CREDIT AGREEMENT
Dated as of May 12, 1999
GARDEN STATE NEWSPAPERS, INC., a Delaware corporation, the GUARANTORS
listed on the signature pages hereof, the BANKS listed on the signature pages
hereof, BANK OF AMERICA NT&SA, as Syndication Agent, FIRST UNION NATIONAL BANK,
as Documentation Agent, FLEET NATIONAL BANK, as Co-Documentation Agent, and THE
BANK OF NEW YORK, as Administrative Agent, agree as follows (with certain terms
used herein being defined in Article 11):
ARTICLE 1
CREDIT FACILITY
Section 1.01 COMMITMENT TO LEND. (a) LOANS. Upon the terms and
subject to the conditions of this Agreement, each Bank agrees to make, from time
to time during the period from the Agreement Date to but excluding the Maturity
Date, one or more Loans to the Borrower in an aggregate unpaid principal amount
not exceeding at any time such Bank's Commitment at such time MINUS the sum of
(A) the aggregate amount of such Bank's Letter of Credit Participations at such
time and (B) such Bank's Swing Loan Percentage of the aggregate principal amount
of the Swing Loans outstanding at such time. The aggregate amount of the
Commitments on the Agreement Date is $190,000,000.
(b) SWING LOANS. (i) Upon the terms and subject to the
conditions of this Agreement, the Swing Loan Lender agrees to make, from time to
time from the Agreement Date to but excluding the Maturity Date, one or more
Swing Loans to the Borrower in an aggregate unpaid principal amount not
exceeding at any time the lesser of (A) the aggregate amount of the Commitments
at such time MINUS the sum of the aggregate unpaid principal amount of all Loans
and Swing Loans outstanding at such time and the aggregate amount of the Letter
of Credit Participations outstanding at such time and (B) $5,000,000. All Swing
Loans shall be in an amount not less than $100,000 and shall be in an integral
multiple of $50,000 and shall be made and maintained as Base Rate Loans. All
Swing Loans shall be disbursed by the Swing Loan Lender in Dollars in funds
immediately available to the Borrower by credit to an account of the Borrower at
the Swing Loan Lender's Domestic Lending Office, or in such other manner as may
have been specified in the applicable notice of borrowing and as shall be
acceptable to the Swing Loan Lender, on the day requested, if such request is
received not later than 2:00 p.m. (New York time) on such day, and if received
thereafter on any Business Day, on the next Business Day. Each request by the
Borrower for the making of Swing Loans shall constitute a Representation and
Warranty by the Borrower as of the time of the making of such Swing Loans that
the conditions specified in Sections 2.02(b) and (c) have been fulfilled at such
time.
(ii) Upon demand made to all of the Banks by the Swing
Loan Lender, which demand may be made before or after a Default, but
subject to the provisions of
Section 1.01(b)(iii), each Bank (other than the Swing Loan Lender) shall
irrevocably and unconditionally purchase from the Swing Loan Lender,
without recourse or warranty, an undivided interest and participation in
the Swing Loans then outstanding, by paying to the Swing Loan Lender,
without reduction or deduction of any kind, including but not limited to
reductions or deductions for set-off, recoupment or counterclaim, in
Dollars immediately available to the Swing Loan Lender at the Swing Loan
Lender's Domestic Lending Office, an amount equal to such Bank's Swing
Loan Percentage of the principal amount of all Swing Loans then
outstanding, and thereafter, except as otherwise provided in the second
succeeding sentence, the Banks' respective interests in such Swing Loans,
and the remaining interest of the Swing Loan Lender in such Swing Loans,
shall in all respects be treated as Loans under this Agreement, but such
Swing Loans shall continue to be evidenced by the Swing Note, and shall
continue to be due and payable by the Borrower in accordance with Section
1.05. If any Bank does not pay any amount which it is required to pay
after giving effect to the provisions of Section 1.01(b)(iii) forthwith
upon the Swing Loan Lender's demand therefor, the Swing Loan Lender shall
be entitled to recover such amount on demand from such Bank, together
with interest thereon, at the Federal Funds Rate for the first three
Business Days, and thereafter at the Base Rate, for each day from the
date of such demand, if made prior to 2:00 p.m. (New York time) on any
Business Day, and if made thereafter on any Business Day, or made on any
day that is not a Business Day, from the next Business Day following the
date of such demand, until the date such amount is paid to the Swing Loan
Lender by such Bank. If such Bank does not pay such amount forthwith
upon the Swing Loan Lender's demand therefor, and until such time as such
Bank makes the required payment, the Swing Loan Lender's remaining
interest in the applicable Swing Loan shall continue to include the
amount of such unpaid participation obligation.
(iii) No Bank shall be obligated to purchase a
participation in any Swing Loan unless (A) the Swing Loan Lender believed
in good faith that the conditions specified in Sections 2.02(b) and (c)
were satisfied at the time such Swing Loan was made or (B) such Bank had
actual knowledge, by receipt of information furnished to it pursuant to
Section 5.01(f) hereof, or otherwise, that any such condition had not
been satisfied and failed to notify the Swing Loan Lender in a writing
received by the Swing Loan Lender one Business Day prior to the time that
it made such Swing Loan that the Swing Loan Lender was not authorized to
make such Swing Loan or (C) the satisfaction of such condition that was
not satisfied had been waived in accordance with the provisions of this
Agreement.
(c) TYPE OF LOANS. Subject to Section 1.07 and the other terms
and conditions of this Agreement, the Loans may, at the option of the Borrower,
be made as, and from time to time continued as or converted into, Base Rate or
Eurodollar Rate Loans of any permitted Type, or any combination thereof.
Section 1.02 MANNER OF BORROWING. (a) The Borrower shall give the
Administrative Agent notice (which shall be irrevocable) no later than 10:00
a.m. (New York time) on, in the case of Base Rate Loans (other than Swing
Loans), the Business Day before the requested date
for the making of such Loans and, in the case of Eurodollar Rate Loans, the
third Eurodollar Business Day before the requested date for the making of such
Loans. Each such notice shall be in the form of SCHEDULE 1.02 and shall specify
(i) the requested date for the making of the requested Loans, which shall be,
in the case of Base Rate Loans, a Business Day and, in the case of Eurodollar
Rate Loans, a Eurodollar Business Day, (ii) the Type or Types of Loans requested
and (iii) the amount of each such Type of Loan, which amount shall be not less
than, in the case of Base Rate Loans, $500,000 or an integral multiple of
$100,000 in excess thereof and, in the case of Eurodollar Rate Loans, $1,000,000
or an integral multiple of $250,000 in excess thereof, or the aggregate amount
of the applicable unused Commitments, as the case may be. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of the amount and Type of each Loan to be made by such Bank
on the requested date specified therein.
(b) Not later than 11:00 a.m. (New York time) on each requested
date for the making of Loans (other than Swing Loans), each Bank shall make
available to the Administrative Agent, in Dollars in funds immediately available
to the Administrative Agent at the Administrative Agent's Office, the Loans to
be made by such Bank on such date. Any Bank's failure to make any Loan to be
made by it on the requested date therefor shall not relieve any other Bank of
its obligation to make any Loan to be made by such other Bank on such date, but
such other Bank shall not be liable for such failure.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to 10:00 a.m. (New York time) on the requested date for the
making of any Loans that such Bank will not make available to the Administrative
Agent the Loans requested to be made by such Bank on such date, the
Administrative Agent may assume that such Bank has made such Loans available to
the Administrative Agent on such date in accordance with Section 1.02(b) and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Bank. If and to the extent such Bank shall not have so made
available to the Administrative Agent the Loans requested to be made by such
Bank on such date and the Administrative Agent shall have so made available to
the Borrower a corresponding amount on behalf of such Bank, such Bank shall, on
demand, pay to the Administrative Agent such corresponding amount together with
interest thereon, for each day from the date such amount shall have been so made
available by the Administrative Agent to the Borrower until the date such amount
shall have been repaid to the Administrative Agent, at the Federal Funds Rate
until (and including) the third Business Day after demand is made and thereafter
at the Base Rate. If such Bank does not pay such corresponding amount promptly
upon the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Borrower and such Borrower shall immediately repay such
corresponding amount to the Administrative Agent together with accrued interest
thereon at the applicable rate or rates provided in Section 1.04(a).
(d) All Loans made available to the Administrative Agent in
accordance with Section 1.02(b) or Section 1.02(c) shall be disbursed by the
Administrative Agent not later than 1:00 p.m. (New York time) on the requested
date therefor in Dollars in funds immediately available to the Borrower by
credit to an account of the Borrower at the Administrative Agent's
Office or in such other manner as may have been specified in the applicable
notice and as shall be acceptable to the Administrative Agent.
Section 1.03 LETTERS OF CREDIT. (a) Upon the terms and subject to the
conditions of this Agreement, the Issuing Bank shall, from time to time during
the period from the Agreement Date through the tenth Business Day preceding the
Maturity Date, issue one or more Letters of Credit for the account of the
Borrower; provided, that the aggregate principal amount of all Letter of Credit
Participations shall not exceed at any time the lesser of (A) the aggregate
amount of the Commitments at such time minus the aggregate unpaid principal
amount of all Loans and Swing Loans outstanding at such time and (B)
$10,000,000. Each Letter of Credit shall be in a form and shall contain such
terms as shall be reasonably satisfactory to the Issuing Bank.
(b) Each Letter of Credit shall be denominated only in Dollars
and shall expire on or before the first anniversary of the issuance thereof
(PROVIDED, that, any Letter of Credit may include terms that provide for the
automatic renewal thereof for successive one-year periods so long as such terms
include a provision whereby the Issuing Bank shall be entitled to elect that any
such renewal shall not occur if the conditions set forth in Section 2.02(b) and
(c) could not be fulfilled at such time, and the Issuing Bank shall give notice
of such election to the beneficiary thereof) and in any event not later than the
Business Day preceding the Maturity Date. Any extension of the expiry date, or
automatic renewal, of a Letter of Credit to a date beyond the first anniversary
of the issuance thereof shall constitute an "issuance" of such Letter of Credit
for all purposes hereof on, in the case of any such extension, the date on which
such extension shall have been granted and, in the case of any such automatic
renewal, on the tenth Business Day preceding the last day on which the Issuing
Bank is entitled to give notice of its election that any such renewal shall not
occur.
(c) Letters of Credit shall be issued only on a Business Day, and
shall be used for the corporate purposes of the Borrower or the Subsidiaries.
(d) The Borrower shall request the issuance of a Letter of Credit
by furnishing to the Administrative Agent and the Issuing Bank, at least five
Business Days before the requested date of such issuance, notice thereof in the
form of SCHEDULE 1.02 or such other notice as shall be reasonably satisfactory
to the Issuing Bank (and, in the case of any such notice, the Borrower shall be
deemed to have made the Representation and Warranty with respect to such
issuance provided for in the final paragraph of the form of notice set forth in
SCHEDULE 1.02).
(e) Upon the date of issuance of a Letter of Credit, the Issuing
Bank shall be deemed to have granted to each Participating Bank (other than the
Issuing Bank), and each Participating Bank (other than the Issuing Bank) shall
be deemed to have acquired from the Issuing Bank without further action by any
party hereto, a participation in such Letter of Credit and any Drawings that may
at any time be made thereunder, to the extent of such Bank's Participating Bank
Percentage thereof.
(f) The Issuing Bank shall promptly notify the Borrower of its
receipt of each Drawing request with respect to a Letter of Credit, stating the
date and amount of the Drawing requested thereby and the date and amount of each
Drawing disbursed pursuant to such request.
The failure of the Issuing Bank to give, or delay in giving, any such notice
shall not release or diminish the obligations of the Borrower hereunder in
respect of such Drawing.
(g) The Borrower shall, on the day it receives notice of each
Drawing from the Issuing Bank, if such notice is received prior to 10:00 a.m.
(New York time) on such day, and on the Business Day following the day it
receives such notice from the Issuing Bank, if such notice is received after
10:00 a.m. (New York time) on such day, reimburse such Drawing by paying to the
Issuing Bank in immediately available funds the amount of the payment made by
the Issuing Bank with respect to such Drawing, together (but only if such
Drawing is not reimbursed on the day notice is received) with interest thereon
at a rate per annum equal to the Base Rate as in effect from time to time PLUS
the applicable Base Rate Margin until the day such reimbursement is made. In
the event that the Borrower shall fail to make any such payment when due and for
so long as such failure shall be continuing, the Issuing Bank may give notice of
such failure to the Administrative Agent and each Participating Bank, which
notice shall include, in the case of a Participating Bank, the amount of such
Participating Bank's Participating Bank Percentage of such Drawing, whereupon
each such Participating Bank (other than the Issuing Bank) shall promptly remit
such amount to the Administrative Agent for the account of the Issuing Bank as
provided in Section 1.03(h).
(h) Each Participating Bank (other than the Issuing Bank) shall,
in the event it receives the notice from the Issuing Bank pursuant to Section
1.03(g) at or before 12:00 noon (New York time) on any Business Day, fund its
participation in any unreimbursed Drawing by remitting to the Administrative
Agent, no later than 2:00 p.m. (New York time) on such day, in immediately
available funds, its Participating Bank Percentage of the reimbursement
obligation in respect of each Drawing. The Administrative Agent shall, in the
event it receives such funds from such Participating Bank at or before 2:00 p.m.
(New York time) on any day, no later than 4:00 p.m. (New York time) on such day,
make available the amount thereof to the Issuing Bank, in immediately available
funds. Any amount payable by any Participating Bank to the Administrative Agent
for the account of the Issuing Bank under this Section 1.03(h), and any amount
payable by the Administrative Agent to the Issuing Bank under this Section
1.03(h), shall bear interest for each day from the date due (and including such
day if paid after 2:00 p.m. (New York time), in the case of any such payment by
a Participating Bank to the Administrative Agent, or 4:00 p.m. (New York time),
in the case of any such payment by the Administrative Agent to the Issuing Bank,
on such day) in accordance with this Section 1.03(h) until the date it is
received by the Issuing Bank at a rate equal to the Federal Funds Rate until
(and including) the third Business Day after the date due and thereafter at the
Base Rate. Each Participating Bank shall, upon the demand of the Issuing Bank,
reimburse the Issuing Bank, to the extent the Issuing Bank has not been
reimbursed by the Borrower after demand therefor, for the reasonable costs and
expenses (including reasonable legal fees) incurred by it (other than as a
result of its willful misconduct or gross negligence) in connection with the
collection of amounts due under, the administration of, and the preservation and
enforcement of any rights conferredby, the Letters of Credit or the performance
of the Issuing Bank's obligations under this Agreement in respect thereof (other
than its obligation to make Loans in its capacity as a Bank or Swing Loans in
its capacity as the Swing Loan Lender), to the extent of such Participating
Bank's Participating Bank Percentage (as of the time such costs and expenses are
incurred) of the amount of such
costs and expenses. The Issuing Bank shall refund any costs and expenses
reimbursed by such Participating Bank that are subsequently recovered from the
Borrower in an amount equal to such Participating Bank's Participating Bank
Percentage thereof.
(i) The obligation of each Participating Bank to make available
to the Issuing Bank the amounts set forth in this Section 1.03 shall be
absolute, unconditional and irrevocable under any and all circumstances without
reduction for any set-off or counterclaim of any nature whatsoever, and may not
be terminated, suspended or delayed for any reason whatsoever, shall not be
subject to any qualification or exception and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or
other right which the Borrower or any Subsidiary may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Issuing Bank, any Participating
Bank or any other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
or any Subsidiary and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default.
(j) (i) Without affecting any rights the Participating Banks may
have under Applicable Law, the Borrower agrees that none of the Participating
Banks, the Issuing Bank, the Administrative Agent or their respective officers
or directors shall be liable or responsible for, and the obligations of the
Borrower to the Participating Banks, the Issuing Bank and the Administrative
Agent hereunder shall not in any manner be affected by: (A) the use that may be
made of any Letter of Credit or the proceeds thereof by the beneficiary thereof
or any other Person or any acts or omissions of such beneficiary or any other
Person; (B) the validity or genuineness of documents presented in connection
with any Drawing, or of any endorsements thereon, even if such documents should,
in fact, prove to be in any or all respects, invalid, fraudulent or forged; or
(C) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit or any other action taken or omitted to be taken by
any Person under or in connection with any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank and the Issuing Bank shall
be liable to the Borrower, in each case
to the extent and only to the extent of any damages suffered by the Borrower
that are caused by (1) the Issuing Bank's willful misconduct or gross negligence
(as determined by a court of competent jurisdiction) in determining whether
documents presented under any Letter of Credit issued by the Issuing Bank
complied with the terms of such Letter of Credit or (2) the Issuing Bank's
willful failure (as determined by a court of competent jurisdiction) to pay
under such Letter of Credit after the presentation to it of documents strictly
complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, in determining whether to
pay under any Letter of Credit, the Issuing Bank shall not have any obligation
relative to the other Banks other than to determine that any documents required
to be delivered under such Letter of Credit appear to have been delivered and
that they appear to comply on their face with the requirements of such Letter of
Credit, regardless of any notice or information to the contrary. Any action
taken or omitted to be taken by the Issuing Bank under or in connection with any
Letter of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for the Issuing Bank any resulting
liability to any Bank.
(ii) In addition to any other amounts payable under this
Agreement, the Borrower agrees to protect, indemnify, pay and hold the
Issuing Bank harmless from and against any and all claims, costs, charges
and reasonable expenses (including reasonable attorneys' fees) which the
Issuing Bank may incur or be subject to as a consequence, direct or
indirect, of the issuance of, or payment of any Drawing under, any Letter
of Credit, other than as a result of the gross negligence or willful
misconduct of the Issuing Bank as determined by a court of competent
jurisdiction.
(iii) The Issuing Bank shall not be responsible for:
(A) the validity, accuracy, genuineness or legal
effect of any document submitted by any party in connection with
the issuance of Letters of Credit,
(B) the validity 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,
(C) errors, omissions, interruptions or delays in
transmissions or delivery of any messages, by mail, cable,
telecopy, telex or otherwise,
(D) the misapplication by the beneficiary of any
Letter of Credit of the proceeds of any drawing under such Letter
of Credit, and
(E) any consequence arising from causes beyond
the control of the Issuing Bank, including, without limitation,
any governmental acts.
(k) If any Bank Nonparticipation occurs with respect to any
Bank, (A) the Administrative Agent and such Bank agree, if requested by the
Borrower, to attempt to locate a bank or other financial institution that
desires to accept the assignment of the Loans, Letter of Credit Participations,
Commitments and other rights and obligations hereunder of such Bank and
(B) if such bank or other financial institution acceptable to the Borrower is
located, such Bank agrees to assign its interest in its Loans, Letter of Credit
Participations, Commitments and other rights and obligations hereunder to such
bank or other financial institution in accordance with Section 9.10(a)(ii).
Section 1.04 INTEREST. (a) RATES. Unless an Event of Default is
continuing, (i) each Loan shall bear interest on the outstanding principal
amount thereof at a rate per annum equal to (A) so long as it is a Base Rate
Loan, the Base Rate as in effect from time to time PLUS the applicable Base Rate
Margin and (B) so long as it is a Eurodollar Rate Loan, the applicable Adjusted
Eurodollar Rate PLUS the applicable Eurodollar Rate Margin and (ii) each other
amount due and payable under the Loan Documents shall, to the maximum extent
permitted by Applicable Law, bear interest at a rate per annum equal to the Base
Rate as in effect from time to time PLUS the applicable Base Rate Margin.
During an Event of Default (and whether before or after judgment), upon notice
from the Administrative Agent to the Borrower given at the direction of the
Required Banks, each Loan (whether or not due) and, to the maximum extent
permitted by Applicable Law, each other amount due and payable under the Loan
Documents shall bear interest at a rate per annum equal to the applicable
Post-Default Rate.
(b) PAYMENT. Interest shall be payable, (i) in the case of
Base Rate Loans, quarterly in arrears on each Interest Payment Date, (ii) in the
case of Eurodollar Rate Loans, on the last day of each applicable Interest
Period (and, if an Interest Period is longer than three months, at intervals of
three months after the first day of such Interest Period), (iii) in the case of
any Loan, when such Loan shall be due (whether at maturity, by reason of notice
of prepayment or acceleration or otherwise) or converted, but only to the extent
then accrued on the amount then so due or converted, and (iv) in the case of all
other amounts due and payable under the Loan Documents, on demand. Interest at
the Post-Default Rate shall be payable on demand.
(c) CONVERSION AND CONTINUATION. (i) All or any part of the
principal amount of Loans of any Type may, on any Business Day, be converted
into any other Type or Types of Loans, except that (A) Eurodollar Rate Loans may
be converted only on the last day of an applicable Interest Period, (B) Base
Rate Loans may be converted into Eurodollar Rate Loans only on a Eurodollar
Business Day and (C) Swing Loans shall be maintained as Base Rate Loans at all
times.
(ii) Base Rate Loans shall continue as Base Rate Loans
unless and until such Loans are converted into Loans of another Type.
Eurodollar Rate Loans of any Type shall continue as Loans of such Type
until the end of the then current Interest Period therefor, at which time
they shall be automatically converted into Base Rate Loans unless the
Borrower shall have given the Administrative Agent notice in accordance
with Section 1.04(c)(iv) requesting either that such Loans continue as
Loans of such Type for another Interest Period or that such Loans be
converted into Loans of another Type at the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained
in Section 1.04(c)(i) or (ii), during a Default, the Administrative Agent
may, and upon the direction of the
Required Banks shall, notify the Borrower that Loans may only be
converted into or continued as Loans of certain specified Types and,
thereafter, until no Default shall continue to exist, Loans may not be
converted into or continued as Loans of any Type other than one or more
of such specified Types, PROVIDED that, notwithstanding the foregoing,
Loans may continue as or be converted into Base Rate Loans.
(iv) The Borrower shall give the Administrative Agent
notice (which shall be irrevocable) of each conversion of Loans or
continuation of Eurodollar Rate Loans no later than 10:00 a.m. (New York
time) on, in the case of a conversion into Base Rate Loans, the Business
Day before the requested date of such conversion, and, in the case of a
conversion into or continuation of Eurodollar Rate Loans, the third
Eurodollar Business Day before the requested date of such conversion or
continuation. Each notice of conversion or continuation shall be in the
form of SCHEDULE 1.04(c)(iv) and shall specify (A) the requested date of
such conversion or continuation, (B) the amount and Type and, in the case
of Eurodollar Rate Loans, the last day of the applicable Interest Period
of the Loans to be converted or continued and (C) the amount and Type or
Types of Loans into which such Loans are to be converted or as which such
Loans are to be continued. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of (x) the contents
thereof, (y) the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of each Loan to be
converted or continued by such Bank and (z) the amount and Type or Types
of Loans into which such Loans are to be converted or as which such Loans
are to be continued.
(d) MAXIMUM INTEREST RATE. Nothing contained in the Loan
Documents shall require the Borrower at any time to pay interest at a rate
exceeding the Maximum Permissible Rate. If interest payable by the Borrower on
any date would exceed the maximum amount permitted by the Maximum Permissible
Rate, such interest payment shall automatically be reduced to such maximum
permitted amount, and interest for any subsequent period, to the extent less
than the maximum amount permitted for such period by the Maximum Permissible
Rate, shall be increased by the unpaid amount of such reduction. Any interest
actually received for any period in excess of such maximum amount permitted for
such period shall be deemed to have been applied as a prepayment of the Loans
or, if no Loans are outstanding, such excess shall be refunded to the Borrower.
Section 1.05 REPAYMENT. (a) LOANS. Each of the Loans shall mature and
become due and payable, and shall be repaid by the Borrower, on the Maturity
Date.
(b) DRAWINGS. The Borrower shall reimburse the Issuing Bank
for each Drawing under a Letter of Credit on the date determined with respect to
such Drawing in the manner set forth in Section 1.03(g).
Section 1.06 PREPAYMENTS. (a) OPTIONAL PREPAYMENTS. The Borrower may,
at any time and from time to time, prepay the Loans in whole or in part, without
premium or penalty (but subject to Section 7.03), except that any partial
prepayment under this Section (other than a prepayment of Swing Loans) shall be
in an aggregate principal amount of at least, in the case of
Base Rate Loans, $500,000 or any integral multiple of $100,000 in excess thereof
and, in the case of Eurodollar Rate Loans, $1,000,000 or an integral multiple of
$250,000 in excess thereof, and any prepayment of Eurodollar Rate Loans made on
a day other than the last day of an applicable Interest Period shall be
accompanied by the amount, if any, required to be paid in respect thereof
pursuant to Section 7.03 hereof. The Borrower shall give the Administrative
Agent notice of each prepayment pursuant to this Section 1.06(a) no later than
10:00 a.m. (New York time) on, in the case of a prepayment of Base Rate Loans
(other than Swing Loans), the first Business Day, and, in the case of a
prepayment of Eurodollar Rate Loans, the third Eurodollar Business Day, before
the date of such prepayment and, in the case of a prepayment of Swing Loans, the
day of such prepayment. Each such notice of prepayment shall be in the form of
SCHEDULE 1.06(A) and shall specify (i) the date such prepayment is to be made
and (ii) the amount and Type and, in the case of Eurodollar Rate Loans, the last
day of the applicable Interest Period of the Loans to be prepaid. Upon receipt
of any such notice, the Administrative Agent shall promptly notify each Bank of
the contents thereof and the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of each Loan of such Bank
to be prepaid. Amounts to be prepaid pursuant to this Section 1.06(a) shall
irrevocably be due and payable on the date specified in the applicable notice of
prepayment, together with interest thereon as provided in Section 1.04(b).
(b) MANDATORY PREPAYMENTS. The Borrower shall, on each date
that a reduction in the aggregate amount of the Commitments causes the sum of
the aggregate outstanding principal amount of the Loans and the aggregate amount
of Letter of Credit Participations to exceed the aggregate amount of the
Commitments, prepay the Loans and the Contingent Reimbursement Obligations, in
an aggregate amount not less than the amount of such excess, together with
interest thereon as provided in Section 1.04(b), on the date of such reduction.
(c) REBORROWING. Amounts of Loans prepaid prior to the
Maturity Date may, subject to the terms and conditions hereof (including, but
not limited to, Sections 1.01 and 1.08(b)), be reborrowed.
Section 1.07 LIMITATION ON TYPES OF LOANS. Notwithstanding anything to
the contrary contained in this Agreement, the Borrower shall borrow, prepay,
convert and continue Loans in a manner such that (a) the aggregate principal
amount of Eurodollar Rate Loans of the same Type and having the same Interest
Period shall at all times be not less than $1,000,000 (b) there shall not be, at
any one time, more than five Interest Periods in effect with respect to
Eurodollar Rate Loans of all Types and (c) no payment of Eurodollar Rate Loans
will have to be made prior to the last day of an applicable Interest Period in
order to repay the Loans in the amounts and (subject to Section 1.12(d)) on the
dates specified in Section 1.05 or determined pursuant to Section 1.06(b).
Section 1.08 REDUCTION AND TERMINATION OF COMMITMENTS. (a) OPTIONAL
REDUCTION OF COMMITMENTS. The Borrower may terminate or reduce the aggregate
amount of the Commitments by giving the Administrative Agent notice (which shall
be irrevocable) thereof no later than 10:00 a.m. (New York time) on the third
Business Day before the requested date of
such reduction, except that (i) each partial reduction of the aggregate amount
of the Commitments shall be in an aggregate amount equal to $1,000,000 or any
integral multiple of $500,000 in excess thereof and (ii) no reduction may reduce
the aggregate amount of the Commitments to an amount less than the sum of the
aggregate principal amount of all Loans and the amount of all Letter of Credit
Participations outstanding on such date. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
the amount to which such Bank's Commitment is to be reduced.
(b) MANDATORY REDUCTION OF COMMITMENTS. (i) The aggregate
Commitments shall be automatically and permanently reduced by (A) $15,000,000
(subject to reduction as provided in Section 1.08(c)) on September 30, 2004
(which amount shall be increased by the amount, if any, by which the Commitments
had been increased pursuant to Section 1.16) and (B) $25,000,000 (subject to
reduction as provided in Section 1.08(c)) on the last day of each calendar
quarter, commencing December 31, 2004.
