedge Agreements
having aggregate notional amounts not to exceed the Revolving Loan Commitment,
provided that the term of any such Interest Hedge Agreement does not extend
beyond the Maturity Date;
(e) intercompany Indebtedness among any of the RMG Companies;
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(f) any Indebtedness issued in connection with an Authorized
Debt Issuance; and
(g) any Accrued Tax Liabilities and any Subordinated Tax
Liabilities.
Section 8.2 INVESTMENTS. The Borrower shall not and, shall not
permit any of the Guarantors to, make any Investment, except that:
(a) the Borrower may purchase or otherwise acquire and own Cash
Equivalents;
(b) any of the RMG Companies may make Investments in any of the
other RMG Companies;
(c) so long as no Default or Event of Default then exists or
would be caused thereby, and in the case of Investments of the type described in
clauses (b) and (c) of the definition of "Investment" subject to the
Subordination of Intercompany Obligations Agreement, and in each case subject to
compliance with Section 6.14 hereof, the RMG Companies may (i) make cash
Investments (other than Investments in any of the MGM Companies) in an aggregate
amount not to exceed during any year, together with the amount of any
Acquisitions made during such year under Section 8.5(d)(v)(B) hereof, the
Available Basket Amount applicable to such period; PROVIDED, HOWEVER, the
aggregate amount of Investments made pursuant to this Section 8.2(c)(i) in or
relating to members of the Sterling Digital Group shall not exceed $150,000,000
during the term of this Agreement, (ii) make cash Investments funded by Net Cash
Proceeds received in connection with (A) the issuance of any New Affiliated
Equity or (B) any Authorized Debt Issuance, in each case to the extent such Net
Cash Proceeds are not used by the RMG Companies for any other purpose, and (iii)
make Investments solely in exchange for RMG Tracking Stock or Cablevision-NY
Group Stock; and
(d) so long as no Default or Event of Default then exists or
would be caused thereby, the RMG Companies may make non-cash Investments
(consisting of equity interests or other assets) in any of the MGM Companies
subject to the prior approval of the Arrangers, and the Administrative Agent may
release any Guaranties and Collateral related to any such Investment upon the
Borrower's request.
Section 8.3 LIMITATION ON LIENS. The Borrower shall not, and
shall not permit any of the Guarantors to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens. Except for the agreement set
forth in the foregoing sentence, none of the RMG Companies shall agree with any
other Person not to xxxxx x Xxxx on any material portion of their respective
assets to secure Indebtedness.
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Section 8.4 AMENDMENT AND WAIVER. The Borrower shall not enter
into any amendment, or agree to or accept any waiver, which would materially
adversely affect the rights of the Borrower and the Credit Parties, or any of
them, of any of the provisions of (a) its Constituent Documents, (b) the
Constituent Documents of any of the Guarantors, (c) the Services Agreement, (d)
the Tax Sharing Policy and (e) the AMC Consulting Agreement.
Section 8.5 LIQUIDATION; DISPOSITION OR ACQUISITION OF ASSETS.
(a) The Borrower shall not, and shall not permit any of the
Guarantors to, at any time, (i) liquidate or dissolve itself (or suffer any
liquidation or dissolution) or otherwise wind up, or (ii) sell, lease, abandon,
transfer, exchange or otherwise dispose of any assets (not constituting capital
stock, partnership interests or other equity interests) or business in excess of
$5,000,000 in the aggregate during the term of this Agreement, or (iii) enter
into any merger or consolidation, except, in each case, for (x) sales,
dispositions, mergers, consolidations or exchanges by any Guarantor of its
businesses, assets or rights to or with another RMG Company, (y) sales or
dispositions in the ordinary course of business by any of the RMG Companies of
obsolete or worn-out property or other property reasonably determined by the
management of the disposing Company to be not used or useful in its business,
and (z) Investments in any of the MGM Companies permitted by Section 8.2(d).
(b) The Borrower shall not, and shall not permit any of the
Guarantors or RRH II to, sell, lease, abandon, transfer, exchange or otherwise
dispose of any assets constituting capital stock, partnership interests or other
equity interests of any of RRH II, RRH, RAH, RNSH, any member of the Sterling
Digital Group or any other Company constituting a Material Subsidiary, unless in
any such case the Arrangers shall have provided their prior written consent to
such transaction.
(c) The Borrower shall not, and shall not permit any of the
Guarantors to, at any time, issue any capital stock, partnership interests or
other equity interests in any of the RMG Companies, except for the issuance of
capital stock, partnership interests or other equity interests in the Borrower
in connection with the issuance of any New Affiliated Equity.
(d) The Borrower shall not, and shall not permit any of the
Guarantors to, at any time, acquire assets, property, stock or the business of
any other Person except for (i) Capital Expenditures in the ordinary course of
business of the applicable RMG Companies, (ii) purchases of assets in the
ordinary course of business of the applicable RMG Companies, (iii) Film Rights
Agreements, (iv) Permitted Investments, and (v) so long as no Default or Event
of Default then exists or would be caused thereby and subject to compliance with
Section 6.14 hereof, (A) Acquisitions consummated solely in exchange for RMG
Tracking Stock or Cablevision-NY Group Stock, (B) Acquisitions in an aggregate
amount not to exceed during any year, together with the amount of any
Investments made under Section 8.2(c)(i) hereof during such
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year, the Available Basket Amount applicable to such period, and (C)
Acquisitions funded by Net Cash Proceeds received in connection with (I) the
issuance of any New Affiliated Equity or (II) any Authorized Debt Issuance, in
each case to the extent such Net Cash Proceeds are not used by the RMG Companies
for any other purpose.
Section 8.6 LIMITATION ON GUARANTIES. The Borrower shall not,
and shall not permit any of the Guarantors to, at any time Guaranty, or assume,
be obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) under any Loan Document, (b)
obligations under agreements to indemnify Persons who have issued bid or
performance bonds or letters of credit issued in lieu of such bonds in the
ordinary course of business of such RMG Company securing performance by any RMG
Company of activities otherwise permissible hereunder, (c) a guaranty by
endorsement of negotiable instruments for collection in the ordinary course of
business, (d) the guaranty obligations of the Borrower arising in respect of the
Cubs Guaranty and the Sportsvision Guaranty, so long as (i) such obligations do
not exceed in the aggregate $450,000,000 at any time during the term of this
Agreement without the prior written consent of the Arrangers, (ii) such
obligations are unsecured, (iii) the terms of the Cubs Guaranty and the
Sportsvision Guaranty, and the programming rights agreements underlying such
Guaranties, do not provide for acceleration of the obligations thereunder, and
(iv) none of the terms of the Cubs Guaranty and the Sportsvision Guaranty, and
the programming rights agreements underlying such Guaranties, shall be amended
or modified during the term of this Agreement, without the prior written consent
of the Arrangers, if the effect of such amendment or modification would be to
increase the amount of the Borrower's obligations under either the Cubs Guaranty
or the Sportsvision Guaranty, (e) the Janus Guaranty, (f) the Sterling Digital
Guaranty, (g) Guaranties constituting Investments permitted to be made pursuant
to Section 8.2(c), and (h) those Guaranties described on SCHEDULE 8.6 attached
hereto (as such schedule may be amended by the Borrower from time to time),
undertaken in the ordinary course of business of the RMG Companies, including,
without limitation, Guaranties issued for purposes of securing (i) programming
or transponder rights, (ii) production, sports team and product related
arrangements, (iii) affiliation agreements, (iv) advertising representation
agreements, marketing and service arrangements, or (v) real estate leases, and
extensions, replacements and modifications of the foregoing PROVIDED that the
aggregate amount of all such Guaranties under this Section 8.6(h) at any time
outstanding does not exceed $25,000,000.
