1
EXHIBIT 10
$300,000,000
CREDIT AGREEMENT
DATED AS OF
MAY 1, 1998
AMONG
THE LIBERTY CORPORATION
THE BANKS LISTED HEREIN,
WACHOVIA BANK, N.A.,
AS AGENT,
THE BANK OF NEW YORK,
AS A CO-AGENT
AND
FIRST UNION NATIONAL BANK,
AS A CO-AGENT
2
CREDIT AGREEMENT
AGREEMENT dated as of May 1, 1998, among THE LIBERTY CORPORATION, the
BANKS listed on the signature pages hereof (and their successors and assigns),
THE BANK OF NEW YORK, as Co-Agent and a Bank, FIRST UNION NATIONAL BANK, as a
Co-Agent and a Bank, and WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein (with the singular form to include the plural
form and vice-versa):
"Adjusted Cash Flow" for any period means the sum of (i) Cash Flow for
such period and (ii) Interest Expense for such period; provided that for
determining Adjusted Cash Flow for purposes of Section 5.05, determining the
Applicable Margin and determining the Applicable Facility Fee Rate, the amount
included in "Cash Flow" pursuant to clause (iii) of the definition of Cash Flow
with respect to dividends paid by a Subsidiary that is a life insurance company
to the Borrower or a Minor Subsidiary shall be deemed to be equal to the maximum
amount of dividends available to be paid (without approval or other action by
any applicable regulatory agency) by such Subsidiary during the Fiscal Year that
includes the Fiscal Quarter on the last day of which such calculation is being
made, all determined in accordance with the rules and regulations applicable to
dividends in the domiciliary state of such Subsidiary.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Advance" means any advance by the Banks under the Commitments.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person"), (ii)
any Person (other than the Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary) of which the Borrower owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in such
capacity.
1
3
"Amount Available for an Increase in the Commitments" means, at any
date, an amount equal to: (i) $150,000,000, less (ii) the Utilized Increase in
Commitments on such date.
"Annual Statement" means, with respect to any Subsidiary within the
Insurance Group, the annual report, statement or other filing made by such
Subsidiary with the insurance department or other governmental authority of the
state in which such Subsidiary is formed or incorporated which regulates,
supervises or otherwise has jurisdiction over such Subsidiary, all in accordance
with statutory accounting principles.
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed
in accordance with Section 9.07(c) substantially in the form attached hereto as
Exhibit F.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment and its successors and assigns.
"Base Rate" means, for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, and (ii)
one-half of one percent plus the Federal Funds Rate for such day. For purposes
of determining the Base Rate for any day, changes in the Prime Rate and Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a borrowing hereunder if the advances under
such borrowing bear or are to bear interest calculated by reference to the Base
Rate.
"Base Rate Loan" means the Advances which bear or are to bear interest
calculated by reference to the Base Rate.
"Borrower" means The Liberty Corporation, a South Carolina corporation,
and its successors.
"Borrowing" shall mean a borrowing under the Commitments consisting of
Advances made to the Borrower at the same time by, in the case of a Syndicated
Borrowing, the Banks or in the case of a Money Market Borrowing, one or more of
the Banks. A Borrowing is a "Syndicated Borrowing" if such advances are
Syndicated Advances or a "Money Market Borrowing" if such Advances are Money
Market Loans. A Borrowing is a "Euro-Dollar Borrowing" if such Advances are made
as Euro-Dollar Loans and a "Base Rate Borrowing" if such Advances are made as
Base Rate Loans.
"Broadcast Licenses" means licenses, permits, authorizations or
certificates now or hereafter held by the Borrower and its Subsidiaries to
construct, own, operate or promote the Stations granted by the FCC, the
administrative law courts or by any state, county, city, town, village or other
local government authority, and all extensions, additions and renewals thereto
or thereof.
2
4
"Capital Stock" of any Person means any redeemable or nonredeemable
shares of capital stock of such Person (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"Cash Flow" for any period means, without duplication, the sum of (i)
Test Income for such period, (ii) depreciation, amortization and all other
non-cash charges of the Borrower, Cosmos and the Minor Subsidiaries for such
period, (iii) all dividends paid by any Subsidiary to the Borrower or any Minor
Subsidiary during such period in respect of shares of common stock or preferred
stock of such Subsidiary owned by the Borrower or any Minor Subsidiary, and (iv)
net cash proceeds from capital asset and operating asset sales of LIG.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. ss.9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Date" means May 1, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Commitment" means with respect to each Bank, (i) the amount designated
as the Commitment set forth opposite the name of such Bank on the signature
pages hereof, or (ii) as to any Bank which enters into an Assignment and
Acceptance (whether as transferor Bank or as Assignee thereunder), the amount of
such Bank's Commitment after giving effect to such Assignment and Acceptance, in
each case as such amount may be reduced from time to time pursuant to Sections
2.08 and 2.09.
"Consolidated Debt" means at any date the aggregate of the Debt,
included in clauses (i) through (ix) inclusive of the definition of Debt
contained in this Agreement, of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date.
"Consolidated Investment Portfolio" means the total investment
portfolio of the Borrower and all of its Subsidiaries.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with generally accepted accounting
principles consistently applied, would be
3
5
consolidated with those of the Borrower in its consolidated financial statements
as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with
generally accepted accounting principles consistently applied.
"Consolidated Total Capital" means, at any time, the sum of (i)
Stockholders' Equity and (ii) Consolidated Debt.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Cosmos" means Cosmos Broadcasting Corporation, a South Carolina
corporation.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person to reimburse any
bank or other Person in respect of amounts paid or to be paid under a letter of
credit or similar instrument, (viii) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person, (ix)
all Debt of others Guaranteed by such Person; provided however, in computing the
Debt of LPC of S.C., Inc., the obligations of LPC of S.C., Inc. under the LP
Trust Guaranty shall be excluded so long as: (1) neither the Borrower nor any
Subsidiary of the Borrower has notice of any demand or request or likely request
or demand upon LPC of S.C., Inc. for payment of all or any portion of the
Guaranteed Obligations (as defined in the LP Trust Guaranty), and (2) the
aggregate indebtedness, liabilities and obligations of LPC of S.C., Inc. under
the LP Trust Guaranty shall not at any time exceed $40,000,000, and (x) all
obligations of such Person with respect to interest rate protection agreements,
foreign currency exchange agreements or other hedging agreements (valued as the
termination value thereof computed in accordance with a method approved by the
International Swap Dealers Association and agreed to by such Person in the
applicable hedging agreement, if any).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, for any day, the sum of
2% plus the then highest interest rate (including the Applicable Margin) which
may be applicable to any Loans hereunder (irrespective of whether any such type
of Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all depreciation
expenses of the Borrower and its Consolidated Subsidiaries for such period, as
determined in accordance with generally
4
6
accepted accounting principles consistently applied.
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Georgia or New York are authorized or
required by law to close.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notice" means notice from any Environmental Authority or
by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Borrowing" means a borrowing if the advances under such
borrowing bear
5
7
or are to bear interest calculated by reference to the Adjusted
London Interbank Offered Rate.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means Advances which bear or are to bear interest
calculated by reference to the Adjusted London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"FCC" means the Federal Communications Commission.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Wachovia on such day on such
transactions as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charges" means the sum of (i) Interest Expense for the period of
four Fiscal Quarters ending on the last day of the Fiscal Quarter with respect
to which the determination of Fixed Charges is being made, (ii) all dividends or
other distributions paid by the Borrower in respect of the Liberty Corporation
Preferred Stock for the period of four Fiscal Quarters ending on the last day of
the Fiscal Quarter with respect to which the determination of Fixed Charges is
being made, and (iii) all payments of principal in respect of Debt of the
Borrower, Cosmos or any Minor Subsidiary (excluding repayment of the Advances
under this Agreement) which are scheduled to be made during the four Fiscal
Quarters immediately following the Fiscal Quarter with respect to which the
determination of Fixed Charges is being made.
"Forfeiture Proceeding" means any action, proceeding or investigation
affecting the Borrower or any of its Subsidiaries before any court, governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, if such action, proceeding or investigation could result in a Material
Adverse Effect.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, or any instrumentality of any of the foregoing.
6
8
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et. seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b) any
"hazardous substance", "pollutant" or "contaminant", as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Income" means, as applied to any Person for any period, the aggregate
amount of income of such Person, before taxes, for such period, as determined in
accordance with generally accepted accounting principles consistently applied.
"Insurance Group" shall mean and include, collectively, all existing
and future Subsidiaries which are licensed in one or more states to sell
insurance or engaged principally in the insurance business.
"Intercompany Loan" means any loan, advance or other extension of
credit made in the ordinary course of business (i) by the Borrower to any
Consolidated Subsidiary; (ii) by any Consolidated Subsidiary to the Borrower; or
(iii) by any Consolidated Subsidiary to any other Consolidated Subsidiary;
provided that the aggregate outstanding principal amount of Intercompany Loans
made by Consolidated Subsidiaries to other Consolidated Subsidiaries shall at no
time exceed 20% of Stockholders' Equity.
"Interest Expense" for any period means interest, whether expensed or
capitalized, in respect of Debt of the Borrower, Cosmos or any of the Minor
Subsidiaries outstanding during such period.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such borrowing, and ending on
the numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
7
9
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause (c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) any Interest Period applicable to an Advance which begins before
the Termination Date and would otherwise end after the Termination Date shall
end on the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on
the date of such borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next succeeding Domestic Business
Day;
(b) any Interest Period applicable to an Advance which begins before
the Termination Date and would otherwise end after the Termination Date shall
end on the Termination Date;
(3) with respect to each Money Market Borrowing, the period commencing
on the date of such borrowing and ending 7 to 180 days thereafter, as the
Borrower may indicate in the applicable Money Market Quote Request; provided
that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) any Interest Period applicable to a Money Market Borrowing which
begins before the Termination Date and would otherwise end after the
Termination Date shall end on the Termination Date.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Liberty Capital" means Liberty Capital Advisors, Inc., a South
Carolina corporation.
"Liberty Corporation Preferred Stock" means any redeemable or
nonredeemable,
8
10
preferred capital stock of the Borrower.
"Liberty Insurance Services" means Liberty Insurance Services
Corporation, a South Carolina corporation.
"Liberty Life" means Liberty Life Insurance Company, a South Carolina
corporation.
"Liberty Properties" means Liberty Properties Group, Inc., a South
Carolina corporation.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreements, contingent or otherwise, to provide any of the foregoing. For
the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"LIG" means Liberty Investment Group, Inc., a South Carolina
corporation.
"Loan" means a Syndicated Advance or a Money Market Loan and "Loans"
means Syndicated Advances, Money Market Loans, or any or all of them, as the
context shall require.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"LP Trust Guaranty" means that certain Limited Guaranty of Replacement
Financing dated May 14, 1997 by and among LPC of S.C., Inc., Liberty Property
Limited Partnership and Liberty Property Trust for the benefit of the "Lender"
(as defined therein).
"Margin Stock" means "margin stock" as defined in Regulation T, U or X
of the Board of Governors of the Federal Reserve System, as in effect from time
to time, together with all official rulings and interpretations issued
thereunder.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and its Consolidated Subsidiaries, taken as a whole, (b) the rights and
remedies of the Agent or the Banks under the Loan Documents, or the ability of
the Borrower to perform
9
11
its obligations under the Loan Documents to which it is a party, as applicable,
or (c) the legality, validity or enforceability of any Loan Document.
"Minor Subsidiaries" shall mean and include, collectively the entities
set forth on Schedule 1.01 - Minor Subsidiaries.
"Money Market Loan" means an Advance which bears or is to bear interest
at a Money Market Rate.
"Money Market Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A-2 hereto, evidencing the obligation of
the Borrower to repay the Money Market Loans.
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03(c).
"Money Market Quote Request" has the meaning set forth in Section
2.03(b).
"Money Market Rate" has the meaning set forth in Section
2.03(c)(ii)(C).
