Exhibit 4.1
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CREDIT AGREEMENT
dated as of
April 5, 2002
among
XXXXXXXX CORPORATION,
as Borrower
The Lenders Listed Herein,
FLEET NATIONAL BANK,
as Administrative Agent and Issuing Lender
BANK ONE, XX
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
each as Co-Syndication Agent
and
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
as Documentation Agent
with FLEET SECURITIES, INC.
having acted as Lead Arranger
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CREDIT AGREEMENT
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CREDIT AGREEMENT, dated as of April 5, 2002, by and among XXXXXXXX CORPORATION
(the "Borrower"), an Iowa corporation having its principal place of business at
0000 Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000, the financial institutions listed
on Schedule I hereto from time to time (the "Lenders"), FLEET NATIONAL BANK, as
Administrative Agent and as Issuing Lender, BANK ONE, NA and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, each as Co-Syndication Agent, and SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
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DEFINITIONS
SECTION 1.01. Definitions.
The following terms shall, for all purposes of this Agreement have the meanings
set forth herein:
"Acceding Lender" has the meaning set forth in Section 9.06(a).
"Acquisition" means any transaction, or any series of related transactions, in
which the Borrower or any of its Subsidiaries (a) acquires any business or all
or any substantial part of the Property of any Person or any division or other
business unit thereof, whether through purchase of assets, merger or otherwise,
(b) directly or indirectly acquires ownership or control of at least a majority
(in number of votes) of the voting interests of any Person, or (c) directly or
indirectly acquires ownership or control of at least a majority of the Equity
Interests of any Person.
"Adjusted London Interbank Offered Rate" has the meaning set forth in Section
2.05(c).
"Administrative Agent" means Fleet National Bank, not in its individual
capacity, but acting as agent for the Lenders and the Issuing Lender.
"Administrative Agent's Fee Letter" means that certain letter agreement, dated
February 13, 2002, by and among the Borrower, the Administrative Agent and
Fleet Securities, Inc., relating to certain fees from time to time payable by
the Borrower to the Administrative Agent, together with all amendments and
modifications thereto.
"Affected Lender" has the meaning set forth in Section 9.07.
"Affiliate" means, with respect to any Person, any other Person (a) directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person, or (b) that directly or indirectly owns or controls
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more than 20% of any class of the Capital Stock of, or Equity Interests in,
such Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or to cause the
direction of the management and policies of such other Person. For purposes of
this Agreement and the other Loan Documents, (i) the Borrower shall not be or
be deemed to be an Affiliate of any of the Borrower's Subsidiaries, except
Finsub, (ii) none of the Subsidiaries of the Borrower, except Finsub, shall be
or be deemed to be an Affiliate of the Borrower or of any of the other
Subsidiaries of the Borrower, and (iii) neither the Agents nor the Lenders
shall be or be deemed to be an Affiliate of the Borrower or of any of its
Subsidiaries.
"Affiliate Transaction" has the meaning set forth in Section 6.19.
"Agents" means, collectively, the Administrative Agent, the Co-Syndication
Agents and the Documentation Agent.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Amount" means, with respect to any Acquisition, all consideration paid in
respect thereof, including consideration in the form of cash, Property (as
valued at the time of such Acquisition), or the assumption of Debt or other
obligations or liabilities.
"Ancillary Documents" means, collectively, (a) the Receivables Program
Documents, (b) the Senior Financing Documents, (c) all Instruments pursuant to
which the Other Debt is evidenced or outstanding, and (d) all other Instruments
that shall from time to time be identified by the Borrower and the
Administrative Agent in writing as "Ancillary Documents" for purposes of this
Agreement and the other Loan Documents.
"Applicable Commitment Fee Rate" means a percentage, per annum determined by
reference to the Consolidated Leverage Ratio in effect from time to time as set
forth in the pricing grid below, and determined in the same manner and at the
same time as the Applicable Margin is determined pursuant to and otherwise in
accordance with Section 2.05(a):
Applicable
Consolidated Leverage Commitment
Ratio Fee Rate
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Greater than or equal to 3.00:1.00 0.225%
Greater than or equal to 2.50:1.00
but less than 3.00:1.00 0.200%
Greater than or equal to 2.00:1.00
but less than 2.50:1.00 0.175%
Greater than or equal to 1.50:1.00
but less than 2.00:1.00 0.150%
Less than 1.50:1.00 0.125%
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"Applicable Law" means, in relation to any Person or its Property, statutes and
rules and regulations thereunder and interpretations thereof by any
Governmental Authority charged with the administration or the interpretation
thereof, and orders, requests, directives, instructions and notices of any
Governmental Authority, in each case, applicable to or binding upon such Person
or any of its Property.
"Applicable Margin" has the meaning set forth in Section 2.05(a).
"Assignee" has the meaning set forth in Section 10.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 10.07(c) in the form attached hereto as Exhibit C.
"Attorney Costs" means and includes all reasonable and invoiced fees and
disbursements of any law firm or other external legal counsel and, without
duplication, the reasonable and invoiced allocated costs of internal legal
counsel and other internal legal services, and all reasonable and invoiced
disbursements of internal legal counsel and other internal legal services.
"Authority" has the meaning set forth in Section 9.02.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
Section 101, et seq.), as amended from time to time.
"Base Rate" means the greater of (a) the variable per annum rate of interest so
designated from time to time by the Administrative Agent at its office in
Boston, Massachusetts as its "base rate" or (b) the Federal Funds Rate plus 1/2
of 1% (i.e., 50 basis points). For purposes of determining the Base Rate for
any day, changes in "base rate" and the Federal Funds Rate shall be effective
on the date of such change.
"Base Rate Borrowing" means a Borrowing if the Loans under such borrowing bear
or are to bear interest calculated by reference to the Base Rate.
"Base Rate Loan" means any Loan that bears or is to bear interest based on the
Base Rate.
"Borrower" means Xxxxxxxx Corporation, a corporation incorporated under the
laws of the State of Iowa, and its successors and permitted assigns.
"Borrowing" shall mean any borrowing under the Commitments consisting of Loans
made or to be made to the Borrower on the same Borrowing Date by the Lenders or
the Administrative Agent pursuant to Article II. A Borrowing is a "Euro-Dollar
Borrowing" if such Loans are made as Euro-Dollar Loans and a "Base Rate
Borrowing" if such Loans are made as Base Rate Loans. "Borrowing" shall
include any Loans made pursuant to Section 2.02(e).
"Borrowing Date" means, in relation to any Loan, the date of the borrowing of
such Loan, as specified in the relevant Notice of Borrowing for such Loan.
"Broadcast Licenses" means licenses, permits, authorizations or certificates
now or hereafter held by the Borrower and its Subsidiaries (including, without
limitation, the Broadcast Licenses listed in Section 5.19 of the Disclosure
Schedule) to construct, own, operate or promote the Stations granted by the
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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.
"Business Day" means any day other than Saturday, Sunday or other day on which
commercial banks in Boston, Massachusetts are authorized or required by law to
close, so long as, if such term shall be used in relation to any Euro-Dollar
Loan or any Interest Period relating thereto, on such day dealings are also
carried on by and between banks in Dollar deposits in the applicable interbank
market.
"Buying Lenders" shall have the meaning set forth in Section 9.06(b).
"Capital Lease" has the meaning specified in the definition of the term
"Capital Lease Obligations".
"Capital Lease Obligations" means, with respect to any Person, all obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangements conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as Capital Leases (each, a "Capital Lease") on a balance sheet of
such Person under GAAP, and, for the purposes of this Agreement, the amount of
such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock" means (a) in the case of any corporation, any corporate capital
stock of any class or series, (b) in the case of any association or business
entity, any shares, interests, participations, rights or other equivalents
(howsoever designated) of corporate capital stock, and (c) in the case of any
partnership or limited liability company, partnership or membership interests
(whether general or limited).
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 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 Control" means any event described in Section 7.01(l).
"Change of Law" has the meaning set forth in Section 9.02.
"Closing Certificate" has the meaning set forth in Section 4.01(e).
"Closing Date" means the Borrowing Date on which the first Credit Extensions
are made or to be made by the Lenders or the Issuing Lender to the Borrower
hereunder.
"Co-Syndication Agents" means Bank One, NA and Xxxxx Fargo Bank, National
Association, acting as co-syndication agents for the Agents, the Lenders and
the Issuing Lender.
"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.
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"Commitment" means, with respect to each Lender, (a) the amount designated as
the Commitment set forth opposite the name of such Lender on Schedule II
attached hereto, or (b) as to any Lender which enters into an Assignment and
Acceptance (whether as transferor Lender or as Assignee thereunder) or an
Instrument of Accession, the amount of such Lender's Commitment after giving
effect to such Assignment and Acceptance or upon the effectiveness of such
Instrument of Accession, in each case as such amount may be reduced from time
to time pursuant to Section 2.07.
"Commitment Fee" has the meaning set forth in Section 2.06(a).
"Commitment Increase Notice" shall have the meaning set forth in Section
9.06(a).
"Commitment Percentage" means, as to any Lender, the percentage equivalent of
such Lender's Commitment divided by the Total Commitment; provided, however,
that if the Commitments have terminated in full, the "Commitment Percentage" of
each Lender shall be determined by dividing such Lender's Commitment in effect
immediately prior to such termination by the Total Commitment in effect
immediately prior to such termination.
"Compliance Certificate" has the meaning set forth in Section 6.01(c).
"Consolidated EBITDA" means, in relation to any Person and its Subsidiaries for
any period, Consolidated Net Income of such Person and its Subsidiaries for
such period, plus, without duplication, and only to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the
sum of (a) provisions for income tax expense (including, without limitation,
any franchise taxes imposed in lieu of income taxes), plus (b) Consolidated
Interest Expense, amortization or write-off of deferred financing fees, debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Debt, plus (c) depreciation and amortization expense,
plus (d) amortization of intangibles (including, without limitation, goodwill)
and organization costs, plus (e) write-downs of goodwill or other intangibles
pursuant to FASB 142, plus (f) any non-cash charges or expenses or non-cash
losses, plus (g) losses on Sales of assets outside of the ordinary course of
business, including losses recognized pursuant to FASB 144, plus (h) any
extraordinary or non-recurring expenses or losses and minus, without
duplication, and only to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (i) any extraordinary or
non-recurring income or gains, plus (ii) gains on the Sales of assets outside
of the ordinary course of business, including gains recognized pursuant to FASB
144, plus (iii) any other non-cash income, all as determined on a consolidated
basis and in accordance with GAAP plus (iv) any Equity Interests of the
Borrower or any consolidated Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
For purposes of calculating Consolidated EBITDA of the Borrower and its
Subsidiaries for any period, (A) the Consolidated EBITDA of any Person or
attributable to any business acquired by the Borrower or by any of its
Subsidiaries during such period shall be included on a Pro Forma Basis for such
period (as if such Acquisition were completed on the first day of such period);
and (B) the Consolidated EBITDA of any Person or attributable to any business
sold or otherwise disposed of by the Borrower or any of its Subsidiaries during
such period shall be excluded on a Pro Forma Basis for such period (as if such
disposition were completed on the first day of such period).
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"Consolidated Gross Revenues" means as applied to any Person for any period,
the aggregate gross revenues of such Person for such period, as determined in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) Consolidated EBITDA of the Borrower and its
Subsidiaries for the Measurement Period ending on such date, to (b)
Consolidated Interest Expense of the Borrower and its Subsidiaries for such
Measurement Period.
"Consolidated Interest Expense" means, in relation to any Person and its
Subsidiaries for any period, interest expense on all Debt of such Person or of
any of its Subsidiaries for such period, whether paid or accrued, all as
determined on a consolidated basis in accordance with GAAP, and including: (a)
interest expense in respect of Debt (including the Obligations), (b) the
interest component of Capital Lease Obligations, (c) commissions, discounts and
other fees and charges payable in connection with letters of credit and
bankers' acceptances, (d) the net payment, if any, payable in connection with
Interest Rate Protection Agreements, less the net credit, if any, received in
connection with Interest Rate Protection Agreements, and (e) the amortization
of all fees payable in connection with the incurrence of Debt, determined on a
consolidated basis and in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of (a) Consolidated Total Debt of the Borrower and its Subsidiaries
as of such date, to (b) Consolidated EBITDA of the Borrower and its
Subsidiaries for the Measurement Period ending on such date.
"Consolidated Net Income" means, in relation to any Person and its Subsidiaries
for any period, the consolidated net income (or loss) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Consolidated Operating Profits" means, for any period, the Operating Profits
of the Borrower and its consolidated Subsidiaries.
"Consolidated Total Debt" means, in relation to any Person and its Subsidiaries
as at any date, the aggregate amount of all of the Debt of such Person and its
Subsidiaries as at such date, determined on a consolidated basis in accordance
with GAAP.
"Continuation Date" means any date on which a Euro-Dollar Loan is to be
continued as a Euro-Dollar Loan for a further Interest Period, in each case, in
accordance with the provisions of Section 2.14.
"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.
"Covenant Determination Date" means, at any particular time, the last day of
the then most recent Fiscal Quarter of the Borrower and its Subsidiaries for
which financial statements of the Borrower and its Subsidiaries have been
furnished to the Administrative Agent pursuant to Section 6.01(a) or Section
6.01(b).
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"Conversion Date" means any date on which a Base Rate Loan is to be converted
to a Euro-Dollar Loan, or Euro-Dollar Loan is to be converted to a Base Rate
Loan, in each case, in accordance with the provisions of Section 2.14.
"Credit Extension" means (a) the making of any Loans to the Borrower pursuant
to this Agreement, or (b) the issuance, amendment or renewal of any Letter of
Credit by the Issuing Lender pursuant to this Agreement.
"Debt" of any Person means at any date, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
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, (d) all obligations of such Person as lessee under Capital Leases,
(e) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a bankers' acceptance, (f) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation), (g)
all obligations (absolute or contingent) of such Person to reimburse any bank
or other Person in respect of amounts paid under a letter of credit or similar
instrument, with an expiration date more than one year from such date, (h) all
Debt of others secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person, (i) all Debt of others Guaranteed by such
Person, (j) all obligations of such Person in respect of Hedging Agreements,
and (k) all Receivables Program Attributed Debt.
"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 in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan or other Obligation, on any day,
the sum of two percent (2%), plus the then highest interest rate (including the
Applicable Margin) which may be applicable to any Euro-Dollar Loan or Base Rate
Loan hereunder (irrespective of whether any such type of loans are actually
outstanding hereunder).
"Disbursement Date" shall have the meaning specified in Section 3.03(b).
"Disclosure Schedule" means Schedule III hereto, dated as of the Effective
Date, prepared and completed by the Borrower, and delivered by the Borrower to
the Administrative Agent and the Lenders in connection with this Agreement and
identified as the "Disclosure Schedule".
"Documentation Agent" means SunTrust Bank, Central Florida, National
Association, in its capacity as documentation agent for the Agents, the Issuing
Lender and the Lenders under this Agreement and the other Loan Documents, and
any successor to such documentation agent.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Effective Commitment Amount" shall have the meaning set forth in Section
9.06(a).
"Effective Date" means April 5, 2002, the date of this Agreement.
"Eligible Assignee" means and includes (a) any Lender or any Affiliate of any
Lender, and (b) any commercial bank, insurance company, investment or mutual
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fund or other entity that is an "accredited investor" (as defined in Regulation
D under the Securities Act of 1933) and that extends credit or buys loans as
one of its businesses; provided, however, that neither the Borrower nor any of
its Subsidiaries or Affiliates shall be an Eligible Assignee for purposes of
this Agreement or any of the other Loan Documents.
"Environmental Authority" means any foreign, federal, state, local or regional
government that exercises any form of jurisdiction or authority under any
Environmental Requirement.
"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 Judgments and Orders" means all judgments, decrees or orders
arising from or in anyway 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 Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" means any liabilities, whether accrued, contingent
or otherwise, arising from and in any way associated with any Environmental
Requirements, which when combined with all other Environmental Liabilities of
the Borrower and its Subsidiaries is greater than $5,000,000.
"Environmental Notices" 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
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similar state legislation and all federal, state and local laws, ordinances,
regulations, orders, writs, decrees and common law.
"Equity Interests" means and includes Capital Stock and all warrants, options
or other rights to purchase or otherwise acquire Capital Stock (but excluding
any debt securities that are convertible into, or exchangeable for, Capital
Stock).
"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.
"E. T. Xxxxxxxx Family Stockholders" means (a) the lineal descendants by blood
or adoption of E. T. Xxxxxxxx ("descendants") and the spouses and surviving
spouses of such descendants; (b) any estate, trust, guardianship, custodianship
or other fiduciary arrangement for the primary benefit of any one or more
individuals described in clause (a) above; and (c) any corporation,
partnership, limited liability company or other business organization so long
as (i) one or more individuals or entities described in clauses (a) and (b)
above possess, directly or indirectly, the power to direct or cause the
direction of, the management and policies of such corporation, partnership,
limited liability company or other business organization and (ii) substantially
all of the ownership, beneficial or other Equity Interests in such corporation,
partnership, limited liability company or other business organization are
owned, directly or indirectly, by one or more individuals or entities described
in clauses (a) and (b) above.
"Euro-Dollar Borrowing" means a Borrowing if the Loans under such borrowing
bear or are to bear interest at a rate based upon the London Interbank Offered
Rate.
"Euro-Dollar Loan" means any Loan that bears or is to bear interest based on
the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section 2.05(c).
"Event of Default" has the meaning set forth in Section 7.01.
"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 Business Day next succeeding such
day, provided, that (a) if the day for which such rate is to be determined is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if such rate is not so published for any
day, the Federal Funds Rate for such day shall be the average rate charged to
Fleet on such day on such transactions as determined by the Administrative
Agent.
"Fee Letters" means (i) the Administrative Agent's Fee Letter, dated February
13, 2002, by and among the Borrower, the Administrative Agent and Fleet
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Securities, Inc., (ii) the Fee Letter, dated February 13, 2002, by and among
the Borrower, the Administrative Agent and Fleet Securities, Inc. and (iii) any
other fee letters delivered by the Borrower to the Administrative Agent and/or
Fleet Securities, Inc.
"Fees" means, collectively, (a) the Commitment Fees, (b) the Utilization Fees,
(c) the Letter of Credit Fees, (d) all other fees payable to the Issuing Lender
from time to time pursuant to Section 3.08, and (e) all other fees payable to
any of the Agents or Lenders from time to time pursuant to Section 2.06.
"Finsub" means a bankruptcy-remote corporation or other Person that is a Wholly
Owned Subsidiary of the Borrower organized solely for the purpose of engaging
in the Receivables Program.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fleet" means Fleet National Bank.
"Form W-8BEN" has the meaning set forth in Section 2.11(c)(iv).
"Form W-8ECI" has the meaning set forth in Section 2.11(c)(iv).
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms
of this Agreement.
"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.
"Guaranty" 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 (a) 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 (b) 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 Guaranty shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guaranty" 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. Section 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,
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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.
"Hedging Agreement" means any Interest Rate Protection Agreement or any foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Inactive Subsidiary" means, in relation to any Subsidiary of the Borrower at
any particular time, any such Subsidiary that conducts no business, holds no
assets (other than insubstantial and immaterial assets), and has no liabilities
(other than insubstantial and immaterial liabilities), in each case, as at such
time. For purposes of this Agreement, any Inactive Subsidiary shall cease to
be an "Inactive Subsidiary" if and when such Subsidiary commences the conduct
of business, acquires assets (other than insubstantial and immaterial assets),
or incurs liabilities (other than insubstantial and immaterial liabilities).
"Indemnified Liabilities" shall have the meaning set forth in Section 10.03(d).
"Indemnified Person" shall have the meaning set forth in Section 10.03(d).
"Insolvency Proceeding" means (a) any case, action or proceeding before any
court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other similar arrangements
in respect of its creditors, generally; in each case, undertaken under U.S.
Federal, State or foreign law, including the Bankruptcy Code.
"Instrument" means any contract, agreement, indenture, mortgage or other
document or writing (whether a formal agreement, letter or otherwise) under
which any obligation is evidenced, assumed or undertaken, or any right to any
Lien is granted or perfected.
"Instrument of Accession" shall have the meaning set forth in Section 9.06(a).
"Interest Payment Date" means (a) with respect to each Base Rate Loan, the last
day of each calendar month and also the Maturity Date, and (b) with respect to
each Euro-Dollar Loan, the last day of each Interest Period applicable to such
Euro-Dollar Loan and also the date on which such Euro-Dollar Loan shall be
repaid or prepaid; provided, however, that, if any Interest Period for any
Euro-Dollar Loan exceeds three (3) months, then also the date which falls three
(3) months after the beginning of such Interest Period, and, if applicable, the
last day of each three-month interval thereafter, shall also be an "Interest
Payment Date".