Section 8.7 RESTRICTED PAYMENTS AND PURCHASES. The Borrower
shall not, and shall not permit any of the Guarantors to, directly or
indirectly, declare or make any Restricted Payment or Restricted Purchase,
except that (a) the Guarantors may make Restricted Payments to the Borrower, (b)
the Borrower may make payments in respect of Employee Stock Incentive Expense,
and (c) so long as no Default or Event of Default then exists or would be caused
thereby, the Borrower may (i) pay to CSC or RMHI amounts due in respect of the
Accrued Tax Liabilities under, and in accordance with, the Tax Sharing Policy,
(ii) make regularly scheduled payments of interest in respect of
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Indebtedness outstanding in connection with an Authorized Debt Issuance, and
(iii) make Restricted Payments, subject to the Subordination of Intercompany
Obligations Agreement, for reimbursement of services to the extent set forth the
Services Agreement.
Section 8.8 LEVERAGE RATIO. The Borrower shall not permit, (a)
as of the end of any fiscal quarter or (b) as of the date of any Advance
increasing the Obligations hereunder, the Leverage Ratio (after giving effect to
such Advance, if applicable) to exceed the applicable ratio for calculation
dates during the periods set forth below:
PERIOD RATIO
Agreement Date through September 30, 2004 3.50 to 1.00
October 1, 2004 through March 31, 2005 3.00 to 1.00
April 1, 2005 through September 30, 2005 2.50 to 1.00
October 1, 2005 through March 31, 2006 2.25 to 1.00
April 1, 2006 and thereafter 2.00 to 1.00
Section 8.9 INTEREST COVERAGE RATIO. The Borrower shall not
permit, as of the end of any fiscal quarter ending during the term of this
Agreement, the Interest Coverage Ratio to be less than 3.00 to 1.00.
Section 8.10 AFFILIATE TRANSACTIONS. The Borrower shall not, and
shall not permit any of the Guarantors to, at any time engage in any transaction
with any Affiliate or any MGM Company, or make an assignment or other transfer
of any of its assets to any Affiliate or any MGM Company, on terms less
advantageous to such RMG Company than would be the case if such transaction had
been effected with a non-Affiliate, in each case other than as set forth on
SCHEDULE 8.10 attached hereto or as otherwise permitted under this Agreement.
Section 8.11 REAL ESTATE. None of the RMG Companies shall
purchase, or become obligated to purchase, real estate in an amount in excess of
$10,000,000 in the aggregate during the term of this Agreement.
Section 8.12 ERISA LIABILITIES. The Borrower shall not fail, and
shall cause each of its Subsidiaries not to fail, to make all material
contributions in accordance with the terms of their respective Plans and to meet
all of the applicable minimum funding requirements of ERISA and the Code, and,
to the extent that the assets of such Plans would be less than an amount
sufficient to provide all accrued benefits payable under such Plans determined
on an ongoing basis, shall make the maximum deductible contributions allowable
under the Code. Neither the Borrower nor any of its Subsidiaries
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shall incur any material withdrawal liability with respect to any Multiemployer
Plan. Neither the Borrower nor any of its Subsidiaries shall make any commitment
to provide post-employment health or life insurance benefits, except as required
by Section 601 through 609 of ERISA, Section 4980(B) of the Code and applicable
state law, nor terminate any Plan if its termination would reasonably be
expected to have a Materially Adverse Effect.
Section 8.13 SALES AND LEASEBACKS. None of the RMG Companies will
enter into any arrangement, directly or indirectly, with any Person whereby any
such RMG Company shall sell or transfer any property, real or personal, whether
now owned or hereafter acquired, and whereby any such RMG Company shall then or
thereafter rent or lease as lessee such property or any part thereof or other
property which any such RMG Company intends to use for substantially the same
purpose or purposes as the property sold or transferred, unless in each case,
the sale or transfer of such property is permitted by Section 8.5 hereof.
Section 8.14 NEGATIVE PLEDGE. The Borrower shall not, and shall
not permit any of the Guarantors to, directly or indirectly, enter into any
agreement (other than the Loan Documents) with any Person that prohibits or
restricts or limits the ability of any such RMG Company to create, incur, pledge
or suffer to exist any Lien upon any of its respective assets, or restricts the
ability of any Guarantor to make Restricted Payments to the Borrower.