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with generally accepted accounting principles
consistently applied.
"Net Proceeds of Capital Stock/Conversion of Debt" means any and all
proceeds (whether cash or non-cash) or other consideration received by the
Borrower or a Consolidated Subsidiary in respect of the issuance of Capital
Stock (including, without limitation, the aggregate amount of any and all Debt
converted into Capital Stock), from a Person other than the Borrower or a
Consolidated Subsidiary, after deducting therefrom all reasonable and customary
costs and expenses incurred by the Borrower or such Consolidated Subsidiary
directly in connection with the issuance of such Capital Stock.
"Non-Convertible Redeemable Preferred Stock" of any Person means
Redeemable Preferred Stock that is redeemable, either in whole or in part, into
any property (including, without limitation, cash) other than the capital stock
of the Person.
"Nonredeemable Capital Stock" means any: (i) nonredeemable capital
stock of the Borrower or any Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred; and (ii) any preferred stock
that is not included within the definition of "Redeemable Preferred Stock."
"Notes" shall mean the Syndicated Notes and the Money Market Notes of
the Borrower payable to the order of the respective Banks, evidencing the
maximum principal indebtedness of the Borrower under the Commitments in
substantially the forms of Exhibits A-1 and A-2 respectively, either as
originally executed or as they may be from time to time supplemented, modified,
amended, renewed or extended, or any or all of them, as the context shall
require.
10
12
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Operating Profits" means, as applied to any Person for any period, the
operating income of such Person for such period, as determined in accordance
with generally accepted accounting principles consistently applied.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means the acquisition by the Borrower or any
Subsidiary of the Borrower of shares of capital stock of any Person or assets
from any Person, if: (A) in the case of the acquisition of shares of capital
stock of any Person, immediately after giving effect to such acquisition (i)
such Person is a Consolidated Subsidiary; (ii) the Borrower controls such Person
directly or indirectly through a Subsidiary; (iii) no Default shall have
occurred and be continuing; (iv) the line or lines of business engaged in by
such Person are related or complimentary to the lines of business engaged in by
the Borrower and its Subsidiaries on the Closing Date; and (v) such acquisition
is made on a negotiated basis with the approval of the Board of Directors of the
Person to be acquired and, if necessary, the shareholders of the Person to be
acquired; and (B) in the case of the acquisition of assets from any Person,
immediately after giving effect to such acquisition: (i) the assets acquired by
the Borrower or such Subsidiary of the Borrower, shall be used by the Borrower
or such Subsidiary in a line of business related or complimentary to the lines
of business engaged in by the Borrower and its Subsidiaries on the Closing Date;
and (ii) no Default shall have occurred and be continuing.
"Person" means an individual, a corporation, a limited liability
company, a partnership (including, without limitation, a joint venture), an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Xxxxxx National" means Xxxxxx National Life Insurance Co., a
California corporation.
"Xxxxxx National Sale" means the sale of all of the Borrower's
interests in Xxxxxx National to Fortis, Inc.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases
11
13
used by Wachovia. Wachovia lends at interest rates above and below the Prime
Rate.
"Prior Credit Agreement" means the Credit Agreement dated as of March
21, 1995, as amended, among the Company, the banks party thereto, and Wachovia
Bank, N.A., as Agent.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Quotation Date" has the meaning set forth in Section 2.03(b).
"Rate Determination Date" has the meaning set forth in Section 2.06(a).
"Redeemable Preferred Stock" of any Person means as of any date any
preferred stock issued by such Person which is at any time (A) within one (1)
year of such date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise); or (ii) redeemable at the option of the holder thereof;
or (B) convertible into the Capital Stock of such Person by the holder thereof
at a conversion price greater than the price at which such Capital Stock can be
purchased on the New York Stock Exchange.
"Reported Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis.
"Required Banks" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the aggregate outstanding principal
amount of the Notes.
"Stations" means collectively (i) WLOX, a television broadcasting
station, serving the Biloxi, Mississippi market, (ii) WTOL, a television
broadcasting station, serving the Toledo, Ohio market; (iii) WIS, a television
broadcasting station, serving the Columbia, South Carolina market; (iv) WFIE, a
television broadcasting station serving the Evansville, Indiana market; (v)
KAIT, a television broadcasting station, serving the Jonesboro, Arkansas market;
(vi) WAVE, a television broadcasting station, serving the Louisville, Kentucky
market; (vii) KPLC, a television broadcasting station, serving the Lake Charles,
Louisiana market; (viii) WSFA, a television broadcasting station, serving the
Montgomery, Alabama market; and (ix) any and all television, radio or other
broadcasting stations, now or hereafter acquired or controlled, directly or
indirectly, by the Borrower.
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with generally accepted accounting
principles consistently applied, but excluding any Non-Convertible Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity would generally include, but not be limited to (i) the par
or stated value of all outstanding Nonredeemable Capital Stock plus paid in
capital, (ii) capital surplus, (iii) retained earnings, (iv) unearned stock
compensation, (v) cumulative foreign currency translation adjustments and (vi)
subtracting items such as (A) purchases of treasury stock, (B) unrealized
investment losses, (C) receivables due from an employee stock ownership plan and
(D) employee stock ownership plan debt guarantees, provided, however, that
Stockholders'
12
14
Equity shall exclude unrealized gains and losses resulting from adjusting the
book value of securities from a cost basis to a market basis in accordance with
Financial Accounting Standards Board Statement No. 115.
"Subsidiary" means any corporation or other entity (including, without
limitation, Liberty Life, Liberty Insurance Services and Cosmos), of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Surplus Relief Reinsurance Transaction" shall mean any transaction in
which any Subsidiary within the Insurance Group cedes business under a
reinsurance agreement that would be considered a "financing-type" reinsurance
agreement as determined by the independent certified public accountants of the
Subsidiaries within the Insurance Group in accordance with generally accepted
accounting principles, as the same may be revised from time to time.
"Syndicated Advance" means an Advance which is a Base Rate Loan or a
Euro-Dollar Loan and Syndicated Advances means Advances which are Base Rate
Loans or Euro-Dollar Loans, or any or all of them, as the context shall require.
"Syndicated Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
the Borrower to repay the Syndicated Advances, together with all amendments,
consolidations, modifications, renewals and supplements thereto and "Syndicated
Note" means any one of such Syndicated Notes.
"Termination Date" shall mean April 30, 2003;
"Test Income" for any period means the sum of (i) Income of the
Borrower and the Minor Subsidiaries for such period (excluding, however, (A) all
dividends paid by Liberty Life to the Borrower or any Minor Subsidiary during
such period in respect of shares of stock of Liberty Life owned by the Borrower
or any Minor Subsidiary, and (B) adjustments for capital gains and capital
losses and operating gains and operating losses on asset sales realized by the
Borrower and the Minor Subsidiaries for such period) and (ii) Income of Cosmos
for such period.
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Total Assets" of any Person means, at any time, the total assets of
such Person, as set forth or reflected or as should be set forth or reflected on
the most recent balance sheet of such Person prepared in accordance with
generally accepted accounting principles.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unencumbered Total Assets" of any Person means, at any time, Total
Assets of such Person which are subject to any arrangement specified in 12 CFR
ss.221.2(g)(1).
13
15
"Unused Commitment" means at any date, with respect to any Bank, an
amount equal to its Commitment less the aggregate outstanding principal amount
of its Advances on such day.
"Utilized Increase in Commitments" means, at any date, an amount equal
to the aggregate amount that the Commitments have been increased pursuant to
Section 2.01(b).
"Wachovia" means Wachovia Bank, N.A., a national banking association
and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles, applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in generally accepted accounting
principles) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the Banks, unless
with respect to any such change concurred in by the Borrower's independent
public accountants or required by generally accepted accounting principles, in
determining compliance with any of the provisions of this Agreement or any of
the other Loan Documents: (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Banks shall so object in writing within 30 days
after the delivery of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall mean the
financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated, references in
this Agreement to "Sections" are references to sections hereof and references in
this Agreement to "Articles" are references to articles hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend.
(a) Each Bank severally agrees, on the terms and conditions set forth
herein, to make Syndicated Advances to the Borrower from time to time before the
Termination Date; provided that, immediately after each such Advance is made,
the aggregate outstanding principal amount of Syndicated Advances by such Bank
shall not exceed the amount of its Commitment, and provided further that the
aggregate principal amount of all Syndicated Advances, together with the
aggregate principal amount of all Money Market Loans at any one time outstanding
shall not exceed the aggregate
14
16
amount of the Commitments of all of the Banks at such time. Each Syndicated
Borrowing under this Section shall be in an aggregate principal amount of: (i)
$10,000,000 or any larger multiple of $1,000,000, if such Borrowing consists of
Advances made as Euro-Dollar Loans; and (ii) $5,000,000 or any larger multiple
of $1,000,000, if such Borrowing consists of Advances made as Base Rate Loans
(except that any such Borrowing may be in the aggregate amount of the Unused
Commitments) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section 2.01 (a), repay or, to the extent permitted by Section
2.10, prepay Syndicated Advances and reborrow under this Section 2.01 (a) at any
time before the Termination Date.
(b) Upon written request of the Borrower, the Banks and the Agent in
their sole and absolute discretion may (but shall not be obligated to) increase
the total Commitments in an aggregate amount not to exceed the Amount Available
for an Increase in the Commitments provided that: (1) the Borrower shall deliver
a written notice to the Agent (who will promptly send a copy of such notice to
each of the Banks) in the form attached hereto as Exhibit J (the "Notice of
Increase in Commitment"); and (2) at no time shall the aggregate amount of the
Commitments of all of the Banks exceed an amount equal to: (i) $450,000,000,
less (ii) the aggregate amount that the Commitments have been reduced pursuant
to Sections 2.08 and 2.09. In connection with each such request, the Notice of
Increase in Commitment shall specify the proposed effective date of such
increase (the "Effective Date"), the amount of such increase in the total
Commitments (which aggregate amount shall be equal to at least $25,000,000, or
any larger multiple of $25,000,000), and each Bank's share of such increase
(which share shall constitute the amount of the proposed increase in each such
Bank's Commitment). The terms of any increase to the Commitment shall be
independently negotiated among the Borrower, the Banks and the Agent at the time
of the request to increase the Commitment, provided that the terms of the
increase may be the same as those in effect prior to any increase should the
Borrower, the Banks and the Agent so agree; provided, further, that should the
terms of the increase be other than those in effect prior to the increase, then
the Loan Documents shall be amended to the extent necessary to incorporate any
such different terms. In the event that a Bank chooses to increase its
Commitment as set forth in the Notice of Increase in Commitment, notice shall be
given by such Bank to the Borrower and the Agent not more than 30, nor fewer
than 15 days prior to the proposed Effective Date; provided that the Commitment
shall not be increased with respect to any of the Banks unless all of the Banks
have agreed to the changes in the Commitments of the respective Banks and the
amendment or modification effecting such change in the Commitments is in writing
and signed by all of the Banks. The Notice of Increase in Commitment shall be
delivered to the Agent no more than 60 days, nor fewer than 30 days, prior to
the Effective Date; provided that, notwithstanding anything to the contrary
contained herein: (a) the Effective Date shall be a Domestic Business Day, (b)
the Borrower may make no more than four (4) requests under this Section during
the term of this Agreement, (c) on the Effective Date, there shall not exist a
Default or Event of Default and (d) at no time shall the aggregate amount of the
Commitments of all of the Banks exceed an amount equal to: (i) $450,000,000,
less (ii) the aggregate amount that the Commitments have been reduced pursuant
to Sections 2.08 and 2.09. On the Effective Date, the Borrower shall execute and
deliver (i) to each Bank a replacement Syndicated Note in a principal amount
equal to the amount of the Commitment (as increased pursuant to this Section) of
such Bank, (ii) to each Bank a replacement Money Market Note in a stated
principal amount equal to the aggregate amount of the total Commitments (as
increased pursuant to this Section), and (iii) such other documentation as the
Agent may reasonably request. Such replacement Notes shall be furnished to the
Agent in form and substance as may be reasonably required by it. Upon execution
and delivery of such replacement Notes the
15
17
Commitment of each Bank shall be increased accordingly.