"Interest Period" means:
(a) 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 month thereafter, as the Borrower may elect
in the applicable Notice of Borrowing; provided, that:
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(i) any Interest Period (subject to clause (iii) below) which would
otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
(ii) any Interest Period which begins on the last 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 (iii) below, end on the last Business Day of the
appropriate subsequent calendar month; and
(iii) any Interest Period applicable to the Loans which begins
before the Maturity Date and would otherwise end after the Maturity Date
shall end on the Maturity Date;
(b) with respect to each Euro-Dollar Borrowing made pursuant to Section
2.02(e), the period commencing on the date of such Borrowing and ending seven
(7) days thereafter; and
(c) with respect to each Base Rate Borrowing, the period commencing on
the date of such Borrowing and ending the last day of the calendar month
thereafter; provided, that:
(i) any Interest Period (subject to clause (ii) below) which would
otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day; and
(ii) any Interest Period applicable to the Loans which begins before
the Maturity Date and would otherwise end after the Maturity Date shall
end on the Maturity Date.
"Interest Rate Protection Agreement" means any interest rate swap agreement,
interest cap agreement, interest rate collar agreement or similar agreement or
arrangement designed to protect the Borrower or any Subsidiary against
fluctuations in interest rates.
"Investment" means any investment in any Person, whether by means of purchase
or acquisition of obligations, securities or any Equity Interest of such
Person, capital contribution to such Person, loan or advance or other extension
of credit made to such Person, making of a time deposit with such Person,
Guaranty or assumption of any obligation of such Person or otherwise.
"Issuing Lender" means Fleet National Bank, in its capacity as issuer of one or
more Letters of Credit pursuant to this Agreement and its successors and
permitted assigns in such capacity.
"Lender" means the lending institutions listed on Schedule I hereto and any
other person who becomes an assignee of any rights and obligations of a Lender
pursuant to Section 10.07 or who becomes a Lender by executing an Instrument of
Accession.
"Lender Increase Notice" shall have the meaning set forth in Section 9.06(a).
"Lending Office" means, as to each Lender, its office located at its address
set forth on Schedule I hereto or such other office as such Lender may
hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent.
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"Letter of Credit" means any letter of credit issued or to be issued by the
Issuing Lender pursuant to Article III.
"Letter of Credit Amendment Application" means any application form for
amendment of outstanding standby or commercial documentary letters of credit as
shall from time to time be specified by the Issuing Lender.
"Letter of Credit Application" means any application form for issuances of
standby or commercial documentary letters of credit as shall from time to time
be specified by the Issuing Lender.
"Letter of Credit Borrowing" means any extension of credit (other than any
Loan) resulting from a drawing under any Letter of Credit which shall not have
been reimbursed by the Borrower on the Disbursement Date when made.
"Letter of Credit Commitment" means the commitment of the Issuing Lender
hereunder to issue Letters of Credit. The Letter of Credit Commitment shall be
in the amount of $30,000,000. The Letter of Credit Obligations shall not
exceed in aggregate amount at any time the lesser of (a) the Total Commitment
in effect at such time, minus the Loans outstanding at such time, or (b) the
amount of the Letter of Credit Commitment in effect at such time.
"Letter of Credit Fees" shall have the meaning specified in Section 3.08.
"Letter of Credit Obligations" means, at any time of determination, the sum of
(a) the aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the aggregate amount of all Letter of Credit Borrowings then
outstanding.
"Letter of Credit Related Documents" means, collectively, the Letters of
Credit, the Letter of Credit Applications, the Letter of Credit Amendment
Applications and any other Instruments or documents relating to any Letters of
Credit, including the Issuing Lender's standard form documents for letter of
credit issuances.
"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 Guaranty,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, 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.
"Loan" means the loans made by a Lender or the Administrative Agent to the
Borrower pursuant to Article II.
"Loan Documents" means this Agreement, the Notes, any other document or
instrument evidencing, relating to or securing the Loans, the Letter of Credit
Related Documents and the Fee Letters, and any other document or instrument
delivered from time to time in connection with this Agreement, the Notes, the
Loans, the Letter of Credit Related Documents and the Fee Letters, as such
documents and instruments may be amended or supplemented from time to time.
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"London Interbank Offered Rate" has the meaning set forth in Section 2.05(c).
"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, development,
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, development or developments, 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, Property or prospects of the Borrower and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Administrative Agent, the Lenders or
the Issuing Lender under the Loan Documents, or the ability of the Borrower to
perform 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.
"Maturity Date" means April 5, 2007.
"Maximum Permitted Total Debt" means, at any time of determination, the maximum
aggregate amount of the Consolidated Total Debt of the Borrower and its
Subsidiaries permitted as of the most recent Covenant Determination Date by the
Consolidated Leverage Ratio then in effect under Section 6.03.
"Measurement Period" means any period of four consecutive Fiscal Quarters of
the Borrower.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3) of
ERISA.
"Non-excluded Taxes" has the meaning set forth in Section 2.11(c)(i).
"Notes" means the promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, together with all amendments, consolidations, modifications, renewals
and supplements thereto and "Note" means any one of such Notes.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Conversion/Continuation" means a written notice given by the
Borrower to the Administrative Agent pursuant to Section 2.14(b).
"Obligations" means all indebtedness, obligations and liabilities of the
Borrower to any of the Lenders, the Issuing Lender and the Agents, individually
or collectively, existing on the date of this Agreement or arising thereafter,
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, arising or incurred under this
Agreement or any of the other Loan Documents or in respect of any of the Loans
made or Letter of Credit Obligations incurred under this Agreement or any other
Loan Documents or other Instruments at any time evidencing any thereof.
- 15 -
"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 GAAP.
"Other Debt" means, collectively, Debt of the Borrower under or in respect of
the $200,000,000 of private placement notes outstanding on the Closing Date and
listed in Section 5.04 of the Disclosure Schedule.
"Participant" has the meaning set forth in Section 10.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding
to any or all of its functions under ERISA.
"Permitted Acquisition" means an Acquisition by the Borrower or any Subsidiary
of the Borrower, if: (a) in the case of the acquisition of Equity Interests of
any Person, immediately after giving effect to such acquisition (i) such Person
is a 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 substantially
the same as or reasonably related 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 substantially the same as or
reasonably related 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.
"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 (a) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (b) 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 5 plan years made contributions.
"Pro Forma Basis" means, with respect to compliance with any test or covenant
for any period hereunder, compliance with such test or covenant after giving
effect to any proposed Acquisition, disposition, incurrence of Debt or other
action which requires compliance on a pro forma basis, using, for purposes of
determining such compliance, the historical financial statements of all
entities or assets so acquired or to be acquired and the consolidated financial
statements of the Borrower and its Subsidiaries which shall be reformulated (a)
as if such Acquisition, disposition, incurrence of Debt or other action, and
any other such action which has been consummated during such period, and any
Debt or other liabilities incurred in connection with any such actions, had
- 16 -
been consummated as of the first day of such period (and assuming that such
Debt bears interest during any portion of the applicable measurement period
prior to the relevant action at the weighted average of the interest rates
applicable to outstanding Loans during such period), and (b) otherwise in
conformity with such reasonable procedures as may be agreed upon between
Administrative Agent and the Borrower; provided, however, that all of the
calculations referred to herein shall be in reasonable detail and shall be in
form and substance reasonably satisfactory to Administrative Agent in all
material respects.
"Property" means any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
"Rate Determination Date" has the meaning set forth in Section 2.05(a).
"Receivables" shall mean all indebtedness and other obligations owed by a
Person to the Borrower or any Subsidiary or in which the Borrower or any
Subsidiary has a security interest or other interest, including, without
limitation, any indebtedness, obligation or interest constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale or lease of goods or the rendering of services by the Borrower or such
Subsidiary, including the obligation to pay finance charges with respect
thereto.
"Receivables Program" shall mean, collectively, (a) the sale or other transfer
of, or transfer of interests in, Receivables Program Assets to Finsub in
exchange for consideration equal to the fair market value of the related
Receivables, (b) the sale of, transfer of interests in, or other financing of
the Receivables Program Assets by Finsub to or with any purchaser or investor
or any agent of any such purchaser or investor and (c) the entry by the
Borrower and any Subsidiaries into such ancillary agreements, guarantees,
documents or instruments as are necessary or advisable in connection with such
transfers or financings, all pursuant to the Receivables Program Documents.
"Receivables Program Assets" shall mean all existing or hereafter acquired or
arising Receivables of the Borrower or any Subsidiary, the Related Security
with respect thereto, the collections and proceeds of such Receivables and
Related Security, all lockboxes, lockbox accounts, collection accounts or other
deposit accounts into which such collections are deposited and all other rights
and payments relating to such Receivables.
"Receivables Program Attributed Debt" means, on any date of determination, the
amount of obligations of Finsub to a third party (other than to the Borrower or
any Subsidiary) outstanding as of such date under any Receivables Program
Documents that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
"Receivables Program Documents" shall mean (i) the Receivables Sale Agreement,
dated April 9, 2002, by and among Xxxxxxxx Funding Corporation, Xxxxxxxx
Corporation and the other Originators party thereto from time to time, (ii) the
Receivables Purchase Agreement, dated April 9, 2002, by and among Xxxxxxxx
Funding Corporation, Xxxxxxxx Corporation, as servicer, Falcon Asset
Securitization Corporation, the financial institutions from time to time party
thereto and Bank One, NA (Main Office Chicago), as agent and (iii) all related
written agreements that may from time to time be entered into by the Borrower
or any Subsidiary of the Borrower, including Finsub, in connection with the
- 17 -
Receivables Program, as such agreements may be amended, supplemented or
otherwise modified from time to time in accordance with the provisions thereof.
"Redeemable Preferred Stock" of any Person means any preferred stock issued by
such Person which is at any time prior to the Maturity Date either (a)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(b) redeemable at the option of the holder thereof.
"Related Security" shall mean with respect to any Receivable (a) the inventory
and goods, the sale, financing or lease of which gave rise to such Receivable
and all insurance contracts with respect thereto, (b) all security interests or
liens and the property subject thereto purporting to secure payment of such
Receivable, together with all financing statements and security agreements
describing any collateral securing such Receivable, (c) all guaranties, letters
of credit, insurance and other agreements or arrangements supporting or
securing the payment of such Receivable, (d) all invoices, agreements,
contracts, records, books and other information relating to such Receivable or
the Person obligated to pay such Receivable, (e) any rights of the Borrower or
any Subsidiary under any agreement, document or guaranty executed or delivered
in connection with the Receivables Program, and (f) all proceeds of the
foregoing.
"Replacement Lender" has the meaning set forth in Section 9.07.
"Replacement Notice" has the meaning set forth in Section 9.07.
"Required Lenders" means, at any time, Lenders holding more than fifty percent
(50%) of the Total Commitment in effect at such time; provided, however, that
if the Commitments shall have terminated in full, the term "Required Lenders"
shall mean Lenders holding (including as a result of participations pursuant to
Section 3.03) more than fifty percent (50%) of the aggregate amount of the
Total Utilization at such time.
"Restricted Payments" means, in relation to the Borrower and its Subsidiaries,
any declaration or payment by the Borrower or by any of its Subsidiaries of any
dividends or other distributions on account of, or any payment or other
distribution by the Borrower or by any of its Subsidiaries on account of the
purchase, repurchase, redemption, retirement or other acquisition for value of,
any Equity Interests in the Borrower.
"S&P" means Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc. and its successors.
"Sale" means any sale, conveyance, exchange, swap, trade, transfer or other
disposition of any Property, including any sale, transfer or other disposition
of copyrights, trademarks and other intellectual property made by or through
license agreements or other similar arrangements.
"Secretary's Certificate" has the meaning set forth in Section 4.01(f).
"Selling Lenders" has the meaning set forth in Section 9.06(b)
"Senior Financing Documents" means, collectively, the Senior Note Purchase
Agreement, the Senior Notes and the Senior Note Term Sheet.
"Senior Note Financing" means the unsecured senior financing, in the maximum
aggregate amount not exceeding $100,000,000, to be obtained by the Borrower
- 18 -
through the issuance of its Senior Notes upon the terms and subject to the
conditions contained in the Senior Note Term Sheet and the Senior Note Purchase
Agreement.
"Senior Note Term Sheet" and "Senior Note Purchase Agreement" have the meanings
specified in the definition of the term "Senior Notes".
"Senior Notes" means, collectively, the unsecured Senior Notes of the Borrower,
in the maximum aggregate principal amount not exceeding $100,000,000, issued or
to be issued by the Borrower upon the terms and subject to the conditions
contained in (a) the Senior Note Term Sheet, dated as of February 26, 2002,
delivered by SunTrust Xxxxxxxx Xxxxxxxx to the Borrower (such term sheet,
together with the annexes and exhibits thereto, being herein called the "Senior
Note Term Sheet"), and (b) the definitive senior note purchase agreement to be
executed and delivered by the Borrower and the several purchasers of the Senior
Notes (such agreement, together with the schedules and exhibits thereto, each
as amended from time to time, being herein called the "Senior Note Purchase
Agreement").
"Settlement" means the making or receiving of payments, in immediately
available funds, by the Lenders and the Administrative Agent, to the extent
necessary to cause each Lender's actual share of the outstanding amount of
Loans to be equal to such Lender's Commitment Percentage of the outstanding
amount of such Loans, in any case where, prior to such event or action, the
actual share is not so equal.
"Settlement Amount" has the meaning set forth in Section 2.13.
"Settlement Date" means (a) the Borrowing Date relating to any Notice of
Borrowing, (b) at the option of the Administrative Agent, on any Business Day
or (c) any Business Day on which the amount of Loans outstanding from Fleet,
including Loans made pursuant to Section 2.02(e), plus Fleet's Commitment
Percentage of the sum of the Letter of Credit Obligations is equal to or
greater than Fleet's Commitment.
"Settlement Lender" has the meaning set forth in Section 2.13.
"Stations" means collectively, the stations listed and described in Section
1.01 of the Disclosure Schedule and any and all other television, radio or
other broadcasting stations, now or hereafter acquired or controlled, directly
or indirectly, by the Borrower.
"Subsidiary" means any corporation or other entity 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.
"Total Commitment" means the sum of the Commitments of the Lenders, as in
effect from time to time.
"Total Utilization" means at any time the sum of the aggregate principal amount
of the Loans then outstanding, plus the aggregate amount of the Letter of
Credit Obligations then outstanding.
"Transferee" has the meaning set forth in Section 10.07(d).
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"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 Section
221.2(g)(1).
"Utilization Fee" has the meaning set forth in Section 2.06(b).
"Wholly Owned Subsidiary" means any Subsidiary all Equity 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 GAAP, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants or
otherwise required by a change in GAAP) with the most recent audited
consolidated financial statements of the Borrower and its Subsidiaries
delivered by the Borrower to the Lenders, unless with respect to any such
change concurred in by the Borrower's independent public accountants or
required by GAAP, in determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (a) the Borrower shall have
objected to determining such compliance on such basis at the time of delivery
of such financial statements, or (b) the Administrative Agent shall so object
in writing within thirty (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 6.01 hereof, shall mean the financial statements referred to in Section
5.04).
SECTION 1.03. Use of Defined Terms.
All terms defined in this Agreement shall have the same meanings when used in
any of the other Loan Documents, unless otherwise defined therein or unless the
context shall otherwise require.
SECTION 1.04. Terminology.
All personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and the plural shall include the singular. Titles of
Articles and Sections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 1.05. References.
Unless otherwise indicated, references in this Agreement to "Articles",
"Exhibits", "Schedules", and "Sections" are references to articles, exhibits,
schedules and sections hereof.
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ARTICLE II
----------
THE CREDITS
SECTION 2.01. Commitment to Lend.
Each Lender severally agrees, on the terms and conditions hereinafter set
forth, to make Loans to the Borrower from time to time on any Business Day
during the period from the Closing Date to the Maturity Date, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Commitment and in a combined amount for all Lenders not to exceed at any time
outstanding the Total Commitment; provided, however, that immediately after
giving effect to any Borrowing of Loans, the sum of the aggregate principal
amount of all of the outstanding Loans, plus the aggregate amount of all
outstanding Letter of Credit Obligations shall not exceed the Total Commitment
then in effect. Each Borrowing that is a Euro-Dollar Borrowing under this
Section 2.01 shall be in an aggregate principal amount of $5,000,000 or any
larger multiple of $1,000,000 and each Borrowing that is a Base Rate Borrowing
under this Section 2.01 shall be in an aggregate principal amount of $2,500,000
or any larger multiple of $500,000 and shall be made from the several Lenders
ratably in proportion to their respective Commitments. Within such limits, and
subject to the other terms and conditions hereof, the Borrower may borrow Loans
under this Section 2.01, prepay Loans pursuant to Section 2.09 and reborrow
Loans pursuant to this Section 2.01 at any time before the Maturity Date.
SECTION 2.02. Procedure for the Borrowing of Loans, Etc.
(a) The Borrower shall give the Administrative Agent irrevocable written
notice in the form attached hereto as Exhibit B (a "Notice of Borrowing") prior
to 1:00 p.m. (Boston, Massachusetts time) on the requested Borrowing Date, in
the case of Base Rate Loans, and not less than two (2) Business Days prior to
the requested Borrowing Date, in the case of Euro-Dollar Loans, specifying:
(i) the requested Borrowing Date;
(ii) the principal amount of the Borrowing;
(iii) whether the Loans comprising the Borrowing are to be Base Rate
Loans or Euro-Dollar Loans; and
(iv) 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 Administrative Agent shall
promptly notify each Lender of the contents thereof and of such Lender's
ratable share of such Borrowing.
(c) Not later than 2:00 p.m. (Boston, Massachusetts time) on the proposed
Borrowing Date of any Loan, each Lender, severally, will make available to the
Administrative Agent, at its office as specified on Schedule I, in immediately
available funds, the amount of such Lender's Commitment Percentage of the
amount of the requested Loans. Upon receipt from the each Lender of such
amount, and upon the satisfaction of the conditions set forth in Article IV, to
the extent applicable, the Administrative Agent will make the aggregate amount
of such Loans available to the Borrower. The failure or refusal of any Lender
to make available to the Administrative Agent at the aforesaid time on the
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Borrowing Date its share of the amount of the requested Loans shall not relieve
any other Lender from its several obligations hereunder to make available to
the Administrative Agent the amount of such Lender's Commitment Percentage of
the amount of requested Loans.
(d) The Administrative Agent may, unless notified to the contrary by any
Lender on or prior to the Borrowing Date, assume that each Lender has made
available to the Administrative Agent on such Borrowing Date the amount of such
Lender's Commitment Percentage of the amount of the requested Loans to be made
on such Borrowing Date, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Lender makes available to the Administrative
Agent such amount advanced by the Administrative Agent on a date after such
Borrowing Date, such Lender shall pay to the Administrative Agent on demand an
amount equal to the product (i) of the average computed for the period referred
to in clause (iii) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, times (ii) the amount of such Lender's
Commitment Percentage of such Loans, times (iii) a fraction, the numerator of
which is the number of days that elapse from and including such Borrowing Date
to the date on which the amount of the Lender's Commitment Percentage of such
Loans shall become immediately available to the Administrative Agent, and the
denominator of which is 360. If the amount of such Lender's Commitment
Percentage of such Loans is not made available to the Administrative Agent by
such Lender within three (3) Business Days of such Borrowing Date, the
Administrative Agent shall be entitled to recover such amount from the Borrower
on demand, with interest thereon at the rate per annum applicable to the Loans
made on such Borrowing Date, provided that any such payment by the Borrower
shall be without prejudice to any rights that the Borrower may have against
such Lender. A statement of the Administrative Agent submitted to any Lender
with respect to any amounts owing under this paragraph shall be prima facie
evidence of the amounts due and owing to the Administrative Agent by such
Lender.