ARTICLE 9 - DEFAULT
Section 9.1 EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule, or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement
shall prove incorrect or misleading in any material respect when made or deemed
to have been made;
(b) The Borrower shall default (i) in the payment of any
interest and fees payable hereunder or under the Notes or the Incremental
Facility Notes, or under the other Loan Documents and such Default shall not
have been cured by payment of such overdue amounts in full within five (5) days
from the date such payment became due, or (ii) in the payment of any principal
when due hereunder or under the Notes or the Incremental Facility Notes;
(c) The Borrower shall default in the performance or observance
of any agreement or covenant contained in Article 8;
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(d) There shall occur any Default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 9.1 of this Agreement), which shall not be cured
to the Majority Lenders' satisfaction within the applicable cure period, if any,
provided for in such Loan Document;
(e) The Borrower shall default in the performance or observance
of any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 9.1, and such Default shall not be cured
to the Majority Lenders' satisfaction within a period of thirty (30) days from
the occurrence of such default;
(f) RMHI shall, at any time, cease to own and vote, directly or
indirectly, one hundred percent (100%) of the limited liability company
interests of the Borrower;
(g) The Borrower shall, at any time, cease to own and vote
directly or indirectly one hundred percent (100%) of the capital stock,
partnership interests or other equity interests of each of the Guarantors
(except to the extent that the capital stock, partnership interests or other
equity interests of any such Guarantor are permitted to be transferred to any
MGM Company, or otherwise disposed of, pursuant to the terms and conditions of
this Agreement);
(h) CSC and the Xxxxx Family Interests, collectively and in the
aggregate, shall cease to own, directly or indirectly, at least fifty and
one-tenth percent (50.1%) of the outstanding limited liability company interests
of the Borrower;
(i) CSC or Xxxxx shall, at any time, cease to have management
control over the business and operations of the RMG Companies;
(j) There shall be entered a decree or order for relief in
respect of the Borrower, any of its Material Subsidiaries, RMHI or CSC under the
Bankruptcy Code, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator, or similar official of the Borrower, any of its
Material Subsidiaries, RMHI or CSC, or of any substantial part of their
respective properties, or ordering the winding-up or liquidation of the affairs
of any of the Borrower, any of its Material Subsidiaries, RMHI or CSC, or an
involuntary petition shall be filed against any of the Borrower, any of its
Material Subsidiaries, RMHI or CSC and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested, or (ii) any such petition
and stay shall continue undismissed for a period of thirty (30) consecutive
days;
(k) The Borrower, any of its Material Subsidiaries, RMHI or CSC
shall file a petition, answer, or consent seeking relief under the Bankruptcy
Code, or the Borrower, any of its Material Subsidiaries, RMHI or CSC shall
consent to the
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institution of proceedings thereunder or to the filing of any such petition or
to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator, or other similar official of the Borrower, any
of its Material Subsidiaries, RMHI or CSC, or of any substantial part of their
respective properties, or the Borrower, any of its Material Subsidiaries, RMHI
or CSC shall fail generally to pay their respective debts as they become due, or
the Borrower, any of its Material Subsidiaries, RMHI or CSC shall take any
action in furtherance of any such action;
(l) A final judgment shall be entered by any court against any
of the RMG Companies for the payment of money which exceeds $5,000,000, or a
warrant of attachment or execution or similar process shall be issued or levied
against property of any of the RMG Companies which, together with all other
property of any of the RMG Companies subject to other such process, exceeds in
value $5,000,000 in the aggregate, and if, within thirty (30) days after the
entry, issue, or levy thereof, such judgment, warrant, or process shall not have
been paid or discharged or stayed pending appeal, or if, after the expiration of
any such stay, such judgment, warrant, or process shall not have been paid or
discharged;
(m) There shall be at any time (i) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA or in Section 412 of the Code)
with respect to any Plan maintained by the Borrower or any of its Subsidiaries,
or to which the Borrower or any of its Subsidiaries, has any material
liabilities, or any trust created thereunder, or (ii) a trustee appointed by a
United States District Court to administer any such Plan under Section 4042 of
ERISA, or (iii) proceedings instituted by the PBGC to terminate any such Plan
under Section 4042 of ERISA, or (iv) incurred by the Borrower or any of its
Subsidiaries any liability to the PBGC in connection with the distress
termination of any such Plan under Section 4041(c) of ERISA; or any fiduciary
of, or party in interest to, any Plan or trust created under any Plan of the
Borrower or any of its Subsidiaries shall engage in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject the Borrower or any of its Subsidiaries to a tax on
"prohibited transactions" imposed by Section 4975 of the Code, or (v) any
fiduciary of, or party in interest to, any Plan or trust created under any Plan
of the Borrower or any of its Subsidiaries shall engage in a breach of fiduciary
responsibility or knowingly participate in any violation of ERISA; or any Plan
of the Borrower or any of its Subsidiaries which is intended to qualify under
Section 401(a) of the Code shall have its application for or a favorable IRS
determination with respect to the qualification requirements under such section
of the Code denied by the IRS, or have the IRS revoke its previously issued
determination; and in each case, such event or condition, together with other
such events or conditions, if any, would subject the Borrower and its
Subsidiaries to any tax, liability or penalty in excess of $5,000,000 in the
aggregate;
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(n) There shall occur any default under any material indenture,
agreement, or instrument evidencing Indebtedness For Money Borrowed of any of
the RMG Companies;
(o) There shall occur any default or event of default under the
AMC/Bravo Loan Agreement;
(p) All or any portion of any Loan Document shall at any time
and for any reason be declared to be null and void or otherwise unenforceable by
a court of competent jurisdiction in a suit with respect to such Loan Document,
or a proceeding shall be commenced by any governmental authority having
jurisdiction over any of the RMG Companies involving a legitimate dispute or a
proceeding shall be commenced by any of the RMG Companies, in either case
seeking to establish the invalidity or unenforceability of any Loan Document
(exclusive of questions of interpretation of any provision thereof), or any of
the RMG Companies shall deny that it has any liability or obligation for the
payment of principal or interest purported to be created under any Loan
Document;
(q) There shall occur a default by any of the RMG Companies (if
such default is not cured or waived within any applicable grace period) under
any Material MSO Agreement, which default would have a Materially Adverse
Effect; or
(r) There shall exist any default under, or any cancellation of
(without a contemporaneous replacement, or if interim substitute arrangements
have been made with respect thereto, replacement within forty-five (45) days,
of), any Transponder Lease Agreement if such default is not cured within any
applicable cure period and if such default or cancellation, as applicable, would
have a Materially Adverse Effect.
Section 9.2 REMEDIES. If an Event of Default shall have occurred
and shall be continuing:
(a) With the exception of an Event of Default specified in
Sections 9.1(j) or 9.1(k) hereof, the Administrative Agent, at the direction of
the Majority Lenders, shall (i) terminate the Revolving Loan Commitment and any
obligations of the Swing Loan Lender to advance the Swing Loan Committed Amount
hereunder and (ii) declare the principal of and interest on the Loans and the
Notes and all other obligations to be forthwith due and payable without
presentment, demand, protest, or notice of any kind, all of which are hereby
expressly waived, anything in this Agreement or in the Notes to the contrary
notwithstanding, or both.
(b) Upon the occurrence and continuance of an Event of Default
specified in Sections 9.1(j) or 9.1(k) hereof, such principal, interest, and
other obligations shall thereupon and concurrently therewith become due and
payable, and the Revolving Loan Commitment shall forthwith terminate and any
obligations of the Swing Loan Lender to advance the Swing Loan Committed Amount
shall forthwith terminate,
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all without any action by the Credit Parties or the Majority Lenders or the
holders of the Notes and without presentment, demand, protest, or other notice
of any kind, all of which are expressly waived, anything in this Agreement or in
the Notes to the contrary notwithstanding.
(c) The Arrangers and the Administrative Agent, with the
concurrence of the Majority Lenders, shall exercise all of the post-default
rights granted to it and to them under the Loan Documents or under Applicable
Law.
(d) The rights and remedies of the Arrangers and the
Administrative Agent and the Lenders hereunder shall be cumulative, and not
exclusive.