SECTION 2.02. Method of Borrowing Syndicated Loans. (a) The Borrower
shall give the Agent notice in the form attached hereto as Exhibit G (a "Notice
of Borrowing") prior to 11:00 A.M. (Atlanta, Georgia time) on the Domestic
Business Day of each Base Rate Borrowing and prior to 11:00 A.M. (Atlanta,
Georgia time) at least 3 Euro-Dollar Business Days before each Euro-Dollar
Borrowing, specifying:
(i) the date of such borrowing, which shall be a Domestic Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of the Syndicated Borrowing, and
(iii) whether Advances comprising a Syndicated Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, and the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest
Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of
such Syndicated Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than 1:00 p.m. (Atlanta, Georgia time) on the date of
each Syndicated Borrowing, referenced in the Notice of Borrowing, each Bank
shall (except as provided in subsection (d) of this Section) make available its
ratable share of such Syndicated Borrowing, in Federal or other funds
immediately available in Atlanta, Georgia, to the Agent at its address referred
to in or specified pursuant to Section 9.01. Unless the Agent determines that
any applicable condition specified in Article III has not been satisfied, the
Agent will make the funds so received from the Banks available to the Borrower
at the Agent's aforesaid address. Unless the Agent receives notice from a Bank,
at the Agent's address referred to in Section 9.01, no later than 4:00 P.M.
(local time at such address) on the Domestic Business Day before the date of the
applicable Syndicated Borrowing stating that such Bank will not make the
applicable Syndicated Advance, in connection with such Syndicated Borrowing, the
Agent shall be entitled to assume that such Bank will make the Syndicated
Advance, in connection with such Syndicated Borrowing and, in reliance on such
assumption, the Agent may (but shall not be obligated to) make available such
Bank's ratable share of such Syndicated Borrowing, to the Borrower for the
account of such Bank. If the Agent makes such Bank's ratable share available to
the Borrower and such Bank does not in fact make its ratable share of such
Syndicated Borrowing available on such date, the Agent shall be entitled to
recover such Bank's ratable share from such Bank or the Borrower (and for such
purpose shall be entitled to charge such amount to any account of the Borrower
maintained with the Agent), together with interest thereon for each day during
the period from the date of such Syndicated Borrowing until such sum shall be
paid in full at a rate per annum equal to the rate at which the Agent determines
that it obtained (or could have obtained) overnight Federal funds to cover such
amount for each such day during such period, provided that any such payment by
the Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower may have against such Bank. If such
Bank shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Bank's Advance, included in such borrowing for purposes of
this Agreement.
16
18
(d) If any Bank makes: (i) a new Syndicated Advance hereunder on a day
on which the Borrower is to repay all or any part of an outstanding Syndicated
Advance from such Bank, such Bank shall apply the proceeds of its new Syndicated
Advance, to make such repayment and only an amount equal to the difference (if
any) between the amount being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (c) of this
Section, or remitted by the Borrower to the Agent as provided in Section 2.12,
as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify whether
the Advances comprising such Syndicated Borrowing, are to be Base Rate Loans or
Euro-Dollar Loans, such Advances, shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this Agreement to: (1) repay any Advances
maturing at the end of an Interest Period applicable thereto with the proceeds
of a new Borrowing and the Borrower fails to repay such Advances using its own
moneys and fails to give a Notice of Borrowing in connection with a new
corresponding Syndicated Borrowing, a new Syndicated Borrowing shall be deemed
to be made on the date such Advances mature in an amount equal to the principal
amount of the Advances, so maturing, and the Advances comprising such new
Syndicated Borrowing shall be Base Rate Loans.
SECTION 2.03. Money Market Loans. (a) In addition to making Syndicated
Advances, the Borrower may, as set forth in this Section, request the Banks to
make offers to make Money Market Loans to the Borrower. The Borrower shall not
have the right to request the Banks to make offers to make Money Market Loans at
any time that the ratio of Consolidated Debt (calculated as of the last day of
each Fiscal Quarter) to Cash Flow (calculated for the Fiscal Quarter then ended
and the immediately preceding three Fiscal Quarters) is greater than or equal to
4.0 to 1.0. The Banks may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section, provided that:
(i) there may be no more than 8 different Interest Periods for both
Syndicated Advances and Money Market Loans outstanding at the same time (for
which purpose Interest Periods described in different numbered clauses of
the definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); and
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Advances, at
any one time outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time.
(b) When the Borrower wishes to request offers to make Money Market
Loans, it shall give the Agent (which shall promptly notify the Banks) notice
substantially in the form of Exhibit H hereto (a "Money Market Quote Request")
so as to be received no later than 12:00 P.M. (Atlanta, Georgia time) one
Domestic Business Day prior to the date of the Money Market Borrowing proposed
therein (or such other time and date as the Borrower and the Agent, with the
consent of the Required Banks, may agree), specifying:
17
19
(i) the proposed date of such Money Market Borrowing which shall be a
Domestic Business Day (the "Quotation Date");
(ii) the aggregate amount of such Money Market Borrowing which shall
be at least $5,000,000 (and in larger multiples of $1,000,000) but shall not
cause the limits specified in Section 2.03(a) to be violated; and
(iii) the duration of the Interest Period applicable thereto, which
shall be 7 to 180 days.
The Borrower may request offers to make Money Market Loans for up to
three different Interest Periods in a single Money Market Quote Request;
provided that the request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate Money Market Borrowing.
(c) (i) Each Bank may, but shall have no obligation to, submit a Money
Market Quote containing an offer to make Money Market Loans in response to
any Money Market Quote Request; provided that, if the Borrower's request
under Section 2.03(b) specified more than one Interest Period, such Bank
may, but shall have no obligation to, make a single submission containing a
separate offer for each such Interest Period and each such separate offer
shall be deemed to be a separate Money Market Quote. Each Money Market Quote
must be submitted to the Agent not later than 10:00 A.M. (Atlanta, Georgia
time) on the Quotation Date (or such other time and date as the Borrower and
the Agent, with the consent of the Required Banks, may agree); provided that
any Money Market Quote submitted by Wachovia Bank, N.A. may be submitted,
and may only be submitted, if Wachovia Bank, N.A. notifies the Borrower of
the terms of the offer contained therein not later than 9:45 A.M. (Atlanta,
Georgia time) on the Quotation Date. Subject to Section 6.01, any Money
Market Quote so made shall be irrevocable absent manifest error except with
the written consent of the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit I hereto and shall specify:
(A) the proposed date of the Money Market Borrowing and the
duration of the Interest Period therefor, which shall be 7 to 180 days;
(B) the maximum principal amount of the Money Market Loan which
the quoting Bank is willing to make for the applicable Interest Period,
which principal amount (x) may be greater than or less than the
Commitment of the quoting Bank, (y) shall be at least $5,000,000 or a
larger multiple of $1,000,000, and (z) may not exceed the principal
amount of the Money Market Borrowing for which offers were requested;
(C) the rate of interest per annum (rounded, if necessary, to the
nearest 1/100th of 1%) (the "Money Market Rate") offered for each
18
20
such Money Market Loan; and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms
other than or in addition to those set forth in the applicable Money Market
Quote Request (other than setting forth the maximum principal amount of the
Money Market Loan which the quoting Bank is willing to make for the
applicable Interest Period).
(d) The Agent shall as promptly as practicable after the Money Market
Quote is submitted (but in any event not later than 10:30 A.M. (Atlanta, Georgia
time) on the Quotation Date notify the Borrower of the terms (i) of any Money
Market Quote submitted by a Bank that is in accordance with Section 2.03(c) and
(ii) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to the Borrower shall specify (A) the maximum
aggregate principal amount of the Money Market Borrowing for which offers have
been received and (B) the maximum principal amount and Money Market Rates so
offered by each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the Quotation
Date (or such other time and date as the Borrower and the Agent, with the
consent of the Required Banks, may agree), the Borrower shall notify the Agent
of its acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.03(d) and the Agent shall promptly notify each Bank that has submitted
a Money Market Quote. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that are accepted.
The Borrower may accept any Money Market Quote in whole or in part (provided
that any Money Market Quote accepted in part from any Bank shall not be less
than the amount set forth in the Money Market Quote of such Bank as the minimum
principal amount of the Money Market Loan such Bank was willing to make for the
applicable Interest Period); provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market Quote
Request;
(ii) the aggregate principal amount of each Money Market Borrowing
shall be at least $5,000,000 (and in larger multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order of Money
Market Rates; and
(iv) the Borrower may not accept any offer where the Agent has advised
the Borrower that such offer fails to comply with Section 2.03(c)(ii) or
otherwise fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.03(a)).
19
21
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (in multiples of $100,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loans has been
accepted shall, not later than 12:00 P.M. (Atlanta, Georgia time) on the
Quotation Date, make the amount of such Loan available to the Agent at its
address referred to in Section 9.01 in immediately available funds. The amount
so received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in immediately available funds, in an account of the Borrower maintained
with Wachovia.
SECTION 2.04. Notes. (a)(i) The Syndicated Advances of each Bank shall
be evidenced by a single Syndicated Note payable to the order of such Bank for
the account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment; and (ii) the Money Market Loans of each Bank
shall be evidenced by a single Money Market Note payable to the order of such
Bank for the account of its Lending Office in an amount equal to the original
principal amount of the aggregate of the Banks' Commitments.
(b) Upon receipt of each Bank's Notes pursuant to Section 3.01, the
Agent shall deliver such Notes to such Bank. Each Bank shall record, and prior
to any transfer of its Notes shall endorse on the schedule forming a part
thereof appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Advance made by it, the date and amount of
each payment of principal made by the Borrower with respect thereto and in the
case of Syndicated Advances, whether such Loan is a Base Rate Loan or
Euro-Dollar Loan, and such schedule shall constitute rebuttable presumptive
evidence of the principal amount owing and unpaid on such Bank's Notes; provided
that the failure of any Bank to make, or any error in making, any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Notes or the ability of any Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the Borrower so to endorse its
Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
SECTION 2.05. Maturity of Advances.
Each Advance included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the first to occur of: (A) the last
day of the Interest Period applicable to such Borrowing; or (B) the Termination
Date; provided, however, that the aggregate outstanding principal amount of all
Syndicated Advances, together with all Money Market Loans at any one time
outstanding shall not exceed the aggregate amount of the Commitments of all of
the Banks at such time.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" shall be
determined quarterly based upon the ratio of Consolidated Debt (calculated as of
the last day of each Fiscal Quarter) to Cash Flow (calculated for the Fiscal
Quarter then ended and the immediately preceding three Fiscal Quarters), as set
below:
20
22
Ratio of Consolidated Debt Applicable Margin for Applicable Margin for
to Cash Flow Base Rate Loans Euro-Dollar Loans
------------------------------ ---------------------------- ---------------------
Greater than or equal to 4.0
to 1. +0% +.625%
Equal to or greater than 3.0
to 1.0 but less than 4.0 to
1.0 +0% +.425%
Equal to or greater than 2.0
to 1.0 but less than 3.0 to
1.0 +0% +.30%
Less than 2.0 to 1.0 +0% +.275%
The Applicable Margin shall be determined effective as of the date
(herein, the "Rate Determination Date") which is 60 days after the last day of
the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal Quarter,
and the Applicable Margin so determined shall remain effective from such Rate
Determination Date until the date which is 60 days after the last day of the
Fiscal Quarter in which such Rate Determination Date falls (which latter date
shall be a new Rate Determination Date); provided that (i) for the period from
and including the Closing Date to but excluding the Rate Determination Date next
following the Closing Date, the Applicable Margin shall be (A) 0.0% for Base
Rate Loans, and (B) .275% for Advances which are Euro-Dollar Loans, (ii) in the
case of an Applicable Margin determined from the Borrower-prepared quarterly
financial statements for the fourth and final Fiscal Quarter of a Fiscal Year,
in the event that the annual audited statements for such Fiscal Year
subsequently provided to the Banks indicate that the Applicable Margin
originally determined to be effective on the Rate Determination Date immediately
following the end of such Fiscal Quarter was inappropriate in light of such
annual audited financial statements, then the Applicable Margin shall be
adjusted retroactively to such Rate Determination Date to reflect the proper
Applicable Margin, and (iii) if on any Rate Determination Date the Borrower
shall have failed to deliver to the Banks the financial statements required to
be delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the
Fiscal Year or Quarter, as the case may be, most recently ended prior to such
Rate Determination Date, then for the period beginning on such Rate
Determination Date and ending on the earlier of (A) the date on which the
Borrower shall deliver to the Banks the financial statements to be delivered
pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, and (B) the date on which the Borrower shall deliver
to the Banks annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Margin shall be determined
as if the ratio of Consolidated Debt to Cash Flow was more than 4.0 to 1.0 at
all times during such period. Any change in the Applicable Margin on any Rate
Determination Date shall result in a corresponding change, effective on and as
of such Rate Determination Date, in the interest rates applicable to each
Syndicated Advance outstanding on such Rate Determination Date; provided that:
(i) for Euro-Dollar Loans, changes in Applicable Margin shall only be effective
for Interest Periods commencing on or after the Rate Determination Date; and
(ii) no Applicable Margin shall be decreased pursuant to this Section 2.06 if a
Default is in existence on the Rate Determination Date.