(e) Notwithstanding the notice and minimum amount requirements set forth
in this Section 2.02 but otherwise in accordance with the terms and conditions
of this Agreement, the Administrative Agent agrees to make Loans under this
Section 2.02(e) to the Borrower in an aggregate principal amount outstanding at
any time not to exceed $25,000,000. The Borrower acknowledges and agrees that
the making of such Loans shall, in each case, be subject in all respects to the
provisions of this Agreement as if they were Loans covered by a Notice of
Borrowing including, without limitation, the limitations set forth in Section
2.01 and the requirements that the applicable provisions of Article IV be
satisfied. All actions taken by the Administrative Agent pursuant to the
provisions of this Section 2.02(e) shall be conclusive and binding on the
Borrower and the Lenders absent the Administrative Agent's bad faith, gross
negligence or willful misconduct. Loans made pursuant to this Section 2.02(e)
shall be Base Rate Loans or, at the request of the Borrower not less than two
(2) Business Days prior to the requested Borrowing Date, may be Euro-Dollar
Loans with a seven (7) day Interest Period, and prior to Settlement, such
interest shall be for the account of the Administrative Agent.
(f) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Lender,
such Lender shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
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borrowed and the amount being repaid shall be made available by such Lender to
the Administrative Agent as provided in this Section 2.02 or remitted by the
Borrower to the Administrative Agent as provided in Section 2.11, as the case
may be.
(g) 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.
(h) In the event that a Notice of Borrowing fails to specify whether the
Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar Loans,
such Loans shall be made as Base Rate Loans.
(i) Notwithstanding anything to the contrary contained herein, (i) there
shall not be more than nine (9) different Interest Periods outstanding at the
same time applicable to the Loans that are Euro-Dollar Loans; and (ii) the
proceeds of any Borrowing that is a Base Rate Borrowing shall be applied first
to repay the unpaid principal amount of all Borrowings that are Base Rate Loans
(if any) outstanding immediately before such Borrowing.
SECTION 2.03. Notes.
(a) The Loans of each Lender shall be evidenced by a single Note payable
to the order of such Lender for the account of its Lending Office in an amount
equal to the original principal amount of such Lender's Commitment.
(b) Upon receipt of each Lender's Note pursuant to Section 4.01, the
Administrative Agent shall deliver such Note to such Lender. Each Lender shall
record, and prior to any transfer of its Note 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 Loan made by it, the date
and amount of each payment of principal made by the Borrower with respect
thereto and whether, in the case of such Lender's Note, 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 Lender's
Notes; provided, that the failure of any Lender 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 Lender to
assign its Notes. Each Lender is hereby irrevocably authorized by the Borrower
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 2.04. Maturity of Loans.
Anything herein express or implied to the contrary notwithstanding, there shall
become and be absolutely and unconditionally due and payable on the Maturity
Date, and the Borrower hereby promises to pay on the Maturity Date, the entire
principal of each of the Loans then remaining unpaid, all of the unpaid
interest accrued thereon, all of the unpaid Fees accrued hereunder and all
other unpaid sums and other Obligations owing under this Agreement or any of
the other Loan Documents.
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SECTION 2.05. Interest Rates.
(a) The Applicable Margin shall be determined by reference to the
Consolidated Leverage Ratio in effect from time to time as set forth in the
pricing grid below; provided, however, until the Borrower delivers to the
Administrative Agent the financial statements required to be delivered pursuant
to Section 6.01 for the Fiscal Year ending June 30, 2002, the Applicable Margin
shall not be less than the Applicable Margin which would be in effect if the
Consolidated Leverage Ratio were equal to 2.50:1.00:
Consolidated Leverage Base Euro-Dollar
Ratio Rate Loans Loans
---------------------------------- ---------- -----------
Greater than or equal to 3.00:1.00 0% 1.000%
Greater than or equal to 2.50:1.00
but less than 3.00:1.00 0% 0.875%
Greater than or equal to 2.00:1.00
but less than 2.50:1.00 0% 0.750%
Greater than or equal to 1.50:1.00
but less than 2.00:1.00 0% 0.625%
Less than 1.50:1.00 0% 0.500%
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 50 days after the last day of the Fiscal
Quarter, and the Applicable Margin so determined shall remain effective from
such Rate Determination Date until the date which is 50 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) in the case of
an Applicable Margin determined for the fourth and final Fiscal Quarter of a
Fiscal Year, the Rate Determination Date shall be the date which is 100 days
after the last day of such final Fiscal Quarter and such Applicable Margin
shall be determined based upon the annual audited financial statements for the
Fiscal Year ended on the last day of such final Fiscal Quarter and (ii) if on
any Rate Determination Date the Borrower shall have failed to deliver to the
Lenders the financial statements required to be delivered pursuant to Section
6.01(a) or (b) with respect to the Fiscal Year or Fiscal 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 Lenders the financial
statements to be delivered pursuant to Section 6.01(b) with respect to such
Fiscal Quarter or any subsequent Fiscal Quarter, or (B) the date on which the
Borrower shall deliver to the Lenders annual financial statements required to
be delivered pursuant to Section 6.01(a) with respect to the Fiscal Year which
includes such Fiscal Quarter or any subsequent Fiscal Year, the Applicable
Margin shall be the Applicable Margin which would be in effect if the
Consolidated Leverage Ratio were greater than or equal to 3.00:1.00. 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 rate applicable to each Loan outstanding on such Rate
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Determination Date; provided, that no Applicable Margin shall be decreased
pursuant to this Section 2.05 if a Default or Event of Default is in existence
on the Rate Determination Date.
(b) Each Loan that is a Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Base Rate
Loan is made until it becomes due, 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 on each Interest Payment Date.
(c) Each Loan that is a Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, 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 (a)(iii)
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, on each Interest
Payment Date during such Interest Period.
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 rate appears 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, two (2) 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 Lender
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) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder, and its determination thereof shall be
conclusive in the absence of manifest error. Promptly after each determination
- 25 -
of an interest rate, the Administrative Agent shall notify the Borrower in
accordance with its usual and customary banking practices.
(e) Notwithstanding the forgoing provisions of this Section 2.05, after
the occurrence and during the continuance of an Event of Default, the principal
amount of the Loans (and, to the extent permitted by Applicable Law, all
accrued interest thereon) shall, at the election of the Required Lenders, bear
interest payable on demand, for each day until paid at a rate per annum equal
to the Default Rate.
SECTION 2.06. Fees.
(a) The Borrower shall pay to the Administrative Agent for the ratable
account of each Lender with a Commitment on the last day of each Fiscal Quarter
in each year and on the earlier of the Maturity Date or the date on which the
Total Commitment shall terminate in full, a commitment fee (the "Commitment
Fee") equal to the product of the average daily excess of the Total Commitment
from time to time in effect from the Effective Date, over the Total
Utilization, times the Applicable Commitment Fee Rate. Such Commitment Fee
shall accrue from and including the Effective Date to and including the
Maturity Date. Notwithstanding the foregoing sentence, for the period
commencing on the Effective Date and continuing until the Borrower delivers to
the Administrative Agent the financial statements required to be delivered
pursuant to Section 6.01 for the Fiscal Year ending June 30, 2002, the
Applicable Commitment Fee Rate shall not be less than the Applicable Commitment
Fee Rate which would be in effect if the Consolidated Leverage Ratio were equal
to 2.50:1.00.
(b) The Borrower shall pay to the Administrative Agent for the ratable
account of each Lender a utilization fee (the "Utilization Fee") calculated
daily at the per annum rate equal to one-eighth of one percent (i.e., 12.5
basis points), times the Total Utilization, for each day on which the Total
Utilization exceeds the product of (A) 0.50 times (B) the Total Commitment in
effect for such date. Such Utilization Fee shall accrue from and including the
Closing Date to and including the Maturity Date and shall be payable quarterly
in arrears on the last day of each Fiscal Quarter; provided, that, should the
Commitments be terminated at any time prior to the Maturity Date for any
reason, the entire accrued and unpaid Utilization Fee shall be paid on the date
of such termination.
(c) The Borrower shall pay to the Administrative Agent such Fees and
other amounts as are provided in the Fee Letters, including the Fees payable
thereunder on the Effective Date.
SECTION 2.07. Optional Termination or Reduction of Commitments.
At any time prior to the Maturity Date, the Borrower may, upon at least five
(5) Business Days' notice to the Administrative Agent, terminate at any time,
or proportionately reduce from time to time by an aggregate amount of at least
$5,000,000 or any larger multiple of $1,000,000, the Total Commitment. If the
Total Commitment is terminated in its entirety, all accrued Fees (as provided
under Section 2.06) shall be payable on the effective date of such termination.
SECTION 2.08. Mandatory Termination of Commitments. The Commitments shall
- 26 -
terminate on the Maturity Date and any Loans then outstanding (together with
accrued interest thereon and Fees) and all other Obligations shall be due and
payable on such date.
SECTION 2.09. Optional Prepayments of Loans.
(a) The Borrower may prepay any Loan that is a Base Rate Borrowing in
whole at any time, or from time to time in part in amounts aggregating at least
$1,000,000 or any larger multiple of $500,000, 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 Loans of
the several Lenders included in such Base Rate Borrowing.
(b) Except as provided in Section 9.02, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
last day of an Interest Period applicable thereto.
SECTION 2.10. Mandatory Prepayments.
(a) If, on any date, the Total Utilization shall exceed the Total
Commitment then in effect, the Borrower shall immediately prepay the principal
of the Loans or Letter of Credit Borrowings in the amount of such excess. Each
payment shall be allocated ratably among the Lenders. If no Loans or Letter of
Credit Borrowings are outstanding, the Borrower shall immediately cash
collateralize, in a manner satisfactory to the Administrative Agent, Letter of
Credit Obligations in the amount of such excess.
(b) If, on any date, the aggregate amount of all Letter of Credit
Obligations then outstanding shall exceed the Letter of Credit Commitment then
in effect, the Borrower shall immediately pay, or cash collateralize in a
manner satisfactory to the Administrative Agent, the amount of the Letter of
Credit Obligations in the amount of such excess.
(c) The Borrower shall pay, together with each principal prepayment under
this Section 2.10, accrued interest on the amount prepaid and any amounts
required pursuant to Section 9.05(a). Any prepayments pursuant to this Section
2.10 made on any day other than an Interest Payment Date for any Loan shall be
applied: first, to any Base Rate Loans then outstanding; and, then, to
Euro-Dollar Loans with the shortest Interest Periods remaining; provided,
however, that, so long as no Default or Event of Default shall then be
continuing, the Administrative Agent shall, upon the request of the Borrower,
apply any such prepayments to Euro-Dollar Loans only on the last day of each of
the respective Interest Periods relating thereto.
SECTION 2.11. General Provisions as to Payments and Taxes.
(a) The Borrower shall make each payment of principal of, and interest on
the Loans and Fees hereunder, not later than 11:00 a.m. (Boston, Massachusetts
time) on the date when due, in Dollars or other immediately available funds to
the Administrative Agent at its address referred to on Schedule I. The
Administrative Agent will promptly distribute to each Lender its ratable share
of each such payment received by the Administrative Agent for the account of
the Lenders. Any payment which is received by the Administrative Agent later
- 27 -
than 11:00 a.m. (Boston, Massachusetts time) shall be deemed to have been
received on the immediately succeeding Business Day, and any applicable
interest or Fees shall continue to accrue until such payment shall be deemed to
have been received.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or of Fees shall be due on a day which is not a Business Day, the date
for payment thereof shall be extended to the next succeeding 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 Business Day, the date for payment thereof
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding 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.
(c)
(i) 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 Loan 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 Lender, (A) taxes imposed on or measured by
its net income, (B) franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender is organized or any political
subdivision thereof, and (C) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, imposts, levies, duties, deductions or withholdings of any nature
being "Non-excluded Taxes"). In the event that the Borrower is required
by applicable law to make any such withholding or deduction of
Non-excluded Taxes with respect to any Loan or Fee or other amount,
promptly after receiving notice thereof, the Borrower shall pay such
deduction or withholding to the applicable taxing authority, shall
promptly furnish to any Lender in respect of which such deduction or
withholding is made all receipts and other documents evidencing such
payment and shall pay to such Lender additional amounts as may be
necessary in order that the amount received by such Lender after the
required withholding or other payment shall equal the amount such Lender
would have received had no such withholding or other payment been made.
If no withholding or deduction of Non-excluded Taxes are payable in
respect of any Loan or Fee relating thereto, the Borrower shall furnish
any Lender, at such Lender's request, a certificate from each applicable
taxing authority or an opinion of counsel acceptable to such Lender, in
either case stating that such payments are exempt from or not subject to
withholding or deduction of Non-excluded Taxes. If the Borrower fails to
provide such original or certified copy of a receipt evidencing payment of
Non-excluded Taxes or certificate(s) or opinion of counsel of exemption,
the Borrower hereby agrees to compensate such Lender for, and indemnify
them with respect to, the tax consequences of the Borrower's failure to
provide evidence of tax payments or tax exemption.
(ii) In the event any Lender receives a refund of any Non-excluded
Taxes paid by the Borrower pursuant to this Section 2.11, it will pay to
the Borrower the amount of such refund promptly upon receipt thereof;
- 28 -
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.
(iii) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.11 shall be applicable with respect to any
Participant, Assignee or other Transferee, except as otherwise provided by
clause (iv) below, and any calculations required by such provisions (A)
shall be made based upon the circumstances of such Participant, Assignee
or other Transferee, and (B) constitute a continuing agreement and shall
survive the termination of this Agreement and the payment in full or
cancellation of the Notes.
(iv) Each Lender which is organized under the laws of a jurisdiction
outside of the United States agrees that:
(A) it shall, no later than the Effective Date (or, in the case
of a Lender which becomes a party hereto pursuant to Section 10.07
after the Effective Date, the date upon which such Lender becomes a
party hereto) deliver to the Borrower through the Administrative
Agent two accurate and complete signed originals of Internal Revenue
Service Form W-8BEN or any successor thereto ("Form W-8BEN"), or two
accurate and complete signed originals of Internal Revenue Service
Form W-8ECI or any successor thereto ("Form W-8ECI"), as appropriate,
in each case indicating that such Lender is on the date of delivery
thereof entitled to receive all payments under this Agreement and the
other Loan Documents free from withholding of United States Federal
income tax;
(B) if at any time such Lender makes any changes, including a
change of a Lending Office or its principal office, place of
incorporation or fiscal residence, necessitating a new Form W-8BEN or
Form W-8ECI, it shall, to the extent it is legally entitled to do so,
promptly deliver to the Borrower through the Administrative Agent in
replacement for, or in addition to, the forms previously delivered by
it hereunder, two accurate and complete signed originals of Form
W-8BEN or Form W-8ECI, as appropriate, in each case indicating that
such Lender is on the date of delivery thereof entitled to receive
all payments under this Agreement and the other Loan Documents free
from any withholding of any United States Federal income tax;
(C) it shall, to the extent it is legally entitled to do so,
before or promptly after the occurrence of any event (including the
passing of time but excluding any event mentioned in clause (B)
above) requiring a change in or renewal of the most recent Form
W-8BEN or Form W-8ECI previously delivered by such Lender, deliver to
the Borrower through the Administrative Agent two accurate and
complete signed originals of Form W-8BEN or Form W-8ECI in
replacement for the forms previously delivered by such Lender
indicating that such Lender continues to be entitled to receive all
payments under this Agreement and the other Loan Documents free from
any withholding of any United States Federal income tax;
(D) it shall, to the extent it is legally entitled to do so,
promptly upon the reasonable request of the Borrower or the
Administrative Agent to that effect, deliver to the Borrower or the
- 29 -
Administrative Agent (as the case may be) such other forms or similar
documentation as may be required from time to time by any Applicable
Law, in order to establish such Lender's complete exemption from
withholding on all payments under this Agreement or any of the other
Loan Documents;
(E) if such Lender claims or is entitled to claim exemption
from withholding tax under a United States tax treaty by providing a
Form W-8ECI and such Lender sells or grants a participation in all or
part of its rights under this Agreement, such Lender shall notify the
Administrative Agent of the percentage amount in which it is no
longer the beneficial owner under this Agreement. To the extent of
such percentage amount, the Administrative Agent shall treat such
Lender's Form W-8ECI as no longer in compliance with this Section
2.11(c)(iv). In the event a Lender claiming exemption from United
States withholding tax by filing Form W-8BEN with the Administrative
Agent sells or grants a participation in its rights under this
Agreement, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections
1441 and 1442 of the Code; and
(F) without limiting or restricting any Lender's right to
increased amounts under Section 2.11(c)(i) from the Borrower upon
satisfaction of such Lender's obligations under the provisions of
this Section 2.11(c)(iv), if such Lender is entitled to a reduction
in the applicable withholding tax, the Administrative Agent may (but
shall not be obligated to) withhold from any interest to such Lender
an amount equivalent to the applicable withholding tax after taking
into account such reduction.
If the forms or other administrative documentation required by clause (A) are
not delivered to the Administrative Agent, then the Administrative Agent shall
withhold from any interest payment to a Lender not providing such forms or
other documentation, an amount equivalent to the applicable withholding tax
and, in addition, the Administrative Agent shall also withhold against periodic
payments other than interest payments to the extent United States withholding
tax is not eliminated by obtaining Form W-8BEN or Form W-8ECI. The Borrower
shall indemnify and hold harmless the Administrative Agent and each of its
officers, directors, employees, counsel, agents and attorneys-in-fact from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses or disbursements (including
Attorney Costs) of any kind whatsoever from time to time incurred as a result
of or in connection with the Administrative Agent's failure to withhold as
provided pursuant to the preceding sentence, unless such failure constitutes
gross negligence or willful misconduct of the Administrative Agent itself as
the same is determined by a final non-appealable judgment of a court of
competent jurisdiction, and the Obligations of the Borrower under this sentence
shall survive payment of all other Obligations.
(v) The Borrower shall not be required to pay any additional amounts
in respect of Non-excluded Taxes imposed by any United States Federal
Governmental Authority pursuant to Section 2.11(c)(i) to any Lender:
(A) if and to the extent the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender to
comply with its obligations under Section 2.11(c)(iv) in respect of
its Lending Office;
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(B) if such Lender shall have delivered to the Borrower a Form
W-8BEN in respect of its Lending Office pursuant to Section 2.11(c)
(iv)(A)-(C) or such other forms or other similar documentation
pursuant to Section 2.11(c)(iv)(D), to the extent such Lender shall
not at any time be entitled to exemption from all deductions or
withholding of United States Federal income tax in respect of
payments by the Borrower under this Agreement or any of the other
Loan Documents for the account of such Lending Office for any reason
other than a change in United States Applicable Law or in the
official interpretation of any such Applicable Law by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form W-8BEN or such other forms or other
similar documentation; or
(C) if such Lender shall have delivered to the Borrower a Form
W-8ECI in respect of its Lending Office pursuant to Section
2.11(c)(iv)(A)-(C) or such other forms or similar documentation
pursuant to Section 2.11(c)(iv)(D), to the extent such Lender shall
not at any time be entitled to exemption from all deductions or
withholding of United States Federal income tax in respect of
payments by the Borrower under this Agreement or any of the other
Loan Documents for the account of such Lending Office for any reason
other than a change in United States Applicable Law or in the
official interpretation of any such Applicable Law by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form W-8ECI or such other forms or other
similar documentation.
(vi) Each Lender agrees that it shall, at any time upon reasonable
advance request in writing by the Borrower or the Administrative Agent,
promptly deliver such certification or other documentation as may be
required under Applicable Law in any applicable jurisdiction and which
such Lender is entitled to submit to avoid or reduce withholding taxes on
amounts to be paid by the Borrower and received by such Lender pursuant to
this Agreement or any of the other Loan Documents.
SECTION 2.12. 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 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. 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 last day).
SECTION 2.13. Settlement.
(a) On each Settlement Date, the Administrative Agent shall, not later
than 2:00 p.m. (Boston, Massachusetts time), give telephonic or facsimile
notice (i) to the Lenders and the Borrower of the respective outstanding amount
- 31 -
of Loans made by the Administrative Agent pursuant to Section 2.02(e) on behalf
of the Lenders from the immediately preceding Settlement Date through the close
of business on the prior day and (ii) to the Lenders of the amount (a
"Settlement Amount") that each Lender (a "Settling Lender") shall pay to effect
a Settlement of any Loan. A statement of the Administrative Agent submitted to
the Lenders and the Borrower or to the Lenders with respect to any amounts
owing under this Section 2.13 shall be prima facie evidence of the amount due
and owing. Each Settling Lender shall, not later than 3:00 p.m. (Boston,
Massachusetts time) on such Settlement Date, effect a wire transfer of
immediately available funds to the Administrative Agent in the amount of the
Settlement Amount for such Settling Lender. All funds advanced by any Lender
as a Settling Lender pursuant to this Section 2.13 shall for all purposes be
treated as a Loan made by such Settling Lender to the Borrower and all funds
received by the Administrative Agent pursuant to this Section 2.13 shall for
all purposes be treated as repayment of amounts owed with respect to Loans made
by the Administrative Agent. In the event that any bankruptcy, reorganization,
liquidation, receivership or similar cases or proceedings in which the Borrower
is a debtor prevents a Settling Lender from making any Loan to effect a
Settlement as contemplated hereby, such Settling Lender will make such
dispositions and arrangements with the Administrative Agent with respect to
such Loans, either by way of purchase of participations, distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in the
Administrative Agent receiving the full amount to which it is entitled under
this Section 2.13(a) and each Lender's share of the outstanding Loans being
equal, as nearly as may be, to such Lender's Commitment Percentage of the
outstanding amount of the Loans.