ARTICLE 10 - THE AGENTS
Section 10.1 APPOINTMENT AND AUTHORIZATION. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its Loan and in its Notes irrevocably to
appoint and authorize, each of the Agents to take such actions as its agent on
its behalf and to exercise such powers hereunder and under the Security
Documents as are delegated by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto and as may be provided by any Loan
Document. Any action taken by any of the Agents under this Agreement or any Loan
Document shall be taken for itself and for the ratable benefit of each of the
other Credit Parties, except as may be otherwise expressly provided in this
Agreement or in any other Loan Document. None of the Agents nor any of their
respective Lender Affiliates, directors, officers, employees, or agents shall be
liable for any action taken or omitted to be taken by any of them hereunder or
in connection herewith, except for its or their own gross negligence or willful
misconduct. The Syndication Agent and the Co-Documentation Agents shall have no
obligations under this Agreement in such capacities.
Section 10.2 DELEGATION OF DUTIES. The Agents may execute any of
their respective duties under the Loan Documents by or through agents or
attorneys selected by them, respectively, using reasonable care and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
None of the Agents shall be responsible to any of the Lenders for the negligence
or misconduct of any agents or attorneys selected by any of them, respectively,
with reasonable care.
Section 10.3 INTEREST HOLDERS. The Agents may treat each Lender,
or the Person designated in the last notice filed with the Administrative Agent
under this Section 10.3, as the holder of all of the interests of such Lender in
its Loans and in its Notes until written notice of transfer, signed by such
Lender (or the Person designated in the last notice filed with the
Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent.
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Section 10.4 CONSULTATION WITH COUNSEL. Each of the Agents may
consult with legal counsel selected by it and shall not be liable for any action
taken or suffered by it in good faith in reliance thereon.
Section 10.5 DOCUMENTS. None of the Agents shall be under any
duty to examine, inquire into, or pass upon the validity, effectiveness, or
genuineness of this Agreement, any Note, or any instrument, document, or
communication furnished pursuant hereto or in connection herewith, and each of
the Agents shall be entitled to assume that they are valid, effective, and
genuine, have been signed or sent by the proper parties, and are what they
purport to be.
Section 10.6 SECURITY DOCUMENTS. The Administrative Agent, as
administrative agent hereunder and under the Security Documents, is hereby
authorized to act on behalf of the Credit Parties, in its own capacity and
through other agents and sub-agents appointed by it with due care, under the
Security Documents and to file UCC-1 financing statement forms in connection
therewith, provided that, unless otherwise expressly provided in this Agreement,
the Administrative Agent shall not agree to the release of any Collateral except
in compliance with Section 12.12 hereof. In connection with its role as secured
party with respect to the Collateral hereunder, the Administrative Agent shall
act as administrative agent, for itself and for the benefit of the Credit
Parties, and such role as administrative agent shall be disclosed on all
appropriate accounts, certificates, filings, mortgages, and other collateral
documentation.
Section 10.7 ARRANGERS AND AFFILIATES. With respect to the
Revolving Loan Commitment and the Loans, any Lender which is a Lender Affiliate
of any Agent shall have the same rights and powers hereunder as any other
Lender, and each Agent and its respective Lender Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Lender Affiliates of, or Persons doing business with, the
Borrower, as if it were not affiliated with such Agent and without any
obligation to account therefor.
Section 10.8 RESPONSIBILITY OF THE AGENTS. The duties and
obligations of the Agents under this Agreement are only those expressly set
forth in this Agreement. Each of the Agents shall be entitled to assume that no
Default or Event of Default has occurred and is continuing unless it has actual
knowledge, or has been notified by the Borrower, of such fact, or has been
notified by a Lender that such Lender considers that a Default or an Event of
Default has occurred and is continuing, and such Lender shall specify in detail
the nature thereof in writing. None of the Agents shall be liable to any of the
Lenders hereunder for any action taken or omitted to be taken except for its own
gross negligence or willful misconduct. The Administrative Agent shall provide
each Lender with copies of such documents received from the Borrower as such
Lender may reasonably request.
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Section 10.9 ACTION BY AGENTS.
(a) Except for action requiring the approval of the Majority
Lenders, the Super-Majority Lenders or all of the Lenders, as the case may be,
each Agent shall be entitled to use its discretion with respect to exercising or
refraining from exercising any rights which may be vested in it by, and with
respect to taking or refraining from taking any action or actions which it may
be able to take under or in respect of, this Agreement, unless such Agent shall
have been instructed by the Majority Lenders, the Super-Majority Lenders or all
the Lenders, as the case may be, to exercise or refrain from exercising such
rights or to take or refrain from taking such action, provided that such Agent
shall not exercise any rights under Section 9.2(a) of this Agreement without the
request of the Majority Lenders. None of the Agents shall incur any liability
under or in respect of this Agreement with respect to anything which it may do
or refrain from doing in the reasonable exercise of its judgment or which may
seem to it to be necessary or desirable in the circumstances, except for its own
gross negligence or willful misconduct.
(b) None of the Agents shall be liable to the Lenders, or any of
them, in acting or refraining from acting under this Agreement in accordance
with the instructions of the Majority Lenders, the Super-Majority Lenders or all
the Lenders, as the case may be, and any action taken or failure to act pursuant
to such instructions shall be binding on all Lenders.
Section 10.10 NOTICE OF DEFAULT OR EVENT OF DEFAULT. In the event
that any of the Credit Parties shall acquire actual knowledge, or shall have
been notified in writing, of any Default or Event of Default, such Credit Party
shall promptly notify the other Credit Parties, and each Agent shall take such
action and assert such rights under this Agreement as the Majority Lenders shall
request in writing, and none of the Agents shall be subject to any liability by
reason of its acting pursuant to any such request. If the Majority Lenders shall
fail to request an Agent to take action or to assert rights under this Agreement
in respect of any Default or Event of Default within ten (10) days after their
receipt of the notice of any Default or Event of Default from any Credit Party,
or shall request inconsistent action with respect to such Default or Event of
Default, such Agent may, but shall not be required to, take such action and
assert such rights (other than rights under Article 9 hereof) as it deems in its
discretion to be advisable for the protection of the Lenders, except that, if
the Majority Lenders have instructed such Agent not to take such action or
assert such right, in no event shall such Agent act contrary to such
instructions.
Section 10.11 RESPONSIBILITY DISCLAIMED. None of the Agents shall
be under any liability or responsibility whatsoever as such:
(a) To the Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by, any
Lender or Lenders of any of its or their obligations under this Agreement;
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(b) To any Lender or Lenders, as a consequence of any failure or
delay in performance by, or any breach by, the Borrower or any other obligor of
any of its obligations under this Agreement or the Notes or any of the other
Loan Documents; or
(c) To any Lender or Lenders for any statements,
representations, or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any of the other Loan Documents, or any other document contemplated
by this Agreement, or for the validity, effectiveness, enforceability, or
sufficiency of this Agreement, the Notes, any of the other Loan Documents, or
any other document contemplated by this Agreement.