21
23
(b) For each day during each Interest Period in which any Advance is a
Base Rate Loan, the applicable Advance shall bear interest on the outstanding
principal amount thereof, at a rate per annum equal to the sum of the Base Rate
for such day plus the Applicable Margin. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of and, to the
extent permitted by applicable law, overdue interest on any Base Rate Loan may,
at the election of the Required Banks, bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
(c) For each day during each Interest Period in which any Advance is a
Euro-Dollar Loan the applicable Advance shall bear interest on the outstanding
principal amount thereof, at a rate per annum equal to the sum of the Applicable
Margin plus the applicable Adjusted London Interbank Offered Rate for such
Interest Period; provided that if any Euro-Dollar Loan shall, as a result of
clause (1)(c) of the definition of Interest Period, have an Interest Period of
less than one month, such Euro-Dollar Loan shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during such period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three (3) months, at intervals of
three months after the first day thereof. Any overdue principal of and, to the
extent permitted by applicable law, overdue interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rates appear on the display designated
as Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Banker's Association for the purpose of displaying London Interbank
Offered Rates for U.S. dollar deposits) determined as of 1:00 p.m. New York City
time, 2 Euro-Dollar Business Days prior to the first day of such Interest
Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the Money Market Rate
22
24
for such Loan quoted by the Bank making such Loan in accordance with Section
2.03. Such interest shall be payable for such Interest Period on the last day
thereof and, if such Interest Period is longer than 90 days, at intervals of 90
days after the first day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(e) The Agent shall determine each interest rate applicable to the
Advances hereunder (other than interest rates applicable to Money Market Loans).
The Agent shall give prompt notice to the Borrower and the Banks by telecopy of
each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of a Default, the
principal amount of the Advances (and, to the extent permitted by applicable
law, all accrued interest thereon) may, at the election of the Required Banks,
bear interest at the Default Rate. The Advances shall bear interest at a rate
per annum equal to the Default Rate following any judgment in favor of the Banks
on the Notes.
(g) Notwithstanding anything to the contrary contained herein, (i)
there shall not be more than eight (8) different Interest Periods applicable to
the Advances outstanding at the same time (for which purpose Interest Periods
described in different numbered clauses of the definition of the term "Interest
Period" shall be deemed to be different Interest Periods even if they are
coterminous) and (ii) the proceeds of any Base Rate Borrowing shall be applied
first to repay the unpaid principal amount of all Advances made as Base Rate
Loans (if any) outstanding immediately before such Base Rate Borrowing.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent for the
ratable account of each Bank a facility fee equal to the product of: (i) the
aggregate of the daily average amounts of such Bank's Commitment (irrespective
of usage), times (ii) a per annum percentage equal to the Applicable Facility
Fee Rate from and including the Closing Date to and including the Termination
Date. Facility fees shall be payable quarterly in arrears on the fifteenth day
following each Facility Fee Determination Date and on the Termination Date;
provided, that should the Commitments be terminated at any time for any reason,
the entire accrued and unpaid facility fee shall be paid on the date of such
termination. The "Applicable Facility Fee Rate" shall be determined quarterly
based upon the ratio of Consolidated Debt (calculated as of the last day of each
Fiscal Quarter) to Cash Flow (calculated for the Fiscal Quarter then ended and
the immediately preceding three Fiscal Quarters) as follows:
Ratio of Applicable
Consolidated Facility
Debt to Cash Flow Fee Rate
----------------- ----------
Greater than or equal to 4.0 to 1.0 + .250%
Equal to or greater than 3.0 to 1.0
but less than 4.0 to 1.0 + .175%
Equal to or greater than 2.0 to 1.0
but less than 3.0 to 1.0 + .150%
Less than 2.0 to 1.0 + .125%
23
25
The Applicable Facility Fee Rate shall be determined effective as of the date
(herein, the "Facility Fee Determination Date") which is 60 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal Quarter,
and the Applicable Facility Fee Rate so determined shall remain effective from
such Facility Fee Determination Date until the date which is 60 days after the
last day of the Fiscal Quarter in which such Facility Fee Determination Date
falls (which latter date shall be a new Facility Fee Determination Date);
provided that (i) for the period from and including the Closing Date to but
excluding the Facility Fee Determination Date next following the Closing Date,
the Applicable Facility Fee Rate shall be .125%; (ii) in the case of an
Applicable Facility Fee Rate determined from the Borrower-prepared quarterly
financial statements for the fourth and final Fiscal Quarter of a Fiscal Year,
in the event that the annual audited statements for such Fiscal Year
subsequently provided to the Banks indicate that the Applicable Facility Fee
Rate originally determined to be effective on the Facility Fee Determination
Date immediately following the end of such Fiscal Quarter was inappropriate in
light of such annual audited financial statements, then the Applicable Facility
Fee Rate shall be adjusted retroactively to such Facility Fee Determination Date
to reflect the proper Applicable Facility Fee Rate, and (iii) if on any Facility
Fee Determination Date the Borrower shall have failed to deliver to the Banks
the financial statements required to be delivered pursuant to Section 5.01(b)
with respect to the Fiscal Quarter most recently ended prior to such Facility
Fee Determination Date, then for the period beginning on such Facility Fee
Determination Date and ending on the earlier of (A) the date on which the
Borrower shall deliver to the Banks the financial statements to be delivered
pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, and (B) the date on which the Borrower shall deliver
to the Banks annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Facility Fee Rate shall be
determined as if the ratio of Consolidated Debt to Cash Flow was more than 4.0
to 1.0 at all times during such period.
(b) The Borrower shall pay to the Agent, for the account and sole
benefit of the Agent, such fees and other amounts at such times as set forth in
the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of Commitments.
The Borrower may, upon at least 3 Domestic Business Days' notice to the
Agent, terminate at any time, or proportionately reduce from time to time by an
aggregate amount of at least $10,000,000 or any larger multiple of $1,000,000
the Commitments. If the Commitments are terminated in their entirety, all
accrued fees (as provided under Section 2.07) which are applicable to the
Commitments shall be payable on the effective date of such termination. A notice
of reduction or termination of the Commitments hereunder, once given, shall not
thereafter be revocable by the Borrower.
SECTION 2.09. Mandatory Reduction and Termination of Commitments.
The Commitments shall terminate on the Termination Date and any Advance
then outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.10. Optional Prepayments of Advances. (a) The Borrower may,
upon at least 1 Domestic Business Day's notice to the Agent, prepay any Advance
that is a Base Rate
24
26
Loan in whole at any time, or from time to time in part in amounts aggregating
at least $10,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Advances of the several Banks; provided that such prepayment shall
be applied to Advances outstanding on the date of such prepayment (in direct
order of maturity)
(b) Except as provided in Section 8.02, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan or any Money
Market Loan, except on the last day of the applicable Interest Period.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. (a) On each date on which the
Commitments are reduced pursuant to Section 2.08 or Section 2.09, the Borrower
shall repay or prepay such principal amount of the outstanding Advances, if any
(together with interest accrued thereon and any amounts due under Section
8.05(a)), as may be necessary so that after such payment the aggregate unpaid
principal amount of the Advances does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied to
repay or prepay ratably the Advances of the several Banks; provided, that such
prepayment shall be applied, first to Syndicated Advances outstanding on the
date of such prepayment (in direct order of maturity) and then to the extent
necessary, to Money Market Loans outstanding on the date of such prepayment (in
direct order of maturity).
(b) In the event that the aggregate principal amount of all Advances at
any one time outstanding shall at any time exceed the aggregate amount of the
Commitments of all of the Banks at such time, the Borrower shall immediately
repay (in the inverse order of maturity) so much of the Advances as is necessary
in order that the aggregate principal amount of the Advances thereafter
outstanding shall not exceed the aggregate amount of the Commitments of all of
the Banks at such time.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Advances and of facility
fees and other fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time)
on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans, the Money Market Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
25
27
(c) All payments of principal, interest and fees and all other amounts
to be made by the Borrower pursuant to this Agreement with respect to any
Advance or fee relating thereto shall be paid without deduction for, and free
from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of each Bank,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Bank is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that the Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any
Advance or fee or other amount, the Borrower shall pay such deduction or
withholding to the applicable taxing authority, shall promptly furnish to any
Bank in respect of which such deduction or withholding is made all receipts and
other documents evidencing such payment and shall pay to such Bank additional
amounts as may be necessary in order that the amount received by such Bank after
the required withholding or other payment shall equal the amount such Bank would
have received had no such withholding or other payment been made. If no
withholding or deduction of Taxes are payable in respect of any Advance or fee
relating thereto, the Borrower shall furnish any Bank, at such Bank's request, a
certificate from each applicable taxing authority or an opinion of counsel
acceptable to such Bank, in either case stating that such payments are exempt
from or not subject to withholding or deduction of Taxes. If the Borrower fails
to provide such original or certified copy of a receipt evidencing payment of
Taxes or certificate(s) or opinion of counsel of exemption, the Borrower hereby
agrees to compensate such Bank for, and indemnify them with respect to, the tax
consequences of the Borrower's failure to provide evidence of tax payments or
tax exemption.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12, it will pay to the Borrower the amount
of such refund promptly upon receipt thereof; provided, however, if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.12 shall (i) be applicable with respect to any Participant,
Assignee or other Transferee, and any calculations required by such provisions
shall be made based upon the circumstances of such Participant, Assignee or
other Transferee, and (ii) constitute a continuing agreement and shall survive
the termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on Base Rate
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day). Interest on Euro-Dollar Loans and interest on Money Market Loans shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed, calculated as to each Interest Period from and including the first
day thereof to but excluding the last day thereof. Facility fees and any other
fees payable hereunder shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the
26
28
last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to Closing. The Borrower shall satisfy the
following conditions on the Closing Date:
(a) receipt by the Agent from each of the parties hereto of a duly
executed counterpart of this Agreement signed by such party;
(b) receipt by the Agent of the duly executed Notes for the account of
each Bank complying with the provisions of Section 2.04;
(c) receipt by the Agent of an opinion (together with any opinions of
local counsel relied on therein) of Xxxxxx X. Xxxxxxxx, General Counsel of
the Borrower, substantially in the form of Exhibit B hereto and covering
such additional matters relating to the transactions contemplated hereby as
any Bank may reasonably request;
(d) receipt by the Agent of an opinion of Xxxxxx Xxxxxxx Xxxxxxxxx &
Xxxx, PLLC, special counsel for the Agent, substantially in the form of
Exhibit C hereto and covering such additional matters relating to the
transactions contemplated hereby as the Agent may reasonably request;
(e) receipt by the Agent of a certificate, dated the Closing Date,
substantially in the form of Exhibit D hereto, signed by a principal
financial officer of the Borrower, to the effect that (i) no Default has
occurred and is continuing on the Closing Date; and (ii) the representations
and warranties of the Borrower contained in Article IV hereof are true on
and as of the Closing Date;
(f) receipt by the Agent of all documents which the Agent may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of this Agreement and the Notes, and any
other matters relevant hereto, all in form and substance satisfactory to the
Agent, including without limitation a certificate of incumbency of the
Borrower, signed by the Secretary or an Assistant Secretary of the Borrower,
substantially in the form of Exhibit E hereto, certifying as to the names,
true signatures and incumbency of the officer or officers of the Borrower
authorized to execute and deliver the Loan Documents, and certified copies
of the following items: (i) the Borrower's Certificate of Incorporation,
(ii) the Borrower's Bylaws, (iii) a certificate of the Secretary of State of
the State of South Carolina as to the existence of the Borrower as a South
Carolina corporation, and (iv) the action taken by the Board of Directors of
the Borrower authorizing the Borrower's execution, delivery and performance
of this Agreement, the Notes and the other Loan Documents to which the
Borrower is a party; and
27
29
(g) receipt by the Agent and the Banks of evidence reasonably
satisfactory to the Agents and Banks confirming the accuracy of Section
9.16.