(ii) In the event that the Borrower or any Subsidiary
shall receive Net Proceeds from the sale or disposition of any assets
(including any loss or damage to, or condemnation of, such assets), the
aggregate Commitments shall be automatically and permanently reduced (A)
on the fifth day following the end of the Reinvestment Contract Period
with respect to such sale or disposition, in an amount equal to the Net
Proceeds of such sale or disposition less the Reinvested Amount with
respect thereto and (B) on the fifth day following the end of the
Reinvestment Period with respect to such sale or disposition, in an
amount equal to the portion, if any, of such Reinvested Amount that would
have been paid pursuant to Reinvestment Contracts that shall have
terminated, or with respect to which the closing of the transaction
provided for therein shall not have occurred, within such Reinvestment
Period.
(iii) In the event that the Borrower or any Subsidiary
shall issue or otherwise incur Indebtedness (other than the Indebtedness
under the Loan Documents, Existing Debt or any increase of the aggregate
principal amount of the 1999 Notes up to $300,000,000), the net proceeds
of which, together with the aggregate net proceeds of all other such
issuances and incurrences after the Agreement Date, are in excess of
$100,000,000 ("Excess Net Proceeds"), the aggregate Commitments shall be
automatically and permanently reduced on the fifth day following the day
on which the Borrower shall have received such net proceeds in an amount
equal to the portion of such net proceeds constituting Excess Net
Proceeds.
(c) APPLICATION TO SCHEDULED REDUCTIONS. (i) Each reduction of
the Commitments pursuant to Section 1.08(a) shall be applied to the remaining
reductions thereof scheduled to be made pursuant to Section 1.08(b)(i) in the
inverse order in which they are scheduled to occur.
(ii) Each reduction of the Commitments pursuant to
Section 1.08(b)(ii) or 1.08(b)(iii) shall be applied to the remaining
reductions thereof scheduled to be made
pursuant to Section 1.08(b)(i) (as such amounts may have been previously
reduced by the operation of this Section 1.08(c)) pro rata in accordance
with the relative amounts thereof.
Section 1.09 FEES. (a) COMMITMENT FEES. The Borrower shall pay
to the Administrative Agent for the account of each Bank a commitment fee on the
daily unused aggregate amount of such Bank's Commitment for each day from the
Agreement Date through the Maturity Date, at a rate per annum of (i) so long as
the ratio of Consolidated Debt to Operating Cash Flow is equal to or greater
than 5.50 to 1.00, 0.500%, (ii) so long as the ratio of Consolidated Debt to
Operating Cash Flow is equal to or greater than 4.00 to 1.00, but less than 5.50
to 1.00, 0.375% and (iii) at all other times, 0.250%, payable quarterly in
arrears on successive Interest Payment Dates, on the Maturity Date and on the
date of any reduction of the Commitment (to the extent accrued and unpaid on the
amount of such reduction). For this purpose, Swing Loans shall not constitute a
utilization of any Bank's Commitment.
(b) LETTER OF CREDIT FEES. (i) The Borrower shall pay to the
Administrative Agent for the account of each Participating Bank a letter of
credit fee on the daily aggregate amount of the Contingent Reimbursement
Obligations under each Letter of Credit at a rate per annum equal to the
Eurodollar Rate Margin in effect at such time. Such fees shall be payable in
arrears on successive Interest Payment Dates and on the date of expiration or
termination of each Letter of Credit.
(ii) The Borrower shall pay to the Agent for the account
of the Issuing Bank a letter of credit issuance fee on the daily
aggregate face amount of all Letters of Credit issued hereunder at a rate
per annum of 0.125%. Such fees shall be payable in arrears on successive
Interest Payment Dates and on the date of expiration or termination of
each Letter of Credit; PROVIDED, that no such quarterly payment shall in
any event be less than $125.00.
Section 1.10 COMPUTATION OF INTEREST AND FEES. Interest and the
commitment and letter of credit fees shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed. Interest, commitment
fees and letter of credit fees for any period shall be calculated from and
including the first day thereof to but excluding the last day thereof.
Section 1.11 EVIDENCE OF INDEBTEDNESS. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of
such Banks and a single Note payable to the order of such Bank. The Swing Loans
and the Borrower's obligation to repay the Swing Loans with interest in
accordance with the terms of this Agreement shall be evidenced by this
Agreement, the records of the Swing Loan Lender, and a single Swing Loan Note
payable to the order of the Swing Loan Lender. Each Bank's Letter of Credit
Participations shall be evidenced by this Agreement, the records of such Bank
and the Letters of Credit. The records of each Bank and the Swing Loan Lender
shall be prima facie evidence of such Bank's Loans and Letter of Credit
Participations, of the Swing Loan Lender's Swing Loans and, in each case, of
accrued interest thereon and of all payments made in respect thereof.
Section 1.12 PAYMENTS BY THE BORROWER. (a) TIME, PLACE AND MANNER.
All payments due to the Administrative Agent, the Swing Loan Lender or the
Issuing Bank under the Loan Documents shall be made to the Administrative Agent
at the Administrative Agent's Office or to such other Person or at such other
address as the Administrative Agent, the Swing Loan Lender or the Issuing Bank,
respectively, may designate by notice to the Borrower. All payments due to any
Bank under the Loan Documents shall, in the case of payments on account of
principal of or interest on the Loans or fees, be made to the Administrative
Agent at the Administrative Agent's Office and, in the case of all other
payments, be made directly to such Bank at its Domestic Lending Office or at
such other address as such Bank may designate by notice to the Borrower. All
payments due to any Bank under the Loan Documents, whether made to the
Administrative Agent or directly to such Bank, shall be made for the account of,
in the case of payments in respect of Eurodollar Rate Loans, such Bank's
Eurodollar Lending Office and, in the case of all other payments, such Bank's
Domestic Lending Office. A payment shall not be deemed to have been made on any
day unless such payment has been received by the required Person, at the
required place of payment, in Dollars in funds immediately available to such
Person at such place, no later than 12:00 noon (New York time) on such day.
(b) NO REDUCTIONS. All payments due to the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or any Bank under the Loan
Documents, and all other terms, conditions, covenants and agreements to be
observed and performed by the Borrower thereunder, shall be made, observed or
performed by the Borrower without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether sounding in tort, contract or otherwise) or Tax except for any Tax
required to be withheld or deducted in accordance with Section 1.14.
(c) AUTHORIZATION TO CHARGE ACCOUNTS. The Borrower hereby
authorizes the Administrative Agent, the Issuing Bank, the Swing Loan Lender and
each Bank, if and to the extent any amount payable by the Borrower under the
Loan Documents (whether payable to such Person or to any other Person that is
the Administrative Agent, the Issuing Bank, the Swing Loan Lender or a Bank) is
not otherwise paid when due, to charge such amount against any or all of the
accounts of such Borrower or any Wholly Owned Subsidiary with the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or any such Bank or any of its
Affiliates (whether maintained at a branch or office located within or without
the United States), with the Borrower remaining liable for any deficiency.
(d) EXTENSION OF PAYMENT DATES. Whenever any payment to the
Administrative Agent, the Issuing Bank, the Swing Loan Lender or any Bank under
the Loan Documents would otherwise be due (except by reason of acceleration) on
a day that is not a Business Day, or, in the case of payments of the principal
of Eurodollar Rate Loans, a Eurodollar Business Day, such payment shall instead
be due on the next succeeding Business or Eurodollar Business Day, as the case
may be, unless, in the case of a payment of the principal of Eurodollar Rate
Loans, such extension would cause payment to be due in the next succeeding
calendar month, in which case such due date shall be advanced to the next
preceding Eurodollar Business Day. If the date any payment under the Loan
Documents is due is extended (whether by
operation of any Loan Document, Applicable Law or otherwise), such payment shall
bear interest for such extended time at the rate of interest applicable
hereunder.
Section 1.13 DISTRIBUTION OF PAYMENTS BY THE ADMINISTRATIVE AGENT. (a)
The Administrative Agent shall promptly distribute to the Issuing Bank, the
Swing Loan Lender and each Bank its ratable share of each payment received by
the Administrative Agent under the Loan Documents for the account of the Issuing
Bank, the Swing Loan Lender and the Banks by credit to an account of the Issuing
Bank, the Swing Loan Lender or such Bank at the Administrative Agent's Office or
by wire transfer to an account of the Issuing Bank, the Swing Loan Lender or
such Bank at an office of any other commercial bank located in the United
States.
(b) Unless the Administrative Agent shall have received notice
from the applicable Loan Party prior to the date on which any payment is due to
the Banks under the Loan Documents that such Loan Party will not make such
payment in full, the Administrative Agent may assume that such Loan Party has
made such payment in full to the Administrative Agent on such date and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, cause to be distributed to the Issuing Bank, the Swing Loan Lender
and each Bank on such due date a corresponding amount with respect to the amount
then due the Issuing Bank, the Swing Loan Lender and such Bank. If and to the
extent such Loan Party shall not have so made such payment in full to the
Administrative Agent and the Administrative Agent shall have so distributed to
the Issuing Bank, the Swing Loan Lender or any Bank a corresponding amount, the
Issuing Bank, the Swing Loan Lender or such Bank shall, on demand, repay to the
Administrative Agent the amount so distributed together with interest thereon,
for each day from the date such amount is distributed to the Issuing Bank, the
Swing Loan Lender or such Bank until the date the Issuing Bank, the Swing Loan
Lender or such Bank repays such amount to the Administrative Agent, at the
Federal Funds Rate until (and including) the third Business Day after demand is
made and thereafter at the Base Rate.
Section 1.14 TAXES ON PAYMENTS (a) TAXES PAYABLE BY THE BORROWER. If
any Tax is required to be withheld or deducted from, or is otherwise payable by
the Borrower in connection with, any payment due to any Bank or any
Administrative Agent appointed in accordance with Section 8.08 that is not a
"UNITED STATES PERSON" (as such term is defined in Section 7701(a)(30) of the
Code) hereunder, the Borrower (i) shall, if required, withhold or deduct the
amount of such Tax from such payment and, in any case, pay such Tax to the
appropriate taxing authority in accordance with Applicable Law and (ii) except
in the case of any Bank Tax, shall pay to such Bank or Administrative Agent such
additional amounts as may be necessary so that the net amount received by such
Bank or Administrative Agent with respect to such payment, after withholding or
deducting all Taxes required to be withheld or deducted, is equal to the full
amount payable hereunder. If any Tax is withheld or deducted from, or is
otherwise payable by the Borrower in connection with, any payment due to any
such Bank or Administrative Agent hereunder, the Borrower shall furnish to such
Bank or Administrative Agent the original or a certified copy of a receipt for
such Tax from the applicable taxing authority within 30 days after the date of
such payment (or, if such receipt shall not have been made available by such
taxing authority within such time, the Borrower shall use reasonable efforts to
promptly obtain and
furnish such receipt). If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to any such Bank or
Administrative Agent the required receipts, the Borrower shall indemnify such
Bank or Administrative Agent for any Taxes, interest, penalties or additions to
Tax that may become payable by such Bank or Administrative Agent as a result of
any such failure.
(b) TAXES PAYABLE BY ANY BANK OR ADMINISTRATIVE AGENT. The
Borrower shall, promptly upon request by any Bank or Administrative Agent that
is not a United States person, pay to any such Bank or Administrative Agent an
amount equal to (i) all Taxes (other than Bank Taxes and without duplication of
amounts paid pursuant to Section 1.14(a)) payable by such Bank or Administrative
Agent with respect to any payment due to such Bank or Administrative Agent
hereunder and (ii) all Taxes (other than Bank Taxes) payable by such Bank or
Administrative Agent as a result of payments made by the Borrower (whether made
to a taxing authority or to such Bank or Administrative Agent) pursuant to
Section 1.14(a) or this Section 1.14(b).
(c) EXEMPTION FROM U.S. WITHHOLDING TAXES. (i) Each Bank that
is not a United States person shall submit to the Borrower and the
Administrative Agent, on or before the fifth day prior to the first Interest
Payment Date occurring after the Agreement Date (or, in the case of a Person
that is not a United States person and that became a Bank by assignment,
promptly upon such assignment), two duly completed and signed copies of either
(A) (1) Form 1001 of the United States Internal Revenue Service entitling such
Bank to a complete exemption from withholding on all amounts to be received by
such Bank pursuant to this Agreement and the Loans or (2) Form 4224 of the
United States Internal Revenue Service relating to all amounts to be received by
such Bank pursuant to this Agreement and the Loans and Form W-9 of the United
States Internal Revenue Service or (B) in the case of any Bank (or Person that
becomes a Bank by assignment) that is exempt from United States Federal
withholding tax pursuant to Sections 871(b) or 881(c) of the Code, Form W-8 of
the United States Internal Revenue Service. Each such Bank shall, from time to
time after submitting any such form, submit to the Borrower and the
Administrative Agent such additional duly completed and signed copies of one or
another such forms (or any successor forms as shall be adopted from time to time
by the relevant United States taxing authorities) as may be (A) requested in
writing by the Borrower or the Administrative Agent and (B) appropriate under
the circumstances and under then current United States law or regulations to
avoid or reduce United States withholding taxes on payments in respect of all
amounts to be received by such Bank pursuant to this Agreement or the Loans.
Upon the request of the Borrower or the Administrative Agent, each Bank that is
a United States person shall submit to the Borrower and the Administrative Agent
a certificate to the effect that it is a United States person.
(ii) If any Bank determines that it is unable to submit
to the Borrower or the Administrative Agent any form or certificate that
such Bank is obligated to submit pursuant to the preceding paragraph, or
that it is required to withdraw or cancel any such form or certificate,
or that any such form or certificate previously submitted has otherwise
become ineffective or inaccurate, such Bank shall promptly notify the
Borrower and the Administrative Agent of such fact.
(iii) Notwithstanding anything to the contrary contained
herein, the Borrower shall not be required to pay any additional amount
in respect of United States withholding taxes pursuant to Section 1.14(a)
or Section 7.02 to any Bank that (A) is not, on the Agreement Date (or,
in the case of a Person that became a Bank by assignment, on the date of
such assignment), either (x) entitled to submit Form W-8 or Form 1001 of
the United States Internal Revenue Service entitling such Bank to a
complete exemption from withholding on all amounts to be received by such
Bank pursuant to this Agreement and the Loans or Form 4224 of the United
States Internal Revenue Service relating to all amounts to be received by
such Bank pursuant to this Agreement and the Loans and Form W-9 of the
United States Internal Revenue Service or (y) a United States person, (B)
is no longer entitled, or in the case of a Bank that is no longer a
United States person, is not entitled, to submit either such form (or any
successor form as shall be adopted from time to time by the relevant
United States taxing authorities) as a result of any change in
circumstances or other event other than a Regulatory Change or (C) with
respect to any affected interest payments, fails to fulfill its
requirements set forth in Section 1.14(c)(i). If, as a result of a
Regulatory Change, a Bank is no longer entitled to submit Form W-8, Form
W-9, Form 1001 or Form 4224 of the United States Internal Revenue service
(or any successor form), such Bank shall, if requested by the Borrower,
use reasonable efforts to designate another Lending Office or Offices the
designation of which will reduce or eliminate payments under this Section
1.14, provided that such designation would not, in the sole and absolute
discretion of such Bank, be disadvantageous to such Bank in any manner or
contrary to such Bank's policies. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Bank in connection with any
such designation.
(d) NOTIFICATION AND CONTEST If a taxing authority imposes or
seeks to impose upon the Administrative Agent or any Bank any Taxes with respect
to which the Borrower would be required to make a payment under this Section
1.14, the Administrative Agent or such Bank shall promptly notify the Borrower
of such imposition.
(e) CREDITS AND DEDUCTIONS If the Administrative Agent or a
Bank receives a refund or otherwise realizes a reduction of, or credit against,
its Tax liabilities in any taxable year in connection with a Tax indemnified by
the Borrower under this Section 1.14, it shall pay to the Borrower an amount
equal to the net after-tax value to the Administrative Agent or such Bank, in
its sole opinion, of such part of such refund or other reduction as it considers
to be allocable to such payment by the Borrower, having regard to all of the
Administrative Agent's or such Bank's dealings giving rise to similar refunds or
other reductions in relation to the same tax period and to the cost of obtaining
the same; PROVIDED, HOWEVER, that if the Administrative Agent or any Bank has
made a payment to the Borrower pursuant to this Section 1.14(e) and the
applicable refund or other reduction in Tax is subsequently disallowed, the
Borrower shall, promptly upon request by the Administrative Agent or such Bank,
refund to the Administrative Agent or such Bank that portion of such payment
determined by the Administrative Agent or such Bank, in its sole opinion,
relating to such disallowance; and PROVIDED, FURTHER that (i) the Administrative
Agent or such Bank, as the case may be, shall not be obligated to disclose to
the Borrower any information regarding its Tax affairs or computations and (ii)
nothing in this
Section 1.14(e) shall interfere with the right of the Administrative Agent or
any Bank to arrange its Tax affairs as it deems appropriate.
Section 1.15 PRO RATA TREATMENT. Except to the extent otherwise
provided herein, (a) Loans (other than Swing Loans) shall be made by the Banks
pro rata in accordance with their respective Commitments, (b) Loans of the Banks
shall be converted and continued pro rata in accordance with their respective
amounts of Loans of the Type and, in the case of Eurodollar Rate Loans, having
the Interest Period being so converted or continued, (c) each reduction in the
Commitments shall be made pro rata in accordance with the respective amounts
thereof and (d) each payment of the principal of or interest on the Loans,
reimbursement of Drawings under Letters of Credit or of commitment or letter of
credit fees shall be made for the account of the Banks and, if applicable, the
Issuing Bank or the Swing Loan Lender pro rata in accordance with their
respective amounts thereof then due and payable.
Section 1.16 INCREASE IN COMMITMENTS. (a) At any time within the
period of 24 months immediately following the Agreement Date, the Borrower may
request one or more Banks to increase their respective Commitments, or other
lending institutions to provide Commitments, and, in the sole discretion of each
such Bank or other institution, any such Bank or other institution may agree to
so commit; PROVIDED that (i) no Event of Default then exists or would result
therefrom, (ii) the increase in the Commitments pursuant to any such request
shall be in an aggregate amount of at least $5,000,000, (iii) after giving
effect to such increase, the aggregate Commitments shall not exceed $250,000,000
and (iv) any such other lending institution shall be reasonably satisfactory to
the Administrative Agent, the Issuing Bank and the Swing Loan Lender. In
connection with such increase, Annex A shall be deemed modified to reflect the
increased Commitments of any existing Banks and the identity and the Commitments
of such new lenders, and such new lenders shall be and become Banks hereunder
for all purposes hereof and of the other Loan Documents. In connection with any
such increase, the Borrower shall execute and deliver new Notes to any such new
lenders and the Banks (including such new lenders) shall effect such purchases
and sales among themselves of portions of the outstanding Loans as shall be
necessary to reflect such Commitments, as specified by the Administrative Agent,
and, in connection with such purchases and sales, the Borrower shall pay to each
affected Bank an amount equal to the amount the Borrower would have had to pay
pursuant to Section 7.03 if such Loans, or portions thereof, were prepaid at
such time.
(b) An increase in Commitments pursuant to this Section 1.16
shall become effective so long as each of the following conditions shall have
been fulfilled: (i) the Administrative Agent shall have received opinions of
counsel to the Borrower in form and substance reasonably satisfactory to the
Administrative Agent, and (ii) the Administrative Agent shall have received such
other instruments and documents, in form and substance satisfactory to it, as it
shall have reasonably requested, including an acknowledgment from each
Applicable Bank of the Commitment provided by it.
ARTICLE 2
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 2.01 CONDITIONS TO INITIAL LOANS AND LETTERS OF CREDIT. The
obligation of each Bank to make its initial Loan or the Issuing Bank to issue
the initial Letter of Credit hereunder, whichever shall first occur, is subject
to the determination by each Bank and the Issuing Bank, each in its sole and
absolute discretion, that each of the following conditions has been fulfilled:
(a) the Administrative Agent shall have received each of the
following, in form and substance and, in the case of the materials referred to
in clauses (i), (ii), (vi) and (x), certified in a manner satisfactory to the
Administrative Agent:
(i) a certificate of the Secretary or an Assistant
Secretary of each Loan Party, dated the Agreement Date, substantially in
the form of SCHEDULE 2.01(a)(i), to which shall be attached copies of the
resolutions and by-laws referred to in such certificate;
(ii) a copy of the certificate of incorporation of each
Loan Party, certified, as of a recent date, by the Secretary of State or
other appropriate official of such Person's jurisdiction of
incorporation;
(iii) a good standing certificate with respect to each
Loan Party and each Consolidated Subsidiary, issued as of a recent date
by the Secretary of State or other appropriate official of such Person's
jurisdiction of incorporation;
(iv) an opinion of counsel for each Loan Party, dated the
Agreement Date, in the form of SCHEDULE 2.01(a)(iv), with such changes as
the Administrative Agent shall approve;
(v) an opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
special counsel for the Administrative Agent, dated the Agreement Date,
in the form of Schedule 2.01(a)(v);
(vi) a copy of each Governmental Approval and other
consent or approval listed on SCHEDULE 3.03;
(vii) a duly executed Note for each Bank;
(viii) a duly executed Swing Note for the Swing Loan
Lender;
(ix) a duly executed copy of each of the Pledge
Agreements;
(x) a copy of the Tax Sharing Agreement and the
Management Agreement;
(xi) either (A) such duly executed UCC-1 financing
statements and other documents as the Administrative Agent may request,
the filing or recordation of which is
necessary or appropriate in the Administrative Agent's determination to
create or perfect a security interest in the Collateral under Applicable
Law, or (B) evidence of the filing or recordation of the same in such
offices as the Administrative Agent shall have specified; and
(xii) such instruments and other documents as the
Administrative Agent may request, the execution, delivery, filing or
possession of which is necessary or appropriate in the Administrative
Agent's determination to create or perfect a security interest in the
Collateral under Applicable Law, including but not limited to share
certificates and stock powers executed in blank with respect to the
Capital Securities subject to the Security Interest;
(b) the Administrative Agent shall be satisfied that,
simultaneously with the making of such initial Loans or issuance of such initial
Letters of Credit, all Indebtedness and other amounts payable under the Existing
Credit Agreement will be paid in full and the commitments to lend thereunder
will be terminated, and all Liens in favor of the lenders thereunder will be
terminated of record promptly thereafter;
(c) the Administrative Agent shall be satisfied that the ANI
Senior Discount Notes and the Subordinated Notes shall have been redeemed or
otherwise repaid in full, or defeased in a manner satisfactory to the
Administrative Agent, or will be so redeemed, repaid or defeased promptly
following the date of such initial Loans or Letter of Credit pursuant to
arrangements reasonably satisfactory to the Administrative Agent;
(d) all fees payable on or prior to the Agreement Date pursuant
to Section 1.09, and all amounts payable pursuant to Section 9.02 for which
invoices have been delivered to the Borrower on or prior to the Agreement Date,
shall have been paid in full or arrangements satisfactory to the Administrative
Agent shall have been made to cause them to be paid in full on the Agreement
Date.
Section 2.02 CONDITIONS TO EACH LOAN AND LETTER OF CREDIT. The
obligation of each Bank to make each Loan requested to be made by it, and the
obligation of the Issuing Bank to issue each Letter of Credit requested to be
issued by it (including any request to extend the expiry date of any Letter of
Credit to the date beyond the first anniversary of the original issuance thereof
or any automatic renewal thereof), is subject to the fulfillment of each of the
following conditions:
(a) the Administrative Agent, or in the case of a Swing Loan,
the Swing Loan Lender, shall have received a notice of borrowing with respect to
such Loan complying with the requirements of Section 1.02 or, in the case of a
Swing Loan, a notice of borrowing complying with the requirements of Section
1.01(b)(i) or, a notice of issuance with respect to such Letter of Credit
complying with the requirements of Section 1.03;
(b) each Loan Document Representation and Warranty shall be
true and correct at and as of the time such Loan is to be made or such Letter of
Credit is to be issued, both
with and without giving effect to such Loan or Letter of Credit and all other
Loans or Letters of Credit to be made or issued at such time and to the
application of the proceeds thereof;
(c) no Default shall have occurred and be continuing at the
time such Loan is to be made or such Letter of Credit is to be issued or would
result from the making of such Loan or the issuance of such Letter of Credit and
all other Loans and Letters of Credit to be made or issued at such time or from
the application of the proceeds thereof;
(d) in the case of any such Loan, such Loan will not contravene
any Applicable Law applicable to such Bank, including Regulation U; and
(e) in the case of any such Letter of Credit, the Issuing Bank
shall have received such other instruments and agreements related thereto as the
Issuing Bank shall have requested.
Except to the extent that the Borrower shall have disclosed in the notice
of borrowing or notice of issuance, or in a subsequent notice given to the Banks
or the Issuing Bank, as the case may be, prior to 5:00 p.m. (New York time) on
the Business Day before the requested date for the making of the requested Loans
or the issuance of the requested Letter of Credit, that a condition specified in
clause (b) or (c) above will not be fulfilled as of the requested time for the
making of such Loans or the issuance of such Letter of Credit, the Borrower
shall be deemed to have made a Representation and Warranty as of the time of the
making of such Loans that the conditions specified in such clauses have been
fulfilled as of such time. No such disclosure by the Borrower that a condition
specified in clause (b) or (c) above will not be fulfilled as of the requested
time for the making of the requested Loans shall affect the right of each Bank
or the Issuing Bank, as the case may be, to not make the Loans requested to be
made by it or to not issue the Letter of Credit requested to be issued by it if,
in such Bank's or the Issuing Bank's determination, such condition has not been
fulfilled at such time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, each Bank, the Swing Loan
Lender and the Issuing Bank to make each Loan requested to be made by it or
issue each Letter of Credit, the Borrower represents and warrants as follows:
Section 3.01 ORGANIZATION; POWER; QUALIFICATION. The Borrower and each
Subsidiary are corporations duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation, have
the corporate power and authority to own their respective properties and to
carry on their respective businesses as now being and hereafter proposed to be
conducted and are duly qualified and in good standing as foreign corporations,
and are authorized to do business, in all jurisdictions in which the character
of their respective properties or the nature of their respective businesses
requires such qualification or authorization, except for qualifications and
authorizations the lack of which, singly or in the aggregate, has not
had and will not have a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole, (b) any Loan Document or (c) the
Collateral.
Section 3.02 SUBSIDIARIES. SCHEDULE 3.02 sets forth, as of the
Agreement Date, all of the Subsidiaries, their jurisdictions of incorporation
and the percentages of the various classes of their Capital Securities owned by
the Borrower or another Subsidiary and indicates which Subsidiaries are
Consolidated Subsidiaries. The Borrower or another Subsidiary, as the case may
be, has the unrestricted right to vote (except as may be provided in the Pledge
Agreements), and (subject to limitations imposed by Applicable Law) to receive
dividends and distributions on, all Capital Securities indicated on SCHEDULE
3.02 as owned by the Borrower or such Subsidiary. All such Capital Securities
have been duly authorized and issued and are fully paid and nonassessable.
Section 3.03 AUTHORIZATION; ENFORCEABILITY; REQUIRED CONSENTS; ABSENCE
OF CONFLICTS. The Borrower and each Subsidiary has the power, and has taken all
necessary action (including, if a corporation, any necessary stockholder action)
to authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents to which it is a party and, in the case of
the Borrower, to borrow hereunder in the unused amount of the Commitments. This
Agreement has been, and each of the other Loan Documents to which the Borrower
or any Subsidiary is a party when delivered to the Administrative Agent will
have been, duly executed and delivered by the Borrower and each Subsidiary that
is a party thereto and is, or when so delivered will be, a legal, valid and
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by equitable principles
regardless of whether considered in a proceeding in equity or at law. The
execution, delivery and performance in accordance with their respective terms by
the Borrower and the Subsidiaries of the Loan Documents to which they are
parties, and each borrowing hereunder, whether or not in the amount of the
unused Commitments, do not and (absent any change in any Applicable Law or
applicable Contract) will not (a) require any Governmental Approval or any other
consent or approval, including any consent or approval of the stockholders of
the Borrower or any Subsidiary, other than Governmental Approvals and other
consents and approvals that have been obtained, are final and not subject to
review on appeal or to collateral attack, are in full force and effect and, in
the case of any such Governmental Approval or other consent or approval required
under any Applicable Law or Contract as in effect on the Agreement Date, are
listed on SCHEDULE 3.03, or (b) violate, conflict with, result in a breach of,
constitute a default under, or result in or require the creation of any Lien
(other than the Security Interest) upon any assets of the Borrower or any
Subsidiary under, (i) any Contract to which ANI, the Borrower or any Subsidiary
is a party or by which ANI, the Borrower or any Subsidiary or any of their
respective properties may be bound or (ii) any Applicable Law.