Section 10.12 INDEMNIFICATION. Each of the Lenders agrees to
indemnify each of the Agents in their respective capacities as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so) pro rata according to their respective Commitment
Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including fees
and expenses of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of this Agreement, any
of the other Loan Documents, or any other document contemplated by this
Agreement or any action taken or omitted by such Agent under this Agreement, any
of the other Loan Documents, or any other document contemplated by this
Agreement, except that no Lender shall be liable to such Agent for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements resulting from the gross
negligence or willful misconduct of such Agent.
Section 10.13 CREDIT DECISION. Each Lender represents and warrants
to each other and to each Agent that:
(a) In making its decision to enter into this Agreement and to
make Advances, it has independently taken whatever steps it considers necessary
to evaluate the financial condition and affairs of the Borrower and that it has
made an independent credit judgment, and that it has not relied upon information
provided by any Agent; and
(b) So long as any portion of the Loans remains outstanding, it
will continue to make its own independent evaluation of the financial condition
and affairs of the Borrower.
Section 10.14 SUCCESSOR AGENTS. Subject to the appointment and
acceptance of a successor Agent (which shall be any Lender or a commercial
lender organized under the laws of the United States of America or any political
subdivision thereof which has a combined capital and reserves in excess of
$250,000,000) as provided below, any Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time for cause by the Majority
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Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint, subject to such Lender's consent in its sole discretion, a
successor Agent from among the Lenders or the Lender Affiliates. If no successor
Agent shall have been so appointed by the Majority Lenders, and shall have
accepted such appointment within thirty (30) days after the retiring Agent's
giving of notice of resignation or the Majority Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be any Lender or a Lender Affiliate or a commercial
bank organized under the laws of the United States of America or any political
subdivision thereof which has combined capital and reserves in excess of
$250,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges, duties, and obligations of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section 10.14 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as an Agent.
ARTICLE 11 - CHANGE IN CIRCUMSTANCES
AFFECTING EURODOLLAR ADVANCES
Section 11.1 EURODOLLAR BASIS DETERMINATION INADEQUATE OR UNFAIR.
Notwithstanding anything contained herein which may be construed to the
contrary, if with respect to any proposed Eurodollar Advance for any Eurodollar
Advance Period, the Administrative Agent determines after consultation with the
Lenders that deposits in Dollars (in the applicable amount) are not being
offered to each of the Lenders in the relevant market for such Eurodollar
Advance Period, the Administrative Agent shall forthwith give notice thereof to
the Borrower and the Lenders, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such situation no longer
exist, the obligations of the Lenders to make Eurodollar Advances shall be
suspended.
Section 11.2 ILLEGALITY. If any Applicable Law, or any change
therein, or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any request or directive (whether or not having the force of law) of any
such governmental authority, central bank or comparable agency, shall make it
unlawful or impossible for any Lender to make, maintain or fund its Eurodollar
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section 11.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. Upon
receipt of such notice, notwithstanding anything contained in Article 2 hereof,
the Borrower shall
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repay in full the then outstanding principal amount of each Eurodollar Advance
of such Lender so affected, together with accrued interest thereon, either (a)
on the last day of the then current Eurodollar Advance Period applicable to such
Advance if such Lender may lawfully continue to maintain and fund such
Eurodollar Advance to such day or (b) immediately if such Lender may not
lawfully continue to fund and maintain such Eurodollar Advance to such day.
Concurrently with repaying each Eurodollar Advance of such Lender,
notwithstanding anything contained in Article 2 or Article 4 hereof, the
Borrower shall borrow a Base Rate Advance from such Lender, and such Lender
shall make such Base Rate Advance in an amount such that the outstanding
principal amount of the Note held by such Lender shall equal the outstanding
principal amount of such Note immediately prior to such repayment.
Section 11.3 INCREASED COSTS AND TAXES.
(a) If any Regulatory Change:
(i) Shall subject any Lender to any tax, duty or other
charge with respect to its obligation to make Eurodollar Advances, or its
Eurodollar Advances, or shall change the basis of taxation of payments to any
Lender of the principal of or interest on its Eurodollar Advances or in respect
of any other amounts due under this Agreement in respect of its Eurodollar
Advances or its obligation to make Eurodollar Advances (except for changes in
the rate of tax on the overall net income of such Lender imposed by the
jurisdiction in which such Lender's principal executive office is located); or
(ii) Shall impose, modify, or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
Eurodollar Reserve Percentage), special deposit, assessment or other requirement
or condition against assets of, deposits with or for the account of, or
commitments or credit extended by any Lender, or shall impose on any Lender or
the eurodollar interbank borrowing market any other condition affecting such
Lender's obligation to make such Eurodollar Advances or its Eurodollar Advances;
and the result of any of the foregoing is to increase the cost to such
Lender of making, converting into, continuing or maintaining any such Eurodollar
Advances, or to reduce the amount of any sum received or receivable by such
Lender under this Agreement or under its Notes with respect thereto, then, in
any such case, on the earlier of demand by such Lender or the Maturity Date, the
Borrower agrees to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased costs. Each Lender requesting
compensation will promptly notify the Borrower and the Administrative Agent of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 11.3 and will
designate a different lending office if such designation will avoid the need
for, or
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reduce the amount of, such compensation and will not, in the sole judgment of
such Lender, be otherwise disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation under this
Section 11.3 and setting forth the additional amount or amounts to be paid to it
hereunder and calculations therefor shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods. If any Lender demands compensation under this
Section 11.3, the Borrower may at any time, upon at least five (5) Business Days
prior notice to such Lender, prepay in full the then outstanding Eurodollar
Advances of such Lender, together with accrued interest thereon to the date of
prepayment, along with any reimbursement required under Section 2.11 hereof.
Concurrently with prepaying such Eurodollar Advances, the Borrower shall borrow
a Base Rate Advance from such Lender, and such Lender shall make such Base Rate
Advance in an amount such that the outstanding principal amount of the Notes
held by such Lender shall equal the outstanding principal amount of such Notes
immediately prior to such prepayment.
Section 11.4 EFFECT ON OTHER ADVANCES. If notice has been given
pursuant to Section 11.1, 11.2 or 11.3 hereof suspending the obligation of any
Lender to make Eurodollar Advances, or requiring Eurodollar Advances of any
Lender to be repaid or prepaid, then, unless and until such Lender notifies the
Borrower that the circumstances giving rise to such repayment no longer apply,
all Advances which would otherwise be made by such Lender as Eurodollar Rate
Advances shall be made instead as Base Rate Advances.
ARTICLE 12 - MISCELLANEOUS
Section 12.1 NOTICES.