SECTION 3.02. Conditions to All Borrowings. The obligation of each Bank
to make a Loan on the occasion of each Borrowing is subject to the satisfaction
of the following conditions:
(a) receipt by the Agent of notice of such Syndicated Borrowing as
required by Section 2.02 or compliance with the provisions of Section 2.03
in the case of a Money Market Borrowing;
(b) the fact that, immediately before and after such Borrowing no
Default shall have occurred and be continuing;
(c) the fact that, immediately after such Borrowing the aggregate
outstanding principal amount of the Syndicated Loans of all Banks, together
with the aggregate outstanding principal amount of all Money Market Loans,
will not exceed the aggregate amount of the Commitments;
(d) the fact that, the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of the
date of each Borrowing.
Each Borrowing, hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower
28
30
or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Notes and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a) The consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of December 31, 1997 and
the related consolidated statements of income, shareholders' equity and cash
flows for the Fiscal Year then ended, reported on by Ernst & Young, copies of
which have been delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such dates and
their consolidated results of operations and cash flows for such periods.
(b) Since December 31, 1997, there has been no Material Adverse Effect.
(c) The Annual Statements of the licensed insurance companies within
the Insurance Group together with the supplemental schedules thereto, as of
December 31, 1997, copies of which have been delivered to each of the Banks,
fairly present the respective financial positions of the licensed insurance
companies within the Insurance Group as of such date and its results of
operations and cash flow for such period.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending, or to the knowledge of the Borrower threatened, against or affecting
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could have a Material Adverse Effect
or which in any manner draws into question the validity or enforceability of, or
could impair the ability of the Borrower to perform its obligations under, this
Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each member
of the Controlled Group have fulfilled their obligations, if any, under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any material liability
to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or
ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Taxes. There have been filed on behalf of the Borrower
and its Subsidiaries all Federal, state and local income, excise, property and
other tax returns which are required to be filed by them and all taxes due
pursuant to such returns or pursuant to any assessment received by or on behalf
of the Borrower or any Subsidiary have been paid. The charges, accruals and
reserves on
29
31
the books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate. United
States income tax returns of the Borrower and its Subsidiaries have been
examined and closed through the Fiscal Year ended December 31, 1989.
SECTION 4.08. Subsidiaries. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 4.09. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.10. Ownership of Property; Liens. Each of the Borrower and
its Consolidated Subsidiaries has title to its Properties and other assets
sufficient for the conduct of its business, and none of such Property or other
assets is subject to any Lien except as permitted in Section 5.09.
SECTION 4.11. No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could have or cause a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION 4.12. Full Disclosure. All information heretofore furnished by
the Borrower to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will be, true,
accurate and complete in every material respect or based on reasonable estimates
on the date as of which such information is stated or certified. The Borrower
has disclosed to the Banks in writing any and all facts which could have or
cause a Material Adverse Effect.
SECTION 4.13. Environmental Matters. (a) Neither the Borrower nor any
Subsidiary is subject to any Environmental Liability which could have or cause a
Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA which either could have or has a reasonable
probability of causing an Environmental Liability in excess of $100,000. None of
the Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss.300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used, produced,
manufactured, processed, generated, stored, disposed of, managed at, or shipped
or transported to or from the Properties or are otherwise present at, on, in or
under the Properties, or, to the best of the knowledge of the Borrower, at or
from any adjacent site or facility, except for Hazardous Materials, such as
cleaning solvents, pesticides and other materials used, produced, manufactured,
processed, generated, stored, disposed of, and managed in the ordinary course of
business in compliance with all applicable Environmental Requirements.
30
32
SECTION 4.14 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.15 Capital Stock. All Capital Stock, debentures, bonds, notes
and all other securities of the Borrower and its Subsidiaries presently issued
and outstanding are validly and properly issued in accordance with all
applicable laws, including, but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws. The issued shares of Capital
Stock of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free
and clear of any Lien or adverse claim. At least a majority of the issued shares
of capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation X.
SECTION 4.17. Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this Agreement,
the Borrower will not be "insolvent," within the meaning of such term as used in
O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the United States
Code or Section 2 of the Uniform Fraudulent Transfer Act, or any other
applicable state law pertaining to fraudulent transfers, as each may be amended
from time to time, or be unable to pay its debts generally as such debts become
due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated
SECTION 4.18. Broadcast Licenses. (a) Each of the Borrower and its
Subsidiaries owns, possesses or has the right to use all of the patents,
trademarks, service marks, trade names, copyrights, licenses (including, without
limitation, Broadcast Licenses) and rights with respect thereto, necessary for
the present and currently planned future conduct of its business, without any
known conflict with the rights of others, except where any failure to own,
possess or have the right to use any such patent, trademark, servicemark, trade
name, copyright, or license would not, alone or in the aggregate have a Material
Adverse Effect.
(b) (i) Each Broadcast License is in full force and effect and the
Borrower and each Subsidiary has fulfilled and performed all of its
obligations, if any, with respect to such Broadcast Licenses except where
the failure of any Broadcast License to be in full force and effect or the
failure by the Borrower or any Subsidiary to fulfill and perform all of its
obligations would not, alone or in the aggregate, have a Material Adverse
Effect.
(ii) no event has occurred which permits, or after notice or lapse
of
31
33
time or both would permit, revocation or termination of any such Broadcast
License which causes or is likely to cause a Material Adverse Effect or in
the future may (so far as the Borrower can now reasonably foresee) cause a
Material Adverse Effect in any of the rights of the Borrower or any
Subsidiary thereunder. Except to the extent required by the Communications
Act of 1934, as amended, and the rules and regulations of the FCC, no
Broadcast License or other franchise or license held by the Borrower or any
Subsidiary requires that any present stockholder, director, officer or
employee of the Borrower remain as such or that any transfer of control of
the Borrower or any Subsidiary must be approved by any public or
governmental body.
(c) Except for rulemakings or similar proceedings of general
applicability to entities such as the Borrower and its Subsidiaries, no Borrower
or Subsidiary is a party to any investigation (to the best of its knowledge),
notice of violation, order, or complaint issued by or before the FCC or any
other Governmental Authority, nor are there any other proceedings involving the
Borrower or any one or more of the Subsidiaries by or before the FCC or any
other Governmental Authority, which investigation, notice, order, complaint or
proceeding could in any manner materially threaten or adversely affect the
Broadcast Licenses. Neither the Borrower nor any Subsidiary has any knowledge of
a threat of any such investigation, notice of violation, order, complaint or
proceeding with respect thereto. Neither the Borrower nor any Subsidiary has any
reason to believe that the Broadcast Licenses will not be renewed in the
ordinary course. The Borrower and each Subsidiary has filed with the FCC and all
other applicable Governmental Authorities all material reports, applications,
documents, instruments and information required to be filed by it pursuant to
applicable rules and regulations or requests of the FCC or such applicable
Governmental Authorities.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) (i) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet and the consolidating
balance sheets of the Borrower and its Consolidated Subsidiaries as of the
end of such Fiscal Year and the related consolidated and consolidating
statements of income, shareholders' equity and cash flows for such Fiscal
Year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by Ernst & Young or other independent
public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to
the Required Banks, and (ii) as soon as available and in any event within 90
days after the end of each fiscal year of each
32
34
Subsidiary within the Insurance Group (excluding Liberty Insurance
Services), a copy of the Annual Statement of each such Subsidiary within the
Insurance Group (excluding Liberty Insurance Services), together with all
supplemental schedules thereto and with the management discussion analysis,
as of the end of such fiscal year, all prepared in accordance with statutory
accounting principles;
(b) as soon as available and in any event within 60 days after the end
of each Fiscal Quarter, a consolidated balance sheet and the consolidating
balance sheets of the Borrower and its Consolidated Subsidiaries as of the
end of such quarter and the related consolidated and consolidating
statements of income and consolidated and consolidating statements of cash
flows for such quarter and for the portion of the Fiscal Year ended at the
end of such quarter, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end adjustments)
as to fairness of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the chief accounting officer
of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.03 through 5.09, inclusive, 5.14, 5.23 and 5.26 on the date of such
financial statements (which calculations shall be presented substantially in
the form attached hereto as Schedule 5.01(c)) and (ii) stating whether any
Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in clause (a)(i) above, a statement of the firm of
independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe
that any Default existed on the date of such financial statements;
(e) within five Domestic Business Days after the Borrower becomes aware
of the occurrence of any Default, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements
so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Borrower shall have filed with the Securities and Exchange
Commission;
33
35
(h) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA, a copy of such notice;
or (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate or appoint a trustee to administer any Plan, a copy of such
notice;
(i) promptly after the Borrower knows of the commencement or threat
thereof, notice of any Forfeiture Proceeding;
(j) promptly after the Borrower knows of the commencement thereof,
notice of any litigation, dispute or proceeding involving a claim against
the Borrower and/or any Subsidiary for $5,000,000 or more in excess of
amounts covered in full by applicable insurance; and
(k) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries in conformity with generally
accepted accounting principles shall be made of all dealings and transactions in
relation to its business and activities; and will permit, and will cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense for
such Bank's direct costs incurred prior to the occurrence of an Event of Default
and at the Borrower's expense for all direct costs incurred after the occurrence
of an Event of Default to visit and inspect any of their respective Properties,
to examine and make abstracts from any of their respective books and records and
to discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants. The Borrower agrees to
cooperate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired.
SECTION 5.03. Ratio of Consolidated Debt to Consolidated Total Capital.
The ratio of Consolidated Debt to Consolidated Total Capital shall not at any
time exceed 0.35 to 1.00.
SECTION 5.04. Minimum Stockholders' Equity. Stockholders' Equity will
at no time be less than 85% of the Stockholder's Equity on the Closing Date,
plus the sum of: (i) 50% of the cumulative Reported Net Income during any period
beginning after the Closing Date (taken as one accounting period), calculated
quarterly but excluding from such calculations any quarter in which Reported Net
Income is negative; and (ii) 100% of the cumulative Net Proceeds of Capital
Stock/Conversion of Debt received during any period after the Closing Date,
calculated quarterly.
SECTION 5.05. Fixed Charges Coverage. As of the last day of each Fiscal
Quarter,
34
36
commencing with the Fiscal Quarter ending March 31, 1998, the ratio of Adjusted
Cash Flow for the period of four Fiscal Quarters ending on such day to Fixed
Charges for the period of four Fiscal Quarters ending on such date shall not be
less than 2.0.