(b) The Administrative Agent may, unless notified to the contrary by any
Settling Lender on or prior to a Settlement Date, assume that such Settling
Lender has made or will make available to the Administrative Agent on such
Settlement Date the amount of such Settling Lender's Settlement Amount. If any
Settling Lender makes available to the Administrative Agent such amount on a
date after such Settlement Date, such Settling Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (i) the
average computed for the period referred to in clause (iii) below, of the
Federal Funds Rate for each day included in such period, times (ii) the amount
of such Settlement Amount, times (iii) a fraction, the numerator of which is
the number of days that elapse from and including such Settlement Date to the
date on which the amount of such Settlement Amount shall become immediately
available to the Administrative Agent, and the denominator of which is 360. A
statement of the Administrative Agent submitted to such Settling Lender with
respect to any amounts owing under this Section 2.13(b) shall be prima facie
evidence of the amount due and owing to the Administrative Agent by such
Settling Lender. If such Settling Lender's Settlement Amount is not made
available to the Administrative Agent by such Settling Lender within three (3)
Business Days following such Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower on demand, with interest
thereon at the rate per annum applicable to the Loans as of such Settlement
Date.
(c) The failure or refusal of any Settling Lender to make available to
the Administrative Agent at the aforesaid time and place on any Settlement Date
the amount of such Settling Lender's Settlement Amount shall not (i) relieve
any other Settling Lender from its several obligations hereunder to make
available to the Administrative Agent the amount of such other Settling
Lender's Settlement Amount or (ii) impose upon any Lender, other than the
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Settling Lender so failing or refusing, any liability with respect to such
failure or refusal or otherwise increase the Commitment of such other Lender.
(d) Each Settling Lender's obligation in accordance with this Agreement
to pay to the Administrative Agent the Settlement Amount on each Settlement
Date as contemplated by this Section 2.13 shall be absolute, unconditional
irrevocable and without recourse to the Administrative Agent and shall not be
affected by any circumstance, including: (i) any set-off, counterclaim, defense
or other right which such Lender may have against the Administrative Agent, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuation of any Default or Event of Default or any Material Adverse Effect
or the Borrower's failure to satisfy any condition set forth in Article IV; or
(iii) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
SECTION 2.14. Conversion and Continuation Elections for all Borrowings.
(a) The Borrower may upon irrevocable written notice (or telephonic
notice immediately confirmed in writing) to the Administrative Agent in
accordance with paragraph (b):
(i) elect to convert on any Business Day, any Base Rate Loans (or
any part thereof in an amount of not less than $500,000 or an integral
multiple of $500,000 in excess thereof) into Euro-Dollar Loans;
(ii) elect to convert on the last day of any Interest Period with
respect thereto, any Euro-Dollar Loans (or any part thereof in an amount
of not less than $500,000 or an integral multiple of $500,000 in excess
thereof) into Base Rate Loans; or
(iii) elect to continue on the last day of any Interest Period with
respect thereto, any Euro-Dollar Loans (or any part thereof in an amount
of not less than $500,000 or an integral multiple of $500,000 in excess
thereof) as Euro-Dollar Loans;
provided, however, that, if any Borrowing comprised of Euro-Dollar Loans shall
have been reduced, by payment, prepayment or conversion, to an amount that is
less than $1,000,000 then the Euro-Dollar Loans comprising such Borrowing shall
automatically convert into Base Rate Loans on the last day of the then-current
Interest Period relating thereto.
(b) The Borrower shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than (i) 1:00 p.m. (Boston,
Massachusetts time) not less than two (2) Business Days in advance of the
Conversion Date or Continuation Date, if the Loans are to be converted into or
continued as Euro-Dollar Loans, and (ii) 1:00 p.m. (Boston, Massachusetts time)
on the requested Conversion Date, if the Loans are to be converted into Base
Rate Loans, specifying:
(A) the proposed Conversion Date or Continuation Date, which
shall in each case be a Business Day;
(B) the aggregate principal amount of all Loans to be converted
or continued;
(C) the nature of the proposed conversion or continuation; and
(D) the duration of the requested Interest Periods, if
applicable.
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(c) If, upon the expiration of any Interest Periods applicable to any
Euro-Dollar Loans, the Borrower shall have failed to select on a timely basis
new Interest Periods to be applicable thereto, such Euro-Dollar Loans shall
automatically convert into Base Rate Loans upon the expiration of such periods.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Lender thereof, or, if no timely
notice is provided by the Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All conversions
and continuations shall be made pro rata according to the respective
outstanding principal amounts of the Loans with respect to which the notice was
given.
(e) During the continuation of any Default, the Borrower may not elect to
have any Loan converted into or continued as a Euro-Dollar Loan.
ARTICLE III
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THE LETTERS OF CREDIT
SECTION 3.01. Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein (i) the Issuing Lender
agrees (A) from time to time, on any Business Day during the period from the
Closing Date to the date which is thirty (30) days prior to the Maturity Date
to issue Letters of Credit for the account of the Borrower, and to amend or
renew Letters of Credit previously issued by it, in accordance with Section
3.02(b) and Section 3.02(d), and (B) to honor drafts under the Letters of
Credit; and (ii) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower; provided, however, that the
Issuing Lender shall not issue any Letter of Credit if as of the date of, and
immediately after giving effect to, the issuance of such Letter of Credit: (A)
there shall be continuing any Event of Default of which the Issuing Lender
shall have received written notice from the Borrower or the Administrative
Agent; (B) the aggregate amount of all Letter of Credit Obligations, plus the
aggregate principal amount of all Loans shall exceed the Total Commitment then
in effect; or (C) the Letter of Credit Obligations shall exceed the Letter of
Credit Commitment then in effect.
(b) The Issuing Lender shall be under no obligation to issue any Letter
of Credit if:
(i) any order, judgment or decree of any Governmental Authority
shall by its terms purport to enjoin or restrain the Issuing Lender from
issuing such Letter of Credit, or any Applicable Law or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall prohibit, or request
that the Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such
Issuing Lender with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Lender is not otherwise
compensated hereunder) not in effect on the Closing Date or shall impose upon
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the Issuing Lender any unreimbursable loss, cost or expense which was not
applicable on the Closing Date and which the Issuing Lender reasonably deems
material to it;
(ii) the Issuing Lender shall have received written notice from any
Lender or from the Borrower, on or prior to the requested date of issuance of
such Letter of Credit, that one or more of the applicable conditions precedent
contained in Article IV is not then satisfied;
(iii) the expiry date of any requested Letter of Credit (A) is more
than one (1) year after the date of issuance, unless the Issuing Lender have
approved such expiry date, or (B) is later than the Maturity Date;
(iv) any requested Letter of Credit is not in form and substance
reasonably acceptable to the Issuing Lender, or the issuance of a Letter of
Credit shall violate any applicable policies of the Issuing Lender; or
(v) such Letter of Credit is in a face amount less than $50,000 or
to be denominated in a currency other than Dollars.
SECTION 3.02. Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable written
request of the Borrower received by the Issuing Lender (with a copy sent by the
Borrower to the Administrative Agent) at least four (4) Business Days (or such
shorter time as the Issuing Lender may agree in a particular instance in its
sole discretion) prior to the proposed date of issuance, and approval by the
Administrative Agent of such request. Each request by the Borrower for issuance
of a Letter of Credit shall be by facsimile, confirmed promptly in an original
writing, in the form of a Letter of Credit Application, and shall specify in
form and detail reasonably satisfactory to the Issuing Lender: (i) the proposed
date of issuance of the Letter of Credit (which shall be a Business Day); (ii)
the face amount of the Letter of Credit; (iii) the expiry date of the Letter of
Credit; (iv) the name and address of the beneficiary thereof; (v) the documents
to be presented by the beneficiary of the Letter of Credit in case of any
drawing thereunder; (vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; and (vii) such other matters
as the Issuing Lender may reasonably require.
(b) From time to time while a Letter of Credit is outstanding and prior
to the Maturity Date, the Issuing Lender will, upon the written request of the
Borrower received by the Issuing Lender (with a copy sent by the Borrower to
the Administrative Agent) at least four (4) Business Days (or such shorter time
as the Issuing Lender may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, upon approval by the
Administrative Agent of such request, amend any Letter of Credit issued by it.
Each such request by the Borrower for amendment of a Letter of Credit shall be
made by facsimile, confirmed promptly in an original writing, in the form of a
Letter of Credit Amendment Application and shall specify in form and detail
reasonably satisfactory to the Issuing Lender: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and (iv)
such other matters as the Issuing Lender may reasonably require. The Issuing
Lender shall be under no obligation to amend any Letter of Credit if (i) the
Issuing Lender would have no obligation at such time to issue such Letter of
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Credit in its amended form under the terms of this Agreement; or (ii) the
beneficiary of any such Letter of Credit does not accept the proposed amendment
to the Letter of Credit.
(c) The Administrative Agent will promptly notify the Lenders of the
receipt by it of any Letter of Credit Application or Letter of Credit Amendment
Application.
(d) The Issuing Lender and the Lenders agree that, while a Letter of
Credit is outstanding and prior to the Maturity Date, at the option of the
Borrower and upon the written request of the Borrower received by the Issuing
Lender (with a copy sent by the Borrower to the Administrative Agent) at least
four (4) Business Days (or such shorter time as the Issuing Lender may agree in
a particular instance in its sole discretion) prior to the proposed date of
notification of renewal, the Issuing Lender shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed promptly in
an original writing, in the form of a Letter of Credit Amendment Application,
and shall specify in form and detail reasonably satisfactory to the Issuing
Lender: (i) the Letter of Credit to be renewed; (ii) the proposed date of
notification of renewal of the Letter of Credit (which shall be a Business
Day); (iii) the revised expiry date of the Letter of Credit; and (iv) such
other matters as the Issuing Lender may reasonably require. The Issuing Lender
shall be under no obligation to renew any Letter of Credit if the Issuing
Lender would have no obligation at such time to issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement. If any
outstanding Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the Issuing Lender
that such Letter of Credit shall not be renewed, and if at the time of renewal
the Issuing Lender would be entitled to authorize the automatic renewal of such
Letter of Credit in accordance with this Section 3.02(d) upon the request of
the Borrower but the Issuing Lender shall not have received any Letter of
Credit Amendment Application from the Borrower with respect to such renewal or
other written direction from the Borrower with respect thereto, the Issuing
Lender shall nonetheless be permitted to allow such Letter of Credit to be
renewed, and the Borrower and the Lenders hereby irrevocably authorize each
such renewal, and, accordingly, the Issuing Lender shall be deemed to have
received a Letter of Credit Amendment Application from the Borrower requesting
such renewal.
(e) This Agreement shall control in the event of any conflict with any
Letter of Credit Related Document (other than any Letter of Credit, the
provisions of which shall control in any event). The Issuing Lender will also
deliver to the Administrative Agent, concurrently or promptly following its
delivery of a Letter of Credit, or any amendment to or renewal of a Letter of
Credit, to a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.
SECTION 3.03. Participations, Drawings and Reimbursement.
(a) Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Lender a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) the Commitment
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Percentage of such Lender then in effect, times (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount of such
drawing, respectively.
(b) In the event of any request for a drawing under a Letter of Credit by
the beneficiary or transferee thereof, the Issuing Lender will promptly notify
the Borrower. The Borrower shall reimburse the Issuing Lender prior to 12:00
p.m. (Boston, Massachusetts time), on each date that any amount is paid by the
Issuing Lender under any Letter of Credit (each such date, a "Disbursement
Date"), in an amount equal to the amount so paid by the Issuing Lender,
provided that if such drawing occurs after 12:00 p.m. (Boston, Massachusetts
time), the Disbursement Date shall be deemed to be the day following the date
of such drawing. In the event that the Borrower shall fail to reimburse the
Issuing Lender for the full amount of any drawing under any Letter of Credit by
12:00 p.m. (Boston, Massachusetts time) on the Disbursement Date, the Issuing
Lender will promptly notify the Administrative Agent and the Administrative
Agent will promptly notify each Lender thereof, and the Borrower shall be
deemed to have requested that Loans consisting of Base Rate Loans be made by
the Lenders (and the Borrower hereby irrevocably consents to such deemed
request) pursuant to Section 2.01 to be disbursed on the Disbursement Date
under such Letter of Credit, subject always to the satisfaction of the
conditions set forth in Section 4.02. Any notice given by the Issuing Lender
or the Administrative Agent pursuant to this Section 3.03(b) may be oral if
immediately confirmed in writing (including by facsimile); provided, however,
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c) Each Lender shall upon receipt of any notice pursuant to Section
3.03(b) make available to the Administrative Agent for the account of the
Issuing Lender an amount in Dollars and in immediately available funds equal to
its Commitment Percentage of the amount of the drawing, whereupon the
participating Lenders shall (subject to Section 3.03(d)) each be deemed to have
made a Loan consisting of a Base Rate Loan to the Borrower in that amount. If
any Lender so notified shall fail to make available to the Administrative Agent
for the account of the Issuing Lender the amount of such Lender's Commitment
Percentage of the amount of the drawing by no later than 1:00 p.m. (Boston,
Massachusetts time) on the Disbursement Date, then interest shall accrue on
such Lender's obligation to make such payment, from the Disbursement Date to
the date such Lender makes such payment, at a rate per annum equal to (i) the
Federal Funds Rate in effect from time to time during the period commencing on
the Disbursement Date and ending on the date three (3) Business Days
thereafter, and (ii) thereafter, at the Base Rate as in effect from time to
time. The Administrative Agent will promptly give notice of each Disbursement
Date, but failure of the Administrative Agent to give any such notice on the
Disbursement Date or in sufficient time to enable any Lender to effect such
payment on such date shall not relieve such Lender from its obligations under
this Section 3.03.
(d) With respect to any unreimbursed drawing which is not converted into
Loans consisting of Base Rate Loans because the applicable conditions precedent
set forth in Section 4.02 cannot be satisfied, the Borrower shall be deemed to
have obtained from the Issuing Lender a Letter of Credit Borrowing in the
amount of such drawing, which Letter of Credit Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at a rate
per annum equal to the Base Rate, plus the Applicable Margin for Base Rate
Loans, plus, in the case of any Letter of Credit Borrowing outstanding after
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the Disbursement Date, two percent (2%) per annum, and each Lender's payment to
the Issuing Lender pursuant to Section 3.03(c) shall be deemed a payment in
respect of its participation in such Letter of Credit Borrowing.
(e) Each Lender's obligation in accordance with this Agreement to make
Loans or to fund its participation in Letter of Credit Borrowings, as
contemplated by this Section 3.03, as a result of any drawing under a Letter of
Credit shall be absolute, unconditional irrevocable and without recourse to the
Issuing Lender and shall not be affected by any circumstance, including: (i)
any set-off, counterclaim, defense or other right which such Lender may have
against the Issuing Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuation of any Default or Event of
Default or any Material Adverse Effect; or (iii) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
SECTION 3.04. Repayment of Participation.
(a) Upon (and only upon) receipt by the Administrative Agent for the
account of the Issuing Lender of funds from the Borrower (i) in reimbursement
of any payment made by the Issuing Lender under the Letter of Credit with
respect to which any Lender has paid the Administrative Agent for the account
of the Issuing Lender for such Lender's participation in the Letter of Credit
pursuant to Section 3.03, or (ii) in payment of interest on amounts described
in clause (i), the Administrative Agent will pay to each Lender, in the same
funds as those received by the Administrative Agent for the account of the
Issuing Lender, the amount of such Lender's Commitment Percentage of such
funds, and the Issuing Lender shall receive the amount of the Commitment
Percentage of such funds of any Lender that did not so pay the Administrative
Agent for the account of the Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender is required at any
time to return to the Borrower, or to any trustee, receiver, liquidator,
custodian or any other similar official in any Insolvency Proceeding, any
portion of the payments made by the Borrower to the Administrative Agent for
the account of the Issuing Lender pursuant to Section 3.04(a) in reimbursement
of a payment made under the Letter of Credit or interest or fees thereon, each
Lender shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or such Issuing Lender the amount of its Commitment
Percentage of any amounts so returned by the Administrative Agent or the
Issuing Lender plus interest thereon, from the date such demand is made to the
date such amounts are returned by such Lender to the Administrative Agent or
the Issuing Lender, at a rate per annum equal to the Federal Funds Rate in
effect from time to time.
SECTION 3.05. Role of Issuing Lender.
(a) Each Lender and the Borrower agree that, in paying any drawing under
a Letter of Credit, the Issuing Lender shall not have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
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(b) Neither the Issuing Lender nor any of the respective correspondents,
participants or assignees of the Issuing Lender shall be liable to any Lender
or the Borrower for: (i) any action taken or omitted in connection herewith at
the request or with the approval of the Required Lenders; (ii) any action taken
or omitted in the absence of gross negligence or willful misconduct; or (iii)
the due execution, effectiveness, validity or enforceability of any Letter of
Credit Related Document.
(c) The Borrower hereby irrevocably assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit. Neither the Issuing Lender nor any of the respective
correspondents, participants or assignees of the Issuing Lender shall be liable
or responsible for any of the matters described in clauses (a) through (f) of
Section 3.06; provided, however, that the Borrower may have a claim against the
Issuing Lender, and the Issuing Lender may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower and only to the extent which the
Borrower shall have proved were caused by the Issuing Lender's willful
misconduct or gross negligence, as such has been determined by a final
non-appealable judgment, or the Issuing Lender's willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of
such Letter of Credit. In furtherance and not in limitation of the foregoing:
(i) the Issuing Lender may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any Instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
SECTION 3.06. Obligations Absolute.
The obligations of the Borrower under this Agreement and any Letter of Credit
Related Document to reimburse the Issuing Lender for each drawing under each
Letter of Credit, to repay each Letter of Credit Borrowing and to repay each
drawing under a Letter of Credit converted into Loans, shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement and each such other Letter of Credit Related
Document under all circumstances, including the following:
(a) any lack of validity or enforceability of this Agreement or any
Letter of Credit Related Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of any
Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the Letter of Credit Related Documents;
(c) the existence of any claim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
Letter of Credit Related Documents or any unrelated transactions;
- 39 -
(d) any draft, demand, certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under any Letter of Credit;
(e) any payment by the Issuing Lender under any Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the Issuing Lender under
any Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of any Letter of Credit; or
(f) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
any guarantor.
SECTION 3.07. Outstanding Letter of Credit Obligations at Maturity.
Upon the request of the Administrative Agent, if, as of the Maturity Date, any
Letters of Credit shall for any reason remain outstanding and partially or
wholly undrawn, then the Borrower shall immediately pay to the Administrative
Agent an amount equal to such Letter of Credit Obligations to be held as cash
collateral.
SECTION 3.08. Letter of Credit Fees.
(a) The Borrower shall pay to the Administrative Agent, for the ratable
account of each Lender with a Commitment, letter of credit fees ("Letter of
Credit Fees") with respect to all Letters of Credit equal to (i) the Applicable
Margin for Loans that are Euro-Dollar Loans, times (ii) the face amount of each
Letter of Credit to be issued, and such Letter of Credit Fees shall be due and
payable in arrears on the last day of each Fiscal Quarter.
(b) The Borrower shall pay directly to the Issuing Lender, for the
Issuing Lender's own account, a Letter of Credit fronting fee equal to
one-eighth of one percent (i.e., 12.5 basis points), times the face amount of
each Letter of Credit to be issued, and such Letter of Credit fronting fee
shall be due and payable on the date of issuance of such Letter of Credit by
the Issuing Lender.
(c) The Borrower shall also pay directly to the Issuing Lender from time
to time, on demand by the Issuing Lender and for its own account, such other
reasonable issuance, presentation, payment, amendment, transfer and other
processing fees, and other standard and reasonable charges, of the Issuing
Lender relating to letters of credit as are in accordance with the Issuing
Lender's standard schedule for such fees and charges in effect from time to
time.
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SECTION 3.09. Uniform Customs and Practice.
The Uniform Customs and Practice for Documentary Credits as most recently
published by the International Chamber of Commerce (unless otherwise expressly
provided in the Letters of Credit) shall apply to the Letters of Credit.