Section 3.04 TAXES. The Borrower and each Subsidiary have (a) filed all
material Tax returns required to have been filed by it under Applicable Law, (b)
paid all Taxes that are due and payable by it or have been assessed against it
except for Taxes the failure to have paid which does not contravene Section 4.01
and such Taxes as are being contested in good faith by
appropriate proceedings and (c) to the extent required by generally accepted
accounting principles, reserved against all Taxes that are payable by it but are
not yet due or that are due and payable by it or have been assessed against it
but have not yet been paid. Other than the Tax Sharing Agreement, there is in
effect no tax sharing, tax allocation or similar agreement to which the Borrower
or any of its Subsidiaries is a signatory providing for the manner in which tax
payments owing by members of the affiliated group of which the Borrower is the
"common parent" (within the meaning of Section 1504 of the Code) (whether in
respect of Federal or state income or other taxes) are allocated among the
members of such group.
Section 3.05 LITIGATION. Except as set forth on SCHEDULE 3.05, there
are not, in any court or before any arbitrator of any kind or before or by any
governmental or non-governmental body, any actions, suits or proceedings pending
or threatened (nor, to the knowledge of the Borrower and its Subsidiaries, is
there any basis therefor) against or in any other way relating to or affecting
(a) the Borrower or any Subsidiary or any of their respective businesses or
properties, (b) any Loan Document or (c) the Collateral, that, if adversely
determined, would, singly or in the aggregate, have a Materially Adverse Effect
on (x) the Borrower and the Consolidated Subsidiaries taken as a whole, (y) any
Loan Document or (z) the Collateral.
Section 3.06 BURDENSOME PROVISIONS. Neither the Borrower nor any
Subsidiary is a party to or bound by any Contract or Applicable Law, compliance
with which would be reasonably likely to have a Materially Adverse Effect on (a)
the Borrower and the Consolidated Subsidiaries taken as a whole, (b) any Loan
Document or (c) the Collateral.
Section 3.07 NO ADVERSE CHANGE OR EVENT. Since June 30, 1998, no change
in the business, assets, Liabilities, financial condition, results of operations
or business prospects of the Borrower or any Subsidiary has occurred, and no
event has occurred or failed to occur, that has had or would be reasonably
likely to have, either alone or in conjunction with all other such changes,
events and failures, a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole, (b) any Loan Document or (c) the
Collateral. Such an adverse change may have occurred, and such an event may
have occurred or failed to occur, at any particular time notwithstanding the
fact that at such time no Default shall have occurred and be continuing.
Section 3.08 ADDITIONAL ADVERSE FACTS. Except for facts and
circumstances disclosed on SCHEDULE 3.05 or SCHEDULE 3.08 or in the notes to the
financial statements referred to in Section 5.02(a), no fact or circumstance is
known to the Borrower, as of the Agreement Date, that, either alone or in
conjunction with all other such facts and circumstances, has had or would be
reasonably likely to have (so far as the Borrower and its Subsidiaries can
foresee) a Materially Adverse Effect on (a) the Borrower and the Consolidated
Subsidiaries taken as a whole, (b) any Loan Document or (c) the Collateral. If
a fact or circumstance disclosed on such Schedules or in such notes should in
the future have a Materially Adverse Effect on (x) the Borrower and the
Consolidated Subsidiaries taken as a whole, (y) any Loan Document or (z) the
Collateral, such Materially Adverse Effect shall be a change or event subject to
Section 3.07 notwithstanding such disclosure.
Section 3.09 INVESTMENT COMPANY ACT. Neither the Borrower nor any
Subsidiary is an "investment company" or a Person "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940.
Section 3.10 SUBSTANCE RELEASE AND DISPOSAL. Except as disclosed on
SCHEDULE 3.10, to the best of the Borrower's knowledge, (a) there have been no
releases or disposals of hazardous wastes, environmental contaminants or other
substances in quantities or locations that, singly or in the aggregate, would be
reasonably likely to result in the incurrence by the Borrower or any of its
Subsidiaries of remedial obligations under Applicable Law that would be
reasonably likely to have a Materially Adverse Effect on the Borrower and its
Consolidated Subsidiaries taken as a whole, and (b) neither the Borrower nor any
of its Subsidiaries has received any notice or order advising it that it has or
may have any remedial obligation with respect to any such releases or disposals
or that it is or may be responsible for the costs of any remedial action taken
or to be taken by any other Persons with respect to any such releases or
disposals, which obligation or cost, if fully payable, would, singly or in the
aggregate, be reasonably likely to have a Materially Adverse Effect on the
Borrower and its Consolidated Subsidiaries taken as a whole.
Section 3.11 SENIOR OBLIGATIONS. The obligations of the Borrower under
the Loan Documents constitute "Senior Debt" and "Designated Senior Debt", within
the meaning and pursuant to the terms of the 1997 Indenture and the 1999
Indenture.
Section 3.12 YEAR 2000. The Borrower and its Subsidiaries have reviewed
the effect of the Year 2000 Issue on the computer software, hardware and
firmware systems and equipment containing embedded microchips owned or operated
by or for the Borrower and its Subsidiaries or used or relied upon in the
conduct of their business (including systems and equipment supplied by others or
with which such computer systems of the Borrower and its Subsidiaries
interface). The costs to the Borrower and its Subsidiaries of any reprogramming
required as a result of the Year 2000 Issue to permit the proper functioning of
such systems and equipment and the proper processing of data, and the testing of
such reprogramming, and of the reasonably foreseeable consequences of the Year
2000 Issue to the Borrower or any of its Subsidiaries (including reprogramming
errors and the failure of systems or equipment supplied by others) are not
reasonably expected to result in a Default or Event of Default or to have a
Materially Adverse Effect on the Borrower and its Consolidated Subsidiaries
taken as a whole or the Collateral.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. THE BORROWER SHALL AND SHALL CAUSE EACH SUBSIDIARY TO:
Section 4.01 PRESERVATION OF EXISTENCE AND PROPERTIES, SCOPE OF
BUSINESS, COMPLIANCE WITH LAW, PAYMENT OF TAXES AND CLAIMS, PRESERVATION OF
ENFORCEABILITY. (a) Except as permitted by Section 4.10, preserve and maintain
its corporate existence and all of its other
franchises, licenses, rights and privileges, (b) preserve, protect and obtain
all Intellectual Property, and preserve and maintain in good repair, working
order and condition all other properties, required for the conduct of its
business, (c) engage only in businesses in substantially the same fields as the
businesses conducted on the Agreement Date, or in other businesses directly
related thereto, (d) comply with Applicable Law, (e) pay or discharge when due
all Taxes and all Liabilities that might become a Lien on any of its properties
and (f) take all action and obtain all consents and Governmental Approvals
required so that its obligations under the Loan Documents will at all times be
legal, valid and binding and enforceable in accordance with their respective
terms, except that this Section 4.01 (other than clauses (a), in so far as it
requires any Loan Party to preserve its corporate existence, (c) and (f)) shall
not apply in any circumstance where noncompliance, together with all other
noncompliances with this Section 4.01, will not have a Materially Adverse Effect
on (x) the Borrower and the Consolidated Subsidiaries taken as a whole, (y) any
Loan Document or (z) the Collateral.
Section 4.02 INSURANCE. Maintain insurance with responsible insurance
companies against at least such risks and in at least such amounts as is
customarily maintained by similar businesses, or as may be required by
Applicable Law or reasonably requested by the Required Banks.
B. THE BORROWER SHALL:
Section 4.03 [Reserved].
Section 4.04 ADDITIONAL SUBSIDIARIES. On or prior to the date it forms
or acquires any new Subsidiary, deliver to the Administrative Agent (i)
certificates representing all of the issued and outstanding shares of capital
stock of such new Subsidiary held by the Borrower and its Subsidiaries, together
with appropriate stock powers, duly endorsed in blank, (ii) unless otherwise
agreed by the Required Banks, a Subsidiary Guaranty Supplement in the form of
EXHIBIT B and a Pledge Agreement in the form of EXHIBIT C, each duly executed by
such new Subsidiary, and (iii) such certificates, resolutions, legal opinions,
copies of filings and notices, and other materials, relating to such new
Subsidiary, the documents referred to above and the actions required thereunder,
as the Administrative Agent may reasonably request.
Section 4.05 USE OF PROCEEDS. (a) Use the proceeds of the Loans (i) to
refinance Indebtedness or to pay any dividends to ANI for such purpose (in the
case of the ANI Senior Discount Notes and the Subordinated Notes), (ii) to fund
the purchase price of acquisitions not prohibited hereby, (iii) to fund working
capital requirements, (iv) to pay transaction costs in connection herewith and
(v) for other general corporate purposes, and (b) use the Letters of Credit only
for the purpose specified in Section 1.03(c). None of the proceeds of any of
the Loans and none of the Letters of Credit shall be used to purchase or carry,
or to reduce or retire or refinance any credit incurred to purchase or carry,
any margin stock (within the meaning of Regulations U and X of the Board of
Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any margin stock. If requested by any Bank,
the Borrower shall complete and sign Part I of a copy of Federal Reserve Form
U-1 referred to in Regulation U and deliver such copy to such Bank.
C. THE BORROWER SHALL NOT, AND SHALL NOT PERMIT ANY SUBSIDIARY TO,
DIRECTLY OR INDIRECTLY:
Section 4.06 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except that this Section 4.06 shall not apply to (a) Indebtedness
under the Loan Documents, (b) the Greenco Subordinated Debt (so long as any
Guaranty by the Borrower or any Subsidiary of any such Indebtedness of Newco
shall be subordinated on terms and conditions substantially equivalent to the
terms and conditions (including subordination provisions, covenants, events of
default, remedies and other relevant provisions) of the Greenco Note and the
Greenco Note Purchase Agreement, as determined by the Administrative Agent), the
1997 Subordinated Notes and the 1999 Subordinated Notes, (c) Existing Debt, (d)
Intercompany Debt, (e) Indebtedness in an outstanding aggregate amount not in
excess of $25,000,000 consisting of obligations as lessee under capital leases,
(f) other Indebtedness in an outstanding aggregate amount not in excess of
$50,000,000 and (g) other unsecured Indebtedness of the Borrower so long as (x)
no Default or Event of Default shall have occurred and be continuing at the time
of the incurrence of such Indebtedness, or would result from the incurrence
thereof, (y) the ratio of Consolidated Debt to Operating Cash Flow shall be
equal to or less than 5.00:1 after giving effect to such incurrence and (z) the
material terms of such Indebtedness (1) are no more restrictive or onerous on
the Borrower and its Subsidiaries, or confer greater rights on the holders
thereof, than the terms of the Loan Documents and the rights of the
Administrative Agent and the Banks thereunder and (2) do not (absent the right
to accelerate the maturity thereof upon the occurrence of an event of default in
connection therewith) require the repayment or prepayment of any portion of such
Indebtedness prior to the date that is six months after the Maturity Date.
Section 4.07 GUARANTIES. Be obligated, at any time, in respect of any
Guaranty, except that this Section 4.07 shall not apply to (a) Existing
Guaranties, (b) Permitted Guaranties and (c) guaranties which are permitted
Indebtedness under Section 4.06.
Section 4.08 LIENS. Permit to exist, at any time, any Lien upon any of
its properties or assets of any character, whether now owned or hereafter
acquired, or upon any income or profits therefrom, except that this Section 4.08
shall not apply to Permitted Liens; PROVIDED, HOWEVER, that if, notwithstanding
this Section 4.08, any Lien to which this Section is applicable shall be created
or arise, the Liabilities of the Loan Parties under the Loan Documents shall, to
the extent such Lien attaches to any asset that does not constitute Collateral
or to any asset with respect to which such Lien would be prior to the Security
Interest, automatically be secured by such Lien equally and ratably with the
other Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks'
security interest shall be perfected; PROVIDED FURTHER, HOWEVER, that
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a default by the Borrower in the performance or
observance of this Section 4.08.
Section 4.09 RESTRICTED PAYMENTS. Make or declare or otherwise become
obligated to make any Restricted Payment, except that this Section 4.09 shall
not apply to any Restricted Payment (a) made by any Subsidiary to the Borrower
or any other Subsidiary (other than the California Partnership, if the aggregate
amount thereof, together with the aggregate amount of
Investments in the California Partnership by the Borrower and the Subsidiaries
would, without duplication, exceed $25,000,000), (b) consisting of payments
under the Tax Sharing Agreement, (c) consisting of regularly scheduled payments
of interest on the Greenco Note, but only to the extent required in accordance
with the terms thereof to be made in cash, and (d) so long as no Default shall
have occurred and be continuing or would result therefrom, (i) made by the
Borrower to ANI for the purpose of redeeming or purchasing and retiring the 9%
Cumulative Preferred Stock of Denver Newspapers, Inc. held by Media General,
Inc., in an aggregate amount not in excess of $54,000,000 and (ii) made by the
Borrower to ANI in an amount not in excess of the sum of (A) $25,000,000,
(B) $5,000,000 during any fiscal year of the Borrower, commencing with the
fiscal year ending June 30, 2000 and (C) an amount in any fiscal year of the
Borrower equal to 50% of Excess Cash Flow for the immediately preceding fiscal
year commencing with the fiscal year ending June 30, 2000, so long as the ratio
of Consolidated Debt to Operating Cash Flow is less than 4.50 to 1.00 before and
after giving effect thereto, with any portion of such amounts described in
clauses (B) and (C) not paid in such fiscal year being permitted to be carried
forward and paid in any subsequent fiscal year; PROVIDED, HOWEVER, that the
amount of Restricted Payments permitted to be made pursuant to this Section
4.09(d) shall be reduced by the amount of Investments made pursuant to Section
4.12(g).
Section 4.10 MERGER OR CONSOLIDATION, ACQUISITIONS. Merge or
consolidate with any Person, or acquire any assets or business from or Capital
Securities of any Person (other than an acquisition of Capital Securities of a
Subsidiary, as long as such acquisition of Capital Securities is permitted under
Section 4.12(d)), except that, if both before and after giving effect thereto no
Default exits or would exist, this Section 4.10 shall not apply to (a) any
acquisition of assets in the ordinary course of business, (b) any merger or
consolidation of the Borrower with any one or more Persons; PROVIDED, that the
Borrower shall be the continuing Person, (c) any merger or consolidation of any
Subsidiary with any one or more other Subsidiaries so long as, in the case of
the California Partnership, it merges into a Subsidiary that shall have executed
and delivered a Guaranty Agreement and a Pledge Agreement and such Subsidiary
shall be the continuing Person and, in all other cases, if any such Subsidiary
is a Loan Party, it shall be the continuing Person, and (d) any acquisition
(whether by purchase or exchange, and whether constituting a purchase of assets
or stock) of newspaper publishing properties and directly related businesses so
long as, in the event that the aggregate purchase price with respect to such
acquisition is greater than $5,000,000, the Borrower shall have provided to the
Banks a certificate of the president or chief financial officer of the Borrower
stating that (i) each Loan Document Representation and Warranty is true and
correct in all material respects both immediately before and after giving effect
to such acquisition and (ii) no Default shall have occurred and be continuing
both immediately before and after giving effect to such acquisition, and no
Default shall have occurred and be continuing, including under Sections 4.22
through 4.26, after giving pro forma effect to such acquisition and any related
incurrence of Indebtedness by the Borrower or any Subsidiary.
Section 4.11 DISPOSITION OF ASSETS. Sell, lease, license, transfer or
otherwise dispose of any asset or any interest therein, except that this Section
4.11 shall not apply to (a) any disposition of any asset or any interest therein
in the ordinary course of business, (b) any disposition of any obsolete or
retired property not used or useful in its business, (c) any
disposition of any asset or any interest therein to the Borrower or a Subsidiary
that is a Guarantor, (d) any transaction to which any of the other provisions of
this Agreement (other than Section 4.15) is by its express terms inapplicable,
and (e) any other disposition, so long as no Default shall have occurred and be
continuing immediately prior or after giving effect to such disposition and
(i) such disposition is a sale to any Person for cash in
an amount not less than the fair market value of the assets sold net of
the liabilities assumed, as determined in the good faith judgment of the
Board of Directors of the Borrower or the applicable Subsidiary, and (A)
the Cash Flow Percentage attributable to such assets (including the
portion of assets exchanged, as provided in clause (ii) below, to which
the cash component, if any, of any such exchange is attributable),
together with the Cash Flow Percentage of all other assets sold by the
Borrower and its Subsidiaries pursuant to this clause (i), or exchanged
by the Borrower and its Subsidiaries pursuant to clause (ii) below,
within the prior four fiscal quarters of the Borrower, does not exceed
15% and (B) the Cash Flow Percentage attributable to such assets,
together with the Cash Flow Percentage (determined, with respect to prior
sales, at the time of each such sale) of all assets sold by the Borrower
and its Subsidiaries pursuant to this clause (i), and exchanged by the
Borrower and its Subsidiaries pursuant to clause (ii) below, since the
Agreement Date does not exceed 30%, and (C) the Borrower shall have
furnished to the Banks, not later than the fifth Business Day preceding
the date of any such disposition wherein the sale price is greater than
$5,000,000, a certificate of the president or chief financial officer of
the Borrower stating that (1) each Loan Document Representation and
Warranty is true and correct in all material respects both immediately
before and after giving effect to such disposition and (2) no Default
shall have occurred and be continuing both immediately before and after
giving effect to such disposition, and no Default shall have occurred and
be continuing, including under Sections 4.22 through 4.26, after giving
pro forma effect to such disposition, or
(ii) such disposition is an exchange, with any Person, of
assets exchanged by the Borrower or applicable Subsidiary comprising one
or more newspaper publishing properties or the stock of a Person owning
such property or properties for assets comprising one or more other
newspaper publishing properties of a similar nature and of equal or
greater value, as determined in the good faith judgment of the Board of
Directors of the Borrower or the applicable Subsidiary, and (A) the Cash
Flow Percentage attributable to such assets exchanged by the Borrower or
applicable Subsidiary, together with the Cash Flow Percentage
attributable to all other assets exchanged by the Borrower and its
Subsidiaries pursuant to this clause (ii), or sold by the Borrower and
its Subsidiaries pursuant to clause (i) above, within the prior four
fiscal quarters of the Borrower, does not exceed 15%, (B) the Cash Flow
Percentage attributable to such assets, together with the Cash Flow
Percentage (determined, with respect to prior exchanges, at the time of
each such exchange) attributable to all other assets exchanged by the
Borrower and its Subsidiaries pursuant to this clause (ii), and exchanged
by the Borrower and its Subsidiaries pursuant to clause (i) above, since
the Agreement Date, does not exceed 30%, and (C) the Borrower shall have
furnished to the Banks, not later than the
fifth Business Day preceding the date of any such exchange wherein the
fair market value of the assets received in exchange is greater than
$5,000,000, a certificate of the president or chief financial officer of
the Borrower stating that (1) each Loan Document Representation and
Warranty is true and correct in all material respects both immediately
before and after giving effect to such disposition, (2) no Default shall
have occurred and be continuing both immediately before and after giving
effect to such disposition, and no Default shall have occurred and be
continuing, including under Sections 4.22 through 4.26, after giving pro
forma effect to such disposition and (3) he value of the assets received
by the Borrower or applicable Subsidiary in such exchange is not less
than the fair market value of the assets disposed by the Borrower or such
Subsidiary in such exchange.
Section 4.12 INVESTMENTS. Make or acquire any Investment or have any
Investment outstanding, except that this Section 4.12 shall not apply to (a)
Existing Investments, (b) Money Market Investments, (c) Investments constituting
acquisitions permitted under Section 4.10, (d) Investments by the Borrower or
any Subsidiary in the Borrower or any Subsidiary that is a Guarantor, (e)
Investments by the Borrower or any Subsidiary in the California Partnership,
PROVIDED that such Investments, together with the aggregate amount of Restricted
Payments made to the California Partnership pursuant to Section 4.09(a), shall
not, without duplication, exceed $25,000,000 in the aggregate, (f) notes or
other instruments received by the Borrower or any Subsidiary as payment for the
disposition of assets in accordance with Section 4.11(a) hereof, (g) Investments
in Denver Newspapers, Inc. so long as the aggregate amount thereof, together
with the aggregate amount of Restricted Payments made pursuant to Section
4.09(d), is not in excess of the maximum amount of Restricted Payments otherwise
permitted to be made pursuant to Section 4.09(d) and (g) other Investments
(other than in the California Partnership) in newspaper publishing properties
and directly related businesses in an aggregate amount not in excess of
$25,000,000.
Section 4.13 TAXES OF OTHER PERSONS. (a) File a consolidated,
combined, unitary or similar group Tax return with any other Person other than,
in the case of the Borrower, a Consolidated Tax Subsidiary or ANI and, in the
case of any such Subsidiary, the Borrower, a Consolidated Tax Subsidiary or ANI
or (b) except as required by Applicable Law or as permitted by Section 4.09
hereof, pay or enter into any Contract to pay any Taxes owing by any Person
other than the Borrower or a Consolidated Tax Subsidiary.
Section 4.14 BENEFIT PLANS. (a) Have, or permit any of its ERISA
Affiliates to have, any Benefit Plan other than an Existing Benefit Plan; (b)
permit any Existing Benefit Plan to be amended in any manner that would cause
the aggregate Unfunded Benefit Liabilities under all Existing Benefit Plans to
exceed $500,000; or (c) permit any Existing Benefit Plan to have a Funded
Current Liability Percentage of less than 60%.
Section 4.15 TRANSACTIONS WITH AFFILIATES. Effect any transaction (or
series of related transactions) (each a "TRANSACTION") with any Affiliate of the
Borrower, including, without limitation, any sale, purchase, lease or loan or
any other direct or indirect payment, transfer or other disposition of assets,
property or services, unless (a) such Transaction is on terms no less
favorable to the Borrower or the applicable Subsidiary, as the case may be, than
those that could be obtained in a comparable arm's-length transaction with an
independent third party (the "FAIRNESS CONDITION") and (b) prior to effecting
such Transaction, the Borrower shall deliver to the Administrative Agent (i)
with respect to any Transaction involving aggregate consideration in excess of
$1,000,000, a certificate of the president or the chief financial officer of the
Borrower certifying that a majority of the disinterested members of the Board of
Directors of the Borrower has approved such Transaction and has determined that
the terms of such Transaction satisfy the Fairness Condition and (ii) with
respect to any Transaction (x) involving aggregate consideration in excess of
$1,000,000 in which there are no disinterested directors or (y) involving
aggregate consideration in excess of $10,000,000, a written opinion from a
nationally recognized investment banking firm stating that the terms of such
Transaction satisfy the Fairness Condition or are fair to the Borrower or the
applicable Subsidiary from a financial point of view; PROVIDED, HOWEVER, that
clause (b)(ii)(y) shall not apply to purchases of newsprint in the ordinary
course of business by the Borrower and its Subsidiaries from Affiliates of the
Borrower. Notwithstanding the foregoing, this provision shall not apply to (A)
any Transaction, in the ordinary course of business, between the Borrower and a
Wholly Owned Subsidiary of the Borrower, or between Wholly Owned Subsidiaries of
the Borrower, (B) the making of Investments not prohibited by Section 4.12, (C)
the making of any Restricted Payment not prohibited by Section 4.09 and (D) the
payment of fees payable pursuant to the Management Agreement.
Section 4.16 LIMITATION ON RESTRICTIVE COVENANTS. Permit to exist, at
any time, any consensual restriction limiting the ability (whether by covenant,
event of default, subordination or otherwise) of any Subsidiary to (a) pay
dividends or make any other distributions on shares of its capital stock held by
the Borrower or any other Subsidiary, (b) pay any obligation owed to the
Borrower or any other Subsidiary, (c) make any loans or advances to or
investments in the Borrower or in any other Subsidiary, (d) transfer any of its
property or assets to the Borrower or any other Subsidiary or (e) create any
Lien upon its property or assets whether now owned or hereafter acquired or upon
any income or profits therefrom, except that this Section 4.16 shall not apply
to Permitted Restrictive Covenants.
Section 4.17 ISSUANCE OR DISPOSITION OF CAPITAL SECURITIES. Issue any
of its Capital Securities or sell, transfer or otherwise dispose of any Capital
Securities of any Subsidiary, except for (a) any issuance of Capital Securities
that are subjected to the Security Interest in a manner satisfactory to the
Administrative Agent and (b) any disposition of Capital Securities of any
Subsidiary so long as all of the assets of such Subsidiary could have been
disposed of in compliance with Section 4.11(c) or (e).
Section 4.18 SUBSTANCE STORAGE AND DISPOSAL. Permit any hazardous
wastes, environmental contaminants or other substances, the improper release or
disposal of which could result in the incurrence by the Borrower or any of its
Subsidiaries of material remedial obligations under Applicable Law, to be
brought onto or stored on the properties owned or leased by it except for (a)
substances to be used in connection with the business of the Borrower and its
Subsidiaries, pending and during such use and (b) substances that were generated
or used in connection with such business, pending their disposal.
Section 4.19 MANAGEMENT AGREEMENT; TAX SHARING AGREEMENT. Amend,
supplement or otherwise change (or agree to any amendment, supplement or other
change of) the terms of the Management Agreement or the Tax Sharing Agreement.
Section 4.20 CERTAIN RESTRICTIONS WITH RESPECT TO OTHER INDEBTEDNESS.
Amend, supplement or otherwise change (or agree to any amendment, supplement or
other change of) the terms of the 1997 Subordinated Notes, the 1999 Subordinated
Notes, the 1997 Indenture, the 1999 Indenture, the Greenco Note, the Greenco
Note Purchase Agreement, or make any payment consistent with an amendment,
supplement or change thereto, if the effect of such amendment, supplement or
change is to increase the interest rate payable on the 1997 Subordinated Notes,
the 1999 Subordinated Notes or the Greenco Note, advance the dates upon which
payments of principal or interest are due on the 1997 Subordinated Notes, the
1999 Subordinated Notes or the Greenco Note (including any such change that adds
or modifies mandatory or voluntary prepayments), change, in a manner adverse to
the Borrower and the Subsidiaries or which confers additional rights on the
holders thereof, any event of default or covenant (or any definition relating
thereto) with respect to the 1997 Subordinated Notes, the 1999 Subordinated
Notes or the Greenco Note, change the redemption or repurchase provisions with
respect to the 1997 Subordinated Notes, the 1999 Subordinated Notes or the
Greenco Note in a manner adverse to the Borrower and the Subsidiaries or which
confers additional rights on the holders thereof, change the subordination
provisions of the 1997 Subordinated Notes, the 1999 Subordinated Notes or the
Greenco Note or otherwise increase the obligations of the obligor or confer
additional rights on the holders of the 1997 Subordinated Notes, the 1999
Subordinated Notes or the Greenco Note without, in each case, obtaining the
prior written consent of the Required Banks to such amendment or change.
Section 4.21 YEAR 2000. The Borrower shall take, and shall cause each
of its Subsidiaries to take, all necessary action to complete in all material
respects by September 30, 1999, the reprogramming of computer software, hardware
and firmware systems and equipment containing embedded microchips owned or
operated by or for the Borrower and its Subsidiaries or used or relied upon in
the conduct of their business (including systems and equipment supplied by
others or with which such systems of the Borrower or any of its Subsidiaries
interface) required as a result of the Year 2000 Issue to permit the proper
functioning of such computer systems and other equipment and the testing of such
systems and equipment, as so reprogrammed. At the request of the Administrative
Agent or any Bank, the Borrower shall provide, and shall cause each of its
Subsidiaries to provide, to the Administrative Agent or such Bank reasonable
assurance of its compliance with the preceding sentence.
D. THE BORROWER SHALL NOT AT ANY TIME:
Section 4.22 RATIO OF CONSOLIDATED DEBT TO OPERATING CASH FLOW. Permit
the ratio of Consolidated Debt to Operating Cash Flow at any time during a
period set forth below to be greater than the ratio set forth opposite such
period:
(a) From the Agreement Date through December 31, 1999: 6.50:1;
(b) From January 1, 2000 through December 31, 2000: 6.25:1;
(c) From January 1, 2001 through June 30, 2001: 6.00:1;
(d) From July 1, 2001 through June 30, 2002: 5.50:1;
(e) From July 1, 2002 through June 30, 2003: 5.00:1; and
(f) From July 1, 2003 and thereafter: 4.75:1;
PROVIDED, HOWEVER, that if the Borrower shall have issued or otherwise incurred
Indebtedness contemplated by Section 4.06(g) at any time prior to July 1, 2002,
the Borrower shall not permit the ratio of Consolidated Debt to Operating Cash
Flow to be greater than 5.00:1 at any time from the date of such issuance or
incurrence through June 30, 2003.