SECTION 5.06. Risk Based Capital. The Borrower will not as of the last
day of any Fiscal Year permit the Total Adjusted Capital [as defined in the
NAIC's Risk-Based Capital for life and/or Health Insurers Model Act (as then
currently in effect), as so adopted (and including any instructions thereunder,
the "Model Act")] of Liberty Life or any material Subsidiary in the Insurance
Group to be less than 175% of its Company Action Level RBC (as defined in the
Model Act).
SECTION 5.07. Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except: (i) loans or
advances to employees not exceeding One Million and NO/100 Dollars ($1,000,000)
in the aggregate outstanding made in the ordinary course of business and
consistently with practices existing on December 31, 1997; and (ii) deposits
required by government agencies or public utilities; and (iii) Intercompany
Loans; provided that after giving effect to the making of any loans, advances or
deposits permitted by clause (i), (ii) or (iii) of this Section, no Default
shall have occurred and be continuing.
SECTION 5.08. Investments. The Borrower and its Subsidiaries shall not
make investments in any Person except as permitted by Section 5.07 and except
investments in (i) direct obligations of the United States Government maturing
within one year, (ii) certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Agent, (iii) Permitted Acquisitions, (iv)
commercial paper rated A-1 or the equivalent thereof by Standard & Poor's
Corporation or P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc.
and in either case maturing within 6 months after the date of acquisition and/or
(v) tender bonds maturing or which are subject to a right of mandatory
repurchase within 30 days and the payment of the principal of and interest on
which is fully supported by a letter of credit issued by a United States bank
whose long-term certificates of deposit are rated at least AA or the equivalent
thereof by Standard & Poor's Corporation and Aa or the equivalent thereof by
Xxxxx'x Investors Service, Inc.; provided, however, that (x) this Section 5.08
shall not prohibit investments made in the ordinary course of business involving
either (A) the investment portfolio of any Subsidiary within the Insurance Group
or (B) the real estate investment portfolio of the Borrower and all of its
Subsidiaries, and (y) notwithstanding Clause (x)(A) and (B) of this Section
5.08: (I) the total mortgage loans included within the Consolidated Investment
Portfolio must at all times be less than 20% of the Consolidated Investment
Portfolio; (II) the total real estate included within the Consolidated
Investment Portfolio must at all times be less than 5% of the Consolidated
Investment Portfolio; (III) the total equities (excluding capital stock of the
Borrower and its Subsidiaries) included within the Consolidated Investment
Portfolio must at all times be less than 10% of the Consolidated Investment
Portfolio; (IV) the total non-investment grade bonds included within the
Consolidated Investment Portfolio must at all times be less than 7.5% of the
Consolidated Investment Portfolio; and (V) the total real estate, equities and
non-investment grade bonds included within the Consolidated Investment Portfolio
must at all times be less than 15% of the Consolidated Investment Portfolio.
SECTION 5.09. Negative Pledge. Neither the Borrower nor any Subsidiary
will create,
35
37
assume or suffer to exist any Lien on any asset now owned or hereafter acquired
by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $8,500,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 18 months after the acquisition or completion of
construction thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Consolidated Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien securing an Intercompany Loan; and
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt secured by any such Lien
is not increased.
Provided, Liens permitted by the foregoing clauses (a) through (g)
shall at no time secure Debt in an aggregate amount greater than 5% of
Stockholders' Equity.
SECTION 5.10 Termination/Loss of FCC License. The Borrower will not,
nor will it permit any Subsidiary to, take or fail to take any action which
permits, or after notice or lapse of time or both would permit, revocation or
termination of any material Broadcast License.
SECTION 5.11 Forfeiture Proceedings. The Borrower will not, nor will it
permit any Subsidiary to, engage in the conduct of any business or activity
which could result in a Forfeiture Proceeding.
SECTION 5.12. Conduct of Business and Maintenance of Existence. The
Borrower shall, and shall cause each Subsidiary to, (a) except as a result of a
corporate reorganization permitted by Sections 5.13 and 5.14, maintain its
corporate existence and carry on its business in substantially the same manner
and in substantially the same fields as such business is now carried on and
maintained, and
36
38
(b) preserve, renew and keep in full force and effect their respective rights,
privileges, licenses (including, without limitation, all broadcast licenses and
insurance licenses) and franchises necessary or desirable in the normal conduct
of business. The business of any Subsidiary of the Borrower that is created or
acquired by the Borrower after the date of this Agreement shall be in
substantially the same field as the business of the Borrower and its
Subsidiaries on the date of this Agreement.
SECTION 5.13. Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or that of any
Subsidiary, except through corporate reorganization to the extent permitted by
Section 5.14.
SECTION 5.14. Consolidations, Mergers and Sales of Assets. The Borrower
will not, nor will it permit any Subsidiary to, consolidate or merge with or
into, or sell, lease or otherwise transfer all or any substantial part of its
assets to, any other Person, or discontinue or eliminate any business line or
segment, provided that (1) the Borrower or any Subsidiary or any Minor
Subsidiaries utilized in a merger or acquisition transaction may merge with
another Person if (A) such other Person was organized under the laws of the
United States of America or one of its states, (B) the Borrower or such
Subsidiary or any Minor Subsidiaries utilized in a merger or acquisition
transaction (as the case may be) is the corporation surviving such merger; and
(C) immediately after giving effect to such merger, no Default shall have
occurred and be continuing; (2) Subsidiaries of the Borrower may merge with one
another, provided that: (A) immediately afer giving effect to such merger, no
Default shall have occurred and be continuing; and (B) if such merger involves
Cosmos, Liberty Life or Liberty Insurance Services, then Cosmos, Liberty Life or
Liberty Insurance Services, as the case may be: (x) must be the corporation
surviving such merger; and (y) must remain a Wholly Owned Subsidiary; and (3)
the foregoing limitation on the sale, lease or other transfer of assets and on
the discontinuation or elimination of a business line or segment shall not
prohibit during any Fiscal Quarter, a transfer of assets or the discontinuance
or elimination of a business line or segment (in a single transaction or in a
series of related transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be so discontinued, when combined
with all other assets transferred, and all other assets utilized in all other
business lines or segments discontinued, during such Fiscal Quarter and the
immediately preceding three Fiscal Quarters (excluding the assets sold in
connection with the Xxxxxx National Sale), either (x) constituted more than 10%
of Consolidated Total Assets at the end of the fourth Fiscal Quarter immediately
preceding such Fiscal Quarter (excluding the assets sold in connection with the
Xxxxxx National Sale), or (y) contributed more than 10% of Consolidated
Operating Profits during the 4 consecutive Fiscal Quarters immediately preceding
such Fiscal Quarter (excluding Operating Profits attributable to the assets sold
in connection with the Xxxxxx National Sale).
SECTION 5.15. Use of Proceeds. (a) No portion of the proceeds of the
Loans will be used by the Borrower (i) in connection with, either directly or
indirectly, any tender offer for, or other acquisition of stock of any
corporation with a view towards obtaining control of such other corporation
(other than in connection with a tender offer for, or other acquisition of,
Capital Stock that constitutes a Permitted Acquisition), (ii) directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock, or (iii) for any purpose in violation
of any applicable law or regulation.
37
39
At no time will the value of Margin Stock purchased or held by the
Borrower exceed 25% of Unencumbered Total Assets of the Borrower.
(b) The proceeds of the Loans made on the date of the initial borrowing
hereunder shall be used exclusively by the Borrower to refinance existing
indebtedness of the Borrower.
(c) The proceeds of Loans other than those Loans referenced in Section
5.15(b) shall be used exclusively by the Borrower (i) for working capital
purposes, (ii) to prepay or repay Loans pursuant to the terms of this Agreement,
and (iii) to finance Permitted Acquisitions.
SECTION 5.16. Compliance with Laws; Payment of Taxes. The Borrower
will, and will cause each of its Subsidiaries and each member of the Controlled
Group to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to the PBGC), except where the necessity of such compliance is being
contested in good faith through appropriate proceedings diligently pursued. The
Borrower will, and will cause each of its Subsidiaries to, pay promptly when due
all taxes, assessments, governmental charges, claims for labor, supplies, rent
and other obligations which, if unpaid, might become a lien against the Property
of the Borrower or any Subsidiary, except liabilities being contested in good
faith by appropriate proceedings diligently pursued and against which, if
requested by the Agent, the Borrower shall have set up reserves satisfactory to
the Agent.
SECTION 5.17. Insurance. The Borrower will maintain, and will cause
each of its Subsidiaries to maintain (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound and reputable insurance
companies acceptable to the Agent, insurance on all its Property in at least
such amounts and against at least such risks as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business.
SECTION 5.18. Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Required Banks.
SECTION 5.19. Maintenance of Property. The Borrower shall, and shall
cause each Subsidiary to, maintain all of its Properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.20. Environmental Notices. The Borrower shall furnish to the
Banks and the Agent prompt written notice of all Environmental Liabilities,
pending, threatened or anticipated Environmental Proceedings, Environmental
Notices, Environmental Judgments and Orders, and Environmental Releases at, on,
in, under or in any way affecting the Properties or any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing.
SECTION 5.21. Environmental Matters. The Borrower will not, and will
not permit any Third Party to, use, produce, manufacture, process, generate,
store, dispose of, manage at, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced, manufactured, processed,
generated, stored, disposed or managed in the ordinary course of business in
compliance with all
38
40
applicable Environmental Requirements.
SECTION 5.22. Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release it will act immediately to investigate
the extent of, and to take appropriate remedial action to eliminate, such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority.
SECTION 5.23. Surplus Relief Reinsurance. The Borrower will not permit
any Subsidiary within the Insurance Group to enter into any Surplus Relief
Reinsurance Transaction, if, upon giving effect to any such Surplus Relief
Reinsurance Transaction on a pro forma basis, the aggregate statutory capital
and surplus of the Subsidiaries within the Insurance Group would increase by
more than $10,000,000 in the aggregate as a result of all of the Surplus Relief
Reinsurance Transactions entered into by the Subsidiaries within the Insurance
Group during the period from the Closing Date through and including the date of
such Surplus Relief Reinsurance Transaction.
SECTION 5.24 Transactions with Affiliates. Neither the Borrower nor any
of its Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of the Borrower or such Subsidiary (which Affiliate is not the
Borrower or a Subsidiary), except as permitted by law and in the ordinary course
of business and pursuant to reasonable terms which are fully disclosed to the
Agent and the Banks, consented to in writing by the Required Banks, and are no
less favorable to Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate.
SECTION 5.25 Year 2000 Compatibility.
(a) Promptly and in no event later than June 30, 1999, the Borrower
shall take all action necessary to ensure that all computer based systems of the
Borrower, and its Subsidiaries are capable in all material respects of the
following:
I. handling date information involving all and any dates before,
during and/or after January 1, 2000, including accepting input, providing
output and performing date calculations in whole or in part:
II. operating, accurately without interruption on and in respect of
any and all dates before, during and/or after January 1, 2000 and without
any change in performance;
III. responding to and processing two digit year input without creating
any ambiguity as to the century; and
IV. storing and providing date input information without creating any
ambiguity as to the century.
(b) Promptly and in no event later than June 30, 1999, the Borrower and
its Subsidiaries shall take all action necessary to ensure that all computer
based systems of their respective
39
41
vendors, suppliers and customers are capable of the items specified in Section
5.25(a)(I) through (IV) inclusive, where noncompliance could have a Material
Adverse Effect. In addition, at the request of the Agent, the Borrower shall
provide the Agent assurances in form and substance satisfactory to the Required
Banks of the Borrower's year 2000 compatibility.