ARTICLE IV
----------
CONDITIONS TO BORROWINGS
SECTION 4.01. Conditions to Making First Credit Extension.
The obligations of each of the Lenders and the Issuing Lender to make its first
Credit Extension on the Closing Date hereunder are subject to the fulfillment
of each of the following conditions precedent prior to or simultaneously with
the making of the first Credit Extension on the Closing Date:
(a) receipt by the Administrative Agent from each of the parties hereto
of a duly executed counterpart of this Agreement signed by such party which
shall be in full force and effect;
(b) receipt by the Administrative Agent of a duly executed Note for the
account of each Lender complying with the provisions of Section 2.03;
(c) receipt by the Administrative Agent of a favorable opinion (together
with any opinions of local counsel relied on therein) of the General Counsel
for the Borrower, dated as of the Closing Date, substantially in the form of
Exhibit G hereto and covering such additional matters relating to the
transactions contemplated hereby as the Administrative Agent or any Lender may
reasonably request;
(d) receipt by the Administrative Agent of a favorable opinion (together
with any opinions of local counsel relied on therein) of Sidley Xxxxxx Xxxxx &
Xxxx, LLP, special counsel to the Borrower, dated as of the Closing Date,
substantially in the form of Exhibit H hereto and covering such additional
matters relating to the transactions contemplated hereby as the Administrative
Agent or any Lender may reasonably request;
(e) receipt by the Administrative Agent of a certificate (the "Closing
Certificate"), dated the Closing Date, substantially in the form of Exhibit E
hereto, signed by a principal financial officer of the Borrower, to the effect
that (i) no Default or Event of Default has occurred and is continuing on the
Closing Date and (ii) the representations and warranties of the Borrower
contained in Article V are true on and as of the Closing Date;
(f) receipt by the Administrative Agent of all documents which the
Administrative Agent or any Lender may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity of this
Agreement, the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent, including without
limitation a certificate of incumbency of the Borrower (the "Secretary's
Certificate"), signed by the Secretary or an Assistant Secretary of the
Borrower, substantially in the form of Exhibit F hereto, certifying as to the
names, true signatures and incumbency of the officer or officers of the
- 41 -
Borrower authorized to execute and deliver the Loan Documents to which it is a
party, 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 incorporation of the Borrower as to
the existence of the Borrower as a corporation organized under the laws of such
state, 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 it is a party;
(g) receipt by the Administrative Agent of all Fees and all amounts due
and payable under Section 10.03(a);
(h) receipt by the Administrative Agent of evidence satisfactory to the
Administrative Agent that the Borrower shall have terminated its existing
$360,000,000 credit facility governed by the Credit Agreement, dated as of July
1, 1997, and its existing $200,000,000 credit facility governed by the Credit
Agreement, dated as of December 10, 1998; and the Borrower shall have made
arrangements satisfactory to the Administrative Agent to repay all loans,
interest fees or other amounts owing under such credit facilities on or prior
to the Closing Date hereunder;
(i) receipt by the Administrative Agent of all necessary governmental and
third party approvals and/or consents in connection with transactions
contemplated by the Loan Documents and otherwise referred to herein which shall
have been obtained and remain in effect, and all applicable waiting periods
with respect thereto shall have expired without any action being taken by any
competent Governmental Authority which restrains, prevents or imposes
materially adverse conditions upon the consummation of such transactions;
(j) receipt by the Administrative Agent of true, correct and complete
copies of each of the Ancillary Documents; and
(k) receipt by the Administrative Agent of such other documents,
certificates and other information, as the Administrative Agent or any Lender
may reasonably request.
SECTION 4.02. Conditions to All Borrowings.
The obligations of each of the Lenders and the Issuing Lender to make each of
its Credit Extensions hereunder (including its first Credit Extensions to be
made on the Closing Date) shall also be subject to the satisfaction of each of
the additional following conditions precedent set forth in this Section 4.02:
(a) except as provided in Section 2.02(e) and Section 2.02(h), receipt by
the Administrative Agent of a Notice of Borrowing as required by Section 2.02;
(b) the fact that, immediately before and after such Borrowing, no
Default or Event of Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article V of this Agreement shall be true on and as of the date of
such Borrowing;
(d) the fact that, immediately after such Credit Extension, (i) each
Lender's Commitment Percentage of the Total Utilization will not exceed the
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amount of its Commitment and (ii) the Total Utilization will not exceed the
Total Commitment as of such date;
(e) it shall not be unlawful (i) for the Administrative Agent, the
Issuing Lender or any Lender to perform any of its obligations under any of the
Loan Documents or (ii) for the Borrower to pay or perform any of its
Obligations under any of the Loan Documents; and
(f) all Instruments and other documents executed and delivered or
submitted pursuant hereto by or on behalf of the Borrower shall be reasonably
satisfactory in form and substance to the Administrative Agent and its special
counsel; the Administrative Agent and its special counsel shall have received
all such information, and such counterpart originals or such certified or other
copies of all such other materials, as the Administrative Agent or its special
counsel shall have reasonably requested; and all legal matters incident to the
transactions contemplated by this Agreement shall be reasonably satisfactory to
special counsel to the Administrative Agent.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b) and (c) of this Section 4.02.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders, the Issuing Lender
and the Agents as set forth below in this Article V:
SECTION 5.01. 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 (except where the failure to be
qualified shall not cause or be reasonably expected to cause a Material Adverse
Effect), and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 5.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement, the
Notes and the other Loan Documents (a) are within the Borrower's corporate
powers, (b) have been duly authorized by all necessary corporate action, (c)
require no action by or in respect of, or filing with, any governmental body,
agency or official, (d) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the articles of incorporation
or by-laws of the Borrower or of any contract or agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or any
of its Subsidiaries, and (e) do not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
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SECTION 5.03. 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 5.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its Subsidiaries
as of June 30, 2001 and the related consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then ended, reported on
by KPMG Peat Marwick, copies of which have been delivered to each of the
Lenders, and the unaudited consolidated financial statements of the Borrower
for the interim period ended December 31, 2001, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its Subsidiaries as of such
dates and their consolidated results of operations and cash flows for such
periods stated.
(b) Since December 31, 2001, there has been no event, act, condition or
occurrence having a Material Adverse Effect, except as otherwise disclosed in
Section 5.04 of the Disclosure Schedule.
(c) The existing Debt of each of the Borrower and its Subsidiaries as of
the Closing Date under any Instrument evidencing or governing Debt in an
aggregate amount exceeding $10,000,000 is identified in Section 5.04 of the
Disclosure Schedule. Except as otherwise disclosed in Section 5.04 of the
Disclosure Schedule, neither the Borrower nor any of its Subsidiaries is in
default in the payment of any existing Debt, which payments, in the aggregate,
exceed $10,000,000, or in default or breach, in any material respect, in the
performance of any other material obligation under any Instrument evidencing or
governing any existing Debt (in an aggregate amount exceeding $10,000,000) or
pursuant to which any such existing Debt (in an aggregate amount exceeding
$10,000,000) was issued or secured.
SECTION 5.05. Litigation.
There is no action, suit or proceeding or investigation of any kind 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 reasonably be expected to have a Material
Adverse Effect or which in any manner draws into question the validity or
enforceability of, or could reasonably be expected to impair the ability of the
Borrower to perform its obligations under, this Agreement, the Notes or any of
the other Loan Documents.
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SECTION 5.06. Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have fulfilled
their obligations 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 liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group has
incurred any withdrawal liability with respect to any Multiemployer Plan under
Title IV of ERISA, and no such liability is expected to be incurred.
SECTION 5.07. 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, except taxes being contested in good
faith by appropriate proceedings diligently pursued and against which, if
requested by the Administrative Agent, the Borrower shall have set up reserves
in accordance with GAAP. The charges, accruals and reserves on 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 June 30, 1997.
SECTION 5.08. 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 (except
where the failure to be qualified shall not cause or be reasonably expected to
cause a Material Adverse Effect), and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. As of the Closing Date, the Borrower has no
Subsidiaries except those Subsidiaries listed in Section 5.08 of the Disclosure
Schedule, which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation.
SECTION 5.09. Not an Investment Company.
either the Borrower nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 5.10. 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.
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SECTION 5.11. Ownership of Property; Liens.
(a) Each of the Borrower and its Subsidiaries has title to or rights in
its Properties sufficient for the conduct of its business, and none of such
Property is subject to any Lien except as permitted in Section 6.07.
(b) Section 5.11 of the Disclosure Schedule identifies all of the Liens
upon Property of the Borrower or of any of its Subsidiaries that secure
existing Debt of the Borrower or of any of its Subsidiaries in an amount equal
to or exceeding $10,000,000 and that are in existence on or as of the Closing
Date and either (i) are known to the Borrower or to any of its Subsidiaries on
or as of the Closing Date or (ii) are of record on and as of the Closing Date.
SECTION 5.12. No Default.
Neither the Borrower nor any of its 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 reasonably be expected
to have or cause a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 5.13. Full Disclosure.
All information heretofore furnished by the Borrower to the Administrative
Agent or any Lender 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 Administrative Agent or any Lender 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 Lenders in writing any and all facts which could
reasonably be expected to have or cause a Material Adverse Effect.
SECTION 5.14. Environmental Matters.
(a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which could reasonably be expected to 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. None of the Borrower's Properties has been
identified on any current or proposed (i) National Priorities List under 40
C.F.R. Section 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, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties owned, occupied or used by the Borrower or its Subsidiaries or are
otherwise present at, on, in or under the Properties owned, occupied or used by
the Borrower or its Subsidiaries, except for Hazardous Materials, such as
cleaning solvents, pesticides and other materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, and managed or
otherwise handled in minimal amounts in the ordinary course of business in
compliance in all material respects with all applicable Environmental
Requirements.
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(c) The Borrower, and each of its Subsidiaries, has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in compliance in all material respects with all Environmental Requirements in
connection with the operation of the Properties owned, occupied or used by the
Borrower or its Subsidiaries and the Borrower's, and each of its Subsidiary's,
respective businesses.
SECTION 5.15. Compliance with Laws.
The Borrower and each Subsidiary is in compliance with all Applicable Laws,
including, without limitation, all Environmental Laws, except where any failure
to comply with any such laws would not, alone or in the aggregate, have a
Material Adverse Effect.
SECTION 5.16. 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 5.17. Margin Stock.
No part of the proceeds of any Loan will be used for any purpose which
violates, or which is inconsistent with, the provisions of Regulations T, U or
X.
SECTION 5.18. Insolvency.
After giving effect to the execution and delivery of this Agreement and all
Loan Documents, to the making of the Credit Extensions or to any of the
transactions contemplated herein, the Borrower will not be "insolvent," within
the meaning of such term as defined in Section 101 of Title 11 of the United
States Code or Section 2 of the Uniform Fraudulent Transfer Act, 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 5.19. Broadcast Licenses.
(a) Each of the Borrower and its Subsidiaries owns, possesses or has the
right to use all of the material patents, trademarks, service marks, trade
names, copyrights, licenses (including, without limitation, Broadcast Licenses)
and material 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.
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(b)
(i) Section 5.19 of the Disclosure Schedule accurately lists and
describes each material Broadcast License of the Borrower and its
Subsidiaries which is in existence on the date hereof or which will be in
existence on the Closing Date and the expiration date, if any, of each
such material Broadcast License;
(ii) each such material Broadcast License is, or on the Closing Date
will be, in full force and effect;
(iii) the Borrower and each Subsidiary has fulfilled and performed
all of its obligations, if any, with respect to such material Broadcast
Licenses; and
(iv) no event has occurred which (A) permits, or after notice or
lapse of time or both would permit, revocation or termination of any such
material Broadcast License or (B) causes 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) The Broadcast Licenses described in Section 5.19 of the Disclosure
Schedule constitute all of the main station licenses and low power television
licenses issued by the FCC or any Governmental Authority, necessary for the
operation of the business of the Borrower and each Subsidiary in the same
manner as it is currently conducted and as proposed to be conducted. The
Broadcast Licenses described in Section 5.19 of the Disclosure Schedule are, or
on the Closing Date will be, validly issued and in full force and effect,
unimpaired by any act or omission by the Borrower or any Subsidiary. 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 such 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 listed and described in Section 5.19 of the
Disclosure Schedule 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.
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SECTION 5.20. Delivery of Ancillary Documents.
The Borrower has furnished to the Administrative Agent true, correct and
complete copies of each of the Ancillary Documents.
ARTICLE VI
----------
COVENANTS
The Borrower agrees with each of the Lenders, the Issuing Lender and the Agents
that, from and after the Effective Date and until all of the Commitments,
Letter of Credit Commitments and the Letters of Credit shall have terminated
and all of the Obligations shall have been paid and performed in full:
SECTION 6.01. Information.
The Borrower will deliver to the Administrative Agent, the Issuing Lender and
each of the Lenders:
(a) as soon as available and in any event within ninety (90) days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and the related consolidated
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 KPMG Peat Marwick or other independent public
accountants of nationally recognized standing reasonably acceptable to the
Administrative Agent, with such certification to be free of exceptions and
qualifications not acceptable to the Required Lenders; provided, however, that
the Borrower's delivery of its Form 10-K as filed with the Securities and
Exchange Commission containing such financial statements shall satisfy such
requirement;
(b) as soon as available and in any event within forty-five (45) days
after the end of each of the first three (3) Fiscal Quarters of each Fiscal
Year, a consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such Fiscal Quarter and the related statement of income and
statement of cash flows for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting forth in each case
in comparative form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject to
normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer, the controller or the treasurer of
the Borrower; provided, however, that the Borrower's delivery of its Form 10-Q
as filed with the Securities and Exchange Commission containing such financial
statements shall satisfy such requirement;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate, substantially in the
form of Exhibit D (a "Compliance Certificate"), of the chief financial officer,
the controller or the treasurer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was in
compliance with the requirements of Section 6.03 through Section 6.07,
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inclusive, Section 6.10, Section 6.21, Section 6.23 and Section 6.24 on the
date of such financial statements, and (ii) stating whether any Default or
Event of Default exists on the date of such certificate and, if any Default or
Event of 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) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that they have read this Agreement, and that, on the date of reporting such
financial statements, they have obtained no knowledge of any Default or Event
of Default, or if such accountants have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such statement any such
Default or Event of Default;
(e) within five (5) Business Days after the Borrower becomes aware of the
occurrence of any Default or Event of Default, a certificate of the chief
financial officer, the controller or the treasurer 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
generally, 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), annual, quarterly or monthly reports and all
material of a financial nature which the Borrower shall have filed with the
Securities and Exchange Commission;
(h) if and when the Borrower or 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 required 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 N 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 thereof, notice
of any litigation, dispute or proceeding involving a claim against the Borrower
and/or any Subsidiary for $10,000,000 or more in excess of amounts covered in
full by applicable insurance;
(j) as soon as practicable after the receipt thereof, and in any event
within ten (10) Business Days after the issuance thereof
(i) copies of any order or notice of the FCC, a court of competent
jurisdiction or any other Governmental Authority which designated any
Broadcast License of the Borrower or any Subsidiary or application
therefor for a hearing, or which refuses renewal or extension of any such
Broadcast License, or revokes or suspends the authority of the Borrower or
any Subsidiary to operate a broadcast station;
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(ii) a copy of any competing application filed against any Broadcast
License of the Borrower or any Subsidiary or application therefor;
(iii) copies of any citation, notice of violation or order to show
cause from the FCC, or any material complaint filed by or with the FCC, in
each case, in connection with the Borrower or any Subsidiary; and
(iv) a copy of any notice or application by the Borrower or any
Subsidiary requesting authority to cease broadcasting on any broadcast
station for any period in excess of forty-eight (48) hours;
(k) if and whenever any direct or indirect Subsidiary of the Borrower
shall be created, formed or acquired by the Borrower or by any of its
Subsidiaries or shall cease to be an Inactive Subsidiary after the Effective
Date during any Fiscal Quarter, furnish in the Compliance Certificate for such
Fiscal Quarter information identifying such Subsidiary and setting forth with
respect to such Subsidiary the information required by Section 5.08 with
respect to the Subsidiaries of the Borrower as of the Closing Date; provided,
that such information shall not be required for Inactive Subsidiaries;
(l) if and whenever any of the Ancillary Documents shall be amended,
supplemented or otherwise modified by any of the parties thereto, within ten
(10) Business Days after the effective date of such amendment, supplement or
modification of such Ancillary Document, furnish a true, correct and complete
copy of such amendment, supplement or modification; and
(m) from time to time such additional information regarding the financial
position or business of the Borrower or any Subsidiary as the Administrative
Agent, at the request of any Lender, may reasonably request.
SECTION 6.02. Inspection of Property, Books and Records.
he Borrower will (a) keep, and will cause each Subsidiary to keep, proper books
of record and account in which full, true and correct entries in conformity
with GAAP shall be made of all dealings and transactions in relation to its
business and activities; and (b) permit, and will cause each Subsidiary to
permit, representatives of any Lender or the Administrative Agent at the
expense of such Lender or Administrative Agent prior to the occurrence of an
Event of Default and at the Borrower's expense 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 6.03. Maximum Consolidated Leverage Ratio.
The Borrower will not cause or permit its Consolidated Leverage Ratio as of the
last day of any Fiscal Quarter to exceed 3.50 to 1.00.
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SECTION 6.04. Consolidated Interest Coverage Ratio.
The Borrower will not cause or permit its Consolidated Interest Coverage Ratio
as of the last day of any Fiscal Quarter to be less than 3.00 to 1.00.
SECTION 6.05. Loans or Advances.
Neither the Borrower nor any of its Subsidiaries shall make loans or advances
to any Person, except: (a) loans or advances to employees not exceeding
$2,500,000 in the aggregate outstanding made in the ordinary course of business
and consistently with practices existing on December 31, 2001; (b) deposits
required by government agencies or public utilities; (c) loans or advances to
Wholly Owned Subsidiaries, except Finsub; (d) loans or advances made pursuant
to the Receivables Program Documents and (e) loans or advances not otherwise
permitted by the foregoing clauses of this Section 6.05, provided, that, the
aggregate outstanding loans and advances made under this clause (e) when
aggregated with the Investments made under Section 6.06(g) shall not at any
time exceed $100,000,000; provided, further, that, after giving effect to the
making of any loans, advances or deposits permitted by clause (a), (b), (c) or
(e) of this Section 6.05, no Default shall have occurred and be continuing.
SECTION 6.06. Investments.
Neither the Borrower nor any of its Subsidiaries shall make Investments in any
Person except as permitted by Section 6.05 and except Investments in (a) direct
obligations of the United States Government maturing within one year; (b)
certificates of deposit issued by or money market accounts maintained at a
United States bank: (i) whose long-term certificates of deposit are rated at
least AA or the equivalent thereof by S&P and Aa or the equivalent thereof by
Xxxxx'x Investors Service, Inc., or (ii) if the long-term certificates of
deposit of such United States bank are unrated, the long-term debt of the
corporation owning such bank must be rated at least AA or the equivalent
thereof by S&P and Aa or the equivalent thereof by Xxxxx'x Investors Service,
Inc.; (c) commercial paper rated A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Xxxxx'x Investors Service, Inc. and in either case
maturing within 9 months after the date of acquisition; (d) tender bonds 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 S&P and Aa or the
equivalent thereof by Xxxxx'x Investors Service, Inc.; (e) Permitted
Acquisitions; (f) any Subsidiary or the Borrower pursuant to or as permitted or
required under any Receivables Program Document and/or (g) debt and investment
securities not otherwise permitted by the foregoing clauses of this Section
6.06, provided, that, the aggregate amount of Investments made under this
clause (g) when aggregated with the loans and advances made under Section
6.05(d) shall not at any time exceed $100,000,000.
SECTION 6.07. Negative Pledge.
Neither the Borrower nor any Subsidiary will create, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired by it; except:
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(a) Liens existing on the Effective Date securing Debt outstanding on
such date in an aggregate principal amount not to exceed $5,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a 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 eighteen (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 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 Subsidiary and not created in contemplation of such
acquisition;
(f) Liens securing Debt owing by any Subsidiary to the Borrower;
(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 6.07; 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;
(h) Liens incidental to the conduct of its business or the ownership of
its assets which (i) do not secure Debt and (ii) do not in the aggregate
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business;
(i) any Lien on Margin Stock;
(j) Liens on the Receivables Program Assets incurred pursuant to the
Receivables Program Documents; and
(k) Liens not otherwise permitted by the foregoing clauses of this
Section 6.07 so long as the aggregate principal amount (without duplication) of
(i) Debt secured by liens under this Section 6.07(k), (ii) Receivables Program
Attributed Debt, (iii) sale and leaseback transactions permitted by Section
6.23 and (iv) Debt outstanding under Section 6.21(b)(iii) at any time
outstanding shall not exceed twenty-five percent (25%) of Maximum Permitted
Total Debt.