Section 4.23 RATIO OF CONSOLIDATED SENIOR DEBT TO OPERATING CASH FLOW.
Permit the ratio of Consolidated Senior Debt to Operating Cash Flow at any time
to be greater than 3.00:1.
Section 4.24 PRO FORMA INTEREST COVERAGE. Permit the ratio of Operating
Cash Flow to Pro Forma Consolidated Interest Expense determined as of the end of
any fiscal quarter ending in a period set forth below to be less than the ratio
set forth opposite such period:
(a) From the Agreement Date through June 29, 2000: 1.50:1;
(b) From June 30, 2000 through June 29, 2002: 1.75:1; and
(c) From June 30, 2002 and thereafter: 2.00:1.
Section 4.25 PRO FORMA DEBT SERVICE COVERAGE. Permit the ratio of
Operating Cash Flow to Pro Forma Debt Service determined as of the end of any
fiscal quarter to be less than 1.25:1.
Section 4.26 FIXED CHARGE COVERAGE. Permit the ratio of Operating Cash
Flow to Consolidated Fixed Charges determined as of the end of any fiscal
quarter to be less than 1.15:1.
E. THE BORROWER SHALL NOT PERMIT THE CALIFORNIA PARTNERSHIP TO, AND IN
THE CASE OF CLAUSES (b) AND (c) OF SECTION 4.27 THE BORROWER SHALL NOT, DIRECTLY
OR INDIRECTLY:
Section 4.27 CERTAIN ACTIVITIES OF THE CALIFORNIA PARTNERSHIP. (a)
Fail to make such partnership distributions or otherwise transfer its cash and
cash equivalents to the Borrower or any of the Subsidiaries, so that, as a
result of such distributions and transfers, the California Partnership shall own
or hold cash and cash equivalents not in excess of $10,000,000 at any time, (b)
amend, waive, modify or supplement the Contribution Agreement or the Partnership
Agreement in any manner that (i) is adverse to the Borrower or any Subsidiary or
(ii) has the effect of limiting or restricting the transferability of the
partnership interests in the California Partnership held by West Coast MediaNews
or any of its Affiliates or could otherwise have an adverse effect on the
practical ability of the Banks to realize the benefits of the Security Interest
(as the Security Interest applies to the partnership interests in the California
Partnership) and (c)
take any action or refrain from taking any action the result of which, directly
or indirectly, is that the California Partnership no longer constitutes a
Subsidiary or the Borrower no longer controls, directly or indirectly, the
California Partnership.
F. ANI SHALL NOT, DIRECTLY OR INDIRECTLY:
Section 4.28 INDEBTEDNESS OF ANI. Create, incur, assume or suffer to
exist any Indebtedness, except that this Section 4.28 shall not apply to (a)
Indebtedness under the Loan Documents and (b) its Guaranty of the Greenco Note.
ARTICLE 5
INFORMATION
Section 5.01 INFORMATION TO BE FURNISHED. From the Agreement Date and
until the Repayment Date, the Borrower shall furnish to each Bank:
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Borrower, commencing with the
quarterly period ended March 31, 1999 consolidated and consolidating balance
sheets of the Borrower and the Consolidated Subsidiaries as at the end of such
quarterly period and the related consolidated statements of income, statements
of income of each Consolidated Subsidiary and consolidated statements of cash
flows of the Borrower and the Consolidated Subsidiaries for such quarterly
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, setting forth in each case in comparative form the
figures for the corresponding periods of the previous fiscal year.
(b) MONTHLY REPORTS. As soon as available and in any event
within 45 days after the end of each month, the statements of revenues and
operating expenses of each of the Borrower and its Subsidiaries, for such month
and for the portion of the fiscal year then ended, including comparisons of
operations with budget and the prior year, in the form currently prepared for
management.
(c) YEAR-END FINANCIAL STATEMENTS; ACCOUNTANTS' CERTIFICATE.
As soon as available and in any event within 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ended June 30,
1999:
(i) consolidated and consolidating balance sheets of the
Borrower and the Consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income, statements of
income of each Consolidated Subsidiary and consolidated statements of
cash flows of the Borrower and the Consolidated Subsidiaries for such
fiscal year, setting forth in comparative form the figures as at the end
of and for the previous fiscal year;
(ii) an audit report of Ernst & Young, or other
independent certified public accountants of recognized standing
reasonably satisfactory to the Required Banks, on
such of the financial statements referred to in clause (i) as are
consolidated financial statements, which report shall be in scope and
substance reasonably satisfactory to the Required Banks;
(iii) a certificate of such accountants addressed to the
Banks (A) stating that they have caused this Agreement to be reviewed and
that, in making the examination necessary for their report on such
consolidated financial statements, nothing came to their attention that
caused them to believe that, as of the date of such financial statements,
any Default exists in respect of Sections 4.22 through 4.26 insofar as
they relate to accounting matters and (B) having attached the
calculations required to establish whether or not the Borrower was in
compliance with the covenants contained in Sections 4.22 to 4.26; and
(iv) the operating budget summary setting forth the
projections of operating revenues and expenses of the Borrower and the
Subsidiaries for the succeeding budget year.
(d) OFFICER'S CERTIFICATES. At the time that financial
statements are furnished pursuant to Section 5.01(a) or (c), a certificate of
the president or chief financial officer of the Borrower in the form of SCHEDULE
5.01(d). At the time that financial statements are furnished pursuant to
Section 5.01(a) and within 45 days after the end of each fiscal year of the
Borrower, a certificate of the president or chief financial officer of the
Borrower demonstrating the ratios of Consolidated Debt to Operating Cash Flow
and Consolidated Senior Debt to Operating Cash Flow and stating, if applicable,
that a change in the Base Rate Margin or Eurodollar Rate Margin should be made.
(e) REPORTS AND FILINGS. (i) Promptly upon receipt thereof,
copies of all reports, if any, submitted to the Borrower or any Subsidiary, or
the Board of Directors of the Borrower or any Subsidiary, by its independent
certified public accountants, including any management letter; (ii) as soon as
practicable, copies of all such financial statements and reports as ANI, the
Borrower or any Subsidiary shall send to its stockholders and of all
registration statements and all regular or periodic reports that ANI, the
Borrower or any Subsidiary shall file, or may be required to file, with the
Securities and Exchange Commission or any successor commission; (iii) promptly
upon the effectiveness thereof, copies of each amendment, supplement or
modification to the 1997 Indenture or the 0000 Xxxxxxxxx and (iv) as soon as
practicable, copies of all Information furnished to the holders of the 1997
Subordinated Notes or the 1999 Subordinated Notes.
(f) REQUESTED INFORMATION. From time to time and promptly upon
request of any Bank, such Information regarding the Loan Documents, the Loans,
the Letters of Credit or the business, assets, Liabilities, financial condition,
results of operations or business prospects of the Borrower and the Subsidiaries
as such Bank may request, in each case in form and substance and certified in a
manner reasonably satisfactory to the requesting Bank.
(g) NOTICE OF DEFAULTS, MATERIAL ADVERSE CHANGES AND OTHER
MATTERS. Prompt notice of:
(i) any Default of which the Borrower has knowledge,
(ii) the acquisition or formation of a new Subsidiary
and, in the case of each such new Subsidiary, its name, jurisdiction of
incorporation, the percentages of the various classes of its Capital
Securities owned by the Borrower or another Subsidiary and whether or not
such new Subsidiary is a Consolidated Subsidiary,
(iii) any change in the name of any Subsidiary, its
jurisdiction of incorporation, the percentages of the various classes of
its Capital Securities owned by the Borrower or another Subsidiary or its
status as a Consolidated or non-Consolidated Subsidiary,
(iv) to the extent that the Borrower has knowledge
thereof, the threatening or commencement of, or the occurrence or
nonoccurrence of any change or event relating to, any action, suit or
proceeding that would cause the Representation and Warranty contained in
Section 3.05 to be incorrect if made at such time,
(v) to the extent that the Borrower has knowledge
thereof, the occurrence or nonoccurrence of any change or event that
would cause the Representation and Warranty contained in Section 3.07 or
Section 3.10 to be incorrect if made at such time,
(vi) any event or condition referred to in clauses (i)
through (vii) of Section 6.01(g), whether or not such event or condition
shall constitute an Event of Default,
(vii) any amendment of the certificate of incorporation or
by-laws of the Borrower or any Subsidiary that is a Loan Party, and
(viii) the giving or receipt of any material notice or
other written communication under the Greenco Note Purchase Agreement or
the Partnership Agreement, together with copies of each such notice or
other communication.
Section 5.02 ACCURACY OF FINANCIAL STATEMENTS AND INFORMATION. (a)
HISTORICAL FINANCIAL STATEMENTS. The Borrower hereby represents and warrants
that (i) SCHEDULE 5.02(a) sets forth a complete and correct list of the
financial statements submitted by the Borrower to the Banks in order to induce
them to execute and deliver this Agreement, (ii) such financial statements are
complete and correct and present fairly, in accordance with Generally Accepted
Accounting Principles (except for normal year-end audit adjustments and, in the
case of unaudited financial statements, the absence of footnotes), the
consolidated and, to the extent applicable, consolidating financial position of
the Borrower and the Consolidated Subsidiaries as at their respective dates and
the consolidated and, to the extent applicable, consolidating results of
operations, retained earnings and, as applicable, changes in financial position
or cash flows of the Borrower and such Subsidiaries for the respective periods
to which such statements relate, and (iii) except as disclosed or reflected in
such financial statements or otherwise disclosed in writing to the Banks, as at
December 31, 1998, neither the Borrower nor any Subsidiary had any Liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the
aggregate, has had or would reasonably be expected to have a Materially Adverse
Effect on the Borrower and the Consolidated Subsidiaries taken as a whole.
(b) FUTURE FINANCIAL STATEMENTS. The financial statements
delivered pursuant to Section 5.01(a) or (c) shall be complete and correct and
present fairly, in accordance with Generally Accepted Accounting Principles
(except for changes therein or departures therefrom that are described in the
certificate or report accompanying such statements and that have been approved
in writing by the Borrower's then current independent certified public
accountants, and except for normal year-end audit adjustments and, in the case
of financial statements delivered pursuant to Section 5.01(a), the absence of
footnotes), the consolidated and, if prepared by the Borrower, consolidating
financial position of the Borrower and the Consolidated Subsidiaries as at their
respective dates and the consolidated and, if prepared by the Borrower,
consolidating results of operations, retained earnings and cash flows of the
Borrower and such Subsidiaries for the respective periods to which such
statements relate, and the furnishing of the same to the Banks shall constitute
a representation and warranty by the Borrower made on the date the same are
furnished to the Banks to that effect and to the further effect that, except as
disclosed or reflected in such financial statements, as at the respective dates
thereof, neither the Borrower nor any Subsidiary had any Liability, contingent
or otherwise, or any unrealized or anticipated loss, that, singly or in the
aggregate, has had or might have a Materially Adverse Effect on the Borrower and
the Consolidated Subsidiaries taken as a whole.
(c) HISTORICAL INFORMATION. The Borrower hereby represents and
warrants that all Information furnished to the Administrative Agent or the Banks
by or on behalf of the Borrower or any Subsidiary prior to the Agreement Date in
connection with or pursuant to the Loan Documents and the relationships
established thereunder, at the time the same was so furnished, but in the case
of Information dated as of a prior date, as of such date, (i) in the case of any
Information prepared in the ordinary course of business, was complete and
correct in the light of the purpose prepared, and, in the case of any
Information the preparation of which was requested by any Bank, was complete and
correct in all material respects to the extent necessary to give such Bank true
and accurate knowledge of the subject matter thereof, (ii) did not contain any
untrue statement of a material fact, and (iii) did not omit to state a material
fact necessary in order to make the statements contained therein not misleading
in the light of the circumstances under which they were made.
(d) FUTURE INFORMATION. All Information furnished or to be
furnished to the Administrative Agent or the Banks by or on behalf of the
Borrower or any Subsidiary on or after the Agreement Date in connection with or
pursuant to the Loan Documents or in connection with or pursuant to any
amendment or modification of, or waiver of rights under, the Loan Documents,
shall, at the time the same is so furnished, but in the case of Information
dated as of a prior date, as of such date, (i) in the case of any Information
prepared in the ordinary course of business, be complete and correct in the
light of the purpose prepared, and, in the case of any Information required by
the terms of the Loan Documents or the preparation of which was requested by any
Bank, be complete and correct to the extent necessary to give such Bank true and
accurate knowledge of the subject matter thereof, (ii) not contain any untrue
statement of a material fact, and (iii) not omit to state a material fact
necessary in order to make the statements
contained therein not misleading in the light of the circumstances under which
they were made, and the furnishing of the same to the Administrative Agent or
any Bank shall constitute a representation and warranty by the Borrower made on
the date the same are so furnished to the effect specified in clauses (i), (ii)
and (iii).
Section 5.03 ADDITIONAL COVENANTS RELATING TO DISCLOSURE. From the
Agreement Date and until the Repayment Date, the Borrower shall and shall cause
each Subsidiary to:
(a) ACCOUNTING METHODS AND FINANCIAL RECORDS. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete), as may be required or necessary to permit (i) the
preparation of financial statements required to be delivered pursuant to Section
5.01(a) and (c) and (ii) the determination of the compliance of the Borrower and
its Subsidiaries with the terms of the Loan Documents.
(b) FISCAL YEAR. Maintain the same opening and closing dates
for each fiscal year as for the fiscal year reflected in the Base Financial
Statements.
(c) VISITS, INSPECTIONS AND DISCUSSIONS. Permit, or, in the
case of premises, property, books, records or Persons not within its immediate
control, promptly take such actions as are necessary or desirable in order to
permit, representatives (whether or not officers or employees) of any Bank, from
time to time upon reasonable prior notice, as often as may be reasonably
requested, to (i) visit any of its premises or property or any premises or
property of others on which any of its property or books and records (or books
and records of others relating to it) may be located, (ii) inspect, and verify
the amount, character and condition of, any of its property, (iii) review and
make extracts from its books and records and books and records of others
relating to it, including management letters prepared by its independent
certified public accountants, and (iv) discuss with any Person (including its
principal officers, independent certified public accountants) its business,
assets, Liabilities, financial condition, results of operation and business
prospects.
Section 5.04 AUTHORIZATION OF THIRD PARTIES TO DELIVER INFORMATION AND
DISCUSS AFFAIRS. The Borrower hereby authorizes and directs each Person whose
preparation or delivery to the Administrative Agent or the Banks of any opinion,
report or other Information is a condition or covenant under the Loan Documents
(including under Article 2 or this Article 5) to so prepare or deliver such
Information for the benefit of the Administrative Agent and the Banks. Until
further written notice from the Borrower, the Borrower further authorizes and
directs all Persons (a) to furnish to the Banks any Information regarding the
matters referred to in Section 5.01(f) that any Bank may request, (b) to permit
representatives of any Bank upon reasonable notice to make the visits,
inspections, reviews and extracts of premises, property, books and records
within their possession and control contemplated by Section 5.03(c) and (c) to
discuss with representatives of any Bank the matters referred to in Section
5.03(c). The Borrower agrees to promptly execute and deliver from time to time
such further authorizations to effect the purposes of this Section 5.04 as the
Administrative Agent or any Bank may reasonably request.
ARTICLE 6
DEFAULT
Section 6.01 EVENTS OF DEFAULT. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Borrower, any
Subsidiary or any other Loan Party, or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any governmental or nongovernmental body:
(a) Any payment of principal of or interest on any of the Loans
or the Notes, any reimbursement of any Drawing or any payment of any fee, or any
cash collateralization of any Contingent Reimbursement Obligation, shall not be
made when and as due (whether at maturity, upon mandatory prepayment, by reason
of notice of prepayment or acceleration or otherwise) and in accordance with the
terms of this Agreement and the Notes;
(b) Any Loan Document Representation and Warranty shall at any
time prove to have been incorrect or misleading in any material respect when
made;
(c) (i) The Borrower shall default in the performance or
observance of:
(A) any term, covenant, condition or agreement
contained in Section 4.01(a) (insofar as such Section requires the
preservation of the corporate existence of each of the Loan
Parties), 4.01(f), 4.05 through 4.28, 5.01(g)(i), 5.03(b) or
5.03(c); or
(B) any term, covenant, condition or agreement
contained in any Loan Document (other than a term, covenant,
condition or agreement a default in the performance or observance
of which is elsewhere in this Section specifically dealt with)
and, if capable of being remedied, such default shall continue
unremedied for a period of 30 days; or
(ii) Any Loan Party shall default in the performance or
observance of:
(A) any term, covenant, condition or agreement
contained in Sections 1.02, 3.01, 3.02(a) (insofar as such Section
requires the preservation of the corporate existence of such Loan
Party), 3.02(d), 3.03(a) or 3.06 of any Pledge Agreement to which
such Loan Party is a party; or
(B) any term, covenant, condition or agreement
contained in any Loan Document (other than any term, covenant,
condition or agreement a default in the performance or observance
of which is elsewhere in this Section specifically dealt with)
and, if capable of being remedied, such default shall continue
unremedied for a period of 30 days after notice shall have been
given by the Administrative Agent to such Loan Party requiring
that such default be cured; or
(d) (i) ANI, the Borrower, any Subsidiary or any other Loan
Party shall fail to pay, in accordance with its terms and when due and payable
(giving effect to any applicable grace period), any of the principal of or
interest on any of its Indebtedness (other than the Loans) having an aggregate
principal amount in excess of $1,000,000, (ii) the maturity of any such
Indebtedness shall, in whole or in part, have been accelerated, or any such
Indebtedness shall, in whole or in part, have been required to be prepaid prior
to the stated maturity thereof, in accordance with the provisions of any
Contract evidencing, providing for the creation of or concerning such
Indebtedness, or (iii) (A) any event shall have occurred and be continuing that
permits (or, with the passage of time or the giving of notice or both, would
permit) any holder or holders of such Indebtedness, any trustee or agent acting
on behalf of such holder or holders or any other Person so to accelerate such
maturity or require any such prepayment and (B) if the Contract evidencing,
providing for the creation of or concerning such Indebtedness provides for a
cure period for such event, such event shall not be cured prior to the end of
such cure period;
(e) (i) ANI, the Borrower, any Subsidiary or any other Loan
Party shall (A) commence a voluntary case under the Federal bankruptcy laws (as
now or hereafter in effect), (B) file a petition seeking to take advantage of
any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, (C) consent to
or fail to contest in a timely and appropriate manner any petition filed against
it in an involuntary case under such bankruptcy laws or other laws, (D) apply
for, or consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or the like of itself or of a substantial part of its assets,
domestic or foreign, (E) admit in writing its inability to pay, or generally not
be paying, its debts (other than those that are the subject of bona fide
disputes) as they become due, (F) make a general assignment for the benefit of
creditors, or (G) take any corporate action for the purpose of effecting any of
the foregoing;
(ii) (A) A case or other proceeding shall be commenced
against ANI, the Borrower, any Subsidiary or any other Loan Party seeking
(1) relief under the Federal bankruptcy laws (as now or hereafter in
effect) or under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, or (2) the appointment of a trustee, receiver,
custodian, liquidator or the like of ANI, the Borrower, any such
Subsidiary or any other Loan Party, or of all or any substantial part of
the assets, domestic or foreign, of ANI, the Borrower, any such
Subsidiary or any other Loan Party, and such case or proceeding shall
continue undismissed and unstayed for a period of 45 days, or (B) an
order granting the relief requested in such case or proceeding against
ANI, the Borrower, any such Subsidiary or any other Loan Party (including
an order for relief under such Federal bankruptcy laws) shall be entered;
(f) A judgment or order shall be entered against ANI, the
Borrower, any Subsidiary or any other Loan Party by any court, and (i) in the
case of a judgment or order for the payment of money, either (A) such judgment
or order shall continue undischarged and unstayed for a period of 30 days in
which the aggregate amount of all such judgments and orders exceeds $1,000,000
or (B) enforcement proceedings shall have been commenced upon such
judgment or order and (ii) in the case of any judgment or order for other than
the payment of money, such judgment or order could, in the reasonable judgment
of the Required Banks, together with all other such judgments or orders, have a
Materially Adverse Effect on the Borrower and the Consolidated Subsidiaries
taken as a whole;
(g) (i) any Termination Event shall occur with respect to any
Benefit Plan of the Borrower, any Subsidiary, any other Loan Party or any of
their respective ERISA Affiliates, (ii) any Accumulated Funding Deficiency,
whether or not waived, shall exist with respect to any such Benefit Plan, (iii)
any Person shall engage in any Prohibited Transaction involving any such Benefit
Plan, (iv) the Borrower, any Subsidiary, any other Loan Party or any of their
respective ERISA Affiliates shall be in "default" (as defined in ERISA Section
4219(c)(5)) with respect to payments owing to any such Benefit Plan that is a
Multiemployer Benefit Plan as a result of such Person's complete or partial
withdrawal (as described in ERISA Section 4203 or 4205) therefrom, (v) the
Borrower, any Subsidiary, any other Loan Party or any of their respective ERISA
Affiliates shall fail to pay when due an amount that is payable by it to the
PBGC or to any such Benefit Plan under Title IV of ERISA, (vi) a proceeding
shall be instituted by a fiduciary of any such Benefit Plan against the
Borrower, any Subsidiary, any other Loan Party or any of their respective ERISA
Affiliates to enforce ERISA Section 515 and such proceeding shall not have been
dismissed within 30 days thereafter, or (vii) any other event or condition shall
occur or exist with respect to any such Benefit Plan, except that no event or
condition referred to in clauses (i) through (vii) shall constitute an Event of
Default if it, together with all other such events or conditions at the time
existing, has not subjected, and in the reasonable determination of the Required
Banks will not subject, the Borrower, any Subsidiary or any other Loan Party to
any Liability that, alone or in the aggregate with all such Liabilities for all
such Persons, exceeds $1,000,000;
(h) Any Loan Party or any Affiliate of any Loan Party asserts,
or any Loan Party or any Affiliate of any Loan Party or any other Person
institutes any proceedings seeking to establish, that (i) any provision of the
Loan Documents is invalid, not binding or unenforceable or (ii) the Security
Interest is not a valid and perfected first priority security interest in the
Collateral subject only to Permitted Liens;
(i) Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxx Xxxxxxxxx, members of
their families, their estates or trusts for the benefit of such Persons shall at
any time cease to be the beneficial owners, directly or indirectly, of common
stock of the Borrower representing not less than 80% of the issued and
outstanding shares of the Borrower's common stock;
(j) Xxxxxxx Xxxx Xxxxxxxxx and Xxxxxx X. Xxxxxxx, XX shall at
any time cease to be senior officers of the Borrower and MediaNews Group, Inc.
or otherwise remain actively involved in the management of the Borrower and
MediaNews Group, Inc. and shall not have been replaced by one or more senior
officers reasonably satisfactory to the Required Banks within 90 days of such
event; or
(k) Unless MediaNews Group, Inc. shall have either merged into
the Borrower or, so long as it is the parent company of the Borrower, merged
into ANI, MediaNews Group,
Inc. shall at any time cease to manage or supervise the operations of the
Borrower or the Management Agreement shall at any time be terminated or
superseded.
Section 6.02 REMEDIES UPON EVENT OF DEFAULT. During the continuance of
any Event of Default (other than one specified in Section 6.01(e)) and in every
such event, the Administrative Agent, upon notice to the Borrower, may (but
shall not be obligated to), and if directed by the Required Banks shall, do any
or all of the following: (a) declare, in whole or, from time to time, in part,
the principal of and interest on the Loans and the Notes and all other amounts
owing under the Loan Documents to be, and the Loans and the Notes and all such
other amounts shall thereupon and to that extent become, due and payable
(b) demand that the Borrower deliver cash collateral to the Administrative Agent
in an amount equal to the aggregate amount of Contingent Reimbursement
Obligations then outstanding to be held in accordance with Section 9.19 and such
amount shall thereupon become due and payable to the Administrative Agent and
(c) terminate, in whole or, from time to time, in part, the Commitments. Upon
the occurrence of an Event of Default specified in Section 6.01(e),
automatically and without any notice to the Borrower, (a) the principal of and
interest on the Loans and the Notes and all other amounts owing under the Loan
Documents shall be due and payable, (b) the Commitments shall terminate and (c)
an amount equal to the aggregate amount of Contingent Reimbursement Obligations
then outstanding shall be due and payable to the Administrative Agent to be held
in accordance with Section 9.19. Presentment, demand, protest or notice of any
kind (other than the notice provided for in the first sentence of this Section
6.02) are hereby expressly waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 MANDATORY SUSPENSION AND CONVERSION OF EURODOLLAR RATE
LOANS. A Bank's obligations to make, continue or convert into Eurodollar Rate
Loans of any Type shall be suspended, all such Bank's outstanding Loans of that
Type shall be converted on the last day of their applicable Interest Periods
(or, if earlier, in the case of clause (c) below, on the last day such Bank may
lawfully continue to maintain Loans of that Type or, in the case of clause (d)
below, on the day determined by such Bank to be the last Business Day before the
effective date of the applicable restriction) into, and all pending requests for
the making or continuation of or conversion into Loans of such Type by such Bank
shall be deemed requests for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of that Type for any Interest Period, the Administrative
Agent determines that for any reason appropriate information is not available to
it for purposes of determining the Adjusted Eurodollar Rate for such Interest
Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of that Type, such Bank determines that the Adjusted
Eurodollar Rate as determined by the Administrative Agent for such Interest
Period would not accurately reflect the cost to such Bank
of making, continuing or converting into a Eurodollar Rate Loan of such Type for
such Interest Period;
(c) at any time such Bank determines that any Regulatory Change
makes it unlawful or impracticable for such Bank or its applicable Lending
Office to make, continue or convert into any Eurodollar Rate Loan of that Type,
or to comply with its obligations hereunder in respect thereof; or
(d) such Bank determines that, by reason of any Regulatory
Change, such Bank or its applicable Lending Office is restricted, directly or
indirectly, in the amount that it may hold of (i) a category of liabilities that
includes deposits by reference to which, or on the basis of which, the interest
rate applicable to Eurodollar Rate Loans of that Type is directly or indirectly
determined or (ii) the category of assets that includes Eurodollar Rate Loans of
that Type.
If, as a result of this Section 7.01, any Loan of any Bank that would
otherwise be made or maintained as or converted into a Eurodollar Rate Loan of
any Type for any Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then, unless the corresponding Loan of each of the other
Banks is also to be made or maintained as or converted into a Base Rate Loan,
such Loan shall be treated as being a Eurodollar Rate Loan of such Type for such
Interest Period for all purposes of this Agreement (including the timing,
application and proration among the Banks of interest payments, conversions and
prepayments) except for the calculation of the interest rate borne by such Loan.
The Administrative Agent shall promptly notify the Borrower and each Bank of the
existence or occurrence of any condition or circumstance specified in clause (a)
above, and each Bank shall promptly notify the Borrower and the Administrative
Agent of the existence or occurrence of any condition or circumstance specified
in clause (b), (c) or (d) above applicable to such Bank's Loans, but the failure
by the Administrative Agent or such Bank to give any such notice shall not
affect such Bank's rights hereunder.