SECTION 5.26. Subsidiary Debt. No Subsidiary of the Borrower shall at
any time incur, create, assume, or permit to exist any Debt except: (a) Debt
owing to the Borrower or another Subsidiary of the Borrower; and (b) Debt, in
addition to Debt permitted under clause (a) of this Section 5.26, provided that
the aggregate outstanding principal amount of Debt of all of the Subsidiaries of
the Borrower incurred under this clause (b) of Section 5.26 shall not at any
time exceed $ 10,000,000; provided further that no Subsidiary of the Borrower
shall incur, create, assume, or permit to exist any Debt under this Section 5.26
if the incurrence, creation, assumption or existence of any such Debt shall
result in a Default or Event of Default.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Syndicated Advance or Money Market Loan, or shall fail to pay any interest
on any Syndicated Advance or Money Market Loan within three Domestic
Business Days after such interest shall become due, or shall fail to pay any
fee or other amount payable hereunder within three Domestic Business Days
after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.02 or 5.03 to 5.15, inclusive, 5.17, 5.23,
5.25 or 5.26; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained or incorporated by reference in this Agreement (other
than those covered by clause (a) or (b) above) for thirty days after the
earlier of (i) the first day on which the Borrower has knowledge of such
failure or (ii) written notice thereof has been given to the Borrower by the
Agent at the request of any Bank; or
(d) any representation, warranty, certification or statement made or
deemed made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect in any material respect
when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of Debt outstanding (other than the Notes) when due or within any
applicable grace period; or
40
42
(f) any event or condition shall occur which results in the acceleration
of the maturity of Debt outstanding of the Borrower or any Subsidiary or the
mandatory prepayment or purchase of such Debt by the Borrower (or its
designee) or such Subsidiary (or its designee) prior to the scheduled
maturity thereof, or enables (or, with the giving of notice or lapse of time
or both, would enable) the holders of such Debt or any Person acting on such
holders' behalf to accelerate the maturity thereof or require the mandatory
prepayment or purchase thereof prior to the scheduled maturity thereof,
without regard to whether such holders or other Person shall have exercised
or waived their right to do so; or
(g) the Borrower or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its Property, or shall consent to any such relief or
to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become due,
or shall take any corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its Property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days; or
an order for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any such Plan or Plans or a proceeding shall be
instituted by a fiduciary of any such Plan or Plans to enforce Section 515
or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any such Plan or
Plans must be terminated; or the Borrower or any other member of the
Controlled Group shall enter into, contribute or be obligated to contribute
to, terminate or incur any withdrawal liability with respect to, a
Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a
41
43
period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Borrower under Section 4068 of ERISA and in either case
such lien shall remain undischarged for a period of 25 days after the date
of filing; or
(l) (i) any Person or two or more Persons acting in concert (other than
Person(s) who are lineal descendants (including without limitation adopted
children) of W. Xxxxx Xxxx, spouses of such lineal descendants, or
fiduciaries with respect to voting stock held by, under the control of or
for the benefit of such lineal descendants or spouses of such lineal
descendants and other than Person(s) whose ownership of 20% or more of the
outstanding shares of the voting stock of the Borrower is approved in
advance by the Board of Directors of the Borrower) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 20% or
more of the outstanding shares of the voting stock of the Borrower; or (ii)
as of any date a majority of the Board of Directors of the Borrower consists
of individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to become
directors by the Board of Directors of the Borrower of which a majority
consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of
which a majority consisted of individuals described in clause (A) and
individuals described in clause (B); or
(m) either (i) any Forfeiture Proceeding shall have been commenced or
the Borrower shall have given the Banks written notice of the commencement
or threatened commencement of any Forfeiture Proceeding as provided in
Section 5.01(i); or (ii) the Agent has a good faith basis to believe that a
Forfeiture Proceeding has been threatened or commenced; or
(n) if any of the Broadcast Licenses necessary for the operation of the
Stations shall be terminated, forfeited or revoked or shall fail to be renewed
for any reason whatsoever and such termination, forfeiture, revocation or
failure to renew either does or has a reasonable probability of causing a
Material Adverse Effect, or, for any other reason, the Borrower or any
Subsidiary of the Borrower shall at any time fail to be a licensee under any of
the Broadcast Licenses or shall otherwise fail to have all required
authorizations, licenses and permits to construct, own, operate or promote the
Stations pursuant to the Broadcast Licenses such failure either does or has a
reasonable probability of causing a Material Adverse Effect; or
(o) if, at any time, the FCC or any court of competent jurisdiction
shall have entered any final order of judgment (which, in either case, shall
have been outstanding for any period of more than thirty (30) days during which
enforcement of such order or judgment has not been stayed, by reason of a
pending appeal or otherwise) requiring the Borrower or any Subsidiary of the
Borrower to sell, transfer or divest itself of any Station, or the assets which
comprise any Station, by virtue of any failure
42
44
on the part of the Borrower or any Subsidiary of the Borrower to comply with the
Federal Communications Act of 1934, as amended, the rules and regulations of the
FCC promulgated thereunder or any FCC order or any judgment, and the Borrower or
any Subsidiary of the Borrower shall fail to consummate such sale, transfer or
divestiture within the time allotted therefor and such failure either does or
has a reasonable probability of causing a Material Adverse Effect; then, and in
every such event, the Agent shall (i) if requested by the Required Banks, by
notice to the Borrower terminate the Commitments and they shall thereupon
terminate, and (ii) if requested by the Required Banks, by notice to the
Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents to be, and
the Notes (together with all accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that if
any Event of Default specified in clause (g) or (h) above occurs with respect to
the Borrower, without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon automatically terminate and the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower. Notwithstanding the
foregoing, the Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower of any Event of Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any Bank under, this Agreement or
any other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and then only on terms and conditions
satisfactory to the Agent, and (d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other Loan Document or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct. The Agent
43
45
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The provisions of this Article VII are solely for the
benefit of the Agent and the Banks, and the Borrower shall not have any rights
as a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and under the other Loan Documents,
the Agent shall act solely as agent of the Banks and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for the Borrower. The duties of the Agent shall be ministerial
and administrative in nature, and the Agent shall not have by reason of this
Agreement or any other Loan Document a fiduciary relationship in respect of any
Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telefax, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants or
other experts selected by the Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and
thereunder in accordance with instructions signed by the Required Banks (or, in
the case of instructions given with respect to any matter as to which Section
9.05(a) requires the signatures of all the Banks, instructions signed by all the
Banks), and such instructions of the Required Banks or all the Banks, as the
case may be, in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default or an Event of Default (other than the
non-payment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each non-payment of principal of or
interest on the Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Agent shall (subject to Section 9.05) take
such action with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a Bank. With
respect to any Loans made by an Affiliate of Wachovia, such Affiliate (and
Wachovia if it becomes a Bank hereunder) in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not an Affiliate of the Agent (or in
Wachovia's case, acting as the Agent), and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include such Affiliate of Wachovia (or
Wachovia, if it becomes a Bank hereunder) in its individual capacity. Such
Affiliate and the Agent may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Borrower (and any of its Affiliates) as if it
were not an Affiliate of the Agent or acting as the Agent, as the case may be,
and such Affiliate and the Agent may accept fees and other consideration from
the Borrower (in addition
44
46
to any agency fees and arrangement fees heretofore agreed to between the
Borrower and the Agent) for services in connection with this Agreement or any
other Loan Document or otherwise without having to account for the same to the
Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to indemnify
the Agent, to the extent the Agent shall not have been reimbursed by the
Borrower, ratably in proportion with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided, however, that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the reasonable opinion of the Agent, be
insufficient or become impaired, the Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE RESPONSIBLE
OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have been
filed with the Agent and the provisions of Section 9.07 (c) have been satisfied.
Any requests, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
Note or of any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.08. Non-Reliance on Agent and Other Banks. Each Bank agrees
that it has, independently and without reliance on the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank
45
47
with any credit or other information concerning the affairs, financial condition
or business of the Borrower or any other Person (or any of their Affiliates)
which may come into the possession of the Agent. Each Bank acknowledges that
each Bank designated as a "Co-Agent" on the signature pages of this Agreement
shall have no right, duty or responsibility, and shall incur no liability, under
this Agreement in its capacity as a Co-Agent.
SECTION 7.09. Failure to Act. Except for action expressly required of
the Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which has
a combined capital and surplus of at least $500,000,000. 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 and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
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 the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest
Period, or
(b) the Required Banks advise the Agent that the London Interbank
Offered Rate as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding the Euro-Dollar Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies
46
48
the Agent at least two Domestic Business Days before the date of any Borrowing
of Euro-Dollar Loans for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the adoption of
any applicable law, rule or regulation, or any change in any existing or future
law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such authority, bank or
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank 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 Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan of
such Bank, together with accrued interest thereon and any amount due such Bank
pursuant to Section 8.05(a). Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
(i) shall subject any Bank (or its Lending Office) to any tax, duty or
other charge with respect to its Euro-Dollar Loans, its Notes or its
obligation to make Euro-Dollar Loans, or shall change the basis of taxation
of payments to any Bank (or its Lending Office) of the principal of or
interest on its Euro-Dollar Loans or any other amounts due under this
Agreement in respect of its Euro-Dollar Loans or its obligation to make
Euro-Dollar Loans (except for changes in the rate of tax on the overall net
income of such Bank or its Lending Office imposed by the jurisdiction in
which such Bank's principal executive office or Lending Office is located);
or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding any such requirement included in an applicable Euro-Dollar
Reserve Percentage) against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Lending Office); or
47
49
(iii) shall impose on any Bank (or its Lending Office) or the London
interbank market any other condition affecting its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans; and the result of any of
the foregoing is to increase the cost to such Bank (or its Lending Office)
of making or maintaining any Euro-Dollar Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Note with respect thereto, by an amount deemed
by such Bank to be material, then, within 15 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any existing or future law, rule or regulation, or any change
in the interpretation or administration thereof, or compliance by any Bank (or
its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence of
its obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 15 days after demand by
such Bank, the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with
respect to any Participant, Assignee or other Transferee, and any calculations
required by such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (interest and principal on
such Loans
48
50
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and
(b) after its Euro-Dollar Loans have been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
SECTION 8.05. Compensation. Upon the request of any Bank, delivered to
the Borrower and the Agent, the Borrower shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred by
such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09, Section 2.10,
Section 8.02 or otherwise) of a Euro-Dollar Loan or Money Market Loan on a
date other than the last day of an Interest Period for such Euro-Dollar Loan
or Money Market Loan, as the case may be;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan or Money
Market Loan on the date for such prepayment specified in the relevant notice
of prepayment hereunder;
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the
date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02; or
(d) any failure by the Borrower to borrow a Money Market Loan (with
respect to which the Borrower has accepted a Money Market Quote) on the date
for the Money Market Borrowing of which such Money Market Loan is a part
specified in the applicable Money Market Quote Request delivered pursuant to
Section 2.03;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
ARTICLE IX
49
51
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or telecopy
number set forth on the signature pages hereof or such other address or telecopy
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopy
number specified in this Section and the telecopy machine used by the sender
provides a written confirmation that such telecopy has been so transmitted or
receipt of such telecopy transmission is otherwise confirmed, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, and (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article II or Article VIII shall not be effective
until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation, review and
negotiation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Agent or any Bank,
including fees and disbursements of counsel, in connection with such Event of
Default and collection and other enforcement proceedings resulting therefrom,
including out-of-pocket expenses incurred in enforcing this Agreement and the
other Loan Documents. The Borrower shall indemnify each Bank against any
transfer taxes, documentary taxes, assessments or charges made by any Authority
by reason of the execution and delivery of this Agreement or the other Loan
Documents.
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Bank (an "Indemnified Person") from and against any and all claims,
damages, liabilities and expenses (including, without limitation, reasonable
counsel fees and expenses) which may be incurred by or asserted against the
Agent or such Bank in connection with or arising out of any investigation,
litigation or proceeding related to the transactions contemplated by this
Agreement or any other Loan Document, whether or not the Agent or such Bank is a
party thereto; provided, however, the Borrower shall not be obligated to
indemnify an Indemnified Person to the extent any claim, damage, liability or
expense shall arise from such Indemnified Person's gross negligence or willful
misconduct.