(a) Unless otherwise specifically provided herein, all notices
and other communications under this Agreement shall be in writing and shall be
deemed to have been given three (3) days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, or one (1) day
after being entrusted to a reputable commercial overnight delivery service, or
when sent by telecopy addressed to the party to which such notice is directed at
its address determined as provided in this Section 12.1 All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:
(i) If to the Borrower, to it at:
Rainbow Media Group, LLC
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: President
Telecopy No.: (000) 000-0000
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with copies to:
Rainbow Media Group, LLC
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: General Counsel
Telecopy No.: (000) 000-0000
and
Rainbow Media Group, LLC
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: Senior Vice President - Finance
Telecopy No.: (000) 000-0000
and
Cablevision Systems Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: General Counsel
Telecopy No.: (000) 000-0000
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Manager, Syndications and Credit
Administration
Telecopy No.: (000) 000-0000
with a copy to:
TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxxxxx, Managing Director
Telecopy No.: (000) 000-0000
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Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) If to any Arranger, to each of them at
the addresses set forth for them in SCHEDULE 1 attached hereto and with a copy
to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(iv) If to the Lenders, to them at the addresses set
forth for them in SCHEDULE 1 attached hereto.
Copies shall be provided to Persons other than parties hereto only in
the case of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 12.1 by giving ten (10) days' written
notice of such change to the other parties.
Section 12.2 EXPENSES. The Borrower agrees to promptly pay:
(a) All reasonable out-of-pocket expenses of the Arrangers and
the Administrative Agent on the Agreement Date in connection with the
preparation, negotiation, execution, and delivery of this Agreement and the
other Loan Documents executed on the Agreement Date, the transactions
contemplated hereunder and thereunder, and the making of the initial Advance
hereunder, including, but not limited to, the reasonable fees and disbursements
of counsel for the Administrative Agent;
(b) All reasonable out-of-pocket expenses of the Arrangers and
the Administrative Agent in connection with the preparation and negotiation of
any waiver, modification, amendment, or consent by the Lenders relating to this
Agreement or the other Loan Documents whether or not executed, including, but
not limited to, the reasonable fees and disbursements of counsel for the
Administrative Agent;
(c) All reasonable out-of-pocket expenses of the Arrangers and
the Administrative Agent in connection with the syndication of the Loans; and
(d) From and after the occurrence of an Event of Default, all
reasonable out-of-pocket costs and expenses of the Agents and the Lenders in
respect of
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such Event of Default, irrespective of whether suit or other proceeding has
commenced in respect thereto, which shall include reasonable fees and
out-of-pocket expenses of counsel for the Agents and the Lenders, and the
reasonable fees and out-of-pocket expenses of any experts, agents, or
consultants engaged by the Agents and the Lenders.
Section 12.3 WAIVERS. The rights, remedies, powers and privileges
of the Credit Parties under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights, remedies, powers or privileges which
they would otherwise have. No failure or delay by the Credit Parties or the
Majority Lenders, or any of them, in exercising any right, remedy, power or
privilege shall operate as a waiver thereof. The Credit Parties expressly
reserve the right to require strict compliance with the terms of this Agreement
in connection with any funding of a request for an Advance. In the event the
Lenders decide to fund a request for an Advance at a time when the Borrower is
not in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further requests for Advances or preclude the Lenders from exercising any
rights available to the Lenders under the Loan Documents or at law or equity.
Any waiver or indulgence granted by the Credit Parties or the Majority Lenders,
or any of them, shall not constitute a modification of this Agreement, except to
the extent expressly provided in such waiver or indulgence, or constitute a
course of dealing by the Credit Parties or the Majority Lenders, or any of them,
at variance with the terms of the Agreement such as to require further notice of
their intent to require strict adherence to the terms of the Agreement in the
future.
Section 12.4 SET-OFF. In addition to any rights and remedies now
or hereafter granted under Applicable Law and not by way of limitation of any
such rights, after the Maturity Date (whether by acceleration or otherwise), the
Lenders and any subsequent holder or holders of the Notes are hereby authorized
by the Borrower at any time or from time to time, without notice to the Borrower
or to any other Person, any such notice being hereby expressly waived, to
set-off and to appropriate and apply any and all deposits (general or special,
time or demand, provisional or final, including, but not limited to,
Indebtedness evidenced by certificates of deposit, in each case whether matured
or unmatured) and any other Indebtedness at any time held or owing by the
Lenders or such holder to or for the credit or the account of any of the RMG
Companies, against and on account of the obligations and liabilities of any of
the RMG Companies to the Lenders or such holder under this Agreement, the Notes
and any other Loan Document, including, but not limited to, all claims of any
nature or description arising out of or connected with this Agreement, the Notes
or any other Loan Document, irrespective of whether or not (a) the Lenders or
the holders of the Notes shall have made any demand hereunder or (b) the Lenders
shall have declared the principal of and interest on the Loans and the Notes and
other amounts due hereunder to be due and payable as permitted by Section 9.2
hereof and although said obligations and liabilities, or any of them, shall be
contingent or unmatured. Any sums obtained by any Lender or by any subsequent
holder of the Notes shall be subject to the application of payments provisions
87
of Article 2 hereof. Upon direction by the Administrative Agent, with the
consent of the Majority Lenders, after the Maturity Date (whether by
acceleration or otherwise), each Lender holding deposits of any of the RMG
Companies shall exercise its set-off rights as so directed.
Section 12.5 ASSIGNMENT.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder or under the Notes without the prior written consent of
each of the Lenders.
(b) Each of the Lenders (other than the Swing Loan Lender with
respect to the Swing Loans) may at any time enter into assignment agreements or
participations with respect to its interest hereunder and under the other Loan
Documents with one or more other banks or other Persons (other than the Borrower
or any of its Affiliates), provided that (i) such Lender shall concurrently
transfer to the proposed assignee a pro rata share of its commitments and loans
under the AMC/Bravo Loan Agreement, and (ii) any such assignment, together with
the concurrent assignment under the AMC/Bravo Loan Agreement related thereto,
shall be in an aggregate amount of not less than $5,000,000 (unless such
assignment is to another Lender or a Lender Affiliate thereof). All of the
foregoing assignments and participations shall be subject to the following:
(i) Except for (A) assignments made to any Federal
Reserve Bank or which are otherwise permitted under Section 12.5(d) below and
(B) assignments made between any Lender and any Lender Affiliate of such Lender
or to another Lender or a Lender Affiliate of another Lender, no assignment
shall be made or sold without the consent of the Administrative Agent, which
consent shall not be unreasonably withheld or delayed and, if no Default or
Event of Default then exists, the consent of the Borrower, which consent shall
not be unreasonably withheld or delayed.
(ii) Any Person purchasing a participation or an
assignment of the Loans from any Lender shall be required to represent and
warrant that its purchase shall not constitute a "prohibited transaction" (as
defined in Section 5.1(m) hereof).
(iii) The Borrower and the Credit Parties agree that
assignments permitted hereunder (including the assignment of any Advance or
portion thereof) may be made with all voting rights, and shall be made pursuant
to an Assignment and Assumption Agreement. An administrative fee of $3,500 shall
be payable to the Administrative Agent by the assigning Lender at the time of
any assignment hereunder, including, without limitation, any assignment to a
Lender.