Section 7.02 REGULATORY CHANGES. If in the determination of any Bank
or, in the case of any Letter of Credit or Drawing, the Issuing Bank (a) any
Regulatory Change shall directly or indirectly (i) reduce the amount of any sum
received or receivable by (A) such Bank with respect to any Eurodollar Rate Loan
or Letter of Credit Participation or the return to be earned by such Bank on any
Eurodollar Rate Loan or Letter of Credit Participation or (B) the Issuing Bank
with respect to any Letter of Credit or Drawing, (ii) impose a cost on (A) such
Bank or any Affiliate of such Bank that is attributable to the making or
maintaining of, or such Bank's commitment to make or acquire, any Eurodollar
Rate Loan or Letter of Credit Participation or (B) the Issuing Bank or any of
its Affiliates that is attributable to the issuance or maintaining of, or the
commitment to issue, any Letter of Credit or the making or maintaining of any
Drawing, (iii) require (A) such Bank or any Affiliate of such Bank to make any
payment on or calculated by reference to the gross amount of any amount received
by such Bank under any Loan Document in respect of its Eurodollar Rate Loans or
its obligations to make Eurodollar Rate Loans or (B) the Issuing Bank or any of
its Affiliates to make any payment on or calculated by reference to the gross
amount of any amount received by the Issuing Bank or any of its Affiliates in
respect of
any Letter of Credit or its commitment to issue any Letter of Credit or Drawing
or (iv) reduce, or have the effect of reducing, the rate of return on any
capital of (A) such Bank or any Affiliate of such Bank that such Bank or such
Affiliate is required to maintain on account of any Eurodollar Rate Loan or
Letter of Credit Participation or such Bank's commitment to make any Eurodollar
Rate Loan or Letter of Credit Participation or (B) the Issuing Bank or any of
its Affiliates that the Issuing Bank or such Affiliate is required to maintain
on account of any Letter of Credit or Drawing or the Issuing Bank's commitment
to issue any Letter of Credit and (b) such reduction, increased cost or payment
shall not be fully compensated for by an adjustment in the applicable rates of
interest payable under the Loan Documents, then the Borrower shall pay to such
Bank or the Issuing Bank, as the case may be, such additional amounts as such
Bank or the Issuing Bank, as the case may be, determines will, together with any
adjustment in the applicable rates of interest payable hereunder, fully
compensate for such reduction, increased cost or payment. Such additional
amounts shall be payable, in the case of those applicable to prior periods,
within 15 days after request by such Bank or the Issuing Bank, as the case may
be, for such payment and, in the case of those applicable to future periods, on
the dates specified, or determined in accordance with a method specified, by
such Bank or the Issuing Bank, as the case may be. Each Bank and the Issuing
Bank will promptly notify the Borrower of any determination made by it referred
to in clauses (a) and (b) above, but the failure to give such notice shall not
affect such Bank's, or the Issuing Bank's, as the case may be, right to such
compensation.
Section 7.03 FUNDING LOSSES. The Borrower shall pay to each Bank, upon
request, such amount or amounts as such Bank determines are necessary to
compensate it for any loss, cost or expense incurred by it as a result of (a)
any payment, prepayment or conversion of a Eurodollar Rate Loan on a date other
than the last day of an Interest Period for such Eurodollar Rate Loan or (b) a
Eurodollar Rate Loan for any reason not being made or converted, or any payment
of principal thereof or interest thereon not being made, on the date therefor
determined in accordance with the applicable provisions of this Agreement. At
the election of such Bank, and without limiting the generality of the foregoing,
but without duplication, such compensation on account of losses may include an
amount equal to the excess of (i) the interest that would have been received
from the Borrower under this Agreement on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest component of the
return that such Bank determines it could have obtained had it placed such
amount on deposit in the interbank Dollar market selected by it for a period
equal to such Interest Period or its remaining portion.
Section 7.04 CERTAIN DETERMINATIONS. In making the determinations
contemplated by Sections 7.01, 7.02 and 7.03, each Bank and the Issuing Bank may
make such estimates, assumptions, allocations and the like that such Person in
good faith determines to be appropriate, and such Person's selection thereof in
accordance with this Section 7.04, and the determinations made by such Bank on
the basis thereof, shall be final, binding and conclusive upon the Borrower,
except, in the case of such determinations, for manifest errors in computation
or transmission. Each Bank and the Issuing Bank shall furnish to the Borrower
upon request a certificate outlining in reasonable detail the computation of any
amounts claimed by it under Sections 7.02 and 7.03 and the assumptions
underlying such computations.
Section 7.05 CHANGE OF LENDING OFFICE. If an event occurs with respect
to a Lending Office of any Bank or, in the case of any Letter of Credit or
Drawing, the Issuing Bank, that makes operable the provisions of clause (c) or
(d) of Section 7.01 or entitles such Bank or the Issuing Bank, as the case may
be, to make a claim under Section 7.02, such Bank or the Issuing Bank, as the
case may be, shall, if requested by the Borrower, use reasonable efforts to
designate another Lending Office or Offices the designation of which will
eliminate such operability or reduce the amount such Bank or the Issuing Bank,
as the case may be, is so entitled to claim, provided that such designation
would not, in the sole and absolute discretion of such Bank, or the Issuing
Bank, as the case may be, be disadvantageous to such Bank in any manner or
contrary to such Bank's or the Issuing Bank's, as the case may be, policies.
Each Bank and the Issuing Bank may at any time and from time to time change any
Lending Office and shall give notice of any such change to the Administrative
Agent and the Borrower. Except in the case of a change in Lending Offices made
at the request of the Borrower, the designation of a new Lending Office by any
Bank or the Issuing Bank shall not make operable the provisions of clause (c) or
(d) of Section 7.01 or entitle such Bank to make a claim under Section 7.02 if
the operability of such clause or such claim results solely from such
designation and not from a subsequent Regulatory Change.
ARTICLE 8
THE AGENTS
Section 8.01 APPOINTMENT AND POWERS. Each Bank hereby irrevocably
appoints and authorizes The Bank of New York, and The Bank of New York hereby
agrees, to act as the agent for and representative (within the meaning of
Section 9-105(m) of the Uniform Commercial Code) of such Bank under the Loan
Documents with such powers as are delegated to the Administrative Agent and the
Secured Party by the terms thereof, together with such other powers as are
reasonably incidental thereto. The Administrative Agent's duties shall be
purely ministerial and it shall have no duties or responsibilities except those
expressly set forth in the Loan Documents. The Administrative Agent shall not
be required under any circumstances to take any action that, in its judgment,
(a) is contrary to any provision of the Loan Documents or Applicable Law or (b)
would expose it to any Liability or expense against which it has not been
indemnified to its satisfaction. The Administrative Agent shall not, by reason
of its serving as the Administrative Agent, be a trustee or other fiduciary for
any Bank. Bank of America NT & SA, in its capacity as Syndication Agent, First
Union National Bank, in its capacity as Documentation Agent, and Fleet National
Bank, in its capacity as Co-Documentation Agent, shall be entitled to all of the
rights (other than with respect to fees payable to the Administrative Agent) and
immunities of the Administrative Agent provided for in the Loan Documents, but
shall have no duties or responsibilities except for those expressly set forth
therein.
Section 8.02 LIMITATION ON ADMINISTRATIVE AGENT'S LIABILITY. Neither
the Administrative Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or them under or in connection with the Loan Documents, except for its or their
own gross negligence, willful misconduct or knowing violations of law. The
Administrative Agent shall not be responsible to any Bank for (a) any
recitals, statements, representations or warranties contained in the Loan
Documents or in any certificate or other document referred to or provided for
in, or received by any of the Banks under, the Loan Documents, (b) the validity,
effectiveness or enforceability of the Loan Documents or any such certificate or
other document, (c) the value or sufficiency of the Collateral or (d) any
failure by the Loan Parties to perform any of their obligations under the Loan
Documents. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact so long as the Administrative Agent was not grossly negligent
in selecting or directing such agents or attorneys-in-fact. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telecopier, telegram
or cable) believed by it to be genuine and correct and to have been signed or
given by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent. As to any matters not expressly provided for by
the Loan Documents, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with instructions signed by the Required Banks, and such instructions
of the Required Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
Section 8.03 DEFAULTS. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the non-payment to it
of principal of or interest on Loans or fees) unless the Administrative Agent
has received notice from a Bank or the Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event that the
Administrative Agent has knowledge of such a non-payment or receives such a
notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Banks. In the event of any Default, the
Administrative Agent shall (a) in the case of a Default that constitutes an
Event of Default, take any or all of the actions referred to in clauses (a), (b)
and (c) of the first sentence of Section 6.02 if so directed by the Required
Banks and (b) in the case of any Default, take such other action with respect to
such Default as shall be reasonably directed by the Required Banks. Unless and
until the Administrative Agent shall have received such directions, in the event
of any Default, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interests of the Banks.
Section 8.04 RIGHTS AS A BANK. Each Person acting as the Administrative
Agent that is also a Bank shall, in its capacity as a Bank, have the same rights
and powers under the Loan Documents as any other Bank and may exercise the same
as though it were not acting as the Administrative Agent, and the term "Bank" or
"Banks" shall include such Person in its individual capacity. Each Person
acting as the Administrative Agent (whether or not such Person is a Bank) and
its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Loan Parties and their Affiliates as if it were not
acting as the Administrative Agent, and such Person and its Affiliates may
accept fees and other consideration from the Loan Parties and their Affiliates
for services in connection with the Loan Documents or otherwise without having
to account for the same to the Banks.
Section 8.05 INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Loan Parties under the
Loan Documents), ratably on the basis of the respective principal amounts of the
Loans outstanding made by the Banks (or, if no Loans are at the time
outstanding, ratably on the basis of their respective Commitments), for any and
all Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including the
costs and expenses that the Loan Parties are obligated to pay under the Loan
Documents) in any way relating to or arising out of the Loan Documents or any
other documents contemplated thereby or referred to therein or the transactions
contemplated thereby or the enforcement of any of the terms thereof or of any
such other documents, provided that no Bank shall be liable for any of the
foregoing to the extent they arise from gross negligence, willful misconduct or
knowing violations of law by the Administrative Agent.
Section 8.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS. Each
Bank agrees that it has made and will continue to make, independently and
without reliance on the Administrative Agent or any other Bank, and based on
such documents and information as it deems appropriate, its own credit analysis
of the Loan Parties, its own evaluation of the Collateral and its own decision
to enter into the Loan Documents and to take or refrain from taking any action
in connection therewith. The Administrative Agent shall not be required to keep
itself informed as to the performance or observance by the Loan Parties of the
Loan Documents or any other document referred to or provided for therein or to
inspect the properties or books of any Loan Party or any Subsidiary thereof or
the Collateral. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
under the Loan Documents, the Administrative Agent shall have no obligation to
provide any Bank with any information concerning the business, status or
condition of any Loan Party or any Subsidiary thereof, the Loan Documents or the
Collateral that may come into the possession of the Administrative Agent or any
of its Affiliates.
Section 8.07 EXECUTION AND AMENDMENT OF LOAN DOCUMENTS ON BEHALF OF THE
BANKS. Each Bank hereby authorizes the Administrative Agent to (a) execute and
deliver, in the name of and on behalf of such Bank, (i) the Pledge Agreements,
(ii) all UCC financing and continuation statements and other documents the
filing or recordation of which are, in the determination of the Administrative
Agent, necessary or appropriate to create, perfect or maintain the existence or
perfected status of the Security Interest and (iii) any other Loan Document
requiring execution by or on behalf of such Bank, and (b) release Collateral
from the Security Interest to the extent that such Collateral has been disposed
of in accordance with Section 4.11. The Administrative Agent shall consent to
any amendment of any term, covenant, agreement or condition of the Pledge
Agreements, or to any waiver of any right thereunder, if, but only if, the
Administrative Agent is directed to do so in writing by the Required Banks;
PROVIDED, HOWEVER, that (i) the Administrative Agent shall not be required to
consent to any such amendment or waiver that affects its rights or duties and
(ii) the Administrative Agent shall not, unless directed to do so in writing by
each Bank, (A) consent to any assignment by any Loan Party of any of its rights
or obligations under any such agreement or (B) release any Collateral from the
Security Interest, except as specified in clause (b) above.
Section 8.08 RESIGNATION OF THE ADMINISTRATIVE AGENT. The
Administrative Agent may at any time give notice of its resignation to the Banks
and the Borrower. Upon receipt of any such notice of resignation, the Required
Banks may, after consultation with the Borrower, appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the resigning Administrative Agent's giving of notice of
resignation, then the resigning Administrative Agent may, on behalf of the Banks
and after consultation with the Borrower, appoint a successor Administrative
Agent. Upon the acceptance by any Person of its appointment as a successor
Administrative Agent, (a) such Person shall thereupon succeed to and become
vested with all the rights, powers, privileges, duties and obligations of the
resigning Administrative Agent and the resigning Administrative Agent shall be
discharged from its duties and obligations as Administrative Agent under the
Loan Documents and (b) the resigning Administrative Agent shall promptly
transfer all Collateral within its possession or control to the possession or
control of the successor Administrative Agent and shall execute and deliver such
notices, instructions and assignments as may be necessary or desirable to
transfer the rights of the Administrative Agent with respect to the Collateral
to the successor Administrative Agent. After any resigning Administrative
Agent's resignation as Administrative Agent, the provisions of this Article 8
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
ARTICLE 9
MISCELLANEOUS
Section 9.01 NOTICES AND DELIVERIES. (a) NOTICES AND MATERIALS OTHER
THAN COLLATERAL. Except as provided in Section 9.01(b):
(i) MANNER OF DELIVERY. All notices, communications and
materials (including all Information) to be given or delivered pursuant
to the Loan Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in writing (which
shall include telex and telecopy transmissions). Notices under Sections
1.02, 1.04(c), 1.06, 1.08 and 6.02 may be by telephone, promptly, in the
case of each notice other than one under Section 6.02, confirmed in
writing. In the event of a discrepancy between any telephonic notice and
any written confirmation thereof, such written confirmation shall be
deemed the effective notice except to the extent that the Administrative
Agent has acted in reliance on such telephonic notice.
(ii) ADDRESSES. All notices, communications and
materials to be given or delivered pursuant to the Loan Documents shall
be given or delivered at the following respective addresses and telex,
telecopier and telephone numbers and to the attention of the following
individuals or departments:
(A) if to the Borrower, to it at:
Garden State Newspapers, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, XX
Executive Vice President & Chief
Financial Officer
with a copy to:
Verner, Liipfert, Bernhard, XxXxxxxxx
and Hand
000-00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx Xx.
and with a copy to:
Xxxxxx Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
(B) if to any Guarantor, to it at the address or
telex, telecopier or telephone number and to the attention of the
individual or department, set forth below such Guarantor's name on ANNEX
B, or in the case of a Guarantor that becomes a Guarantor pursuant to a
Subsidiary Guaranty Supplement, set forth in such Subsidiary Guaranty
Supplement;
(C) if to the Administrative Agent or the Secured Party,
to it at:
The Bank of New York
Media and Telecommunications Division
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000/8593
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
Vice President
with a copy to:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000 (6366 or 6367)
Telephone No.: (000) 000-0000
Attention: Genoveso Xxxxxxxx, Agency Function
Administration, 18th Floor
(D) if to any Bank (including any Bank in its capacity
as the Issuing Bank or the Swing Loan Lender), to it at the address or
telex, telecopier or telephone number and to the attention of the
individual or department, set forth below such Bank's name under the
heading "Notice Address" on ANNEX A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, set forth under the heading
"Notice Address" in the Notice of Assignment given to the Borrower and
the Administrative Agent with respect to such assignment;
or at such other address or telex, telecopier or telephone number or to the
attention of such other individual or department as the party to which such
information pertains may hereafter specify for the purpose in a notice
specifically captioned "Notice of Change of Address" given to (x) if the party
to which such information pertains is the Borrower or any Guarantor, the
Administrative Agent and each Bank, (y) if the party to which such information
pertains is the Administrative Agent, the Borrower, each Guarantor and each Bank
and (z) if the party to which such information pertains is a Bank, the Borrower,
each Guarantor and the Administrative Agent.
(iii) EFFECTIVENESS. Each notice and communication and
any material to be given or delivered pursuant to the Loan Documents
shall be deemed so given or delivered (A) if sent by registered or
certified mail, postage prepaid, return receipt requested, on the third
Business Day after such notice, communication or material, addressed as
above
provided, is delivered to a United States post office and a receipt
therefor is issued thereby, (B) if sent by any other means of physical
delivery, when such notice, communication or material is delivered to the
appropriate address as above provided, (C) if sent by telex, when such
notice, communication or material is transmitted to the appropriate
number determined as above provided in this Section 9.01 and the
appropriate answer-back is received, (D) if sent by telecopier, when such
notice, communication or material is transmitted to the appropriate
telecopier number as above provided and is received at such number and
(E) if given by telephone, when communicated to the individual or any
member of the department specified as the individual or department to
whose attention notices, communications and materials are to be given or
delivered, or, in the case of notice by the Administrative Agent to the
Borrower under Section 6.02 given by telephone as above provided, if any
individual or any member of the department to whose attention notices,
communications and materials are to be given or delivered is unavailable
at the time, to any other officer or employee of the Borrower, except
that (x) notices of a change of address, telex, telecopier or telephone
number or individual or department to whose attention notices,
communications and materials are to be given or delivered shall not be
deemed given until received and (y) notices, communications and materials
to be given or delivered to the Administrative Agent or any Bank pursuant
to Sections 1.02, 1.04(c), 1.06, 1.08 and 1.13(b) and Article 5 shall not
be deemed given or delivered until received by the officer of the
Administrative Agent or such ank responsible, at the time, for the
administration of the Loan Documents.
(iv) REASONABLE NOTICE. Any requirement under Applicable
Law of reasonable notice by the Administrative Agent or the Banks to the
Borrower or any Guarantor of any event in connection with, or in any way
related to, the Loan Documents or the exercise by the Administrative
Agent or the Banks of any of their rights thereunder shall be met if
notice of such event is given to the Borrower or such Guarantor in the
manner prescribed above at least 10 days before (A) the date of such
event or (B) the date after which such event will occur.
(b) COLLATERAL. Until the Administrative Agent shall otherwise
specify, all Collateral to be delivered to the Administrative Agent pursuant to
the Loan Documents consisting of instruments, securities, chattel paper, letters
of credit or documents shall be delivered to the Administrative Agent at the
Administrative Agent's Office either by hand delivery or by registered or
certified mail, postage prepaid, return receipt requested, in either case
insured in an amount not less than the greater of the aggregate face amount and
the aggregate fair market value of the Collateral so being delivered. All other
Collateral to be delivered to the Administrative Agent pursuant to the Loan
Documents shall be delivered to such Person, at such address, by such means and
in such manner as the Administrative Agent may designate.
Section 9.02 EXPENSES; INDEMNIFICATION. Whether or not any Loans are
made, or any Letter of Credit is issued, hereunder, the Borrower shall:
(a) pay or reimburse the Administrative Agent, the Issuing
Bank, the Swing Loan Lender and each Bank for all transfer, documentary, stamp
and similar taxes, and all recording and filing fees and taxes, payable in
connection with, arising out of, or in any way related to, the execution,
delivery and performance of the Loan Documents or the making of the Loans or the
issuance of the Letters of Credit;
(b) pay or reimburse the Administrative Agent for all costs and
expenses (including reasonable fees and disbursements of legal counsel,
appraisers, accountants and other experts employed or retained by the
Administrative Agent) incurred by the Administrative Agent in connection with,
arising out of, or in any way related to (i) the negotiation, preparation,
execution and delivery of (A) the Loan Documents and (B) whether or not
executed, any waiver, amendment or consent thereunder or thereto, (ii) after the
occurrence of a Default, consulting with respect to any matter in any way
arising out of, related to, or connected with, the Loan Documents, including (A)
the protection or preservation of the Collateral, (B) the protection,
preservation, exercise or enforcement of any of the rights of the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or the Banks in, under or related
to the Collateral or the Loan Documents or (C) the performance of any of the
obligations of the Administrative Agent, the Issuing Bank, the Swing Loan Lender
or the Banks under or related to the Loan Documents, (iii) protecting or
preserving the Collateral or (iv) after the occurrence of a Default, protecting,
preserving, exercising or enforcing any of the rights of the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or the Banks in, under or related
to the Collateral or the Loan Documents, including defending the Security
Interest as a valid, perfected, first priority security interest in the
Collateral subject only to Permitted Liens;
(c) pay or reimburse each Bank, the Issuing Bank and the Swing
Loan Lender for all costs and expenses (including reasonable fees and
disbursements of legal counsel and other experts employed or retained by such
Bank, the Issuing Bank or the Swing Loan Lender) incurred by such Bank, the
Issuing Bank or the Swing Loan Lender in connection with, arising out of, or in
any way related to protecting, preserving, exercising or enforcing any of its
rights in, under or related to the Collateral or the Loan Documents, in each
case, after the occurrence of a Default; and
(d) indemnify and hold each Indemnified Person harmless from
and against all losses (including judgments, penalties and fines) suffered, and
pay or reimburse each Indemnified Person for all costs and reasonable expenses
(including reasonable fees and disbursements of legal counsel and other experts
employed or retained by such Indemnified Person) incurred, by such Indemnified
Person in connection with, arising out of, or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person, the
Borrower, any Guarantor or any other Person), including the prosecution or
defense thereof and any litigation or proceeding with respect thereto (whether
or not, in the case of any such litigation or proceeding, such Indemnified
Person is a party thereto), or (ii) any investigation, governmental or
otherwise, arising out of, related to, or in any way connected with, the Loan
Documents or the relationships established thereunder, except that the foregoing
indemnity in this subsection (d) shall not be applicable to any loss suffered by
any Indemnified Person to the extent such loss is determined by a judgment of a
court that is binding on the Borrower and such
Indemnified Person, final and not subject to review on appeal, to be the result
of acts or omissions on the part of such Indemnified Person constituting (x)
willful misconduct, (y) knowing violations of law or (z) in the case of claims
by the Borrower against such Indemnified Person, such Indemnified Person's
failure to observe any other standard applicable to it under any of the other
provisions of the Loan Documents or, but only to the extent not waivable
thereunder, Applicable Law.
Section 9.03 AMOUNTS PAYABLE DUE UPON REQUEST FOR PAYMENT. All amounts
payable by the Borrower under Section 9.02 and under the other provisions of the
Loan Documents shall, except as otherwise expressly provided, be immediately due
upon request for the payment thereof.
Section 9.04 REMEDIES OF THE ESSENCE. The various rights and remedies
of the Administrative Agent, the Issuing Bank, the Swing Loan Lender and the
Banks under the Loan Documents are of the essence of those agreements, and the
Administrative Agent, the Issuing Bank, the Swing Loan Lender and the Banks
shall be entitled to obtain a decree requiring specific performance of each such
right and remedy.
Section 9.05 RIGHTS CUMULATIVE. Each of the rights and remedies of the
Administrative Agent, the Issuing Bank, the Swing Loan Lender and the Banks
under the Loan Documents shall be in addition to all of their other rights and
remedies under the Loan Documents and Applicable Law, and nothing in the Loan
Documents shall be construed as limiting any such rights or remedies.
Section 9.06 CONFIDENTIALITY. The Administrative Agent, the Issuing
Bank, the Swing Loan Lender and the Banks agree to exercise all reasonable
efforts to keep any information delivered or made available by the Borrower
concerning the Collateral or the Borrower, any Guarantor or any Subsidiary
confidential from anyone other than persons employed or retained by such Person
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans of the Administrative Agent, the Issuing Bank, the
Swing Loan Lender or any Bank; PROVIDED, HOWEVER, that nothing herein shall
prevent any Person from disclosing such information (a) to any Affiliate of such
Person or to any other such Person, (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 Person, (d) that has been publicly
disclosed, (e) in connection with any litigation relating to the Loans, this
Agreement or any transaction contemplated hereby to which any Bank, any Loan
Party or any Administrative Agent may be a party, (f) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (g) to such
Person's legal counsel and independent auditors and (h) to any actual or
proposed participant or assignee of all or any part of the Loans hereunder, if
the intended recipient of such information, prior to such disclosure, agrees for
the benefit of the Borrower to comply with the provisions of this Section 9.06.
Section 9.07 AMENDMENTS; WAIVERS. Any term, covenant, agreement or
condition of the Loan Documents may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by (a) in the case of an
amendment or waiver with respect to the Loan Documents referred to in Section
8.07(a), the Administrative Agent, (b) in the case of an amendment or waiver
with respect to any other Loan Document, the Required Banks and, if the rights
and duties of the Administrative Agent, the Issuing Bank, or the Swing Loan
Lender are affected thereby, by the Administrative Agent, the Issuing Bank, or
the Swing Loan Lender, as the case may be and (c) in the case of an amendment
with respect to any Loan Document, by the Borrower and any Guarantor which is a
party thereto; PROVIDED, HOWEVER, that no amendment or waiver shall be
effective, unless in writing and signed by each Bank affected thereby, to the
extent it (i) changes the amount of such Bank's Commitment, (ii) reduces the
principal of or the rate of interest on such Bank's Loans or Note, the amount of
such Bank's Letter of Credit Participations or any fees payable to such Bank
hereunder, (iii) postpones any date fixed for, or reduces the amount of, any
reduction of the Commitments or any payment of principal of or interest on such
Bank's Loans, Note, Letter of Credit Participations or any fees payable to such
Bank hereunder, (iv) releases any Collateral from the Security Interest except
to the extent that such Collateral has been disposed of in accordance with
Section 4.17 (on the basis of the provisions of Section 4.11(e) or, if such
release shall have been consented to by the Required Banks, Section 4.11(c)) or
releases any Guarantor from its obligations under Section 10.01 except to the
extent that all of the Capital Securities of such Guarantor have been disposed
of in accordance with Section 4.17 (on the basis of the provisions of Section
4.11(e) or, if such release shall have been consented to by the Required Banks,
Section 4.11(c)), or (v) amends Section 1.15, this Section 9.07, the definition
of "Required Banks" contained in Section 10.01 or any other provision of this
Agreement requiring the consent or other action of all of the Banks. Unless
otherwise specified in such waiver, a waiver of any right under the Loan
Documents shall be effective only in the specific instance and for the specific
purpose for which given. No election not to exercise, failure to exercise or
delay in exercising any right, nor any course of dealing or performance, shall
operate as a waiver of any right of the Administrative Agent, the Issuing Bank,
the Swing Loan Lender or any Bank under the Loan Documents or Applicable Law,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right of the
Administrative Agent, the Issuing Bank, the Swing Loan Lender or any Bank under
the Loan Documents or Applicable Law.
Section 9.08 SET-OFF; SUSPENSION OF PAYMENT AND PERFORMANCE. The
Administrative Agent, the Issuing Bank, the Swing Loan Lender and each Bank is
hereby authorized by the Borrower and each Guarantor, at any time and from time
to time, without notice, (a) during any Event of Default, to set off against,
and to appropriate and apply to the payment of, the Liabilities of the Borrower
or any Guarantor under the Loan Documents (whether owing to such Person or to
any other Person that is the Administrative Agent, the Issuing Bank, the Swing
Loan Lender or a Bank and whether matured or unmatured, fixed or contingent or
liquidated or unliquidated and including amounts to which a Bank is entitled
with respect to its Letter of Credit Participations) any and all Liabilities
owing by such Person or any of its Affiliates to the Borrower, each Guarantor or
any Wholly Owned Subsidiary (whether payable in Dollars or any other currency,
whether matured or unmatured and, in the case of Liabilities that are deposits,
whether general or special, time or demand and however evidenced and whether
maintained at a branch or office located within or without the United States)
and (b) during any Event of Default, to suspend the payment and performance of
such Liabilities owing by such Person or its
Affiliates and, in the case of Liabilities that are deposits, to return as
unpaid for insufficient funds any and all checks and other items drawn against
such deposits.
Section 9.09 SHARING OF RECOVERIES. Each Bank agrees that, if, for any
reason, including as a result of (a) the exercise of any right of counterclaim,
set-off, banker's lien or similar right, (b) its claim in any applicable
bankruptcy, insolvency or other similar law being deemed secured by a Debt owed
by it to any Loan Party, including a claim deemed secured under Section 506 of
the Bankruptcy Code, or (c) the allocation of payments by the Administrative
Agent or any Loan Party in a manner contrary to the provisions of Section 1.15,
such Bank shall receive payment of a proportion of the aggregate amount due and
payable to it hereunder as principal of or interest on the Loans or fees that is
greater than the proportion received by any other Bank in respect of the
aggregate of such amounts due and payable to such other Bank hereunder, then the
Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder so that all
such recoveries with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; PROVIDED that if all or part of such
proportionately greater payment received by the purchasing Bank is thereafter
recovered by or on behalf of any Loan Party from such Bank, such purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such Bank to the extent of such recovery, but without interest
(unless the purchasing Bank is required to pay interest on the amount recovered
to the Person recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate). The Borrower and each Guarantor
expressly consents to the foregoing arrangements and agrees that any holder of a
participation in any rights hereunder so purchased or acquired pursuant to this
Section 9.09(a) shall, with respect to such participation, be entitled to all of
the rights of a Bank under Sections 7.02, 9.02 and 9.08 (subject to any
condition imposed on a Bank hereunder with respect thereto) and may exercise any
and all rights of set-off with respect to such participation as fully as though
the Borrower and each Guarantor were directly indebted to the holder of such
participation for Loans in the amount of such participation.