SECTION 9.04. Sharing of Set-Offs. (a) The Borrower hereby grants to
each Bank, as security for the full and punctual payment and performance of the
obligations of the Borrower under this Agreement, a continuing lien on and
security interest in all deposits and other sums credited by or due
50
52
from such Bank to the Borrower or subject to withdrawal by the Borrower; and
regardless of the adequacy of any collateral or other means of obtaining
repayment of such obligations, each Bank may at any time upon or after the
occurrence of any Event of Default, and without notice to the Borrower, set off
the whole or any portion or portions of any or all such deposits and other sums
against such obligations, whether or not any other Person or Persons could also
withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to the Notes
(excluding the Money Market Notes) held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of all
principal and interest due with respect to the Notes (excluding the Money Market
Notes) held by such other Bank, the Bank receiving such proportionately greater
payment shall purchase such participations in the Notes (excluding the Money
Market Note) held by the other Banks owing to such other Banks, and/or such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes (excluding the Money Market
Notes) held by the Banks owing to such other Banks shall be shared by the Banks
pro rata; provided that (i) nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness (including, without limitation, the Money
Market Notes) under the Syndicated Notes, and (ii) if all or any portion of such
payment received by the purchasing Bank is thereafter recovered from such
purchasing Bank, such purchase from each other Bank shall be rescinded and such
other Bank shall repay to the purchasing Bank the purchase price of such
participation to the extent of such recovery together with an amount equal to
such other Bank's ratable share (according to the proportion of (x) the amount
of such other Bank's required repayment to (y) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note (excluding the Money Market Notes),
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. (a) Any provision of this
Agreement, the Notes or any other Loan Documents may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that, except as provided below in this
subsection, no such amendment or waiver shall, unless signed by all the Banks,
(i) change the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) change the principal of or rate of interest on any Loan or any
fees hereunder, (iii) change the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder (including, without limitation, the
Termination Date), (iv) change the amount of principal, interest or fees due on
any date fixed for the payment thereof, (v) change the percentage of the
Commitment or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement, (vi)
change the manner of application of any payments made under this Agreement or
the Notes, (vii) release or substitute all or any substantial part of the
collateral (if any) held as security for the Loans, (viii) release any guaranty
given to support payment of the Loans,
51
53
or (ix) modify Section 2.09,2.11, Article III, Section 8.03, Section 8.05,
Section 9.03, Section 9.04 or Section 9.07(a).
(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Bank shall be informed thereof by the Borrower and shall
be afforded an opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be delivered
by the Borrower to each Bank forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Banks. The
Borrower will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank as consideration for or as an inducement to the entering
into by such Bank of any waiver or amendment of any of the terms and provisions
of this Agreement unless such remuneration is concurrently paid, on the same
terms, ratably to all such Banks.
SECTION 9.06. Margin Stock Collateral. Each of the Banks represents to
the Agent and each of the other Banks that it in good faith is not, directly or
indirectly, (by negative pledge or otherwise) relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.07. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the change
of any date fixed for the payment of principal of or interest or fees on the
related Loan or Loans, (ii) the change of the amount of any principal, interest
or fees due on any date fixed for the payment thereof with respect to the
related Loan or Loans, (iii) the change of the principal of the related Loan or
Loans, or (iv) any change in the rate at which either interest is payable
thereon or facility fee is payable hereunder from the rate at which the
Participant is entitled to receive interest or facility fees or (as the case may
be) in respect of such participation. The Borrower agrees that each Participant
shall be entitled to the benefits of Article VIII with respect to its
participation in Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement,
52
54
the Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance in the form
attached hereto as Exhibit F, executed by such Assignee, such transferor Bank
and the Agent (and, in the case of an Assignee that is not then a Bank or an
Affiliate of a Bank, by the Borrower); provided that (i) no interest may be sold
by a Bank pursuant to this paragraph (c) unless the Assignee shall agree to
assume ratably equivalent portions of the transferor Bank's Commitment (ii) the
amount of the Commitment of the assigning Bank subject to such assignment
(determined as of the effective date of the assignment) shall be equal to
$10,000,000 (or any larger multiple of $1,000,000)(except that any such
assignment may be in the aggregate amount of the Commitment of the assigning
Bank), (iii) no interest may be sold by a Bank pursuant to this paragraph (c) to
any Assignee that is not then a Bank or Affiliate of a Bank without the consent
of the Borrower, which consent shall not be unreasonably withheld. The
Borrower's consent shall not be required to any assignment occurring during the
continuance of a Default. Upon (A) execution of the Assignment and Acceptance by
such transferor Bank, such Assignee, the Agent and (if applicable) the Borrower,
(B) delivery of an executed copy of the Assignment and Acceptance to the
Borrower and the Agent, (C) payment by such Assignee to such transferor Bank of
an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, and (D) payment by the assigning Bank of a processing and
recordation fee of $2,500 to the Agent, such Assignee shall for all purposes be
a Bank party to this Agreement and shall have all the rights and obligations of
a Bank under this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the transferor Bank, the Agent and
the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to each of such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower authorizes
each Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment
under Section 8.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Notwithstanding anything herein to the contrary, any Bank may
pledge and assign its rights and interests under this Agreement and its Notes to
any Federal Reserve Bank as collateral.
SECTION 9.08. Confidentiality. Each Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be
53
55
confidential information, confidential from anyone other than persons employed
or retained by such Bank who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans; provided,
however, that nothing herein shall prevent any Bank from disclosing such
information (i) to any other Bank, (ii) to any affiliate of a Bank which is
controlled by or is under common control with such Bank, (iii) upon the order of
any court or administrative agency, (iv) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Bank, (v) which has
been publicly disclosed, (vi) to the extent reasonably required in connection
with any litigation to which the Agent, any Bank or their respective Affiliates
may be a party, (vii) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (viii) to such Bank's legal counsel and
independent auditors and (ix) to any actual or proposed Participant, Assignee or
other Transferee of all or part of its rights hereunder which has agreed in
writing to be bound by the provisions of this Section 9.08.
SECTION 9.09. Representation by Banks. Each Bank hereby represents that
it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided, however,
that, subject to Section 9.07 of this Agreement, the disposition of the Note
held by that Bank shall at all times be within its exclusive control.
SECTION 9.10. Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by Banks pursuant hereto shall be deemed to constitute the Banks
to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.11. Survival of Certain Obligations. Sections 8.03(a),
8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder, shall
survive, and shall continue to be enforceable notwithstanding the termination of
this Agreement and the Commitments and the payment in full of the principal of
and interest on all Loans.
SECTION 9.12. Georgia Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13. Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of Georgia, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this Agreement,
the Notes and the other Loan Documents, (b) waives any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State of
Georgia for the purpose of litigation to enforce this Agreement, the Notes or
the other Loan Documents, and (c) agrees that service of process may be made
upon it in the manner prescribed in Section 9.01 for the giving of notice to the
Borrower. Nothing herein contained, however, shall prevent the Agent from
bringing any action or exercising any rights against any security and against
the Borrower personally, and against any assets of the Borrower, within any
other state or jurisdiction.
54
56
SECTION 9.14. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 9.15. Miscellaneous. If any term or provision of this Agreement
or the application thereof to any Person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of such term or provision or the
application thereof to Persons or circumstances other than those as to which it
is held invalid or unenforceable shall not be affected thereby and shall be
valid and enforceable to the fullest extent permitted by law. The Loan Documents
contain the entire agreement of the parties with respect to the matters covered
and the transactions contemplated hereby and thereby, and no other agreement,
statement or promise made by any such party, or by any employee, officer, agent
or attorney of such party, which is not contained herein or therein shall be
valid or binding. The section and subsection headings of this Agreement are for
convenience only and shall not limit or otherwise affect any of the terms
thereof.
SECTION 9.16. Termination of Prior Credit Agreement. The Borrower and
the Banks agree that on the Closing Date: (i) all loans, fees and other amounts
due and payable by the Borrower to the Banks under the Prior Credit Agreement
shall be paid in full; and (ii) the Prior Credit Agreement shall be terminated
in all respects.
SECTION 9.17. Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.18. Interest. 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 to
any Bank by the Borrower or inadvertently received by any Bank, then such excess
sum shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have such excess sum returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
SECTION 9.19. Interpretation. No provision of this Agreement or any of
the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
55
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
THE LIBERTY CORPORATION
ATTEST: By:_________________________________________
Title:______________________________________
________________________ Address:
Name:__________________
Title:_______________ P. X. Xxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopy Number: (000) 000-0000
[CORPORATE SEAL] Telephone Number: (000) 000-0000
(Remainder of this page intentionally left blank)
56
58
Commitments:
WACHOVIA BANK, N.A.,
Commitment: as Agent and a Bank
$115,000,000
By:_________________________________
Title:______________________________
Notice Address:
Wachovia Bank, N.A.
Syndication Services
000 Xxxxxxxxx Xxxxxx, X. E., Mail Code
GA-0423
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxxx Xxxxxxxx (00xx Xxxxx)
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
With a copy to:
Lending Office
Wachovia Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx
P.O. Box 31608
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
Telephone Number:(000) 000-0000
Telecopy number: (000) 000-0000
57
59
Commitment: THE BANK OF NEW YORK, as Co-Agent and a
$37,500,000 Bank
By:_________________________________
Title:______________________________
Lending Office
The Bank of New York
Xxx Xxxx Xxxxxx, 00 Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Commitment: FIRST UNION NATIONAL BANK, as Co-
$37,500,000 Agent and a Bank
By:_________________________________
Title:______________________________
Lending Office
First Union National Bank
One First Union Center, 5th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Commitment: FLEET BANK, N.A.
$30,000,000
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Lending Office
Fleet Bank, N.A.
MADFD06H
Xxx Xxxxxxx Xxxxxx
00
00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx XxXxxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000)000-0000
Commitment: THE BANK OF TOKYO-MITSUBISHI, LTD.,
$20,000,000 ATLANTA AGENCY
By:_________________________________
Title:______________________________
Lending Office
The Bank of Tokyo-Mitsubishi, Ltd., Atlanta
Agency
4970 Georgia-Pacific Center
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Commitment: NATIONSBANK OF TEXAS, N.A.
$20,000,000
By:_________________________________
Title:______________________________
Lending Office
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Commitment: SUNTRUST BANK, ATLANTA
$20,000,000
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Lending Office
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
59
61
Attention: Xxxxx Xxxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
Commitment: THE FIFTH THIRD BANK
$20,000,000
By:_________________________________
Title:______________________________
Lending Office
The Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
---------------------
TOTAL COMMITMENT
$300,000,000.00
60
62
SCHEDULE 1.01
Minor Subsidiaries
(i) Liberty Capital; LIG; Liberty Properties; LPG Development Corporation, a
South Carolina corporation; SouthChase Development Corporation, a South Carolina
corporation; LIBCO of Florida, Inc., a Florida corporation; LPC of S.C., Inc., a
South Carolina corporation; Commerce Center of Greenville, Inc., a South
Carolina corporation; Special Services Corporation, a South Carolina
corporation; Hampton Insurance Agency, Inc., a South Carolina corporation; The
Liberty Marketing Corporation, a South Carolina corporation; Bent Tree
Corporation, a Georgia corporation; TLC Business Ventures, Inc., a South
Carolina corporation; Cable Vantage Inc., a South Carolina corporation; LC
Insurance Ltd., organized under the laws of Bermuda; and The Liberty Corporation
Foundation, a South Carolina corporation; and (ii) other Subsidiaries of the
Borrower, designated by the Borrower as a "Minor Subsidiary" in the manner and
in accordance with the following standards. Borrower may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary but
excluding Cosmos, Liberty Life and Liberty Insurance Services) to be a "Minor
Subsidiary"; provided that: (x) the Subsidiary to be so designated is created or
acquired in the ordinary course of the Borrower's business; and (y) immediately
after giving effect to such designation, no Default or Event of Default shall
have occurred or be continued. Upon any such designation by the Borrower, the
Borrower shall provide the Agent and the Banks written notice identifying the
Minor Subsidiary being so designated.
61