SECTION 6.08. Maintenance of Existence.
The Borrower shall, and shall cause each Subsidiary to, 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, except through corporate reorganization to the extent permitted by
Section 6.10.
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SECTION 6.09. 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 6.10.
SECTION 6.10. Consolidations, Mergers and Sales of Assets. The Borrower will
not, nor will it permit any Subsidiary to, consolidate or merge with or into,
or complete the Sale of, 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 (a) the Borrower may merge with
another Person if (i) such Person was organized under the laws of the United
States of America or one of its states, (ii) the Borrower is the corporation
surviving such merger and (iii) immediately prior to and after giving effect to
such merger, no Default or Event of Default shall have occurred and be
continuing; (b) Subsidiaries of the Borrower, except Finsub, may merge with one
another or with the Borrower, provided that the Borrower is the corporation
surviving such merger, and may complete the Sale of, lease or otherwise
transfer assets to one another or to the Borrower; and (c) 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, either (i) would
have, if retained, contributed more than 20% of Consolidated Gross Revenues
during the four (4) Fiscal Quarters immediately preceding such Fiscal Quarter,
or (ii) would have, if retained, contributed more than 20% of Consolidated
Operating Profits during the four (4) Fiscal Quarters immediately preceding
such Fiscal Quarter.
For purposes of determining compliance with Section 6.10(c) above, if the
proceeds from the Sale, lease or other transfer of assets (the "Transferred
Assets") in the applicable four Fiscal Quarter period are reinvested in capital
assets or other Property during such period, then such Transferred Assets shall
be excluded from the calculations set forth in clauses (i) and (ii) above.
Notwithstanding the foregoing limitations contained in this Section 6.10, the
Borrower or any Subsidiary may sell or otherwise transfer Receivables Program
Assets pursuant to the Receivables Program Documents.
If the Amount of any Sale shall equal or exceed $100,000,000, then the Borrower
shall have delivered to the Administrative Agent not less than five (5)
Business Days prior to the completion of such Sale an officer's certificate
certifying that after giving effect to such Sale, as of the most recent
Covenant Determination Date, as determined on a Pro Forma Basis, the Borrower
shall be in compliance with the financial covenants contained in Section 6.03
and Section 6.04.
SECTION 6.11. Use of Proceeds.
No portion of the proceeds of the Loans or any Letter of Credit will be used by
the Borrower or any Subsidiary (a) in connection with, either directly or
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indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation,
except a Permitted Acquisition or (b) for any purpose in violation of any
Applicable Law.
SECTION 6.12. Compliance with Laws; Payment of Taxes.
(a) 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 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: (i) if
unpaid, might become a lien against the property of the Borrower or any
Subsidiary and (ii) when combined with all other taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
not paid promptly when due during the current Fiscal Quarter and the
immediately preceding three Fiscal Quarters is greater than $5,000,000, except
liabilities being contested in good faith by appropriate proceedings diligently
pursued and against which, if requested by the Administrative Agent, the
Borrower shall have set up reserves in accordance with GAAP.
(b) The Borrower shall not permit the aggregate complete or partial
withdrawal liability under Title IV of ERISA with respect to Multiemployer
Plans incurred by the Borrower and members of the Controlled Group to exceed
$5,000,000 at any time. For purposes of this Section 6.12(b), the amount of
withdrawal liability of the Borrower and members of the Controlled Group at any
date shall be the aggregate present value of the amount claimed to have been
incurred less any portion thereof which: (i) the Borrower and members of the
Controlled Group have paid; or (ii) as to which the Borrower reasonably
believes, after appropriate consideration of possible adjustments arising under
Sections 4219 and 4221 of ERISA, it and members of the Controlled Group will
have no liability, provided that the Borrower shall obtain prompt written
advice from independent actuarial consultants supporting any such adjustments
under Sections 4219 and 4221 of ERISA. The Borrower agrees, from time to time
but no more frequently than once each Fiscal Year, upon the request of the
Administrative Agent (i) to request and obtain a current statement of the
withdrawal liability of the Borrower and members of the Controlled Group from
each Multiemployer Plan, if any, and (ii) to transmit a copy of such statement
to the Administrative Agent and the Lenders within fifteen (15) days after the
Borrower receives the same.
(c) No portion of the proceeds of the Loans will be used by the Borrower
or any Subsidiary in violation of (or in a manner so as to cause the
Administrative Agent or the Lenders to be in violation of) any applicable law
or regulation, including without limitation Regulations T, U and X. At no time
will the value of Margin Stock purchased or held by the Borrower (including,
without limitation, shares of common stock of the Borrower repurchased by and
held by the Borrower but excluding shares of common stock of the Borrower
repurchased by and immediately retired by the Borrower) exceed 25% of
Unencumbered Total Assets of the Borrower.
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SECTION 6.13. Insurance.
he 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, 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 6.14. Change in Fiscal Year.
The Borrower will not change its Fiscal Year without the consent of the
Required Lenders.
SECTION 6.15. 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 6.16. Environmental Notices.
The Borrower shall furnish to the Lenders and the Administrative 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 materially affecting the Properties, and all facts, events, or conditions
that could lead to any of the foregoing.
SECTION 6.17. Environmental Matters.
The Borrower and its Subsidiaries will not, and will not permit any Third Party
to, use, produce, manufacture, process, treat, recycle, generate, store,
dispose of, manage at, or otherwise handle 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, treated, recycled, generated, stored, disposed,
managed or otherwise handled in minimal amounts in the ordinary course of
business in compliance in all material respects with all applicable
Environmental Requirements.
SECTION 6.18. Environmental Release.
The Borrower agrees that upon the occurrence of an Environmental Release at or
on any of the Properties 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.
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SECTION 6.19. Transactions with Affiliates.
Neither the Borrower nor any of its Subsidiaries shall enter into, or be a
party to, any Affiliate Transaction, except: (a) as permitted by law; (b) in
the ordinary course of business; and (c) pursuant to reasonable terms which 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.
As used herein "Affiliate Transaction" means any of the following transactions
or arrangements: (a) the making of any loans, advances or other Investments of
any kind whatsoever by the Borrower or any of its Subsidiaries to or in any
Affiliate of the Borrower; (b) the Sale by the Borrower or any of its
Subsidiaries of all or any part of its Property to, or for the direct or
indirect benefit of, any Affiliate of the Borrower; (c) the incurrence by the
Borrower or any of its Subsidiaries of any Debt to any Affiliate of the
Borrower; or (d) the declaration or payment by the Borrower or any of its
Subsidiaries of any dividends or other distributions on account of, or the
making by the Borrower or any of its Subsidiaries of any payment or other
distribution on account of the purchase, repurchase, redemption or other
acquisition for value of, any shares of Capital Stock or any other Equity
Interests of any Affiliate of the Borrower. Notwithstanding the foregoing,
"Affiliate Transaction" shall not include any transaction or arrangement among
the Borrower and its Subsidiaries pursuant to the Receivables Program
Documents.
SECTION 6.20. Acquisitions.
The Borrower will not, nor will it permit any Subsidiary to undertake or
complete any Acquisition; provided, however that, the Borrower and it
Subsidiaries may undertake and complete Permitted Acquisitions provided,
however, further, that if the Amount of such Acquisition shall equal or exceed
$100,000,000, then the Borrower shall have delivered to the Administrative
Agent not less than five (5) Business Days prior to the completion of such
Acquisition an officer's certificate certifying that after giving effect to
such Acquisition, as of the most recent Covenant Determination Date, as
determined on a Pro Forma Basis, the Borrower shall be in compliance with the
financial covenants contained in Section 6.03 and Section 6.04.
SECTION 6.21. Debt.
(a) The Borrower shall not at any time incur, create, assume or permit to
exist any Debt; except:
(i) the Obligations;
(ii) Debt owing to any Subsidiary of the Borrower (other than
Finsub), and Debt owing to Finsub in connection with the Receivables
Program;
(iii) Debt outstanding on the Closing Date of this Agreement as set
forth in Section 5.04 of the Disclosure Schedule;
(iv) Debt of the Borrower under or in respect of the Senior Notes;
provided, that, that the aggregate principal amount of all of such Debt
shall not exceed $100,000,000;
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(v) Debt under Hedging Agreements entered into to hedge interest
rate, foreign currency exchange rate or commodity price risk, and not for
speculative purposes;
(vi) any Debt arising out of the refinancing, extension, renewal or
refunding of any Debt permitted by any of the foregoing clauses of this
Section 6.21, provided, that, the amount of such debt does not exceed the
outstanding amount of the Debt so refinanced, extended, renewed or
refunded;
(vii) Debt, in addition to Debt permitted under the other clauses of
this Section 6.21, provided, that, the Borrower shall not incur, create,
assume or permit to exist any Debt under this Section 6.21 if the
incurrence, creation, assumption or existence of any such Debt shall
result in a Default or Event of Default or if the aggregate principal
amount of such Debt incurred pursuant to this clause (vii) would result in
the Consolidated Leverage Ratio as of the most recent Covenant
Determination Date, as determined on a Pro Forma Basis, exceeding the
maximum Consolidated Leverage Ratio then in effect under Section 6.03; and
(viii) prior to the Closing Date, Debt pursuant to the Borrower's
existing $360,000,000 credit facility governed by the Credit Agreement,
dated as of July 1, 1997, and its existing $200,000,000 credit facility
governed by the Credit Agreement, dated as of December 10, 1998, which
Debt shall be paid in full on or prior to the Closing Date.
(b) Any Subsidiary of the Borrower shall not at any time incur, create,
assume or permit to exist any Debt; except:
(i) Debt owing to the Borrower or any other Subsidiary of the
Borrower (other than Finsub), and Debt owing to Finsub in connection with
the Receivables Program;
(ii) Receivables Program Attributed Debt of Finsub incurred pursuant
to the Receivables Program Documents in an amount in the aggregate at any
time outstanding, which when combined (without duplication) with (A) Debt
secured by liens under Section 6.07(k), (B) sale and leaseback
transactions permitted by Section 6.23 and (C) Debt outstanding under
Section 6.21(b)(iii), shall not exceed an amount equal to twenty-five
(25%) of Maximum Permitted Total Debt; and
(iii) Debt, in addition to Debt permitted under clauses (i) and (ii)
of this Section 6.21(b), provided, that, the aggregate outstanding
principal amount of Debt of all of the Subsidiaries of the Borrower
incurred under this clause (iii) of Section 6.21(b) in the aggregate at
any time outstanding, which when combined (without duplication) with (A)
Debt secured by liens under Section 6.07(k), (B) sale and leaseback
transactions permitted by Section 6.23 and (C) Receivables Program
Attributed Debt, shall not exceed an amount equal to twenty-five (25%) of
Maximum Permitted Total Debt; provided, further, that, no Subsidiary of
the Borrower shall incur, create, assume, or permit to exist any Debt
under this Section 6.21(b) if the incurrence, creation, assumption or
existence of any such Debt shall result in a Default or Event of Default.
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SECTION 6.22. Termination or Loss of Licenses.
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; except:
revocation or termination of Broadcast Licenses applicable to other assets that
are transferred by the Borrower to the extent any such transfer is permitted
under this Agreement.
SECTION 6.23. Sale and Leaseback.
The Borrower will not, nor will permit any of its Subsidiaries to, enter into
any arrangement, directly or indirectly, whereby the Borrower or any Subsidiary
of a Borrower shall sell or transfer any property owned by it in order then or
thereafter to lease such Property or lease other Property that such Borrower or
such Subsidiary intends to use for substantially the same purpose as the
Property being sold or transferred, except sale and leasebacks in an aggregate
amount which, when combined (without duplication) with (a) Debt secured by
liens under Section 6.07(k), (b) Receivables Program Attributed Debt and (c)
Debt outstanding under Section 6.21(b)(iii) shall not exceed an amount equal to
twenty-five (25%) of Maximum Permitted Total Debt. The amount of a sale and
leaseback transaction at any time shall be determined by the amount of the
Capital Lease Obligation related thereto or, in the case of an operating lease,
the aggregate amount of rental payments due and to become due (discounted from
the respective due dates thereof at an interest rate reasonably determined by
the Borrower and otherwise in accordance with GAAP) under the lease relating to
such sale and leaseback transaction.
SECTION 6.24. Restricted Payments.
The Borrower shall not, and shall not permit any of its Subsidiaries to, make,
extend or enter into any offer or commitment to make, or enter into any
agreement to make, any Restricted Payments unless (a) after giving effect to
each such Restricted Payment, the Borrower's Consolidated Net Worth shall not
be less than the sum of (i) $336,000,000 plus (ii) twenty-five percent (25%) of
Consolidated Net Income of the Borrower and its Subsidiaries computed on a
cumulative basis for each elapsed Fiscal Year ending after June 30, 2001 but
prior to the date of determination in each case, for which Consolidated Net
Income is positive (but with no deduction on account of negative Consolidated
Net Income for any Fiscal Year) and (b) no Default or Event of Default shall
have occurred and be continuing immediately prior to or immediately after the
making of such payment.
The following terms shall, for purposes of this Section 6.24 only, have the
meanings set forth below:
"Consolidated Net Income" for any period means the gross revenues of the
Borrower and its Subsidiaries for such period less all expenses and other
proper charges (including taxes on income), determined on a consolidated basis
after eliminating earnings or losses attributable to outstanding Minority
Interests, but excluding in any event:
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(a) any gains or losses on the sale or other disposition of Investments
or fixed or capital assets, and any taxes on such excluded gains and any tax
deductions or credits on account of any such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued prior to the date
it became a Subsidiary;
(d) net earnings and losses of any corporation (other than a Subsidiary),
substantially all the assets of which have been acquired in any manner by the
Borrower or any Subsidiary, realized by such corporation prior to the date of
such acquisition;
(e) net earnings and losses of any corporation (other than a Subsidiary)
with which the Borrower or a Subsidiary shall have consolidated or which shall
have merged into or with the Borrower or a Subsidiary prior to the date of such
consolidation or merger;
(f) net earnings of any business entity (other than a Subsidiary) in
which the Borrower or any Subsidiary has an ownership interest unless such net
earnings shall have actually been received by the Borrower or such Subsidiary
in the form of cash distributions;
(g) any portion of the net earnings of any Subsidiary which for any
reason is unavailable for payment of dividends to the Borrower or any other
Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or write-up of
assets or losses resulting from writedowns of goodwill or other intangibles
relating to Existing Properties, other than Incremental Writedowns exceeding
$25,000,000 in the aggregate, under FASB No. 142 or any successor statement or
principle;
(i) any deferred or other credit representing any excess of the equity in
any Subsidiary at the date of acquisition thereof over the amount invested in
such Subsidiary;
(j) any gain arising from the acquisition of any Equity Interests of the
Borrower or any Subsidiary;
(k) any reversal of any contingency reserve, except to the extent that
provision for such contingency reserve shall have been made from income arising
during such period; and
(l) any other extraordinary or nonrecurring gain or loss.
For purposes of any determination of Consolidated Net Income pursuant to this
definition, the Borrower may include, on a Pro Forma Basis, "net income"
(calculated in a manner consistent with the computation of Consolidated Net
Income herein) earned by any business entity acquired by the Borrower or any
Subsidiary during the four Fiscal Quarters immediately preceding any
determination of Consolidated Net Income, provided that there shall be a
reasonable basis for the computation of such "net income".
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"Consolidated Net Worth" means, as of the date of any determination
thereof the amount of the capital stock accounts (net of treasury stock, at
cost) plus (or minus in the case of a deficit) the surplus in retained earnings
of the Borrower and its Subsidiaries as determined in accordance with GAAP plus
the amount of any losses resulting from writedowns of goodwill or other
intangibles relating to Existing Properties, other than Incremental Writedowns
exceeding $25,000,000 in the aggregate.
"Existing Properties" shall mean publications, broadcast stations or other
assets or properties owned by the Borrower or a Subsidiary as of March 1, 2002,
or any publications, broadcast stations or other assets or properties acquired
in a swap or other exchange involving Existing Properties.
"Incremental Writedowns" shall mean writedowns of goodwill or other
intangibles with respect to an Existing Property that was acquired after March
1, 2002 (an "Acquired Existing Property") in a swap or exchange involving one
or more Existing Properties where (a) the Borrower or its Subsidiaries paid
cash or delivered debt obligations to the other parties to such swap or
exchange and such cash or debt obligations constituted more than 10% of the
total value of the consideration delivered by the Borrower or its Subsidiaries
to the other parties in such swap or exchange and (b) the writedowns of
goodwill or other intangibles with respect to such Acquired Existing Property
exceed the aggregate amount of goodwill or other intangibles relating to the
Existing Properties transferred by the Borrower or its Subsidiaries in such
swap or other exchange shown on the books of the Borrower or its Subsidiaries
prior to such transfer.
"Minority Interests" means any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law) that
are not owned by the Borrower and/or one or more of its Subsidiaries. Minority
Interests shall be valued by valuing Minority Interests constituting preferred
stock at the voluntary or involuntary liquidating value of such preferred
stock, whichever is greater, and by valuing Minority Interests constituting
common stock at the book value of capital and surplus applicable thereto
adjusted, if necessary, to reflect any changes from the book value of such
common stock required by the foregoing method of valuing Minority Interests in
preferred stock.
ARTICLE VII
-----------
DEFAULTS
SECTION 7.01. Events of Default.
If one or more of the following events ("Events of Default") shall have
occurred and be continuing at any time after the Closing Date:
(a) the Borrower shall (i) fail to pay when due any principal of any
Loans or Letter of Credit Obligations; or (ii) fail to pay when due any
interest on any Loans or Letter of Credit Obligations within five (5) Business
Days after such interest shall become due; or (iii) fail to pay any Fee or
other amount payable hereunder within five (5) Business Days after such Fee or
other amount becomes due; or
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(b) the Borrower shall fail to observe or perform any covenant contained
in Section 6.01(e), Section 6.02(b), or Section 6.03 to Section 6.11,
inclusive, or Section 6.20 to Section 6.24 inclusive; 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)), and any such default shall continue
unremedied for a period of more than thirty (30) 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 Administrative
Agent at the request of any Lender or the Issuing Lender; or
(d) any representation, warranty, certification or statement made or
deemed made by the Borrower in Article V of this Agreement or in any
certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading 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 (other than the Notes or Letter of Credit Obligations) having
an aggregate principal amount in excess of $10,000,000 when due or within any
applicable grace period, if any, specified in the Instrument relating thereto
on the date of such failure (whether such payment is due by reason of scheduled
maturity, required prepayment, acceleration, demand or otherwise); or
(f)(i) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary having an aggregate principal amount in excess of $10,000,000 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; (ii) the occurrence of any "Amortization Event" under the Receivables
Program; or (iii) the Borrower shall be removed by the agent under the
Receivables Program Documents as the "Servicer" under the Receivables Program;
or
(g) the Borrower or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to it or its debts under any federal or state 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 federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
- 62 -
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
sixty (60) days; or an order for relief shall be entered against the Borrower
or any Subsidiary under the federal or state 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 notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any
member of the Controlled Group, any plan administrator or any combination of
the foregoing; 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 thirty (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
(j) one or more final judgments or orders for the payment of money in an
aggregate amount in excess of $10,000,000 and not covered by insurance shall be
rendered against the Borrower or any Subsidiary and such judgment or order
shall continue unsatisfied and unstayed for a period of thirty (30) days; or
(k) a federal tax lien in an aggregate amount in excess of $10,000,000
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 or any
Subsidiary under Section 4068 of ERISA and in either case such lien shall
remain undischarged for a period of twenty-five (25) days after the date of
filing; or
(l)(i) any Person or two or more Persons (other than the E. T. Xxxxxxxx
Family Stockholders) acting in concert shall have acquired beneficial ownership
(within the meaning of Rule l3d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of outstanding shares of Capital
Stock of the Borrower having more than fifty percent (50%) of the combined
total voting power of all classes of Capital 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 (iii) any "Change of Control" or any other similar
event shall occur with respect to the Borrower under and as defined in any
Ancillary Document or any other Instruments governing any Debt of the Borrower
or of any of its Subsidiaries in an aggregate principal amount equal to or
exceeding $100,000,000; or
(m) except as permitted by Section 6.22, if any material 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, 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
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otherwise fail to have all required authorizations, licenses and permits to
construct, own, operate or promote the Stations pursuant to the Broadcast
Licenses; or
(n) if, at any time, the FCC or any court of competent jurisdiction shall
have entered any final order or 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 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;
then, the Administrative Agent shall at the request of, or may with the consent
of, the Required Lenders:
(a) declare the Commitment of each Lender and the Letter of Credit
Commitment of the Issuing Lender to be terminated in full, whereupon all of
such Commitments and such Letter of Credit Commitment shall forthwith be
terminated in full;
(b) declare the unpaid principal amount of all of the outstanding
Loans, Letter of Credit Obligations and other Obligations, all interest accrued
and unpaid thereon, and all of the other Obligations owing or payable under any
of the Loan Documents to be immediately due and payable in full, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly and irrevocably waived by the Borrower;
(c) demand that the Borrower immediately cash collateralize all of
the Letter of Credit Obligations to the extent of outstanding and wholly or
partially undrawn Letters of Credit, whereupon the Borrower shall so cash
collateralize in a manner satisfactory to the Administrative Agent all of such
Letters of Credit to that extent; and/or
(d) exercise on behalf of itself, the Issuing Lender and the Lenders
all or any of the rights and remedies available to it, the Issuing Lender and
the Lenders under the Loan Documents or Applicable Law;
provided, however, that, upon the occurrence of any Event of Default specified
above in this Section 7.01(g) or (h) with respect to the Borrower, the
obligation of each Lender to make Loans and the obligation of the Issuing
Lender to issue Letters of Credit shall in any event automatically terminate,
and the unpaid principal amount of all of the outstanding Loans, Letter of
Credit Obligations and other Obligations and all interest and other amounts as
aforesaid shall automatically become and be immediately due and payable in full
without any further act or notice by the Administrative Agent, the Issuing
Lender or any Lender, all of which are hereby expressly and irrevocably waived
by the Borrower.