Section 9.10 ASSIGNMENTS AND PARTICIPATIONS. (a) ASSIGNMENTS. (i)
Neither the Borrower nor any Guarantor may assign any of its rights or
obligations under the Loan Documents without the prior written consent of (A) in
the case of the Loan Documents referred to in Section 8.07(a), the
Administrative Agent and (B) in the case of any of the other Loan Documents, the
Issuing Bank, the Swing Loan Lender and each Bank, and no assignment of any such
obligation shall release the Borrower or any Guarantor therefrom unless the
Administrative Agent, the Issuing Bank, the Swing Loan Lender and each Bank, as
applicable, shall have consented to such release in a writing specifically
referring to the obligation from which the Borrower or such Guarantor is to be
released.
(ii) Each Bank may from time to time assign any or all of
its rights and obligations under the Loan Documents to one or more
Persons; PROVIDED that, except in the case of the grant of a security
interest to a Federal Reserve Bank (which may be made without condition
or restriction), no such assignment shall be effective unless (A) the
assignment is consented to by the Borrower (unless an Event of Default
exists) the
Issuing Bank, the Swing Loan Lender and the Administrative Agent, such
consents not to be unreasonably withheld, (B) in the case of a partial
assignment, the assignment shall involve the assignment of not less than
$5,000,000 of the assignor Bank's Commitment, (C) a Notice of Assignment
with respect to the assignment, duly executed by the assignor and the
assignee, shall have been given to the Borrower, the Issuing Bank, the
Swing Loan Lender and the Administrative Agent and (D) except in the case
of an assignment by the Bank that is the Administrative Agent, the
Administrative Agent shall have been paid an assignment fee of $3,500.
Upon any effective assignment, the assignor shall be released from the
obligations so assigned and, in the case of an assignment of all of its
Loans and Commitment, shall cease to be a Bank. In the event of any
effective assignment by a Bank, the Borrower shall issue a new Note to
the assignee Bank (against, other than in the case of a partial
assignment, receipt of the existing Note of the assignor Bank). Nothing
in this Section 9.10 shall limit the right of any Bank to assign its
interest in the Loans and its Note to a Federal Reserve Bank as
collateral security under Regulation A of the Board of Governors of the
Federal Reserve System, but no such assignment shall release such Bank
from its obligations hereunder.
(b) PARTICIPATIONS. Each Bank may from time to time sell or
otherwise grant participations in any or all of its rights and obligations under
the Loan Documents. In the event of any such grant by a Bank of a
participation, such Bank's obligations under the Loan Documents to the other
parties thereto shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, and the Borrower, each Guarantor, the
Issuing Bank, the Swing Loan Lender, the Administrative Agent and the other
Banks may continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations thereunder. A Bank may not grant to any
holder of a participation the right to require such Bank to take or omit to take
any action under the Loan Documents, except that a Bank may grant to any such
holder the right to require such holder's consent to (i) reduce the principal of
or the rate of interest on such Bank's Loans, Note or the amount of such Bank's
Letter of Credit Participations or any fees payable to such Bank hereunder, (ii)
postpone any date fixed for any reduction of the Commitments or any payment of
principal of or interest on such Bank's Loans, Note or the amount of such Bank's
Letter of Credit Participations or any fees payable to such Bank hereunder,
(iii) permit any Loan Party to assign any of its obligations under the Loan
Documents to any other Person or (iv) release any Collateral from the Security
Interest except as required or contemplated by the Loan Documents. Each holder
of a participation in any rights under the Loan Documents, if and to the extent
the applicable participation agreement so provides, shall, with respect to such
participation, be entitled to all of the rights of a Bank as fully as though it
were a Bank under Sections 1.15, 7.02, 7.03, 9.02(d) and 9.07 (subject to any
conditions imposed on a Bank hereunder with respect thereto) and may exercise
any and all rights of set-off with respect to such participation as fully as
though the Borrower were directly indebted to the holder of such participation
for Loans in the amount of such participation; PROVIDED, HOWEVER, that no holder
of a participation shall be entitled to any amounts that would otherwise be
payable to it with respect to its participation unless such amounts would have
been payable to the Bank that granted such participation if such participation
had not been granted.
(c) LOANS BY SPC DESIGNEES. Notwithstanding anything to the
contrary contained herein, any Bank (a "Granting Bank") may grant to a special
purpose funding vehicle (an "SPC") of such Granting Bank identified as such in
writing from time to time by the Granting Bank to the Administrative Agent and
the Borrower, the option to provide to the Borrower all or any part of any Loan
that such Granting Bank would otherwise be obligated to make to the Borrower
pursuant to this Agreement; PROVIDED that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan the
Granting Bank shall be obligated to make such Loan pursuant to the terms hereof
and (iii) no SPC or Granting Bank shall be entitled to receive any greater
amount pursuant to Section 1.14, 7.02 or 7.03 than the Granting Bank would have
been entitled to receive had the Granting Bank not otherwise granted such SPC
the option to provide any Loan to the Borrower. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Bank to the same extent,
and as if, such Loan were made by such Granting Bank. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Bank would otherwise be liable so
long as, and to the extent that, the related Granting Bank makes such payment.
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against or join any other person in instituting against such SPC any bankruptcy,
reorganization, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
Notwithstanding the foregoing, the Granting Bank unconditionally agrees to
indemnify the Borrower, the Administrative Agent and each Bank against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
incurred by or asserted against such Borrower, the Administrative Agent or such
Bank, as the case may be, in any way relating to or arising as a consequence of
any such forbearance or delay in the initiation of any such proceeing against
its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall
have the rights of a Bank hereunder, such rights being retained by the
applicable Granting Bank. Accordingly, and without limiting the foregoing, each
party hereby further acknowledges and agrees that no SPC shall have any voting
rights hereunder and that the voting rights attributable to any Loan made by an
SPC shall be exercised only by the relevant Granting Bank and that each Granting
Bank shall serve as the administrative agent and attorney in fact for its SPC
and shall on behalf of its SPC receive any and all payments made for the benefit
of such SPC and take all actions hereunder to the extent, if any, such SPC shall
have any rights hereunder. In addition, notwithstanding anything to the
contrary contained in this Agreement any SPC may (i) with notice to, but without
the prior written consent of any other party hereto, assign all or a portion of
its interest in any Loans to the Granting Bank and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.
Section 9.11 GOVERNING LAW. The rights and duties of the Borrower, each
Guarantor, the Administrative Agent and the Banks under this Agreement and the
Notes (including matters
relating to the Maximum Permissible Rate) shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the State of New York.
Section 9.12 JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any judicial
proceeding brought against the Borrower or any Guarantor with respect to any
Loan Document Related Claim may be brought in any court of competent
jurisdiction in the City and County of New York, and, by execution and delivery
of this Agreement, the Borrower and each Guarantor (a) accepts, generally and
unconditionally, the non-exclusive jurisdiction of such courts and any related
appellate court and irrevocably agrees to be bound by any judgment rendered
thereby in connection with any Loan Document Related Claim and (b) irrevocably
waives any objection it may now or hereafter have as to the venue of any such
proceeding brought in such a court or that such a court is an inconvenient
forum. The Borrower and each Guarantor hereby waives personal service of
process and consents that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address specified or
determined in accordance with the provisions of Section 9.01(a)(ii), and service
so made shall be deemed completed on the third Business Day after such service
is deposited in the mail. Nothing herein shall affect the right of the
Administrative Agent, the Issuing Bank, the Swing Loan Lender, any Bank or any
other Indemnified Person to serve process in any other manner permitted by law
or shall limit the right of the Administrative Agent, the Issuing Bank, the
Swing Loan Lender, any Bank or any other Indemnified Person to bring proceedings
against the Borrower or any Guarantor in the courts of any other jurisdiction.
Any judicial proceeding by the Borrower or any Guarantor against the
Administrative Agent, the Issuing Bank, the Swing Loan Lender, or any Bank
involving any Loan Document Related Claim shall be brought only in a court
located in the City and State of New York. THE BORROWER, EACH GUARANTOR, THE
AGENT, THE ISSUING BANK, THE SWING LOAN LENDER AND EACH BANK HEREBY IRREVOCABLY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY LOAN DOCUMENT
RELATED CLAIM.
Section 9.13 LIMITATION OF LIABILITY. NEITHER THE AGENT, THE ISSUING
BANK, THE SWING LOAN LENDER, NOR THE BANKS NOR ANY OTHER INDEMNIFIED PERSON
SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE BORROWER AND EACH GUARANTOR
HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY THE BORROWER IN CONNECTION WITH ANY LOAN
DOCUMENT RELATED CLAIM.
Section 9.14 SEVERABILITY OF PROVISIONS. Any provision of the Loan
Documents that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Borrower and each
Guarantor hereby waives any provision of Applicable Law that renders any
provision of the Loan Documents prohibited or unenforceable in any respect.
Section 9.15 COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 9.16 SURVIVAL OF OBLIGATIONS. Except as otherwise expressly
provided therein, the rights and obligations of the Borrower, each Guarantor,
the Administrative Agent, the Issuing Bank, the Swing Loan Lender, the Banks and
the other Indemnified Persons under the Loan Documents under Sections 1.14, 9.02
and 10.04 (and each other Section reasonably related thereto) shall survive the
Repayment Date and the termination of the Security Interest.
Section 9.17 ENTIRE AGREEMENT. This Agreement, the Notes and the other
Loan Documents embody the entire agreement among the Borrower, each Guarantor,
the Administrative Agent, the Issuing Bank, the Swing Loan Lender, and the Banks
relating to the subject matter hereof and supersede all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
Section 9.18 SUCCESSORS AND ASSIGNS. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 9.19 CASH COLLATERAL. If, at any time, payment, prepayment or
cash collateralization of Contingent Reimbursement Obligations shall be required
pursuant to any provision of any of the Loan Documents, such payment, prepayment
or cash collateralization shall be made by deposit of funds in Dollars, in the
amount of such payment, prepayment or cash collateralization, into a cash
collateral account at the Administrative Agent's Office, which account shall be
under the sole dominion and control of the Administrative Agent and is hereby
pledged to the Administrative Agent for the benefit of itself, the Banks and the
Issuing Bank as security for the payment of the Contingent Reimbursement
Obligations and any other amounts that may become payable hereunder. Funds
deposited in such account, and any income thereon, may be applied by the
Administrative Agent against amounts payable under the Loan Documents as such
amounts become due. Any funds remaining in such account when all Contingent
Reimbursement Obligations and other amounts payable under the Loan Documents
have been paid and the Repayment Date shall have occurred shall be promptly
remitted to the Borrower.
ARTICLE 10
GUARANTY
Section 10.01 GUARANTY OF PAYMENT AND PERFORMANCE. Each Guarantor hereby
(a) irrevocably, unconditionally and absolutely guarantees to each Guaranteed
Party the due and punctual payment, observance and performance of all of the
Guaranteed Obligations in accordance with their respective terms and when and as
due (whether at maturity, by reason of acceleration or otherwise), or deemed to
be due pursuant to Section 10.03, and (b) agrees so to pay, observe or perform
the same when so due, or deemed to be due, upon demand.
Section 10.02 LIMITATION ON GUARANTY. It is the intention of each
Guarantor and the Guaranteed Parties that the obligations of each Guarantor
under the Loan Documents shall be in, but not in excess of, the maximum amount
permitted by Applicable Law. To that end, but only to the extent such
obligations would otherwise be avoidable, the obligations of each Guarantor
under the Loan Documents shall be limited to the maximum amount that, after
giving effect to the incurrence thereof, would not render such Guarantor
insolvent or unable to pay its Debts as they mature or leave such Guarantor with
an unreasonably small capital. The need for any such limitation shall be
determined, and any such needed limitation shall be effective, at the time or
times that such Guarantor is deemed, under Applicable Law, to incur obligations
hereunder. Any such limitation shall be apportioned amongst the Guaranteed
Obligations of the Guaranteed Parties pro rata in accordance with their
respective amounts thereof. This Section 10.02 is intended solely to preserve
the rights of the Guaranteed Parties under the Loan Documents to the maximum
extent permitted by Applicable Law, and no Guarantor nor any other Person shall
have any right under this Section 10.02 that it would not otherwise have under
Applicable Law. For the purposes of this Section 10.02 and Section 10.13,
"insolvency", "unreasonably small capital" and "inability to pay Debts as they
mature" shall be determined in accordance with Applicable Law.
Section 10.03 CONTINUANCE AND ACCELERATION OF GUARANTEED OBLIGATIONS UPON
CERTAIN EVENTS. If:
(a) any Event of Default specified in Section 6.01(e) shall
occur;
(b) any injunction, stay or the like that enjoins any
acceleration, or demand for the payment, observance or performance, of any
Guaranteed Obligations that would otherwise be required or permitted under the
Loan Documents shall become effective; or
(c) any Guaranteed Obligations shall be or be determined to be
or become discharged, disallowed, invalid, illegal, void or otherwise
unenforceable (whether by operation of any present or future law or by order of
any court or governmental agency) against the Borrower;
then (i) such Guaranteed Obligations shall, for all purposes of the Loan
Documents, be deemed (A) in the case of clause (c), to continue to be
outstanding and in full force and effect notwithstanding the unenforceability
thereof against the Borrower and (B) if such is not already the case, to have
thereupon become immediately due and payable and to have commenced bearing
interest at the Post-Default Rate and (ii) the Guaranteed Parties to which such
Guaranteed Obligations are owing may, with respect to such Guaranteed
Obligations, exercise all of the rights and remedies under the Loan Documents
that would be available to them during an Event of Default.
Section 10.04 RECOVERED PAYMENTS. The Guaranteed Obligations shall be
deemed not to have been paid, observed or performed, and each Guarantor's
obligations under the Loan Documents in respect thereof shall continue and not
be discharged, to the extent that any payment, observance or performance thereof
by the Borrower or any other Guarantor or guarantor, or out of the proceeds of
the Collateral or any other collateral, is recovered from or paid over by or for
the account of any Guaranteed Party for any reason, including as a preference
or fraudulent transfer or by virtue of any subordination (whether present or
future or contractual or otherwise) of the Guaranteed Obligations, whether such
recovery or payment over is effected by any judgment, decree or order of any
court or governmental agency, by any plan of reorganization or by settlement or
compromise by any Guaranteed Party (whether or not consented to by the Borrower,
each Guarantor or any other guarantor) of any claim for any such recovery or
payment over. Each Guarantor hereby expressly agrees that it shall be liable
under the Loan Documents with respect to any Guaranteed Obligation whenever such
a recovery or payment over thereof occurs.
Section 10.05 BINDING NATURE OF CERTAIN ADJUDICATIONS. Each Guarantor
shall be conclusively bound by the adjudication in any action or proceeding,
legal or otherwise, involving any controversy arising under, in connection with,
or in any way related to, any of the Guaranteed Obligations, and by a judgment,
award or decree entered therein, if such Guarantor shall have had the right, or
shall have been given the opportunity, to participate in such action or
proceeding and shall have been given notice of such action or proceeding in time
to exercise such right or avail itself of such opportunity.
Section 10.06 NATURE OF GUARANTOR'S OBLIGATIONS. Each Guarantor's
obligations under this Article 10 (a) are absolute and unconditional, (b) are
unlimited in amount except as provided in Section 10.02, (c) constitute a
guaranty of payment and performance and not a guaranty of collection, (d) are as
primary obligor and not as a surety only, (e) shall be a continuing guaranty of
all present and future Guaranteed Obligations and all promissory notes and other
documentation given in extension or renewal or substitution for any of the
Guaranteed Obligations and (f) shall be irrevocable.
Section 10.07 NO RELEASE OF GUARANTOR. THE OBLIGATIONS OF EACH GUARANTOR
UNDER THIS ARTICLE 10 SHALL NOT BE REDUCED, LIMITED OR TERMINATED, NOR SHALL
SUCH GUARANTOR BE DISCHARGED FROM ANY THEREOF, FOR ANY REASON WHATSOEVER (other
than, subject to Sections 10.04 and 10.11, the payment, observance and
performance of the Guaranteed Obligations), including (and whether or not the
same shall have occurred or failed to occur once or more than once and whether
or not such Guarantor shall have received notice thereof):
(a) (i) any increase in the principal amount of, or interest
rate applicable to, (ii) any extension of the time of payment, observance or
performance of, (iii) any other amendment or modification of any of the other
terms and provisions of, (iv) any release, composition or settlement (whether by
way of acceptance of a plan of reorganization or otherwise) of, (v) any
subordination (whether present or future or contractual or otherwise) of, or
(vi) any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability of, the Guaranteed Obligations;
(b) (i) any failure to obtain, (ii) any release, composition
or settlement of, (iii) any amendment or modification of any of the terms and
provisions of, (iv) any subordination of, or (v) any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability of, any other
guaranties of the Guaranteed Obligations;
(c) (i) any failure to obtain or any release of, (ii) any
failure to protect or preserve, (iii) any release, compromise, settlement or
extension of the time of payment of any obligations constituting, (iv) any
failure to perfect or maintain the perfection or priority of any Lien upon, (v)
any subordination of any Lien upon, or (vi) any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability of any Lien or
intended Lien upon, the Collateral or any other collateral now or hereafter
securing the Guaranteed Obligations or any other guaranties thereof;
(d) any termination of or change in any relationship between
such Guarantor and the Borrower, including any such termination or change
resulting from a change in the ownership of such Guarantor or the Borrower or
from the cessation of any commercial relationship between such Guarantor and the
Borrower;
(e) any exercise of, or any election not or failure to
exercise, delay in the exercise of, waiver of, or forbearance or other
indulgence with respect to, any right, remedy or power available to the
Guaranteed Parties, including (i) any election not or failure to exercise any
right of setoff, recoupment or counterclaim, (ii) any election of remedies
effected by the Guaranteed Parties, whether or not such election affects the
right to obtain a deficiency judgment, and (iii) any election by the Guaranteed
Parties in any proceeding under the Bankruptcy Code of the application of
Section 1111(b)(2) of such Code; and
(f) ANY OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR
CIRCUMSTANCE THAT (i) VARIES THE RISK OF SUCH GUARANTOR UNDER THE LOAN DOCUMENTS
OR (ii) BUT FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF STATUTE OR RULE OF
LAW OR EQUITY, OPERATE TO REDUCE, LIMIT OR TERMINATE THE OBLIGATIONS OF A
GUARANTOR OR THIRD PARTY SURETY THEREUNDER OR DISCHARGE SUCH GUARANTOR OR THIRD
PARTY SURETY FROM ANY THEREOF.
Section 10.08 CERTAIN WAIVERS. Each Guarantor waives, in each case to
the extent permitted under any Applicable Law:
(a) any requirement, and any right to require, that any right
or power be exercised or any action be taken against the Borrower, any other
Guarantor or guarantor or the Collateral or any other collateral for the
Guaranteed Obligations;
(b) all defenses (other than payment of the Guaranteed
Obligations) to, and all setoffs, counterclaims and claims of recoupment
against, the Guaranteed Obligations that may at any time be available to the
Borrower or any other Guarantor or guarantor;
(c) (i) notice of acceptance of and intention to rely on the
Loan Documents, (ii) notice of the making or renewal of any Loans, the issuance
of any Letters of Credit or other extensions of credit hereunder and of the
incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any
of the matters referred to in Section 10.07 and (iv) all other notices that may
be required by Applicable Law or otherwise to preserve any rights against such
Guarantor under the Loan Documents, including any notice of default, demand,
dishonor, presentment and protest;
(d) any defense based upon, arising out of or in any way
related to (i) any claim that any sale or other disposition of the Collateral or
any other collateral for the Guaranteed Obligations was not conducted in a
commercially reasonable fashion or that a public sale, should the Guaranteed
Parties have elected to so proceed, was, in and of itself, not a commercially
reasonable method of sale, (ii) any claim that any election of remedies by the
Guaranteed Parties, including the exercise by the Guaranteed Parties of any
rights against the Collateral or any other collateral, impaired, reduced,
released or otherwise extinguished any right that such Guarantor might otherwise
have had against the Borrower, any other Guarantor or any other guarantor or
against the Collateral or any other collateral, including any right of
subrogation, exoneration, reimbursement or contribution or right to obtain a
deficiency judgment, (iii) any claim based upon, arising out of or in any way
related to any of the matters referred to in Section 10.07 and (iv) any claim
that the Loan Documents should be strictly construed against the Guaranteed
Parties; and
(e) ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR
THIS CLAUSE (e), BE AVAILABLE TO A GUARANTOR OR THIRD PARTY SURETY AS A DEFENSE
AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS UNDER THIS ARTICLE 10.
Section 10.09 INDEPENDENT CREDIT EVALUATION. Each Guarantor has
independently, and without reliance on any information supplied by the
Guaranteed Parties, taken, and will continue to take, whatever steps it deems
necessary to evaluate the financial condition and affairs of the Borrower, and
the Guaranteed Parties shall have no duty to advise any Guarantor of information
at any time known to them regarding such financial condition or affairs.
Section 10.10 SUBORDINATION OF RIGHTS AGAINST THE BORROWER, OTHER
GUARANTORS AND COLLATERAL. All rights that any Guarantor may at any time have
against the Borrower, any other Guarantor or guarantor or the Collateral or any
other collateral for the Guaranteed Obligations, and all obligations that the
Borrower or any other Guarantor or guarantor may at any time have to any
Guarantor, in each case arising out of the performance by such Guarantor of its
obligations under this Article 10, are hereby expressly subordinated to the
prior payment, observance and performance in full of the Guaranteed Obligations.
No Guarantor shall enforce any of the rights, or attempt to obtain payment or
performance of any of the obligations, subordinated pursuant to this Section
10.10 until the Guaranteed Obligations have been paid, observed and performed in
full, except that such prohibition shall not apply to routine acts, such as the
giving of notices and the filing of continuation statements, necessary to
preserve any such rights. If any amount shall be paid to or recovered by any
Guarantor (whether directly or by way of setoff, recoupment or counterclaim) on
account of any right or obligation subordinated pursuant to this Section 10.10,
such amount shall be held in trust by such Guarantor for the benefit of the
Guaranteed Parties, not commingled with any of such Guarantor's other funds and
forthwith paid over to the Administrative Agent, in the exact form received,
together with any necessary endorsements, to
be applied and credited against, or held as security for, the Guaranteed
Obligations and the obligations of such Guarantor under the Loan Documents.
Section 10.11 ECONOMIC BENEFITS; SOLVENCY. Each Guarantor represents and
warrants that:
(a) The execution and delivery by the Administrative Agent and
the Banks of this Agreement, and the extensions of credit by the Banks
hereunder, constitute indirect economic benefit to such Guarantor at least equal
to such amount of its obligations under this Article 10.
(b) The guarantee by such Guarantor of the Guaranteed
Obligations and the incurrence by it of its other obligations under the Loan
Documents will not render such Guarantor insolvent or unable to pay its Debts as
they mature or leave such Guarantor with unreasonably small capital.
(c) It does not intend to incur Debts, including those under
the Loan Documents, that would be beyond its ability to pay as such Debts
mature.
ARTICLE 11
INTERPRETATION
Section 11.01 DEFINED TERMS. For the purposes of this Agreement:
"ACCUMULATED FUNDING DEFICIENCY" has the meaning ascribed to that
term in Section 302 of ERISA.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Period, a rate
per annum (rounded upward, if necessary, to the next higher 1/16 of 1%) equal to
the rate obtained by dividing (a) the Eurodollar Rate for such Interest Period
by (b) a percentage equal to 1 MINUS the Reserve Requirement in effect from time
to time during such Interest Period.
"ADMINISTRATIVE AGENT" means The Bank of New York, as agent for
and representative (within the meaning of Section 9-105(m) of the Uniform
Commercial Code) of the Banks under the Loan Documents, and any successor
Administrative Agent appointed pursuant to Section 8.08.
"ADMINISTRATIVE AGENT'S OFFICE" means the address of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 9.01(a)(ii).
"AFFILIATE" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
"AGREEMENT" means this Agreement, including all schedules, annexes
and exhibits hereto.
"AGREEMENT DATE" means the date set forth as such on the last
signature page hereof, which date is the date that executed copies of this
Agreement were delivered by all parties hereto and, accordingly, this Agreement
became effective. If no such date is so set forth, the Agreement Date shall be
the date as of which this Agreement is dated.
"ANI" means Affiliated Newspapers Investments, Inc., a Delaware
corporation.
"ANI PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the
date hereof, between ANI and the Secured Party, in substantially the form of
EXHIBIT C.
"ANI SENIOR DISCOUNT NOTES" means the 13-1/4% Senior Discount
Debentures of ANI due July 1, 2006.
"APPLICABLE LAW" means, anything in Section 9.11 to the contrary
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and (iii) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or
admiralty) and arbitrators.
"BANK" means (a) the Administrative Agent and any Person listed on
the signature pages hereof following the Administrative Agent and (b) any Person
that has been assigned any or all of the rights or obligations of a Bank
pursuant to and in accordance with Section 9.10(a).
"BANK NONPARTICIPATION" means (i) the inability of any Bank to
acquire any Letter of Credit Participation pursuant to Section 1.03(e) or to
make any payment required by it under Section 1.03(h) because of such Bank's
having been subject to receivership, insolvency or other similar laws, (ii) the
refusal of any Bank to acquire any Letter of Credit Participation pursuant to
Section 1.03(e) or to make any payment required by it under Section 1.03(h) or
(iii) the giving by any Bank to the Issuing Bank of any notice (which has not
been retracted) of its intention not to so acquire any Letter of Credit
Participation or to make any such required payment, in each case without
limiting the rights and remedies of the Borrower against such Bank arising out
of any of the foregoing.
"BANK TAX" means any Tax based on or measured by net income or
franchise taxes (imposed in lieu of net income taxes) imposed upon any Bank or
the Administrative Agent by any jurisdiction (or any political subdivision
thereof) in which such Bank, the Administrative Agent or any Lending Office is
organized or located or doing business that is unrelated to this Agreement.
"BASE FINANCIAL STATEMENTS" means the most recent, audited,
consolidated balance sheet of the Borrower and the Consolidated Subsidiaries
referred to in SCHEDULE 5.02(a)
and the related statements of income, retained earnings and cash flows for the
fiscal year ended with the date of such balance sheet.
"BASE RATE" means, for any day, a rate per annum equal to the
higher of (a) the Prime Rate in effect on such day and (b) the sum of the
Federal Funds Rate in effect on such day PLUS 1/2%.
"BASE RATE LOAN" means any Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Base Rate.
"BASE RATE MARGIN" means, with respect to Base Rate Loans
outstanding on any day during each period beginning on the 45th day of each
fiscal quarter and ending on the 45th day of the immediately succeeding fiscal
quarter, such percentage as set forth in the following table opposite the
applicable ratio of Consolidated Debt to Operating Cash Flow and under the
applicable ratio of Consolidated Senior Debt to Operating Cash Flow, in each
case determined as of the end of the fiscal quarter immediately preceding such
period:
Ratio of Consolidated Senior Debt
to Operating Cash Flow
--------------------------------------------------------
LESS THAN 2.50:1
but
LESS THAN GREATER THAN OR GREATER THAN OR
2.00:1 EQUAL TO 2.00.1 EQUAL TO 2.50:1
--------- --------------- ---------------
Ratio of Consolidated Applicable
Debt to Operating Cash Flow Base Rate Margin
----------------------------------------------------- --------------------------------------------------------
GREATER THAN OF EQUAL TO 6.00:1 0.625% 0.750% 0.875%
LESS THAN 6.00:1 but GREATER THAN OR EQUAL TO 5.75:1 0.500% 0.625% 0.750%
LESS THAN 5.75:1 but GREATER THAN OR EQUAL TO 5.50:1 0.375% 0.500% 0.625%
LESS THAN 5.50:1 but GREATER THAN OR EQUAL TO 5.00:1 0.125% 0.250% 0.375%
LESS THAN 5.00:1 but GREATER THAN OR EQUAL TO 4.50:1 0.000% 0.000% 0.125%
LESS THAN 4.50:1 but GREATER THAN OR EQUAL TO 4.00:1 0.000% 0.000% 0.000%
LESS THAN 4.00:1 0.000% 0.000% 0.000%
Notwithstanding the foregoing, if Indebtedness of the Borrower hereunder shall
increase or decrease at any time during any such period (as the result of the
borrowing of Loans, the drawing under Letters of Credit or the repayment of
Loans or such drawings) by an amount sufficient to cause a change in the Base
Rate Margin, such change in the Base Rate Margin shall take effect on the day of
such increase or decrease in Indebtedness hereunder, as the case may be.