(iv) No participation agreement shall confer any rights
under this Agreement or any other Loan Document to any purchaser thereof, or
relieve
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any issuing Lender from any of its obligations under this Agreement, and all
actions hereunder shall be conducted as if no such participation had been
granted; PROVIDED, HOWEVER, that any participation agreement may confer on the
participant the right to approve or disapprove changes in the interest rate and
principal amount, fees and the Maturity Date.
(v) Each Lender agrees to provide the Administrative
Agent and the Borrower with prompt written notice of any assignments of its
interests hereunder.
(vi) No assignment, participation or other transfer of
any rights hereunder or under the Notes shall be effected that would result in
any interest requiring registration under the Securities Act of 1933, as
amended, or qualification under any state securities law.
(vii) No such assignment, participation or transfer of
any rights hereunder may be made to any bank or other financial institution (A)
with respect to which a receiver or conservator (including, without limitation,
the Federal Deposit Insurance Corporation or the Office of Thrift Supervision)
has been appointed or (B) that has failed to meet any of the capital
requirements of its primary regulator or insurer.
(viii) If applicable, each Foreign Lender shall, and
shall cause each of its assignees that becomes a Foreign Lender to provide to
the Administrative Agent on or prior to the Agreement Date or the effective date
of any assignment, as the case may be, all appropriate Internal Revenue Service
forms required to be delivered by such Foreign Lender pursuant to
Section 2.10(c)(iii) hereof.
(c) Except as specifically set forth in Section 12.5(b) hereof,
nothing in this Agreement or the Notes, expressed or implied, is intended to or
shall confer on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and thereunder any
benefit or any legal or equitable right, remedy or other claim under this
Agreement or the Notes.
(d) Notwithstanding anything contained herein to the contrary,
any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement and the Notes issued to such Lender
to secure obligations of such Lender, including, without limitation, any pledge
or assignment to secure obligations to a Federal Reserve Bank or its trustee in
support of its obligations thereto; PROVIDED, HOWEVER, that no such pledge
assignment shall release such Lender from any of its obligations hereunder or
under the Notes or substitute any such pledgee or assignee for such Lender as a
party hereto.
(e) An assigning Lender shall retain such indemnification and
expense reimbursement rights to which such Lender was entitled pursuant to this
Agreement to the effective date of the assignment of its rights hereunder.
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Section 12.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument. In proving this Agreement or any other Loan Document in any judicial
proceedings, it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom such enforcement is sought.
Any signatures delivered by a party by facsimile transmission shall be deemed an
original signature hereto.
Section 12.7 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW AND SECTION 327(b) OF THE NEW YORK CIVIL
PRACTICE LAWS AND RULES AND WITHOUT REFERENCE TO THE CONFLICT OR CHOICE OF LAW
PRINCIPLES THEREOF EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST UNDER THE LOAN DOCUMENTS, OR REMEDIES UNDER THE LOAN
DOCUMENTS, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 12.8 SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 12.9 HEADINGS. Headings and footnotes used in this
Agreement are for convenience only and shall not be used in connection with the
interpretation of any provision hereof.
Section 12.10 INTEREST.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by any
RMG Company or is inadvertently received by any Lender, then such excess sum
shall be credited as a payment of principal, unless such RMG Company shall
notify such Lender in writing that it elects to have such excess sum returned
forthwith. It is the express intent hereof that the RMG Companies not pay and
the Lenders not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the RMG Companies under
Applicable Law.
(b) Notwithstanding the use by the Lenders of the Prime Rate,
the Eurodollar Rate and the Federal Funds Rate as reference rates for the
determination of interest on the Loans, the Lenders shall be under no obligation
to obtain funds from any
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particular source in order to charge interest to the Borrower at interest rates
tied to such reference rates.
Section 12.11 ENTIRE AGREEMENT. Except as otherwise expressly
provided herein, this Agreement, the Notes and the other Loan Documents embody
the entire agreement and understanding among the parties hereto and thereto and
supersede all prior agreements, understandings, and conversations relating to
the subject matter hereof and thereof.
Section 12.12 AMENDMENT AND WAIVER. Neither this Agreement nor any
Loan Document (other than any Interest Hedge Agreement), nor any term or
provision hereof or thereof, may be amended or waived orally, but only by an
instrument in writing signed by the Majority Lenders (or, in the case of
Security Documents executed by the Administrative Agent, signed by the
Administrative Agent and approved by the Majority Lenders) and, in the case of
an amendment, also by the Borrower, except that (a) any decrease (other than pro
rata) or increase in the amount of the Commitment of any Lender shall require
the consent of such Lender, (b) any issuance of an Incremental Facility
Commitment shall require only the consent of the Incremental Facility Lenders,
the Borrower and the Administrative Agent, (c) any amendment of Section 12.5(b)
hereof shall require the consent of the Super-Majority Lenders, and (d) in the
event of (i) any postponement in the scheduled time as set forth in Section 2.7
hereof for the payment of, or any reduction of, any scheduled payments of
principal or the rate of interest or fees due hereunder or any extension of the
Maturity Date, (ii) any change in the definitions of "Base Rate Applicable
Margin" or "Eurodollar Applicable Margin," (iii) any release or impairment of
any Collateral or Guaranties relating to any MGM Operating Company or any
release or impairment of substantially all of the other Collateral or Guaranties
issued in favor of the Administrative Agent (other than in connection with a
disposition permitted under Section 8.5(a) or (b) hereof, which may be released
by the Administrative Agent without additional consent), (iv) any waiver of any
Event of Default due to the failure by the Borrower to pay any sum due
hereunder, (v) except in connection with the implementation of the Incremental
Facility to the extent necessary to accord the various types of Incremental
Facility Loans treatment similar to the treatment accorded Loans of a similar
type thereunder, any change to the application of payments made to the
Administrative Agent and the other Credit Parties described in Sections 2.6(d)
and 2.12(a) hereof, or any change in the sharing of payment procedures described
in Section 2.12(b) hereof, (vi) any amendment of the definition of "MGM
Operating Companies" or (vii) any amendment of this Section 12.12 or of the
definition of "Majority Lenders" or "Super-Majority Lenders" or of any provision
of this Agreement which refers to "Majority Lenders" or "Super-Majority Lenders"
if the effect thereof would be to amend the definition of "Majority Lenders" or
"Super-Majority Lenders," as the case may be, as used in such provision, any
amendment or waiver may be made only by an instrument in writing signed by each
of the Lenders and, in the case of an amendment, also by the Borrower; PROVIDED,
HOWEVER, notwithstanding anything to the contrary contained herein, any
amendment of Section 2.14 or any other term or provision
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of this Agreement or any other Loan Document (other than any Interest Hedge
Agreement) required in connection with the implementation of the Incremental
Facility shall require only the consent of the Majority Lenders and Borrower.