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ARTICLE VIII
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THE ADMINISTRATIVE AGENT AND OTHER AGENTS
SECTION 8.01. Appointment and Authorization.
(a) Each of the Lenders and the Issuing Lender hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document, and to exercise such powers and perform such duties, as are expressly
delegated to it by the terms of this Agreement or any other Loan Document, and
to exercise such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein or
therein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or the Issuing Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent.
(b) The Issuing Lender shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Article VIII with respect to any
acts taken or omissions suffered by the Issuing Lender in connection with
Letters of Credit issued by it or proposed to be issued by it and the Letter of
Credit Applications pertaining to such Letters of Credit, in each case, as
fully as if the term "Administrative Agent" as used in this Article VIII,
included the Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuing Lender.
SECTION 8.02. Delegation of Duties.
The Administrative Agent may execute any of its duties under this Agreement or
any other Loan Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
SECTION 8.03. Liability of Administrative Agent.
None of the Administrative Agent, its Affiliates or any of their officers,
directors, employees, agents or attorneys-in-fact (collectively,
"Administrative Agent-Related Persons") shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement, any of the other Loan Documents (except for their own gross
negligence or willful misconduct as such has been determined by a final
non-appealable judgment), or (b) be responsible in any manner to any of the
Lenders or the Issuing Lender for any recital, statement, representation or
warranty made by the Borrower or any Subsidiary or Affiliate thereof, or any
officer thereof, contained in this Agreement or in any other Loan Document, or
in any certificate, report, statement or other document referred to or provided
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for in or received by the Administrative Agent under or in connection with,
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 for any failure of the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Administrative
Agent-Related Person shall be under any obligation to any Lender, the Issuing
Lender or any of the other Agents to ascertain or to inquire as to the
observance or performance of any of the Obligations or any of the other
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect any of the Properties, books or records of the Borrower
or any of its Subsidiaries or Affiliates.
SECTION 8.04. Reliance by Administrative Agent.
(a) Each of the Lenders, the Issuing Lender and the other Agents agree
that the Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. Each of the
Lenders, the Issuing Lender and the other Agents agree that the Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive all
such advice or concurrence of the Required Lenders or, as required by Section
10.05, all of the Lenders as the Administrative Agent deems appropriate and, if
it so requests, the Administrative Agent shall first be indemnified to its
satisfaction by each of the Lenders and the Issuing Lender against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders or, as required by Section 10.05, all of the Lenders, and
such request or consent and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders, the Issuing Lender and the other
Agents.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01 as it relates to the initial Credit Extension on the Closing
Date, each Lender that has executed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required by the terms hereof
to be consented to or approved by or to be acceptable or satisfactory to such
Lender, unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received written
notice from such Lender prior to the initial Borrowing and issuances of Letters
of Credit on the Closing Date specifying in reasonable detail its objection
thereto and either such objection shall not have been withdrawn by written
notice to the Administrative Agent to that effect or such Lender shall not have
made available to the Administrative Agent such Lender's ratable portion of
such Borrowing.
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SECTION 8.05. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to Defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders or the Issuing Lender,
unless the Administrative Agent shall have received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Administrative Agent receives such a written notice, the
Administrative Agent shall give notice thereof to the Lenders and the Issuing
Lender. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be requested by the Required Lenders in
accordance with Article VII; provided, however, that, unless and until the
Administrative Agent shall have received any such request, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as the
Administrative Agent shall deem advisable or in the best interests of the
Lenders and the Issuing Lender.
SECTION 8.06. Credit Decisions.
Each of the Lenders, the Issuing Lender and the other Agents expressly
acknowledges that none of the Administrative Agent-Related Persons has made any
representation or warranty to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Borrower or of
any of its Subsidiaries, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any of the Lenders, the Issuing Lender
or the other Agents. Each of the Lenders, the Issuing Lender and the other
Agents represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, Property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries, and
all Applicable Laws relating to the transactions contemplated thereby, and made
its own decision to enter into this Agreement and extend credit to the Borrower
hereunder. Each of the Lenders, the Issuing Lender and the other Agents also
represents that it will, independently and without reliance upon the
Administrative Agent, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, Property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly herein
required to be furnished to the Lenders, the Issuing Lender or the other Agents
by the Administrative Agent, the Administrative Agent shall not have any duty
or responsibility to provide any of the Lenders, the Issuing Lender or the
other Agents with any credit or other information concerning the business,
prospects, operations, Property, financial or other condition or
creditworthiness of the Borrower or of any of its Subsidiaries which may come
into the possession of any of the Administrative Agent-Related Persons.
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SECTION 8.07. Indemnification.
Whether or not any of the transactions contemplated hereby shall be
consummated, each of the Lenders shall indemnify, upon demand, each of the
Administrative Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower, and without limiting the Obligations of the Borrower to
do so), ratably from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time following the expiration of the Letters of Credit and the repayment of the
Loans and the resignation of the Administrative Agent) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising out of
this Agreement, any other Loan Document, any document contemplated by or
referred to herein or therein, the transactions contemplated hereby or thereby
or any action taken or omitted by any such Person under or in connection with
any of the foregoing; provided, however, that none of the Lenders shall be
liable for the payment to any of the Administrative Agent-Related Persons of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
arising from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each of the Lenders shall reimburse the
Administrative Agent upon demand for such Lender's ratable share of any fees,
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document or any document contemplated by or
referred to herein, in each case, to the extent that the Administrative Agent
is not reimbursed for such expenses by or on behalf of the Borrower. Without
limiting the generality of the foregoing, if the U.S. Internal Revenue Service
or any other Governmental Authority of the United States or any other
jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or was not properly executed, or because
such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid as a result thereof, directly
or indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on
the amounts payable to the Administrative Agent under this Section 8.07,
together with all related fees, costs and expenses (including Attorney Costs).
The obligations of each of the Lenders in this Section 8.07 shall survive the
payment of all of the Obligations hereunder.
SECTION 8.08. Administrative Agent in its Individual Capacity.
Fleet and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire Equity Interests in and generally
engage in any kind of banking, trust, financial advisory or other business
with, the Borrower and its Subsidiaries and Affiliates as though Fleet were not
the Administrative Agent or the Issuing Lender hereunder and without notice to
or consent of the Lenders or other Agents. With respect to its Loans and its
participations in Letters of Credit, Fleet shall have the same rights and
powers under this Agreement and the other Loan Documents as any other Lender
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and may exercise the same as though it were not the Administrative Agent or the
Issuing Lender; and the terms "Lender" and "Lenders" shall include Fleet,
acting in its individual capacity as a Lender hereunder.
SECTION 8.09. Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon not less than
thirty (30) days' prior written notice to the Lenders and the Borrower, such
notice to specify the effective date of resignation. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders
and the Issuing Lender, which successor agent shall be subject to the approval
of the Borrower if no Event of Default is continuing, such approval not to be
unreasonably withheld or delayed. If no successor agent is appointed prior to
the effective date of resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders, and
subject to the approval of the Borrower if no Event of Default is continuing,
such approval not to be unreasonably withheld or delayed, a successor agent
from among the Lenders or any Lender Affiliate. Any successor Administrative
Agent appointed under this Section 8.09 shall be a commercial bank organized
under the laws of the United States or any State thereof, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent; and the
term "Administrative Agent" shall mean such successor agent, and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article VIII and
Section 10.03 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor agent has accepted appointment as Administrative Agent by the
effective date of resignation specified in the retiring Administrative Agent's
written notice of resignation, the retiring Administrative Agent's resignation
shall nevertheless become effective upon the effective date of resignation so
specified, and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.
SECTION 8.10. Other Agents.
None of the Co-Syndication Agents, in such capacity, the Documentation Agent,
in such capacity, or the Lead Arranger, in such capacity, shall have any duties
or responsibilities, or shall incur any obligations or liabilities, under this
Agreement or any of the other Loan Documents. Each Lender acknowledges that it
has not relied, and will not rely, on the Co-Syndication Agents, Documentation
Agent or the Lead Arranger in deciding to enter into this Agreement or in
making any Credit Extensions hereunder.
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ARTICLE IX
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CHANGE IN CIRCUMSTANCES; COMPENSATION;
INCREASE IN TOTAL COMMITMENT
SECTION 9.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Administrative 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 Lenders advise the Administrative Agent that the London
Interbank Offered Rate, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders of funding the relevant
type of Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon: (i) the obligations of the Lender to make the
Euro-Dollar Loans specified in such notice shall be suspended; and (ii) the
obligations of the Lenders to make the Euro-Dollar Loans specified in such
notice shall continue to be suspended until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no longer
exist. Unless the Borrower notifies the Administrative Agent at least one (1)
Business Day before the date of any Euro-Dollar Borrowing 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 9.02. 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 Lender (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 Lender (or its Lending Office) to make, maintain
or fund its Euro-Dollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Lender
to make Euro-Dollar Loans shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section 9.02, such Lender shall designate
a different Lending Office if such designation will avoid the need forgiving
such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender 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
convert the then outstanding principal amount of each Euro-Dollar Loan of such
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Lender into a Base Rate Loan pursuant to Section 2.14. Concurrently with such
conversion, the Borrower shall pay the accrued interest on such Euro-Dollar
Loan and any amount due such Lender pursuant to Section 9.05(a).
SECTION 9.03. Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any Lender
(or its Lending Office) with any request or directive (whether or not having
the force of law) of any Authority:
(i) shall subject any Lender or the Issuing Lender (or its Lending
Office) to any tax, duty or other charge with respect to its Euro-Dollar
Loans, its Notes, Letters of Credit or its obligation to make Euro-Dollar
Loans, or shall change the basis of taxation of payments to any Lender (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 Lender or its
Lending Office imposed by the jurisdiction in which such Lender'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 with respect to any Euro-Dollar Loan 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 Lender (or its Lending Office); or
(iii) shall impose on any Lender or the Issuing Lender (or its
Lending Office) or on the London interbank market any other condition
affecting its Euro-Dollar Loans, its Notes, its Letters of Credit or its
obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(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 Lender (or its
Lending Office) under this Agreement, its Notes or its Letters of Credit with
respect thereto, by an amount deemed by such Lender to be material, then,
within fifteen (15) days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender or Issuing Lender
such additional amount or amounts as will compensate such Lender or Issuing
Lender for such increased cost or reduction.
(b) If any Lender 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 Lender
(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 Lender's capital
as a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, then from time to time, within
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fifteen (15) days after demand by such Lender, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section 9.03
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 Lender, be otherwise disadvantageous to such Lender. A
certificate of any Lender claiming compensation under this Section 9.03 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 Lender may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 9.03 shall be applicable with respect
to any Assignee and any calculations required by such provisions shall be made
based upon the circumstances of such Assignee.
(e) The Borrower shall not be liable to any Lender or the Administrative
Agent for costs incurred pursuant to Section 9.03(a) and (b) more than two
hundred seventy (270) days prior to receipt by the Borrower of such demand for
payment from such Lender or, as the case may be, the Administrative Agent,
unless such costs were incurred prior to such two hundred seventy (270) day
period as a result of such present or future applicable law being retroactive
to a date which occurred prior to such two hundred seventy (270) day period and
such Lender or, as the case may be, the Administrative Agent, has given notice
to the Borrower of the effectiveness of such law within two hundred seventy
(270) days after the effective date thereof.
SECTION 9.04. Base Rate Loans Substituted for Euro-Dollar Loans.
If (a) the obligation of any Lender to make or maintain Euro-Dollar Loans has
been suspended pursuant to Section 9.02 or (b) any Lender has demanded
compensation under Section 9.03, and the Borrower shall, by at least five (5)
Business Days' prior notice to such Lender through the Administrative Agent,
have elected that the provisions of this Section 9.04 shall apply to such
Lender, then, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(i) all Loans which would otherwise be made by such Lender as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in all cases
interest and principal on such Loans shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Banks), and
(ii) after each of its Euro-Dollar Loans has 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
9.04 shall apply to any Lender, the Borrower shall remain liable for, and shall
pay to such Lender as provided herein, all amounts due such Lender under
Section 9.03 in respect of the period preceding the date of conversion of such
Lender's Loans resulting from the Borrower's election.
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SECTION 9.05. Compensation.
pon the request of any Lender, delivered to the Borrower and the Administrative
Agent, the Borrower shall pay to such Lender such amount or amounts as shall
compensate such Lender for any loss, cost or expense incurred by such Lender as
a result of
(a) any payment or prepayment (pursuant to Section 2.09, Section 2.10 or
otherwise) of a Euro-Dollar Loan on a date other than the last day of an
Interest Period for such Euro-Dollar Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the date
for such prepayment specified in the relevant notice of prepayment hereunder;
or
(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;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (i) 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 London Interbank Offered Rate applicable to such Euro-Dollar Loan over (ii)
the amount of interest (as reasonably determined by such Lender) such Lender
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.
SECTION 9.06. Increase in Total Commitment.
(a) At any time prior to 5:00 p.m. (Boston, Massachusetts time) on the
tenth (10th) Business Day prior to the third anniversary of the Effective Date,
the Borrower may request on no more than three occasions that the Total
Commitment be increased, without the consent of the Required Lenders, by an
amount up to $100,000,000 to be provided to the Borrower hereunder; provided,
that, the Total Commitment, determined after giving effect to such increase in
the Total Commitment, shall not at any time exceed $250,000,000. The
Borrower's request shall be made in writing (a "Commitment Increase Notice")
and delivered to the Administrative Agent at least ten (10) Business Days prior
to the proposed effective date of the increase in Total Commitment and shall
specify the amount of the proposed increase in Total Commitment and the
proposed effective date for such increase in Total Commitment, which proposed
effective date must be prior to the third anniversary of the Effective Date.
In the event of such a Commitment Increase Notice, each of the Lenders shall be
given the opportunity to participate in the requested increase. No Lender, by
virtue of its being a party hereto, shall have any obligation of any kind to
provide such commitments, and each Lender may determine with sole, absolute and
complete discretion whether to provide such commitments. On or prior to a date
that is five (5) Business Days after receipt of the Commitment Increase Notice,
each Lender shall submit to the Administrative Agent a notice indicating the
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maximum amount by which it is willing to increase its Commitments in connection
with such Commitment Increase Notice (any such notice to the Administrative
Agent being herein a "Lender Increase Notice"). Any Lender which does not
submit a Lender Increase Notice to the Administrative Agent prior to the
expiration of such five (5) Business Day period shall be deemed to have denied
any increase in its Commitments. In the event that the increases of
Commitments set forth in the Lender Increase Notices exceed the amount
requested by the Borrower in the Commitment Increase Notice, the Administrative
Agent shall have the right, in consultation with the Borrower, to allocate the
amount of increases necessary to meet the Borrower's Commitment Increase
Notice. In the event that the Lender Increase Notices are less than the amount
requested by the Borrower, no later than three (3) Business Days prior to the
proposed effective date the Borrower may notify the Administrative Agent of any
Eligible Assignee that shall have agreed to become a "Lender" party hereto (an
"Acceding Lender") in connection with the Commitment Increase Notice. Any
Acceding Lender shall be approved of by the Administrative Agent, which
approval shall not be unreasonably withheld. If the Borrower shall not have
arranged any Acceding Lender(s) to commit to the shortfall from the Lender
Increase Notices, then the Borrower shall be deemed to have reduced the amount
of its Commitment Increase Notice to the aggregate amount set forth in the
Lender Increase Notices; provided, however, that the Borrower may at its option
withdraw such Commitment Increase Notice, in which case such Commitment
Increase Notice shall not count toward the limit of three provided in the first
sentence of this paragraph (a). Based upon the Lender Increase Notices, any
allocations made in connection therewith and any notice regarding any Acceding
Lender, if applicable, the Administrative Agent shall notify the Borrower and
the Lenders on or before the Business Day immediately prior to the proposed
effective date of the amount of each Lender's and Acceding Lender's Commitment
(the "Effective Commitment Amount") and the amount of the Total Commitment,
which amounts shall be effective on the following Business Day subject to the
conditions set forth herein. Any increase in the Total Commitment under this
Agreement shall be subject to the following conditions precedent: (i) as of
the date of the Commitment Increase Notice and as of the proposed effective
date of the increase in the Total Commitment under this Agreement, all
representations and warranties shall be true and correct in all material
respects as though made on such date (unless such representation and warranty
is made as of a specific date, in which case, such representation and warranty
shall be true and correct as of such date); (ii) as of the date of the
Commitment Increase Notice and as of the proposed effective date of the
increase in the Total Commitment under this Agreement, no event shall have
occurred and then be continuing which constitutes a Default or Event of Default
under the Agreement and all other conditions precedent to a Credit Extension
specified in Section 4.02 shall be satisfied; (iii) the Borrower, the
Administrative Agent and each Acceding Lender which shall have agreed to
provide a "Commitment" in support of such increase in the Total Commitment
under this Agreement, shall have executed and delivered an "Instrument of
Accession" in a form reasonably acceptable to the Administrative Agent; (iv)
counsel for the Borrower shall have provided to the Administrative Agent a
supplemental opinion in form and substance reasonably satisfactory to the
Administrative Agent; and (v) the Borrower and the Acceding Lender(s) shall
otherwise have executed and delivered such other instruments and documents as
the Administrative Agent shall have reasonably requested in connection with
such increase. Upon satisfaction of the conditions precedent to any increase
in the Total Commitment under this Agreement, the Administrative Agent shall
promptly advise the Borrower and each Lender of the effective date of such
increase. Upon the effective date of any increase in the Total Commitment
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under this Agreement that is supported by an Acceding Lender, such Acceding
Lender shall be a party to this Agreement as a Lender and shall have the rights
and obligations of a Lender hereunder. In addition, on the effective date, the
Administrative Agent shall replace the existing Schedule II attached hereto
with the revised Schedule II reflecting such new Total Commitment and each
Lender's Commitment. Nothing contained herein shall constitute, or otherwise
be deemed to be, a commitment on the part of any Lender to increase its
Commitments hereunder.