Notwithstanding the foregoing, prior to the delivery of the financial statements
of the Borrower for the fiscal quarter ending June 30, 1999 pursuant to Section
5.01(a), the Base Rate Margin shall be the greater of (x) 0.375% and (y) the
Base Rate Margin otherwise determined in accordance with the foregoing.
"BENEFIT PLAN" means, with respect to any Person, at any time, any
employee benefit plan (including a Multiemployer Benefit Plan), the funding
requirements of which (under Section 302 of ERISA or Section 412 of the Code)
are, or at any time within six years immediately preceding the time in question
were, in whole or in part, the responsibility of such Person.
"BORROWER" means Garden State Newspapers, Inc., a Delaware
corporation.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized to close.
"CALIFORNIA PARTNERSHIP" means California Newspapers Partnership,
a Delaware general partnership.
"CAPITAL EXPENDITURES" means any expenditures in respect of the
purchase or other acquisition (by way of the acquisition of securities of a
Person or otherwise) of fixed or capital assets (excluding any such asset
acquired in connection with normal replacement and maintenance programs properly
charged to current operations or acquired with proceeds of insurance for the
purpose of replacement thereof) and excluding Investments to which Section 4.12
is by its express terms inapplicable.
"CAPITAL SECURITY" means, with respect to any Person, (a) any
share of capital stock of or other unit of ownership interest in such Person or
(b) any security convertible into, or any option, warrant or other right to
acquire, any share of capital stock of or other unit of ownership interest in
such Person.
"CASH EQUIVALENTS" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than 90 days from the date of acquisition thereof by the Borrower or a
Consolidated Subsidiary, (b) time deposits and certificates of deposit of a Bank
or any United States commercial bank of recognized standing having capital and
surplus in excess of $500,000,000, with maturities of not more than 90 days from
the date of acquisition thereof by the Borrower or a Consolidated Subsidiary,
(c) fully secured repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (a) entered into with
any bank meeting the qualifications specified in clause (b) above, and (d)
commercial paper issued by the parent corporation of a Bank or any United States
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 and any other commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Ratings Service or at least P-1 or the equivalent
thereof by Xxxxx'x Investors Service, Inc. and in each case maturing within 90
days after the date of acquisition thereof by the Borrower or a Consolidated
Subsidiary.
"CASH FLOW PERCENTAGE" means, as of the date of any sale or
exchange of capital stock or assets, the ratio, expressed as a percentage,
derived by dividing (a) Operating Cash Flow attributable thereto for the four
consecutive fiscal quarters of the Borrower ending on, or most
recently ended prior to, such date for which financial information is available
and has been delivered to the Banks hereunder prior to such date of sale or
exchange by (b) Operating Cash Flow of the Borrower and its Consolidated
Subsidiaries for such period.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL" means all property subject to a Lien created pursuant
to the Loan Documents.
"COMMITMENT" means, with respect to any Bank, (i) the amount set
forth opposite such Bank's name under the heading "Commitment" on ANNEX A or, in
the case of a Bank that becomes a Bank pursuant to an assignment in accordance
with Section 9.10(a), the amount of the assignor's Commitment assigned to such
Bank, in either case as the same may be reduced from time to time pursuant to
Section 1.08 or increased or reduced from time to time pursuant to assignments
in accordance with Section 9.10(a) or (ii) as the context may require, the
obligation of such Bank to make Loans in an aggregate unpaid principal amount
not exceeding such amount.
"CONSOLIDATED DEBT" means, at any time, the consolidated
Indebtedness of the Borrower and its Consolidated Subsidiaries as of such time,
MINUS for purposes of determining the ratio of Consolidated Debt to Operating
Cash Flow and the ratio of Consolidated Senior Debt to Operating Cash Flow, the
aggregate amount, if any, of (x) cash and Cash Equivalents held at such time by
the Borrower and its Consolidated Subsidiaries in excess of $2,000,000 and (y)
the Greenco Subordinated Debt outstanding at such time.
"CONSOLIDATED FIXED CHARGES" means, as of any date of
determination, the following, determined with respect to the immediately
preceding four fiscal quarters of the Borrower for which financial statements
have been delivered pursuant to Section 5.01(a) or 5.01(c), the sum of (a) all
Required Repayments, and all other payments of principal of all Indebtedness
(including capital leases) of the Borrower and its Consolidated Subsidiaries
scheduled to have been made during such period, determined on a consolidated
basis, (b) the aggregate amount of Capital Expenditures made by the Borrower and
the Consolidated Subsidiaries during such period, (c) Interest Expense for such
period and (d) without duplication, taxes paid in cash and payments in respect
of taxes made by the Borrower or any Consolidated Subsidiary pursuant to the Tax
Sharing Agreement during such period.
"CONSOLIDATED NET INCOME" means, for any period, the amount of
consolidated net income of the Borrower and the Consolidated Subsidiaries for
such period (taken as a cumulative whole); PROVIDED, that there shall be
excluded: (a) any net income (or net loss) of a Consolidated Subsidiary (i) for
any period during which it was not a Consolidated Subsidiary or (ii), in case of
any such net income, to the extent that the declaration or payment of dividends
or similar distributions by that Consolidated Subsidiary is not at the time
permitted by operation of the terms of any Contract (other than this Agreement)
or Applicable Law; (b) any net income (or net loss) of any Person (other than a
Consolidated Subsidiary) in which the Borrower or any Consolidated Subsidiary
has an ownership interest, except to the extent that any such income has
actually been received by the Borrower or such Subsidiary in the form of cash
dividends or
similar distributions; (c) any restoration of any contingency reserve, except to
the extent that provision for such reserve was made out of income during such
period; (d) any net gains or losses on the sale or other disposition, not in the
ordinary course of business, of investments and other capital assets; PROVIDED,
that there shall also be excluded any related charges for taxes thereon; (e) any
net gain arising from the collection of the proceeds of any insurance policy;
(f) any write-up of any asset; (g) any net gains resulting from the
extinguishment or defeasance of any Indebtedness; (h) any earnings from
discontinued businesses; and (i) any extraordinary gains or losses.
"CONSOLIDATED SENIOR DEBT" means, at any time, Consolidated Debt
other than Subordinated Debt as of such time.
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person at any
time, any Subsidiary or other Person the accounts of which would be consolidated
with those of such first Person in its consolidated financial statements as of
such time; unless otherwise specified, "Consolidated Subsidiary" means a
Consolidated Subsidiary of the Borrower.
"CONSOLIDATED TAX SUBSIDIARY" means a Subsidiary which could elect
to file consolidated, combined, unitary or similar group Tax returns with ANI,
the Borrower or another Subsidiary.
"CONTINGENT REIMBURSEMENT OBLIGATION" means the contingent
obligation of the Borrower to reimburse the Issuing Bank for any Drawings that
may in the future be made under an outstanding Letter of Credit, whenever
issued. Without limiting the foregoing, the amount of all Contingent
Reimbursement Obligations at any time shall be the aggregate amount available to
be drawn under outstanding Letters of Credit at such time.
"CONTRACT" means (a) any agreement, including an indenture, lease
or license, (b) any deed or other instrument of conveyance, (c) any certificate
of incorporation or charter and (d) any by-law.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement relating
to the formation of the California Partnership dated March 3, 1999 among the
Borrower, Alameda Newspapers, Inc., V&P Publishing, Inc., Internet Media
Publishing, Inc., DR Partners, a Nevada general partnership, Media West-SBC,
Inc., a Delaware corporation, and The Sun Company of San Bernardino, California,
a California corporation.
"DEBT" means any Liability that constitutes "debt" or "Debt" under
section 101(12) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous Applicable
Law.
"DEFAULT" means any condition or event that constitutes an Event
of Default or that with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOLLARS" and the sign "$" mean lawful money of the United States
of America.
"DOMESTIC LENDING OFFICE" of any Bank or the Swing Loan Lender
means (a) the branch or office of such Bank or the Swing Loan Lender set forth
below such Bank's or the Swing Loan Lender's name under the heading "Domestic
Lending Office" on ANNEX A or, in the case of a Bank that becomes a Bank
pursuant to an assignment, the branch or office of such Bank set forth under the
heading "Domestic Lending Office" in the Notice of Assignment given to the
Borrower, the Issuing Bank, the Swing Loan Lender and the Administrative Agent
with respect to such assignment or (b) such other branch or office of such Bank
or the Swing Loan Lender designated by such Bank or the Swing Loan Lender from
time to time as the branch or office at which its Base Rate Loans and Letter of
Credit Participations or Swing Loans, as the case may be, are to be made or
maintained.
"DRAWING" means the presentation and payment of a drawing under a
Letter of Credit.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means, with respect to any Person, any other
Person, including a Subsidiary or other Affiliate of such first Person, that is
a member of any group of organizations within the meaning of Code Sections
414(b), (c), (m) or (o) of which such first Person is a member.
"EURODOLLAR BUSINESS DAY" means any Business Day on which dealings
in Dollar deposits are carried on in the relevant interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in the jurisdiction in which such interbank market
is located.
"EURODOLLAR LENDING OFFICE" of any Bank means (a) the branch or
office of such Bank set forth below such Bank's name under the heading
"Eurodollar Lending Office" on ANNEX A or, in the case of a Bank that becomes a
Bank pursuant to an assignment, the branch or office of such Bank set forth
under the heading "Eurodollar Lending Office" in the Notice of Assignment given
to the Borrower, the Issuing Bank, the Swing Loan Lender and the Administrative
Agent with respect to such assignment or (b) such other branch or office of such
Bank designated by such Bank from time to time as the branch or office at which
its Eurodollar Rate Loans are to be made or maintained.
"EURODOLLAR RATE" means, for any Interest Period, the rate per
annum determined by the Administrative Agent to be the rate (rounded upward, if
necessary, to the next higher 1/16 of 1%) per annum at which The Bank of New
York offered or would have offered to place with first-class banks in the
interbank market selected by The Bank of New York deposits in Dollars in amounts
comparable to the Eurodollar Rate Loan of The Bank of New York to which such
Interest Period applies, for a period equal to such Interest Period, at the time
as of which The Bank of New York makes such determination.
"EURODOLLAR RATE LOAN" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the Adjusted
Eurodollar Rate.
"EURODOLLAR RATE MARGIN" means, with respect to Eurodollar Rate
Loans outstanding on any day during any period beginning on the 45th day of each
fiscal quarter and ending on the 45th day of the immediately succeeding fiscal
quarter, such percentage as set forth in the following table opposite the
applicable ratio of Consolidated Debt to Operating Cash Flow and under the
applicable ratio of Consolidated Senior Debt to Operating Cash Flow, in each
case determined as of the end of the fiscal quarter immediately preceding such
period:
Ratio of Consolidated Senior Debt
to Operating Cash Flow
-----------------------------------------------
LESS THAN 2.50:1
but
LESS THAN GREATER THAN OR GREATER THAN OR
2.00:1 EQUAL TO 2.00.1 EQUAL TO 2.50:1
--------- --------------- ---------------
Ratio of Consolidated Applicable Eurodollar
Debt to Operating Cash Flow Rate Margin
----------------------------------------------------- -----------------------------------------------
GREATER THAN OR EQUAL TO 6.00:1 1.875% 2.000% 2.125%
LESS THAN 6.00:1 but GREATER THAN OR EQUAL TO 5.75:1 1.750% 1.875% 2.000%
LESS THAN 5.75:1 but GREATER THAN OR EQUAL TO 5.50:1 1.625% 1.750% 1.875%
LESS THAN 5.50:1 but GREATER THAN OR EQUAL TO 5.00:1 1.375% 1.500% 1.625%
LESS THAN 5.00:1 but GREATER THAN OR EQUAL TO 4.50:1 1.125% 1.250% 1.375%
GREATER THAN OR EQUAL TO 4.50:1 but GREATER THAN OR EQUAL TO 4.00:1 0.875% 1.000% 1.125%
LESS THAN 4.00:1 0.750% 0.875% 1.000%
Notwithstanding the foregoing, if Indebtedness of the Borrower hereunder shall
increase or decrease at any time during any such period (as the result of the
borrowing of Loans, the drawing under Letters of Credit or the repayment of
Loans or such drawings) by an amount sufficient to cause a change in the
Eurodollar Rate Margin, such change in the Eurodollar Rate Margin shall take
effect on the day of such increase or decrease in Indebtedness hereunder, as the
case may be.
Notwithstanding the foregoing, prior to the delivery of the financial statements
of the Borrower for the fiscal quarter ending June 30, 1999 pursuant to Section
5.01(a), the Eurodollar Rate Margin shall be the greater of (x) 1.625% and (y)
the Eurodollar Rate Margin otherwise determined in accordance with the
foregoing.
"EVENT OF DEFAULT" means any of the events specified in Section
6.01.
"EXCESS CASH FLOW" means, for any period, the excess of (a)
Operating Cash Flow for such period (without giving effect to any adjustment
thereto pursuant to the second sentence of the definition of Operating Cash
Flow) over (b) the sum of (i) Consolidated Fixed Charges for such period, (ii)
the amount of payments of non-operating liabilities as determined in the
consolidated statements of cash flows for such period delivered pursuant to
Section 5.01 and (iii) $2,000,000.
"EXISTING BENEFIT PLAN" means any Benefit Plan listed on SCHEDULE
4.14.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of
August 11, 1995, as amended and restated as of October 31, 1996, among the
Borrower, the banks party thereto and The Bank of New York, as agent.
"EXISTING DEBT" means (i) any Indebtedness outstanding on the
Agreement Date, to the extent set forth on SCHEDULE 4.06 and (ii) any
Indebtedness that constitutes a renewal, extension or replacement of any
Existing Debt, but only if (A) at the time such Indebtedness is entered into and
immediately after giving effect thereto, no Default would exist, (B) such
Indebtedness is binding only on the obligor or obligors under the Indebtedness
so renewed, extended or replaced, (C) the principal amount of the Indebtedness
does not exceed the principal amount of the Indebtedness so renewed, extended or
replaced, (D) the Indebtedness bears interest at a rate per annum not exceeding
the rate borne by the Indebtedness so renewed, extended or replaced except for
any increase that is commercially reasonable at the time of such increase and
(E) such Indebtedness does not mature earlier, or amortize (whether by scheduled
or mandatory prepayment or commitment reduction, or otherwise) more rapidly,
than the Indebtedness so renewed, extended or replaced.
"EXISTING GUARANTY" means (i) any Guaranty outstanding on the
Agreement Date, to the extent set forth on SCHEDULE 4.07 and (ii) any Guaranty
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (A) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (B) such Guaranty is binding only
on the obligor or obligors under the Guaranty so renewed, extended or replaced,
(C) the principal amount of the obligations Guaranteed by such Guaranty does not
exceed the principal amount of the obligations Guaranteed by the Guaranty so
renewed, extended or replaced and (D) the obligations Guaranteed by such
Guaranty bear interest at a rate per annum not exceeding the rate borne by the
obligations Guaranteed by the Guaranty so renewed, extended or replaced except
for any increase that is commercially reasonable at the time of such increase.
"EXISTING INVESTMENT" means any Investment outstanding on the
Agreement Date, to the extent set forth on SCHEDULE 4.12, and any renewal or
extension thereof not involving an increase therein as the result of an
additional investment by the Borrower or any Subsidiary.
"FEDERAL FUNDS RATE" means, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of quotations for such day on such
transactions received by The Bank of New York from three Federal funds brokers
of recognized standing selected by such bank.
"FUNDED CURRENT LIABILITY PERCENTAGE" has the meaning ascribed to
that term in Code Section 401(a)(29).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" means (a) in
the case of the Base Financial Statements, generally accepted accounting
principles at the time of the
issuance of the Base Financial Statements and (b) in all other cases, the
accounting principles followed in the preparation of the Base Financial
Statements.
"GOVERNMENTAL APPROVAL" means any authorization, consent,
approval, license or exemption of, registration or filing with, or report or
notice to, any governmental unit.
"GREENCO" means Greenco, Inc., a Delaware corporation.
"GREENCO NOTE" means the subordinated promissory note executed by
Borrower to the order of Greenco, in the form set out in Exhibit A-1 to the
Greenco Note Purchase Agreement.
"GREENCO NOTE PURCHASE AGREEMENT" means the Subordinated Note
Purchase Agreement dated as of January 30, 1998 between the Borrower and
Greenco.
"GREENCO SUBORDINATED DEBT" means the Indebtedness of Borrower and
Newco under the Greenco Note, including any Guaranty given by Borrower pursuant
to section 8.6(a) of the Greenco Note Purchase Agreement.
"GUARANTEED OBLIGATIONS" means all Liabilities of the Borrower
owing to, or in favor or for the benefit of, or purporting to be owing to, or in
favor or for the benefit of, the Guaranteed Parties under the Loan Documents or
any Interest Rate Protection Agreement entered into with a Bank or any of its
Affiliates (i) WHETHER NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, (ii)
whether owing to, or in favor or for the benefit of, or purporting to be owing
to or in favor or for the benefit of, Persons that are Guaranteed Parties as of
the Agreement Date or that become Guaranteed Parties by reason of any succession
or assignment at any time thereafter and (iii) WHETHER OR NOT AN ALLOWABLE CLAIM
AGAINST THE BORROWER UNDER THE BANKRUPTCY CODE OR OTHERWISE ENFORCEABLE AGAINST
THE BORROWER, AND INCLUDING, IN ANY EVENT, INTEREST AND OTHER LIABILITIES
ACCRUING OR ARISING AFTER THE FILING BY OR AGAINST THE BORROWER OF A PETITION
UNDER THE BANKRUPTCY CODE THAT WOULD HAVE SO ACCRUED OR ARISEN BUT FOR THE
FILING OF SUCH A PETITION.
"GUARANTEED PARTIES" means all Persons that are, or at any time
were, the Agent, the Issuing Bank, the Swing Loan Lender, a Bank or any other
Indemnified Person.
"GUARANTOR" means (a) ANI and each Subsidiary of the Borrower as
of the Agreement Date (other than the California Partnership and York Newspaper
Company) and (b) each other Subsidiary that shall have executed and delivered a
Subsidiary Guaranty Supplement.
"GUARANTY" of any Person means any obligation, contingent or
otherwise, of such Person (a) to pay any Liability of any other Person or to
otherwise protect, or having the practical effect of protecting, the holder of
any such Liability against loss (whether such obligation arises by virtue of
such Person being a partner of a partnership or participant in a joint venture
or by agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of
any Liability of any other Person (whether such obligation arises by agreement
to reimburse or indemnify such third Person or otherwise). The word "GUARANTEE"
when used as a verb has the correlative meaning.
"INDEBTEDNESS" of any Person means (a) any obligation of such
Person for borrowed money, (b) any obligation of such Person evidenced by a
bond, debenture, note or other similar instrument, (c) any obligation of such
Person to pay the deferred purchase price of property or services, except a
trade account payable that arises in the ordinary course of business but only if
and so long as the same is payable on customary trade terms, (d) any obligation
of such Person as lessee under a capital lease to the extent that such
obligations are required to be capitalized in accordance with GAAP, (e) any
Mandatorily Redeemable Stock of such Person owned by any Person other than such
Person or a Wholly Owned Subsidiary of such Person (the amount of such
Mandatorily Redeemable Stock to be determined for this purpose as the higher of
the liquidation preference of and the amount payable upon redemption of such
Mandatorily Redeemable Stock), (f) any obligation of such Person to purchase
securities or other property that arises out of or in connection with the sale
of the same or substantially similar securities or property, (g) any
non-contingent obligation of such Person to reimburse any other Person in
respect of amounts paid under a letter of credit or other Guaranty issued by
such other Person to the extent that such reimbursement obligation remains
outstanding after it becomes non-contingent, (h) any Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on any asset of such Person,
(i) any Indebtedness of others Guaranteed by such Person and (j) any monetary
obligation of such Person arising out of a non-competition agreement entered
into by such Person in connection with the acquisition of assets, stock, or
other equity interest of a third Person. Notwithstanding the foregoing, for
purposes of Sections 4.22 through 4.26 and for purposes of determining the Base
Rate Margin, the Eurodollar Rate Margin and the commitment fees payable pursuant
to Section 1.09(a), Indebtedness of the California Partnership shall constitute
Indebtedness only to the extent of (1) in the case of Existing Indebtedness,
100% of the amount thereof and (2) in the case of other Indebtedness, the
percentage thereof equal to the Borrower's percentage ownership interest in the
California Partnership on the date of determination.
"INDEMNIFIED PERSON" means any Person that is, or at any time was,
the Administrative Agent, the Issuing Bank, the Swing Loan Lender, a Bank, an
Affiliate of the Administrative Agent, the Issuing Bank, the Swing Loan Lender
or a Bank or a director, officer, employee or agent of any such Person.
"INFORMATION" means data, certificates, reports, statements
(including financial statements), opinions of counsel, documents and other
information.
"INTELLECTUAL PROPERTY" means (a) (i) patents and patent rights,
(ii) trademarks, trademark rights, trade names, trade name rights, corporate
names, business names, trade styles, service marks, logos and general
intangibles of like nature and (iii) copyrights, in each case whether
registered, unregistered or under pending registration and, in the case of any
such that are registered or under pending registration, whether registered or
under pending registration
under the laws of the United States or any other country, (b) reissues,
continuations, continuations-in-part and extensions of any Intellectual Property
referred to in clause (a), and (c) rights relating to any Intellectual Property
referred to in clause (a) or (b), including rights under applications (whether
pending under the laws of the United States or any other country) or licenses
relating thereto.
"INTERCOMPANY DEBT" means Indebtedness owed by the Borrower or any
Consolidated Subsidiary to the Borrower or any Consolidated Subsidiary (other
than the California Partnership).
"INTEREST EXPENSE" means, for any period, without duplication, the
sum of all interest payments and payments in the nature of interest under
capital leases and Mandatorily Redeemable Stock, payable during such period by
the Borrower and its Consolidated Subsidiaries, with respect to all Indebtedness
of such Persons.
"INTEREST PAYMENT DATE" means the last day of March, June,
September and December of each year.
"INTEREST PERIOD" means a period commencing, in the case of the
first Interest Period applicable to a Eurodollar Rate Loan, on the date of the
making of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third, sixth or, if made available
by all of the Banks, twelfth calendar month thereafter, except that (a) any
Interest Period that would otherwise end on a day that is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Eurodollar Business
Day and (b) any Interest Period that begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month in which such Interest Period ends) shall end on the
last Eurodollar Business Day of a calendar month.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate
protection agreement, future, option swap, cap or collar agreement or other
arrangement designed to fix interest rates or otherwise hedge against
fluctuations in interest rates.
"INTERNET MEDIA PUBLISHING" means Internet Media Publishing, Inc.,
a Delaware corporation.
"INVESTMENT" of any Person means (a) any Capital Security,
evidence of Indebtedness or other security or instrument issued by any other
Person, (b) any loan, advance or extension of credit to, or any contribution to
the capital of, any other Person and (c) any other investment in any other
Person.
"ISSUING BANK" means The Bank of New York, or such other Bank as
the Borrower, such Bank and The Bank of New York shall agree, in each case in
its capacity as the issuer of each Letter of Credit.
"LC COMMITMENT" means at any time $10,000,000 MINUS the pro rata
share thereof (computed on the basis of the Commitments at such time) of each
Nonparticipating Bank.
"LENDING OFFICE" of any Bank means the Domestic Lending Office or
the Eurodollar Lending Office of such Bank.
"LETTER OF CREDIT" means a letter of credit issued by the Issuing
Bank pursuant to Section 1.03.
"LETTER OF CREDIT PARTICIPATION" means, in the case of any Bank
(other than the Issuing Bank) with respect to any Letter of Credit, the
participation interest of such Bank in such Letter of Credit acquired pursuant
to Section 1.03(e) and, in the case of the Issuing Bank, its retained interest
in such Letter of Credit. The amount of the Letter of Credit Participation of a
Bank (including the Issuing Bank) in any Letter of Credit at any time shall be
deemed to be the amount equal to such Bank's pro rata share (determined on the
basis of the Commitments at such time of each of the Banks) of the sum of (a)
the aggregate unpaid amount of all Drawings thereunder at such time and (b) the
amount of the Contingent Reimbursement Obligation with respect thereto at such
time that shall not have been prepaid or cash collateralized in accordance with
the terms hereof at such time.
"LIABILITY" of any Person means (in each case, whether with full
or limited recourse) any indebtedness, liability, obligation, covenant or duty
of or binding upon, or any term or condition to be observed by or binding upon,
such Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"LIEN" means, with respect to any property or asset (or any income
or profits therefrom) of any Person (in each case whether the same is consensual
or nonconsensual or arises by Contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof or (b) any other
arrangement, express or implied, under which the same is subordinated,
transferred, sequestered or otherwise identified so as to subject the same to,
or make the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured Liabilities of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset that 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 any amount advanced by a Bank pursuant to Section
1.01(a)(i) and any Swing Loan.
"LOAN DOCUMENT RELATED CLAIM" means any claim or dispute (whether
arising under Applicable Law, including any "environmental" or similar law,
under Contract or otherwise and, in the case of any proceeding relating to any
such claim or dispute, whether civil,
criminal, administrative or otherwise) in any way arising out of, related to, or
connected with, the Loan Documents, the relationships established thereunder or
any actions or conduct thereunder or with respect thereto, whether such claim or
dispute arises or is asserted before or after the Agreement Date or before or
after the Repayment Date.
"LOAN DOCUMENT REPRESENTATION AND WARRANTY" means any
"Representation and Warranty" as defined in any Loan Document and any other
representation or warranty made or deemed made under any Loan Document.
"LOAN DOCUMENTS" means (a) this Agreement, the Notes, and the
Pledge Agreements and (b) all other material agreements, documents and
instruments relating to, arising out of, or in any way connected with (i) any
agreement, document or instrument referred to in clause (a), or (ii) any other
agreement, document or instrument referred to in this clause (b).
"LOAN PARTY" means any Person (other than the Administrative
Agent, the Issuing Bank, the Swing Loan Lender, the Documentation Agent or a
Bank) that is a party to a Loan Document.
"MANAGEMENT AGREEMENT" means the Management Agreement dated as of
July 1, 1988 between the Borrower and MediaNews Group, Inc.
"MANDATORILY REDEEMABLE STOCK" means, with respect to any Person,
any share of such Person's capital stock to the extent that it is (a)
redeemable, payable or required to be purchased or otherwise retired or
extinguished, or convertible into any Indebtedness or other Liability of such
Person (other than upon the occurrence of an event of default in connection
therewith), (i) at a fixed or determinable date, whether by operation of a
sinking fund or otherwise, (ii) at the option of any Person other than such
Person or (iii) upon the occurrence of a condition not solely within the control
of such Person, such as a redemption required to be made out of future earnings
or (b) convertible into Mandatorily Redeemable Stock.
"MATERIALLY ADVERSE EFFECT" means, (a) with respect to any Person,
any materially adverse effect on such Person's business, assets, Liabilities,
financial condition, results of operations or business prospects, (b) with
respect to a group of Persons "taken as a whole", any materially adverse effect
on such Persons' business, assets, Liabilities, financial conditions, results of
operations or business prospects taken as a whole on, where appropriate, a
consolidated basis in accordance with Generally Accepted Accounting Principles,
(c) with respect to any Loan Document, any materially adverse effect, on the
binding nature, validity or enforceability thereof as an obligation of any Loan
Party that is a party thereto and (d) with respect to any Collateral, or any
category of Collateral, pledged by any Loan Party, a materially adverse effect
on its value as Collateral or its utility in such Loan Party's business or a
materially adverse effect on the validity, perfection, priority or
enforceability of the Security Interest therein.
"MATURITY DATE" means June 30, 2006.
"MAXIMUM PERMISSIBLE RATE" means, with respect to interest payable
on any amount, the rate of interest on such amount that, if exceeded, could,
under Applicable Law, result in (a) civil or criminal penalties being imposed on
the payee or (b) the payee's being unable to enforce payment of (or, if
collected, to retain) all or any part of such amount or the interest payable
thereon.