Section 12.13 OTHER RELATIONSHIPS. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of any of the Credit Parties to enter into or maintain business relationships
with the Borrower or any of its Lender Affiliates beyond the relationships
specifically contemplated by this Agreement and the other Loan Documents.
Section 12.14 CONFIDENTIALITY. The parties hereto shall preserve
in a confidential manner all information received from any other party pursuant
to the Loan Documents and the transactions contemplated thereunder, and shall
not disclose such information except to any Agent, any Lender or any Persons
with which a confidential relationship is maintained (including designated
agents, legal counsel, accountants and regulators), or where required by law.
Section 12.15 LIABILITY OF PARTNERS, MEMBERS AND OTHER PERSONS.
Notwithstanding anything else in this Agreement to the contrary, the parties
hereto expressly agree that no partner, member, officer, director or other
holder of an ownership interest of or in the Borrower, any Subsidiary of the
Borrower, RMHI or CSC, or any partnership, limited liability company,
corporation or other entity which is a partner, member, stockholder or holder of
an ownership interest of or in the Borrower, any Subsidiary of the Borrower,
RMHI or CSC shall have any personal or individual liability or responsibility in
respect of Obligations of the Borrower, any Subsidiary of the Borrower, RMHI or
CSC pursuant to this Agreement or any other Loan Document solely by reason of
his or her status as such partner, member, officer, director, stockholder or
holder.
Section 12.16 SURVIVAL. The provisions of this Agreement set forth
in Sections 2.10(c)(ii), 2.11, 6.12, 6.13, 10.11 and 11.3 hereof shall survive
any termination or expiration of this Agreement.
ARTICLE 13 - WAIVER OF JURY TRIAL
Section 13.1 WAIVER OF JURY TRIAL. EACH OF THE RMG COMPANIES AND
EACH OF THE CREDIT PARTIES HEREBY AGREES TO WAIVE THE RIGHT TO A TRIAL BY JURY
IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH ANY OF THE RMG
COMPANIES, ANY OF THE CREDIT PARTIES, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT, ANY OF THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS AND
THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 13.1.
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Section 13.2 CONSENT TO JURISDICTION. EACH OF THE RMG COMPANIES AND
EACH OF THE CREDIT PARTIES HEREBY AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND EACH CONSENTS
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN
SECTION 12.1. EACH OF THE RMG COMPANIES HEREBY WAIVES ANY OBJECTIONS THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: RAINBOW MEDIA GROUP, LLC
By: RAINBOW MEDIA HOLDINGS,
INC., its sole member
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
GUARANTORS:
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BORROWER: RAINBOW MEDIA GROUP, LLC
By: Rainbow Media Holdings, Inc., as sole member
By: /s/ Xxxx Xxxx
----------------------------------------------
Name: Xxxx Xxxx
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
GUARANTORS: AMERICAN MOVIE CLASSICS HOLDING
CORPORATION
AMC II HOLDING CORPORATION
RAINBOW MM HOLDINGS CORPORATION
RAINBOW MM HOLDINGS II CORPORATION
BRAVO HOLDING CORPORATION
BRAVO II HOLDING CORPORATION
RNC HOLDING CORPORATION
RNC II HOLDING CORPORATION
MUCHMUSIC PROGRAMMING, INC.
By: /s/ Xxxx Xxxx
----------------------------------------------
Name: Xxxx Xxxx
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
of each of the above-named corporations
MUCHMUSIC U.S.A. VENTURE
By: Rainbow MM Holdings Corporation, a general
partner
By: /s/ Xxxx Xxxx
----------------------------------------------
Name: Xxxx Xxxx
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
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2
RAINBOW NETWORK COMMUNICATIONS
By: RNC Holding II Corporation, as managing
general partner
By: /s/ Xxxx Xxxx
-----------------------------------------------
Name: Xxxx Xxxx
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
IFC ENTERTAINMENT LLC
IFC FILMS LLC
IFC PRODUCTIONS I, L.L.C.
IFC THEATRES, LLC
NEXT WAVE FILMS, L.L.C.
RAINBOW FILMS HOLDING LLC
By: Rainbow Media Group, LLC,
as sole member of each of the above-named
limited liability companies
By: Rainbow Media Holdings, Inc., as sole member
of Rainbow Media Group, LLC
By: /s/ Xxxx Xxxx
----------------------------------------------
Name: Xxxx Xxxx
-----------------------------------------
Title: Authorized Signatory
-----------------------------------------
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3
ADMINISTRATIVE
AGENT AND LENDER: TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: Vice President
----------------------------------------
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4
SYNDICATION AGENT
AND LENDER: BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: Managing Director
-----------------------------------------
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5
CO-LEAD ARRANGERS
AND CO-BOOK RUNNERS: TD SECURITIES (USA) INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------------
Title: Managing Director
-----------------------------------------
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
------------------------------------------
Title: Managing Director
-----------------------------------------
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6
CO-DOCUMENTATION AGENT
AND LENDER: THE BANK OF NOVA SCOTIA
By: /s/ Xxxx X. Xxxxxxxxxxxxx
-----------------------------------------------
Name: P.A. Xxxxxxxxxxxxx
---------------------------------------------
Title: Authorized Signatory
--------------------------------------------
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CO-DOCUMENTATION AGENT
AND LENDER:
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------------------------
Title: Director
--------------------------------------------
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8
CO-DOCUMENTATION AGENT
AND LENDER: FLEET NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------------
Title: Managing Director
--------------------------------------------
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LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxx Xxxxxxxx
-----------------------------------------------
Name: Xxx Xxxxxxxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
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10
LENDER:
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------------
Title: Director
-----------------------------------------
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LENDER:
BANK OF MONTREAL
By: /s/ Bin Xxxxxxxx
-----------------------------------------------
Name: Bin Xxxxxxxx
------------------------------------------
Title: Director
-----------------------------------------
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12
LENDER:
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
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13
LENDER:
CREDIT LYONNAIS - NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------------
Title: Vice President
-----------------------------------------
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14
LENDER:
SOCIETE GENERALE
By: /s/ Xxxx Xxxxx
------------------------------------------------
Name: Xxxx Xxxxx
------------------------------------------
Title: Managing Director
-----------------------------------------
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15
LENDER:
SUNTRUST BANK
By: /s/ Xxx Xxxx
-----------------------------------------------
Name: Xxx Xxxx
------------------------------------------
Title: Vice President
-----------------------------------------
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LENDER:
JPMORGAN CHASE BANK
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
------------------------------------------
Title: Managing Director
-----------------------------------------
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LENDER:
XXXXXXX XXXXX CAPITAL COPORATION
By: /s/ Xxxxx X.X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X.X. Xxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
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LENDER:
BEAR XXXXXXX CORPORATE LENDING, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------------
Title: Executive Vice President
-----------------------------------------
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LENDER:
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
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