(b) For purposes of this clause (b), (i) the term "Buying Lender(s)"
shall mean (A) each Lender the Effective Commitment Amount of which is greater
than its Commitment prior to the effective date of any increase in the Total
Commitment under this Agreement and (B) each Acceding Lender that is allocated
an Effective Commitment Amount in connection with any Commitment Increase
Notice and (ii) the term "Selling Lender(s)" shall mean each Lender whose
Commitment under this Agreement is not being increased from that in effect
prior to such increase in the Total Commitment under this Agreement as the case
may be. Effective on the effective date of any increase in the Total
Commitment under this Agreement pursuant to clause (a) above, each Selling
Lender hereby sells, grants, assigns and conveys to each Buying Lender, without
recourse, warranty or representation of any kind, except as specifically
provided herein, an undivided percentage in such Selling Lender's right, title
and interest in and to its outstanding Loans in the respective amounts and
percentages necessary so that, from and after such sale, each such Selling
Lender's outstanding Loans shall equal such Selling Lender's pro rata share
(calculated based upon the Effective Commitment Amounts) of the outstanding
Loans under this Agreement as applicable. Effective on the effective date of
any increase in the Total Commitment under this Agreement pursuant to clause
(a) above, each Buying Lender hereby purchases and accepts such grant,
assignment and conveyance from the Selling Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the portion of the outstanding
Loans purchased hereby shall equal the respective amount necessary so that,
from and after such payments, each Buying Lender's outstanding Loans shall
equal such Buying Lender's pro rata share (calculated based upon the Effective
Commitment Amounts) of the outstanding Loans under this Agreement. Such amount
shall be payable on the effective date of the increase in the Total Commitment
under this Agreement by wire transfer of immediately available funds to the
Administrative Agent. The Administrative Agent, in turn, shall wire transfer
any such funds received to the Selling Lenders, in same day funds, for the sole
account of the Selling Lenders. Each Selling Lender hereby represents and
warrants to each Buying Lender that such Selling Lender owns the Loans being
sold and assigned hereby for its own account and has not sold, transferred or
encumbered any or all of its interests in such Loans, except for participations
which will be extinguished upon payment to the Selling Lender of any amount
equal to the portion of the outstanding Loans being sold by such Selling
Lender. Each Buying Lender hereby acknowledges and agrees that, except for
such Selling Lender's representations and warranties contained in the foregoing
sentence, each such Buying Lender has entered into its Instrument of Accession
with respect to such increase on the basis of its own independent investigation
and has not relied upon, and will not rely upon, any explicit or implicit
written or oral representation, warranty or other statement of the Lenders or
the Administrative Agent concerning the authorization, execution, legality,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents. The Borrower hereby agrees to
compensate each Selling Lender for all losses, expenses and liabilities
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incurred by each Lender in connection with the sale and assignment of any
Euro-Dollar Rate Loans hereunder on the terms and in the manner set forth in
Section 9.05 hereof.
SECTION 9.07. Replacement of Lenders.
If any Lender (an "Affected Lender") makes demand upon the Borrower for (or if
the Borrower is otherwise required to pay) amounts pursuant to Section 2.11(c)
or Section 9.03, the Borrower may within ninety (90) days of receipt of such
demand (or the occurrence of such other event causing the Borrower to be
required to pay such compensation) by notice (a "Replacement Notice") in
writing to the Administrative Agent and such Affected Lender (a) request the
Affected Lender to cooperate with the Borrower in obtaining a replacement
Lender which is an Eligible Assignee satisfactory to the Administrative Agent
and the Borrower (the "Replacement Lender"); (b) request the non-Affected
Lenders to acquire and assume all of the Affected Lender's Loans and Commitment
as provided herein, but none of such Lenders shall be under an obligation to do
so; or (c) designate a Replacement Lender approved by the Administrative Agent,
such approval not to be unreasonably withheld or delayed. If any satisfactory
Replacement Lender shall be obtained, and/or if any one or more of the
non-Affected Lenders shall agree to acquire and assume all of the Affected
Lender's Loans and Commitment, then such Affected Lender shall assign, in
accordance with Section10.07, all of its Commitment, Loans, participations in
Letter of Credit Borrowings, Notes and other rights and obligations under this
Agreement and all other Loan Documents to such Replacement Lender or
non-Affected Lenders, as the case may be, in exchange for payment of the
principal amount so assigned and all interest and fees accrued on the amount so
assigned, plus all other Obligations then due and payable to the Affected
Lender; provided, however, that (i) such assignment shall be evidenced by an
Assignment and Acceptance, and (ii) prior to any such assignment, the Borrower
shall have paid to such Affected Lender all amounts properly demanded and
unreimbursed under Section 2.11(c) and Section 9.03. Upon the effective date
of such assignment, the Borrower shall issue replacement Notes to such
Replacement Lender and/or non-Affected Lenders, as the case may be, and such
institution shall become a "Lender" for all purposes under this Agreement and
the other Loan Documents.
ARTICLE X
---------
MISCELLANEOUS
SECTION 10.01. 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 Schedule I
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 (a) if given by telecopier, when such
telecopy is transmitted to the telecopy number specified on Schedule I 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, (b) if given by mail, three (3) Business Days after such
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communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, and (c) if given by any other means, when delivered at
the address specified on Schedule I; provided, that notices to the
Administrative Agent and notices to the Issuing Lender under Article III shall
not be effective until actually received.
SECTION 10.02. No Waivers.
No failure or delay by the Administrative Agent, Issuing Lender or any Lender
in exercising any right, power or privilege hereunder or under any Note or
other Loan Document 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 10.03. Costs and Expenses; Indemnification.
The Borrower shall, whether or not any of the transactions contemplated by this
Agreement or any of the other Loan Documents shall be consummated:
(a) pay or reimburse, on demand, all reasonable costs and expenses
incurred or sustained by the Administrative Agent from time to time in
connection with the development, preparation, delivery or syndication of the
Commitments under, or execution and delivery of, or any amendment, supplement,
waiver or modification to (in each case, whether or not consummated), this
Agreement, any of the other Loan Documents, or any of the other Instruments or
documents prepared in connection herewith or therewith, or the consummation of
any of the transactions contemplated hereby or thereby, including the Attorney
Costs incurred or sustained by the Administrative Agent in connection therewith
or with respect thereto; and
(b) pay or reimburse each of the Lenders, the Issuing Lender and the
Administrative Agent, on demand, for all reasonable costs and expenses incurred
or sustained by them from time to time in connection with the enforcement,
attempted enforcement or preservation of any rights or remedies (including in
connection with any "workout" or restructuring relating to the Loans or any of
the Obligations, and including in connection with any Insolvency Proceedings
involving the Borrower or any of its Subsidiaries) under this Agreement, any of
the other Loan Documents or any of such other Instruments or documents,
including Attorney Costs and all of the reasonable fees, costs and expenses of
any consultants incurred by the Administrative Agent or by any of the Lenders;
and
(c) pay or reimburse the Administrative Agent and the Issuing Lender, on
demand, for all reasonable appraisal (including, without duplication, the
allocated cost of internal appraisal services), audit, environmental inspection
and review (including, without duplication, the allocated costs of such
internal services), search and filing fees, costs and expenses, incurred or
sustained by the Administrative Agent from time to time in connection with any
of the matters referred to under paragraphs (a) or (b) of this Section 10.03;
and
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(d) whether or not any of the transactions contemplated by this Agreement
or any of the other Loan Documents shall be consummated, the Borrower shall, on
demand, pay, indemnify and hold each of the Lenders, the Issuing Lender, the
Administrative Agent and each of their respective officers, directors, other
Affiliates, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including Attorney Costs) of any kind or
nature whatsoever with respect to each of (i) any investigation, litigation or
proceeding (including any Insolvency Proceedings involving the Borrower or any
of its Subsidiaries) related to this Agreement or any of the other Loan
Documents, Credit Extensions, or the use of any of the proceeds thereof,
whether or not any Indemnified Person is a party thereto, and (ii) the actual
or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Property owned or at any
time operated by the Borrower or by any of its Subsidiaries, the generation,
storage, transportation, handling or disposal of Hazardous Materials at any
location by the Borrower or any of its Subsidiaries, whether or not owned or
operated by the Borrower or any of its Subsidiaries, the noncompliance of any
such Property with Environmental Laws (including applicable permits thereunder)
applicable to any such Property, or any Environmental Liabilities asserted
against the Borrower, any of its Subsidiaries or any Property owned or at any
time operated by the Borrower or any of its Subsidiaries (all the foregoing
described in clauses (i) and (ii) above, collectively, the "Indemnified
Liabilities"); provided, however, that the Borrower shall not have an
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities to the extent determined by a final non-appealable judgment that
such Indemnified Liability resulted from the bad faith, gross negligence or
willful misconduct of such Indemnified Person. The obligations in this Section
10.03 shall survive payment of all of the other Obligations.
SECTION 10.04. Set-Offs; Sharing of Set-Offs.
(a) In addition to any other rights and remedies of the Lenders provided
by law, if any Event of Default shall be continuing, each Lender is authorized
at any time and from time to time, without prior notice to the Borrower, any
such notice being irrevocably waived by the Borrower to the fullest extent
permitted by law, to set off and apply, to the fullest extent permitted by
Applicable Law, any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender, now or at any time
hereafter created, arising or existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give any such notice shall not
affect the validity of such set-off and application. The rights of each Lender
under this Section 10.04(a) are in addition to all of the other rights and
remedies (including other rights of set-off) which such Lender may have.
(b) Each Lender 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 owing with respect to the Notes and
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Letter of Credit Obligations held by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of all
principal and interest owing with respect to the Notes and Letter of Credit
Obligations held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
and Letter of Credit Obligations held by the other Lenders owing to such other
Lenders, 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 and
Letter of Credit Obligations held by the Lenders owing to such other Lenders
shall be shared by the Lenders pro rata; provided, that (i) nothing in this
Section 10.04 shall impair the right of any Lender 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 under the Notes and the Letter of Credit Obligations, and (ii) if
all or any portion of such payment received by the purchasing Lender is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price of such participation to the extent of such recovery
together with an amount equal to such other Lender's ratable share (according
to the proportion of (A) the amount of such other Lender's required repayment
to (B) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender 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 or Letter of Credit Obligation, 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 10.05. Consents, Amendments, Waivers, Etc.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement to be given by the Lenders may
be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with,
but only with, the written consent of the Borrower and the written consent of
the Required Lenders. Notwithstanding the foregoing, no amendment,
modification or waiver shall:
(a) without the written consent of the Borrower and each Lender directly
affected thereby:
(i) reduce or forgive the principal amount of any Loans or Letter of
Credit Obligations, or reduce the rate of interest on the Notes or the
amount of any Fees payable to such Lender (other than interest accruing
pursuant to Section 2.05(e) following the effective date of any waiver by
the Required Lenders of the Default or Event of Default relating thereto);
(ii) increase the amount of such Lender's Commitment or extend the
expiration date of such Lender's Commitment; and
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(iii) postpone or extend the Maturity Date or any other regularly
scheduled dates for payments of principal of, or interest on, the Loans or
the Letter of Credit Obligations or any Fees or other amounts payable to
such Lender (it being understood that (A) a waiver of the application of
the Default Rate pursuant to Section 2.05(e), and (B) any vote to rescind
any acceleration made pursuant to Article VII of amounts owing with
respect to the Loans and other Obligations shall require only the approval
of the Required Lenders);
(b) without the written consent of all of the Lenders, amend or waive
this Section 10.05 or the definition of Required Lenders;
(c) without the written consent of the Issuing Lender, amend or waive
Article III, the amount or time of payment of Letter of Credit Fees payable for
the Issuing Lender's account or any other provision applicable to the Issuing
Lender; and
(d) without the written consent of the Agents and the Issuing Lender,
amend or waive Article VIII.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of any Lender or the Administrative Agent in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
SECTION 10.06. Margin Stock Collateral.
Each of the Lenders represents to the Administrative Agent and each of the
other Lenders 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 10.07. 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, without the written consent of the Lenders and
Administrative Agent.
(b) Any Lender may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan or Letter of Credit
Obligations owing to such Lender, any Note held by such Lender, any Commitment
hereunder or any other interest or obligation of such Lender hereunder. In the
event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower, Issuing Lender and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. In no event
shall a Lender that sells a participation be obligated to the Participant to
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take or refrain from taking any action hereunder except that such Lender may
agree that it will not (except as provided below), without the consent of the
Participant, agree to (i) postpone any date fixed for the payment of principal
of or interest on the related Loans or Letter of Credit Obligations, (ii)
reduce the amount of any principal, interest (except as provided in Section
2.05(e) or Fees due on any date fixed for the payment thereof with respect to
the related Loans or Letter of Credit Obligations, (iii) reduce the principal
of the related Loans or Letter of Credit Obligations or, (iv) any decrease in
the rate at which either interest is payable thereon or (if the Participant is
entitled to any part thereof) Fees is payable hereunder from the rate at which
the Participant is entitled to receive interest or Fees (as the case may be) in
respect of such participation. Each Lender selling a participating interest in
any Loan, Note, Commitment, Letter of Credit Obligation or other interest under
this Agreement shall, within ten (10) Business Days of such sale, provide the
Borrower and the Administrative Agent with written notification stating that
such sale has occurred and identifying the Participant and the interest
purchased by such Participant. The Borrower agrees that each Participant shall
be entitled to the benefits of Article IX with respect to its participation in
Loans outstanding from time to time.
(c) Any Lender may at any time assign to one or more Lenders or financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement, 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
C, executed by such Assignee, such transferor Lender and the Administrative
Agent (and, in the case of (i) an Assignee that is not then a Lender or an
Affiliate of a Lender; and (ii) an assignment not made during the existence of
an Event of Default, by the Borrower); provided, that, (i) the minimum amount
of any such assignment shall be $2,500,000 or any multiple of $500,000, (ii) no
interest may be sold by a Lender pursuant to this paragraph (c) to any Assignee
that is not then a Lender or an Affiliate of a Lender without the consent of
the Borrower, which consent shall not be unreasonably withheld, provided that
the Borrower's consent shall not be necessary with respect to any assignment
made during the existence of an Event of Default; and (iii) no interest may be
sold by a Lender pursuant to this paragraph (c) to any Assignee that is not
then a Lender or an Affiliate of a Lender, without the consent of the
Administrative Agent, which consent shall not be unreasonably withheld,
provided, that, although the Administrative Agent's consent may not be
necessary with respect to an Assignee that is then a Lender or an Affiliate of
a Lender, no such assignment shall be effective until the conditions set forth
in the following sentence are satisfied. Upon (i) execution of the Assignment
and Acceptance by such transferor Lender, such Assignee, the Administrative
Agent and (if applicable) the Borrower, (ii) delivery of an executed copy of
the Assignment and Acceptance to the Borrower and the Administrative Agent,
(iii) payment by such Assignee to such transferor Lender of an amount equal to
the purchase price agreed between such transferor Lender and such Assignee, and
(iv) payment by the assigning Lender of a processing and recordation fee of
$3,500 to the Administrative Agent, such Assignee shall for all purposes be a
Lender party to this Agreement and shall have all the rights and obligations of
a Lender 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 Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required. Upon the consummation
of any transfer to an Assignee pursuant to this paragraph (c), the transferor
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Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to each of such
Assignee and such transferor Lender.
(d) Subject to the provisions of Section 10.08, the Borrower authorizes
each Lender 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 Lender's possession concerning the Borrower which has been
delivered to such Lender by the Borrower pursuant to this Agreement or which
has been delivered to such Lender by the Borrower in connection with such
Lender's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 9.03 than the transferor Lender 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 Sections
9.02 or Section 9.03 requiring such Lender 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) Anything in this Section 10.07 to the contrary notwithstanding, any Lender
may assign and pledge all or any portion of the Loans and/or Obligations owing
to it to any Federal Reserve Lender or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve Bank and Operating Circular issued by such Federal Reserve Bank,
provided, that any payment in respect of such assigned Loans and/or Obligations
made by the Borrower to the assigning and/or pledging Lender in accordance with
the terms of this Agreement shall satisfy the Borrower's obligations hereunder
in respect of such assigned Loans and/or Obligations to the extent of such
payment. No such assignment shall release the assigning and/or pledging Lender
from its obligations hereunder.
SECTION 10.08. Confidentiality.
Each Lender 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 confidential information, confidential from anyone other than persons
employed or retained by such Lender who are or are expected to become engaged
in evaluating, approving, structuring or administering the Loans; provided,
however, that nothing herein shall prevent any Lender from disclosing such
information (a) to any other Lender, (b) upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Lender, (d) which has been publicly
disclosed, (e) to the extent reasonably required in connection with any
litigation to which the Administrative Agent, Issuing Lender, any Lender or
their respective Affiliates may be a party, (f) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (g) to such
Lender's legal counsel, Affiliates and independent auditors and (h) 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 10.08.
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SECTION 10.09. Representation by Lenders.
Each Lender 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 10.07, the
disposition of the Note or Notes held by that Lender shall at all times be
within its exclusive control.
SECTION 10.10. Obligations Several.
The obligations of each Lender hereunder are several, and no Lender shall be
responsible for the obligations or commitments of any other Lender hereunder.
Nothing contained in this Agreement and no action taken by the Lenders pursuant
hereto shall be deemed to constitute the Lenders to be a partnership, an
association, a joint venture or any other kind of entity. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender 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 Lender to be joined as an additional party in any proceeding for such
purpose.
SECTION 10.11. Survival of Certain Obligations.
Section 2.11(c), Section 9.03(a) and (b), Section 9.05 and Section 10.03, 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 and Letter of Credit Obligations. The agreements of the Borrower set
forth in the Fee Letters shall survive the execution and delivery of this
Agreement and the making of each Credit Extension.
SECTION 10.12. 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 10.13. Marshalling; Payments Set Aside.
Neither the Administrative Agent nor any Lender shall be under any obligation
to marshal any assets in favor of the Borrower or any other Person or against
or in payment of any or all of the Obligations. To the extent that the Borrower
makes any payment or payments to the Administrative Agent, Lenders, or the
Issuing Lender (or to the Administrative Agent for the benefit of Lenders or
the Issuing Lender), or the Administrative Agent, the Lenders or the Issuing
Lender enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
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preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law,
common law or any equitable cause, then, to the extent of such recovery, the
Obligations or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor or related thereto, shall be revived and continued
in full force and effect as if such payment or payments had not been made or
such enforcement or set-off had not occurred.
SECTION 10.14. Interest and Fees.
In no event shall the amount of interest and Fees 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 Lender by the
Borrower or inadvertently received by any Lender, then such excess sum shall be
credited as a payment of principal, unless the Borrower shall notify such
Lender 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 Lenders 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 10.15. 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.
SECTION 10.16. WAIVER OF JURY TRIAL.
THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
10.16 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.17. JURISDICTION.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE BORROWER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION,
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INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR OTHER DOCUMENT RELATED HERETO. THE BORROWER WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
SECTION 10.18. GOVERNING LAW.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW
SECTION 5-1401 AND SECTION 5-1402).
SECTION 10.19. Counterparts.
This Agreement and any amendment hereof may be executed in several counterparts
and by each party on a separate counterpart, each of which when executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Agreement it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought. Delivery by facsimile by any of the parties hereto of
an executed counterpart hereof or of any amendment or waiver hereto shall be as
effective as an original executed counterpart hereof or of such amendment or
waiver and shall be considered a representation that an original executed
counterpart hereof or such amendment or waiver, as the case may be, will be
delivered.
SECTION 10.20. Entire Agreement, Etc. This Agreement and the other Loan
Documents express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated, except as provided in Section
10.05.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement under
seal as of the date first set forth above.
XXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Controller
----------
FLEET NATIONAL BANK, as a Lender, Administrative Agent and Issuing Lender
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Director
----------
BANK ONE, NA, as a Lender and Co-Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Associate Director
----------
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender and Co-Syndication Agent
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
----------
SUNTRUST BANK, as a Lender and Documentation Agent
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
----------
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
----------
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
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LIST OF SCHEDULES AND EXHIBITS
------------------------------
(Schedules and Exhibits to this credit agreement are not included in this
filing.)
LIST OF SCHEDULES AND EXHIBITS TO THE FOREGOING CREDIT AGREEMENT, DATED AS OF
APRIL 5, 2002, AMONG XXXXXXXX CORPORATION, AS THE BORROWER, THE LENDERS FROM
TIME TO TIME PARTY THERETO, FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT, BANK
ONE, NA, AS CO-SYNDICATION AGENT, XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS
CO-SYNDICATION AGENT, AND SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
SCHEDULE DESCRIPTION
-------- -----------
SCHEDULE I LENDING OFFICES/NOTICE ADDRESSES
SCHEDULE II COMMITMENTS OF LENDERS
SCHEDULE III DISCLOSURE SCHEDULE
EXHIBIT DESCRIPTION
------- -----------
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF NOTICE OF BORROWING
EXHIBIT C FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT D FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E FORM OF CLOSING CERTIFICATE OF THE BORROWER
EXHIBIT F FORM OF SECRETARY'S CERTIFICATE OF THE BORROWER
EXHIBIT G FORM OF LEGAL OPINION OF GENERAL COUNSEL FOR THE BORROWER
EXHIBIT H FORM OF LEGAL OPINION OF SPECIAL COUNSEL TO THE BORROWER
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