"MONEY MARKET INVESTMENT" means (a) any security issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof having a remaining maturity of not more than
one year, (b) any certificate of deposit, eurodollar time deposit and bankers'
acceptance with remaining maturity of not more than one year, any overnight bank
deposit, and any demand deposit account, in each case with any Bank or with any
United States commercial bank having capital and surplus in excess of
$500,000,000 and rated B or better by Thomson Bankwatch Inc., (c) any repurchase
obligation with a term of not more than seven days for underlying securities of
the types described in clauses (a) and (b) above entered into with any financial
institution meeting the qualifications specified in clause (b) above, and (d)
any commercial paper issued by any Bank or the parent corporation of any Bank
and any other commercial paper rated A-1 or higher by Standard & Poor's Ratings
Services, a division of the McGraw Hill Companies, Inc. or Prime-1 by Xxxxx'x
Investors Service, Inc. and in any case having a remaining maturity of not more
than one year and any other short-term instrument consented to by the
Administrative Agent.
"MULTIEMPLOYER BENEFIT PLAN" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"1999 INDENTURE" means the Indenture dated _____________, 1999
between the Borrower and The Bank of New York, as trustee, with respect to the
1999 Subordinated Notes.
"1999 SUBORDINATED NOTES" means the 8-5/8% Senior Subordinated
Notes due 2011 of the Borrower.
"1997 INDENTURE" means the Indenture dated October 1, 1997 between
the Borrower and The Bank of New York, as trustee, with respect to the 1997
Subordinated Notes.
"1997 SUBORDINATED NOTES" means the 8-3/4% Senior Subordinated
Notes due 2009, Series A and Series B, of the Borrower.
"NET PROCEEDS" means the proceeds received by the Borrower or any
Subsidiary in cash from the sale, lease, assignment or other disposition of any
asset or property (other than sales of assets in the ordinary course of
business, which, for purposes of this definition, shall not include any
disposition of assets in which the total consideration received or receivable is
in excess of $500,000), net of (a) reasonable and customary fees, costs and
expenses incurred in connection with such sale, lease, assignment or other
disposition and payable by or on behalf of the seller or the transferor of the
assets to which such sale or disposition relates, (b) the amount of all foreign,
Federal, state and local taxes payable as a direct consequence of such sale,
lease, assignment or other disposition and (c) the amount of the Indebtedness
and other Liabilities, if any, attributable to or associated with such asset or
property and repaid out of such proceeds.
For this purpose, all proceeds of insurance paid on account of the loss of or
damage to any such asset or property, or group of assets or properties, and
awards of compensation for any such asset or property, or group of assets or
properties, taken by condemnation or eminent domain shall be deemed to be Net
Proceeds (PROVIDED that, in the case of proceeds from insurance paid with
respect to any loss or damage to any asset, such proceeds, or any portion
thereof, shall not constitute Net Proceeds if the Administrative Agent has
received notice from the Borrower or any Subsidiary of its intention to use such
proceeds or portion thereof at the time of such loss or damage, and such
proceeds or portion thereof are in fact so used within one year after the
occurrence of such loss or damage to repair, restore or replace such asset).
"NEWCO" shall have the meaning ascribed thereto in the Greenco
Note Purchase Agreement.
"NEW ENGLAND INTERNET MEDIA PUBLISHING" means New England Internet
Media Publishing, Inc., a Delaware corporation.
"NONPARTICIPATING BANK" means a Bank designated by the Issuing
Bank as a Bank with respect to which a Bank Nonparticipation has occurred. The
designation of a Bank by the Issuing Bank as a "Nonparticipating Bank" shall not
affect the status of such Bank as a Participating Bank in respect of Letters of
Credit issued prior to such designation.
"NOTE" means any promissory note in the form of EXHIBIT A-1 or, as
the context may require, any Swing Note.
"NOTICE OF ASSIGNMENT" means any notice to the Borrower, the
Issuing Bank, the Swing Loan Lender and the Administrative Agent with respect to
an assignment pursuant to Section 9.10(a) in the form of SCHEDULE 9.10(A).
"OPERATING CASH FLOW" means, as of any date of determination, the
following, determined with respect to the immediately preceding four fiscal
quarters of the Borrower for which financial statements of the Borrower have
been delivered pursuant to Section 5.01(a) or 5.01(c), as the case may be: (A)
revenues less (B) the sum of (i) cost of sales, (ii) management fees and (iii)
selling, general and administrative expenses (excluding, for any such period of
four fiscal quarters ending on or prior to March 31, 2001, expenses incurred in
connection with the internet activities of the Borrower and the Subsidiaries, in
an aggregate amount not in excess of $1,000,000), in each case for clauses (A)
and (B), of the Borrower and its Subsidiaries, for such period, determined on a
consolidated basis and in accordance with GAAP PLUS (C) the lesser of (i)
dividends received from any Person not constituting a Subsidiary hereunder for
such period and (ii) the Borrower's and its Subsidiaries' percentage interest in
the net income of such Person; PROVIDED that, (x) if any such Subsidiary is not
a Wholly Owned Subsidiary of the Borrower, revenues, cost of sales, management
fees and selling, general and administrative expenses of such Subsidiary and its
Subsidiaries shall be included only to the extent of the Borrower's common
equity ownership on a fully diluted basis therein and (y) operating cash flow of
any Subsidiary shall be excluded if and to the extent that, the declaration of
dividends or distribution by that Subsidiary of such operating cash flow is not,
at the time, permitted directly or indirectly, by the terms of its charter, or
any agreement, instrument, judgment, decree, order, statute, rule or
government regulation applicable to that Subsidiary. Notwithstanding the
foregoing, Operating Cash Flow for any period shall be calculated after giving
effect on a pro forma basis for the period of such calculation to (a) the sale
or other disposition of any Subsidiary or of all or substantially all of the
assets of any Subsidiary during such period and up to and including the date of
determination (the "Reference Period") and (b) the acquisition by the Borrower
or any Subsidiary during the Reference Period of any other Person which, as a
result of such acquisition, becomes a Subsidiary of the Borrower, or the
acquisition of assets during the Reference Period from any Person which
constitutes all or substantially all of an operating unit or business of such
Person, as if such sale or disposition or acquisition occurred on the first day
of the period of such calculation; PROVIDED that to the extent that this
sentence requires that pro forma effect be given to an acquisition of, or an
acquisition of all or substantially all of an operating unit or business from,
any Person, such pro forma calculation shall be based upon the four full fiscal
quarters of such Person or operating unit or business for which financial
information is available immediately preceding such acquisition.
"PARTICIPATING BANK" means a Bank that is not a Nonparticipating
Bank. A Participating Bank shall remain a Participating Bank in all Letters of
Credit with respect to which it was a Participating Bank prior to its
designation as a Nonparticipating Bank.
"PARTICIPATING BANK PERCENTAGE" means, for a Participating Bank,
with respect to any Letter of Credit, the fraction, expressed as a percentage,
the numerator of which is such Participating Bank's Commitment and the
denominator of which is the sum of the aggregate amount of the Commitments of
all Banks that are, at the time of issuance of such Letter of Credit,
Participating Banks.
"PARTNERSHIP AGREEMENT" means the Partnership Agreement relating
to the California Partnership dated March 31, 1999 among West Coast MediaNews,
Donrey Newspapers LLC and ________________.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERMITTED GUARANTY" means any Guaranty that is (a) an endorsement
of a check for collection in the ordinary course of business or (b) a Guaranty
of and only of the obligations of the Loan Parties under the Loan Documents.
"PERMITTED LIEN" means (a) with respect to any asset that does not
constitute Collateral, (i) any Lien securing and only securing the obligations
of the Loan Parties under the Loan Documents; (ii) any Lien securing a tax,
assessment or other governmental charge or levy or the claim of a materialman,
mechanic, carrier, warehouseman or landlord for labor, materials, supplies or
rentals incurred in the ordinary course of business, but only if payment thereof
shall not at the time be required to be made in accordance with Section 4.01(e)
and foreclosure, distraint, sale or other similar proceedings shall not have
been commenced; (iii) any Lien on the properties and assets of a Subsidiary of
the Borrower securing an obligation owing to the Borrower; (iv) any Lien
consisting of a deposit or pledge made in the ordinary course of business in
connection with, or to secure payment of, obligations under worker's
compensation, unemployment insurance or similar legislation; (v) any Lien
arising pursuant to an order of
attachment, distraint or similar legal process arising in connection with legal
proceedings, but only if and so long as the execution or other enforcement
thereof is not unstayed for more than 20 days; (vi) any Lien existing on (A) any
property or asset of any Person at the time such Person becomes a Subsidiary or
(B) any property or asset at the time such property or asset is acquired by the
Borrower or a Subsidiary, but only, in the case of either (A) or (B), if and so
long as (1) such Lien was not created in contemplation of such Person becoming a
Subsidiary or such property or asset being acquired, (2) such Lien is and will
remain confined to the property or asset subject to it at the time such Person
becomes a Subsidiary or such property or asset is acquired and to fixed
improvements thereafter erected on such property or asset, (3) such Lien secures
only the obligation secured thereby at the time such Person becomes a Subsidiary
or such property or asset is acquired and (4) the obligation secured by such
Lien is not in default; (vii) any Lien in existence on the Agreement Date to the
extent set forth on SCHEDULE 4.08, but only, in the case of each such Lien, to
the extent it secures an obligation outstanding on the Agreement Date to the
extent set forth on such Schedule; (viii) any Lien securing Purchase Money
Indebtedness but only if, in the case of each such Lien, (A) such Lien shall at
all times be confined solely to the property or asset the purchase price of
which was financed through the incurrence of the Purchase Money Indebtedness
secured by such Lien and to fixed improvements thereafter erected on such
property or asset and (B) such Lien attached to such property or asset within 30
days of the acquisition of such property or asset; or (ix) any Lien constituting
a renewal, extension or replacement of a Lien constituting a Permitted Lien by
virtue of clause (vi), (vii), (viii) or (ix) of this definition, but only if (A)
at the time such Lien is granted and immediately after giving effect thereto, no
Default would exist, (B) such Lien is limited to all or a part of the property
or asset that was subject to the Lien so renewed, extended or replaced and to
fixed improvements thereafter erected on such property or asset, (C) the
principal amount of the obligations secured by such Lien does not exceed the
principal amount of the obligations secured by the Lien so renewed, extended or
replaced and (D) the obligations secured by such Lien bear interest at a rate
per annum not exceeding the rate borne by the obligations secured by the Lien so
renewed, extended or replaced except for any increase that is commercially
reasonable at the time of such increase; and (b) with respect to any asset that
constitutes Collateral, any Lien that constitutes a "Permitted Lien" or
"Permitted Encumbrance" under the applicable Security Agreement, Mortgage or the
Pledge Agreement.
"PERMITTED RESTRICTIVE COVENANT" means (a) any covenant or
restriction contained in any Loan Document, (b) any covenant or restriction
contained in the Greenco Note Purchase Agreement, so long as such covenant or
restriction is not binding on any Person other than Newco, or in the 1997
Indenture, the 1999 Indenture or the Partnership Agreement, (c) any covenant or
restriction binding upon any Person at the time such Person becomes a Subsidiary
of the Borrower if the same is not created in contemplation thereof, (d) any
covenant or restriction of the type contained in Section 4.08 that is contained
in any Contract evidencing or providing for the creation of or concerning
Purchase Money Indebtedness (other than the Greenco Note) so long as such
covenant or restriction is limited to the property purchased therewith, (e) any
covenant or restriction described in SCHEDULE 4.16, but only to the extent such
covenant or restriction is there identified by specific reference to the
provision of the Contract in which such covenant or restriction is contained or
(f) any covenant or restriction that (i) is not more burdensome than an existing
Permitted Restrictive Covenant that is such by virtue of clause (b),
(c), (d), (e) or (f), (ii) is contained in a Contract constituting a renewal,
extension or replacement of the Contract in which such existing Permitted
Restrictive Covenant is contained and (iii) is binding only on the Person or
Persons bound by such existing Permitted Restrictive Covenant.
"PERSON" means any individual, sole proprietorship, corporation,
limited liability company, partnership, trust, unincorporated organization,
mutual company, joint stock company, estate, union, employee organization,
government or any agency or political subdivision thereof or, for the purpose of
the definition of "ERISA Affiliate", any trade or business.
"PLEDGE AGREEMENTS" means collectively (a) each of the Pledge
Agreements between each Subsidiary and the Administrative Agent, the Pledge
Agreement between the Borrower and the Administrative Agent and the ANI Pledge
Agreement, in each case in substantially the form of EXHIBIT C and (b) any other
pledge agreement entered into pursuant to Section 4.04, in each case in
substantially the form of EXHIBIT C.
"POST-DEFAULT RATE" means the rate otherwise applicable under
Section 1.04(a) PLUS 2.00%.
"PRIME RATE" means the prime commercial lending rate of The Bank
of New York, as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date of
any public announcement of any change in such prime commercial lending rate.
The Prime Rate is not necessarily The Bank of New York's lowest rate of
interest.
"PRO FORMA CONSOLIDATED INTEREST EXPENSE" means, as of any date of
determination, Interest Expense projected to be paid during the period of four
full fiscal quarters of the Borrower next succeeding such date on all
Indebtedness. For purposes of computing projected interest for any period under
the preceding sentence, (i) it shall be assumed that the amount of Indebtedness
outstanding on the first day of such period remains outstanding during the
entire period except to the extent that such Indebtedness is subject to a
mandatory payment or prepayment of principal during such period, (ii) if such
Person has committed to incur additional Indebtedness during such period,
interest on such additional Indebtedness shall be taken into account from and
after the date on which such Person is committed to incur it and (iii) where
interest varies with or depends on a floating rate, the rate in effect on the
first day of such period will be assumed to be in effect and remain constant
during the entire period for which interest is being computed after giving
effect to interest rate swaps and similar obligations which are in effect on
such day and will continue in effect for more than half of the period of such
calculation.
"PRO FORMA DEBT SERVICE" means, as of any date of determination,
the sum of (i) all Required Repayments, and all other payments of principal of
all Indebtedness of the Borrower and its Consolidated Subsidiaries scheduled to
be made during the period of four full fiscal quarters of the Borrower next
succeeding such date of determination, and (ii) Pro Forma Consolidated Interest
Expense for such period.
"PROHIBITED TRANSACTION" means any transaction that is prohibited
under Code Section 4975 or ERISA Section 406 and not exempt under Code Section
4975 or ERISA Section 408.
"PURCHASE MONEY INDEBTEDNESS" means (a) Indebtedness of the
Borrower that is incurred to finance part or all of (but not more than) the
purchase price of tangible property and related assets, PROVIDED that (i)
neither the Borrower nor any Subsidiary had at any time prior to such purchase
any interest in such asset other than a security interest or an interest as
lessee under an operating lease and (ii) such Indebtedness is incurred within 30
days after such purchase, or (b) Indebtedness that (i) constitutes a renewal,
extension or refunding of, but not an increase in the principal amount of,
Purchase Money Indebtedness that is such by virtue of clause (a) or (b) and (ii)
bears interest at a rate per annum that is commercially reasonable at the time
such Indebtedness is incurred.
"REGULATION A" means Regulation A of the Board of Governors of the
Federal Reserve System.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System.
"REGULATORY CHANGE" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law), or any
change therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the Agreement Date, whether the same is (a) the result of an enactment by
a government or any agency or political subdivision thereof, a determination of
a court or regulatory authority, or otherwise or (b) enacted, adopted, issued or
proposed before or after the Agreement Date, including any such Applicable Law,
interpretation, directive, request, guideline or change that imposes, increases
or modifies any Tax, reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, but excluding any such
Applicable Law, interpretation, directive, request, guideline or change that
imposes, increases or modifies any income or franchise tax imposed upon a Bank
by any jurisdiction (or any political subdivision thereof) in which such Bank or
any of its Lending Offices is located or doing business.
"REINVESTED AMOUNT" means, with respect to any Net Proceeds, the
portion thereof that, as of the last day of the Reinvestment Contract Period
with respect thereto, shall have been reinvested pursuant to acquisitions
described in Section 4.10(d) in a manner not prohibited by this Agreement or
will be so reinvested pursuant to a Reinvestment Contract entered into by all of
the parties thereto on or prior to such last day.
"REINVESTMENT CONTRACT" means a binding contract entered into by
the Borrower or a Subsidiary providing for acquisitions described in Section
4.10(d) in a manner not prohibited by this Agreement.
"REINVESTMENT CONTRACT PERIOD" means, with respect to any sale or
disposition of assets by the Borrower or any Subsidiary, the period from the
date of such sale or disposition to the date that is 270 days after the date of
such sale or disposition.
"REINVESTMENT PERIOD" means, with respect to any sale or
disposition of assets by the Borrower or any Subsidiary, the period from the
date of such sale or disposition to the date that is 360 days after the date of
such sale or disposition.
"REPAYMENT DATE" means the later of (i) the termination of the
Commitments in their entirety (whether as a result of the occurrence of the
Maturity Date, the reduction thereof to zero pursuant to Section 1.08 or the
termination thereof pursuant to Section 6.02), (ii) the payment in full of all
principal of and interest on the Loans and Drawings and all fees and other
amounts payable or accrued hereunder and (iii) the expiration or cancellation
of, or the reduction to zero of the amount available to be drawn under, all
outstanding Letters of Credit.
"REPORTABLE EVENT" means, with respect to any Benefit Plan of any
Person, (a) the occurrence of any of the events set forth in ERISA Sections
4043(c) (other than a Reportable Event as to which the provision of 30 days'
notice to the PBGC is waived under applicable regulations), 4062(e) or 4063(a)
or the regulations thereunder with respect to such Benefit Plan, (b) any event
requiring such Person or any of its ERISA Affiliates to provide security to such
Benefit Plan under Code Section 401(a)(29) or (c) any failure to make a payment
required by Code Section 412(m) with respect to such Benefit Plan.
"REPRESENTATION AND WARRANTY" means any representation or warranty
made by the Borrower, any Guarantor or any other Loan Party pursuant to or under
(a) Section 2.02, Article 3, Section 5.02 or any other provision of this
Agreement or (b) any amendment to, or waiver of rights under, this Agreement,
WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY REFERRED TO IN
CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO THE EXTENT
OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT MATTER
THEREOF IS WITHIN THE KNOWLEDGE OF SUCH LOAN PARTY.
"REQUIRED BANKS" means, at any time, Banks having at least 51% of
the Loans (including, if any Swing Loans are outstanding at such time, such
Banks' pro rata share thereof based on the Commitments at such time) and Letter
of Credit Participations outstanding or, if there are no Loans or Letter of
Credit Participations outstanding, at least 51% of the aggregate amount of the
Commitments.
"REQUIRED REPAYMENTS" means, for any period, an amount equal to
the excess, if any, of (i) the outstanding amount of Loans and Letter of Credit
Participations at the beginning of such period over (ii) the aggregate amount of
the Commitments at the end of such period.
"RESERVE REQUIREMENT" means, at any time, the then current maximum
rate for which reserves (including any marginal, supplemental or emergency
reserve) are required to be maintained under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding five billion
Dollars against "Eurocurrency liabilities", as that term is used in Regulation
D. The Adjusted Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Reserve Requirement.
"RESTRICTED PAYMENT" means (a) any payment with respect to or on
account of any of the Borrower's or any Subsidiary's Capital Securities,
including any dividend or other distribution on, or any payment of interest on
or principal of, any such Capital Securities, (b) any payment on account of the
principal of or interest or premium, if any, on any Subordinated Debt (other
than any regularly scheduled payment of interest thereon and any repayment of
principal thereof upon the stated maturity thereof (subject to the subordination
provisions applicable thereto)) or (c) any payment on account of any purchase,
redemption, retirement, exchange, defeasance or conversion of, or on account of
any claim relating to or arising out of the offer, sale or purchase of, any such
Capital Security or any Subordinated Debt. For the purposes of this definition,
a "payment" shall include the transfer of any asset or the incurrence of any
Indebtedness or other Liability (the amount of any such payment to be the fair
market value of such asset or the amount of such obligation, respectively) but
shall not include the issuance of any capital stock of the Borrower other than
Mandatorily Redeemable Stock.
"SECURED PARTY" has the meaning ascribed to such term in the
Pledge Agreements.
"SECURITY INTEREST" means the Liens created, or purported to be
created, by the Loan Documents.
"SUBORDINATED DEBT" means (i) the 1997 Subordinated Notes, (ii)
the 1999 Subordinated Notes, (iii) the Greenco Note and (iv) any other
Indebtedness of the Borrower that is subordinated on terms and conditions, and
that is subject to other terms and conditions, satisfactory in form and
substance to the Required Banks.
"SUBORDINATED NOTES" means the $100,000,000 principal amount of
12% Senior Subordinated Secured Notes of the Borrower due July 1, 2004
"SUBSIDIARY" means, with respect to any Person, any other Person
(a) securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions), (b) any other
ownership interests of which ordinarily constitute a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one of more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries or (c) that otherwise constitutes a Consolidated
Subsidiary of such first Person. Unless otherwise specified, "Subsidiary" means
a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY SUPPLEMENT" means each Subsidiary Guaranty
Supplement entered into pursuant to Section 4.04, in each case in substantially
the form of EXHIBIT B.
"SWING LOAN" means an amount advanced by the Swing Loan Lender
pursuant to Section 1.01(b) hereof.
"SWING LOAN PERCENTAGE" means, for any Bank, at any time, a
fraction, expressed as a percentage, the numerator of which is such Bank's
Commitment at such time and the denominator of which is the aggregate amount of
the Commitments at such time.
"SWING LOAN LENDER" means The Bank of New York.
"SWING NOTE" means any promissory note in the form of EXHIBIT A-2.
"TAX" means any federal, state or foreign tax, assessment or other
governmental charge or levy of any nature (including any withholding tax) upon a
Person or upon its assets, revenues, income or profits including without
limitation, interest, penalties and additional allowances with respect to such
items.
"TAX SHARING AGREEMENT" means the Federal Tax Sharing Agreement
dated as of May 20, 1994 between the Borrower and ANI.
"TERMINATION EVENT" means, with respect to any Benefit Plan, (a)
any Reportable Event with respect to such Benefit Plan, (b) the termination of
such Benefit Plan, or the filing of a notice of intent to terminate such Benefit
Plan, or the treatment of any amendment to such Benefit Plan as a termination
under ERISA Section 4041(c), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042 or (d) the appointment of a trustee
to administer such Benefit Plan under ERISA Section 4042.
"TYPE" means, with respect to Loans, any of the following, each of
which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-month Interest Period, Eurodollar Rate Loans
having a two-month Interest Period, Eurodollar Rate Loans having a three-month
Interest Period, Eurodollar Rate Loans having a six-month Interest Period and,
if made available by all of the Banks, Eurodollar Rate Loans having a
twelve-month Interest Period. Any Eurodollar Rate Loan having an Interest
Period that differs from the duration specified for a Type of Eurodollar Rate
Loan listed above solely as a result of the operation of clauses (a) and (b) of
the definition of "Interest Period" shall be deemed to be a Loan of such
above-listed Type notwithstanding such difference in duration of Interest
Periods.
"UNFUNDED BENEFIT LIABILITIES" means, with respect to any Benefit
Plan at any time, the amount of unfunded benefit liabilities of such Benefit
Plan at such time as determined under ERISA Section 4001(a)(18).
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"WEST COAST MEDIANEWS" means West Coast Media News LLC, a Delaware
limited liability company.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities and all other ownership
interests and rights to acquire ownership interests of which (except directors'
qualifying shares) are, directly or indirectly, owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more of such Subsidiaries; unless otherwise specified, "Wholly Owned
Subsidiary" means a Wholly Owned Subsidiary of the Borrower.
"YEAR 2000 ISSUE" means the failure of computer software, hardware
and firmware systems and equipment containing embedded computer chips to
properly receive, transmit, process, manipulate, store, retrieve, re-transmit or
in any other way utilize data and information due to the occurrence of the year
2000 or the inclusion of dates on or after January 1, 2000.
Section 11.02 OTHER INTERPRETIVE PROVISIONS. (a) Except as otherwise
specified herein, all references herein or in any other Loan Document (i) to any
Person shall be deemed to include such Person's permitted successors and
assigns, (ii) to any Applicable Law defined or referred to herein shall be
deemed references to such Applicable Law or any successor Applicable Law as the
same may have been or may be amended or supplemented from time to time and (iii)
to any Loan Document or Contract defined or referred to herein shall be deemed
references to such Loan Document or Contract (and, in the case of any Note or
any other instrument, any instrument issued in substitution therefor) as the
terms thereof may have been or may be amended, supplemented, waived or otherwise
modified from time to time as permitted hereby.
(b) When used in this Agreement, the words "herein", "hereof"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article",
"Section", "Annex", "Schedule" and "Exhibit" shall refer to Articles and
Sections of, and Annexes, Schedules and Exhibits to, this Agreement unless
otherwise specified.
(c) Whenever the context so requires, the neuter gender
includes the masculine or feminine, the masculine gender includes the feminine,
and the singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(e) Each authorization in favor of the Administrative Agent,
the Issuing Bank, the Swing Loan Lender, any Bank or any other Person granted by
or pursuant to this Agreement shall be deemed to be irrevocable and coupled with
an interest.
(f) Except as otherwise specified herein, all references herein
to the Administrative Agent, the Issuing Bank, the Swing Loan Lender, any Bank
or any Loan Party shall be deemed to refer to such Person however designated in
Loan Documents, so that (i) a
reference to rights or duties of the Administrative Agent under the Loan
Documents shall be deemed to include the rights or duties of such Person as the
Secured Party under the Pledge Agreements, (ii) a reference to costs incurred by
a Bank in connection with the Loan Documents shall be deemed to include costs
incurred by such Person as a Principal under (and as defined in) the Pledge
Agreements and (iii) a reference to the obligations of the Borrower or any other
Loan Party under the Loan Documents shall be deemed to include the obligations
of such Person in any capacity under the Loan Documents.
Section 11.03 ACCOUNTING MATTERS. All accounting determinations
hereunder and all computations utilized by the Borrower in complying with the
covenants contained herein shall be made, all accounting terms used herein shall
be interpreted, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with Generally Accepted Accounting Principles,
except, in the case of such financial statements, for changes in Generally
Accepted Accounting Principles that may from time to time be approved by a
significant segment of the accounting profession.
Section 11.04 REPRESENTATIONS AND WARRANTIES. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made or Letter of Credit is issued, at and as of such time and (c) in
the case of any particular Representation and Warranty, wherever contained, at
such other time or times as such Representation and Warranty is made or deemed
made in accordance with the provisions of this Agreement or the document
pursuant to, under or in connection with which such Representation and Warranty
is made or deemed made.
Section 11.05 CAPTIONS. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 11.06 INTERPRETATION OF RELATED DOCUMENTS. Except as otherwise
specified therein, terms that are defined herein that are used in Notes,
certificates, opinions and other documents delivered in connection herewith
shall have the meanings ascribed to them herein and such documents shall be
otherwise interpreted in accordance with the provisions of this Article 11.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
GARDEN STATE NEWSPAPERS, INC.
By:
-----------------------------------
Name:
Title:
AFFILIATED NEWSPAPERS
INVESTMENTS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
ALAMEDA NEWSPAPERS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
EASTON PUBLISHING COMPANY,
as a Guarantor
By:
-----------------------------------
Name:
Title:
GARDEN STATE INVESTMENTS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
XXXXXX NEWSPAPERS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
HANOVER PUBLISHING CO.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
INTERNET MEDIA PUBLISHING, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
MID-STATES NEWSPAPERS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
NEW ENGLAND INTERNET MEDIA
PUBLISHING, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
NEW ENGLAND NEWSPAPERS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
NJN INVESTMENTS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
NJN PUBLISHING COMPANY,
as a Guarantor
By:
-----------------------------------
Name:
Title:
SOUTH JERSEY NEWSPAPERS COMPANY,
as a Guarantor
By:
-----------------------------------
Name:
Title:
V&P PUBLISHING, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
WEST COAST MEDIANEWS LLC,
as a Guarantor
By:
-----------------------------------
Name:
Title:
YORK NEWSPAPERS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent and as a Bank
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA NT & SA,
as Syndication Agent and as a Bank
By:
-----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Bank
By:
-----------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Co-Documentation Agent and as a
Bank
By:
-----------------------------------
Name:
Title:
NORWEST BANK COLORADO, N.A.
as a Bank
By:
-----------------------------------
Name:
Title:
MELLON BANK, N.A.
as a Bank
By:
-----------------------------------
Name:
Title:
CIBC INC.
as a Bank
By:
-----------------------------------
Name:
Title:
