election of directors, managers or other governing body (other than securities or interests
having such power only by reason of the happening of a contingency) are owned by Holdings or any of
its Subsidiaries or (ii) any wholly-owned Subsidiary of any corporation, partnership, joint
venture, limited liability company or other business entity referred to in clause (i) above;
provided, however, that any entity that was a Subsidiary of the Borrower on July
22, 2005 shall not be included in the term “Joint Venture Entity.”
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, any ERISA Affiliate.
“Plan of Reorganization” means the Fifth Amended Joint Plan of Reorganization of Holdings and
its Subsidiaries dated July 30, 2003.
“Pledged Debt” has the meaning specified in Section 1(d)(iv) of the Security
Agreement.
“Pledged Equity” has the meaning specified in Section 1(d)(iii) of the Security
Agreement.
“Prepayment Maximum Senior Secured Leverage Ratio” means 3.50:1.00.
“Pro Forma Compliance” means, with respect to any of the Incurrence Test, the Senior Secured
Leverage Covenant or any Revolver Maintenance Covenant, compliance with such covenant determined on
the basis of the most recently ended Measurement Period for which financial information has been
delivered to the Administrative Agent pursuant to Section 6.01(a) or (b),
calculated as though the relevant Indebtedness had been created, incurred, issued or assumed or
Investment made as of the first day of such Measurement Period and, in the case of any creation,
incurrence, issuance or assumption of Indebtedness, as though any Indebtedness that will be repaid
with the proceeds of such Indebtedness had been so repaid or refinanced as of the first day of such
Measurement Period.
“QDE Credit Documents” has the meaning specified in Section 7.03(n).
“Qualified Designated Entity” means (i) a Person that, at the time of the making of the
initial Investment by a Loan Party in such Person, holds or is intended to hold, whether directly
or indirectly through one or more Subsidiaries, one or more FCC Licenses as, or is eligible to
participate in an FCC auction or auctions for FCC Licenses and/or purchase of FCC Licenses or
spectrum in an after-market therefor from time to time as, a “Designated Entity,” “Entrepreneur,”
“Small Business,” or “Very Small Business,” as those terms are defined under FCC rules and
regulations as in effect at the time of the making of such Investment or (ii) a wholly-owned
subsidiary of a Person referred to in clause (i) above; provided, however,
that no such Person controlled by Holdings or any of its Subsidiaries shall be a Qualified
Designated Entity. Unless otherwise specified, as used herein the term “Qualified Designated
Entity” shall include the ANB Entities.
“
Qualified Designated Entity Agreements” means all written agreements governing Investments by
Holdings and its Subsidiaries in Qualified Designated Entities and all written agreements governing
material transactions and business relationships between Holdings and its Subsidiaries, on the one
hand, and any Qualified Designated Entity or member thereof, on the other, including, without
limitation, limited liability company agreements, partnership agreements, management services
agreements, license agreements, and agreements governing
loans made to, and commitments to lend to or invest in, a Qualified Designated Entity
(including for the avoidance of doubt the ANB Credit Documents, the ANB Equity Documents and all
QDE Credit Documents).
“Qualified Preferred Stock” means preferred stock of Holdings that (a) has no mandatory
redemption feature exercisable on a date earlier than 180 days after the Maturity Date in respect
of the Term B Facility, (b) has no requirements for the payment in cash of dividends or other
distributions on a date earlier than 180 days after the Maturity Date in respect of the Term B
Facility and (c) contains covenants, if any, no more restrictive than those customarily found in a
high-yield debt offering.
“Reduction Amount” has the meaning set forth in Section 2.04(b)(vii).
“Register”
has the meaning specified in Section 10.06(d).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s
Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30-day notice period has been waived.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Term B Loans or Revolving Credit Loans, a Committed Loan Notice and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk
participation and funded participation in L/C Obligations being deemed “held” by such Revolving
Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments; provided that the unused Revolving Credit Commitment of, and the portion of
the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes
of making a determination of Required Lenders.
“Required Principal Payments” means, with respect to any Person for any period, the sum of all
regularly scheduled principal payments or redemptions of outstanding funded debt made during such
period.
“Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders
holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate
amount of each Revolving Credit Lender’s risk participation and funded participation in L/C
Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition)
and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving
Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Revolving Lenders.
“Required Term B Lenders” means, as of any date of determination, Term B Lenders holding more
than 50% of the aggregate outstanding principal amount of Term B Loans; provided that the
portion of the Term B Loans held by any Defaulting Lender shall be excluded for purposes of making
a determination of Required Term B Lenders.
“Responsible Officer” means any of the chief executive officer, president, chief financial
officer, chief operations officer, treasurer, assistant treasurer or controller of a Loan Party.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any capital stock or other Equity Interest of any Person or any of
its Subsidiaries, or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or on account of any option, warrant or other right to acquire any such
dividend or other distribution or payment.
“Revolver Maintenance Covenant Compliance Certificate” means a certificate substantially in
the form of Exhibit C-1.
“Revolver Maintenance Covenants” means the covenants contained in each of Sections
7.10(a), 7.10(b) and 7.10(d).
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a)
make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the
caption “Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit
Lenders’ Revolving Credit Commitments at such time, as the same may be increased in accordance with
Section 2.13.
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.
“Revolving Credit Loan” has the meaning specified in Section 2.01(b).
“Revolving Credit Note” means a promissory note made by the Borrower payable to the order of
any Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender,
in substantially the form of Exhibit B-2.
“Revolving Facility Covenant” means any term, covenant or agreement contained in any of
Section 7.02(b) or Section 7.06(b) or any Revolver Maintenance Covenant.
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
and any successor thereto.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Secured Hedge Agreement” means any interest rate Swap Contract required or permitted under
Article VI or VII that is entered into by and between the Borrower and any Hedge
Bank.
“Secured Obligations” has the meaning specified in Section 2 of the Security
Agreement.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer,
the Hedge Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are
purported to be secured by the Collateral under the terms of the Collateral Documents.
“Security Agreement” has the meaning specified in Section 4.01(a)(iii).
“Security Agreement Supplement” has the meaning specified in Section 22(b) of the
Security Agreement.
“Senior Secured Leverage Covenant” means the covenant contained in Section 7.10(c).
“Senior Secured Leverage Covenant Compliance Certificate” means a certificate substantially in
the form of Exhibit C-2.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that
on such date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in business or a
transaction, for which such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
“SPC” has the meaning specified in Section 10.06(i).
“Stock-Pay Obligations” means (i) a commitment to purchase Equity Interests in a Qualified
Designated Entity or a Joint Venture Entity (including by way of a put obligation) or otherwise to
fund a Qualified Designated Entity or a Joint Venture Entity to the extent that such commitment is
permitted to be satisfied in full with common Equity Interests of Holdings or Qualified Preferred
Stock (or any combination thereof) without any cash make-whole or similar payments or other cash
payments, (ii) the purchase of Equity Interests in a Qualified Designated Entity or a Joint Venture
Entity (including by way of a put obligation) or other funding of a Qualified Designated Entity or
a Joint Venture Entity, to the extent that such purchase or funding is effected with common Equity
Interests of Holdings or Qualified Preferred Stock (or any combination thereof) or (iii) a
Permitted Debt Put Right or a purchase or other payment in respect of Indebtedness of a Qualified
Designated Entity or a Joint Venture Entity to the extent that such purchase or other payment is
effected with common Equity Interests of Holdings or Qualified Preferred Stock (or any combination
thereof) pursuant thereto.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which shares of securities or other ownership interests having
ordinary voting power for the election of a majority of the directors, managers or other members of
its governing body (other than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. All references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of Holdings (unless otherwise specified), but shall exclude (x) the
Excluded Subsidiaries, (y) until such time as Holdings beneficially owns, directly or indirectly,
shares of securities or other ownership interests having the power to elect a majority of the
directors, managers or other members of its governing body (other than securities or interests
having such power only by reason of the happening of a contingency) of an ANB Entity, such ANB
Entity and (z) until such time as Holdings beneficially owns, directly or indirectly, 100% of the
Equity Interests of a Joint Venture Entity, Qualified Designated Entity or former Qualified
Designated Entity in which Holdings or any of it Subsidiaries makes any Investment pursuant to
Section 7.03(k), Section 7.03(n) or Section 7.03(o), each such Joint
Venture Entity, Qualified Designated Entity or former Qualified Designated Entity.
“Subsidiary Guarantor” means each Domestic Subsidiary of the Borrower that is party to the
Subsidiary Guaranty.
“Subsidiary Guaranty” has the meaning specified in the definition of “Guaranty”.
“
Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together with any related
schedules, a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).
“Synthetic Debt” means, with respect to any Person as of any date of determination thereof,
all Obligations of such Person in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession
of property (including sale and leaseback transactions), in each case, creating obligations that do
not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief
Laws to such Person, would be characterized as the indebtedness of such Person (without regard to
accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“Term B Borrowing” means a borrowing consisting of simultaneous Term B Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term
B Lenders pursuant to Section 2.01(a).
“Term B Commitment” means, as to each Term B Lender, its obligation to make Term B Loans to
the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
under the caption “Term B Commitment” or opposite such caption in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
“Term B Facility” means, at any time, (i) on or prior to the Closing Date, the aggregate
amount of the Term B Commitments at such time and (ii) thereafter the aggregate principal amount of
the Term B Loans of all Term B Lenders outstanding at such time, as the same may be increased in
accordance with Section 2.13.
“Term B Lender” means, at any time, (i) on or prior to the Closing Date, any Lender that has a
Term B Commitment at such time and (ii) at any time after the Closing Date, any Lender that holds
Term B Loans at such time.
“Term B Loan” means an advance made by any Term B Lender under the Term B Facility.
“Term B Note” means a promissory note made by the Borrower in favor of a Term B Lender,
evidencing Term B Loans made by such Term B Lender in substantially the form of Exhibit B-1
hereto.
“Termination Date” means (a) with respect to the Revolving Credit Facility, the earlier of (i)
May 31, 2011 and (ii) the date of termination in whole of the Revolving Credit Commitments and the
Letter of Credit Sublimit pursuant to Section 2.05 or 8.02 and (b) with respect to
the Term B Facility, the earlier of (i) May 31, 2013 and (ii) the date of termination in whole of
the Term B Commitments pursuant to Section 2.05 or 8.02.
“Threshold Amount” means $25,000,000.
“Toledo/Sandusky Assets” means assets, properties and rights of the Borrower and its
Subsidiaries that pertain to the Loan Parties’ business of providing PCS wireless
telecommunications services in the markets covered by the basic trading areas of Toledo, Ohio (BTA
#444) and Sandusky, Ohio (BTA #403).
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving
Credit Loans and L/C Obligations.
“Transaction” means, collectively, (a) the Refinancing, (b) the entering into by the Loan
Parties and their applicable Subsidiaries of the Loan Documents to which they are or are intended
to be a party, and (c) the payment of the fees and expenses incurred in connection with the
consummation of the foregoing.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate
Loan.
“Uncollateralized Letter of Credit” means a Letter of Credit that has not been Cash
Collateralized, whether or not such Letter of Credit is drawn or undrawn at the time of
determination.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, as determined
using the most recent actuarial value of the Plan prepared in accordance with the assumptions used
for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“U.S. Loan Party” means any Loan Party that is organized under the laws of one of the states
of the United States of America and that is not a CFC.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, (vi) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights, (vii) the words
“knowledge” or “knows,” when used with respect to any Loan Party, means (A)
the actual knowledge of a Responsible Officer of such Loan Party and (B) knowledge that
would be obtained by a Responsible Officer of such Loan Party exercising customary
diligence, (viii) the words “in all material respects” or words of similar import
when used herein with respect to the truth or correctness of representations and warranties
mean, with respect to any representation that is by its terms qualified as to materiality,
in all respects, and with
respect to any representation that is by its terms not qualified as to materiality, in
all material respects and (ix) the components of the definition of “Solvent” and “Solvency”
set forth herein shall be construed in accordance with applicable state fraudulent
conveyance laws and with Section 548 of the Bankruptcy Code of the United States.
(b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”
(c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.
1.03 Accounting Terms. (a) Generally. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at
any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms or
the terms of any Issuer Document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum
stated amount of such Letter of Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time.
1.07
Currency Equivalents Generally. Any amount specified in this Agreement (other
than in
Articles II,
IX and
X) or any of the other Loan Documents to be in
Dollars shall also include the equivalent of such amount in any currency other than Dollars, such
equivalent amount to be determined at the rate of exchange quoted by Bank of America in
New York at
the close of business on the Business Day immediately preceding any date of determination thereof,
to prime banks in
New York,
New York for the spot purchase in the
New York foreign exchange market
of such amount in U.S. dollars with such other currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans. (a) The Term B Borrowings. Subject to the terms and
conditions set forth herein, (i) the “Term Loans” outstanding under the Existing Credit Agreement
shall be continued as and converted into Term B Loans under this Agreement (with such assignments
from “Lenders” under the Existing Credit Agreement being deemed made so as to result in the Term B
Commitments of the Term B Lenders being as set forth on Schedule 2.01) and (ii) each Term B Lender
severally agrees to make a single loan to the Borrower on the Closing Date or, in the case of any
Incremental Facility consisting of Term B Commitments, the Increase Effective Date in respect of
such Incremental Facility, in each case in an amount not to exceed such Term B Lender’s Term B
Commitment at such time (less the amount of Term B Loans deemed made by such Term B Lender pursuant
to clause (i) above). The Term B Borrowing shall consist of Term B Loans made
simultaneously by the Term B Lenders in accordance with their respective Term B Commitments.
Amounts borrowed under this Section 2.01(a)(i) and repaid or prepaid may not be reborrowed.
Term B Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a “Revolving
Credit Loan”) to the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s
Revolving Credit Commitment; provided, however, that after giving effect to any
Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the
Revolving Credit Facility at such time and (ii) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender plus such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations shall not exceed
such Revolving Credit Lender’s Revolving Credit Commitment. Within the limits of each
Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01(b), prepay under Section 2.04, and
reborrow under this Section 2.01(b). Revolving Credit Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Term B Borrowing,
each Revolving Credit Borrowing, each conversion of Term B Loans or Revolving Credit Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 12:00 p.m. (i) three Business Days
prior to the requested date of any Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $3,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c), each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Term B Borrowing, a Revolving
Credit Borrowing, a conversion of Term B Loans or Revolving Credit Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal
amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Term B Loans or Revolving Credit Loans are to be converted, and (v) with respect to
Eurodollar Rate Loans, the duration of the Interest Period with respect thereto. If the Borrower
fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Term B Loans or
Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the
applicable Term B Loans or Revolving Credit Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In
the case of a Term B Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make
the amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to the Borrower in
like funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the Borrower; provided, however, that if, on the date a
Committed Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing first
shall be applied to the payment in full of any such L/C Borrowings, and second, shall be
made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan.
During the existence of a Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Term B Borrowings, all conversions of Term B Loans from one
Type to the other, and all continuations of Term B Loans as the same Type, there shall not be more
than eight (8) Interest Periods in effect in respect of the Term B Facility. After giving effect
to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the
other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more
than ten (10) Interest Periods in effect in respect of the Revolving Credit Facility.
(f) Anything in this Section 2.02 to the contrary notwithstanding, the Borrower may
not select Eurodollar Rate for the initial Credit Extension hereunder.
2.03 Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject
to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the
agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to
time on any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend Letters
of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor
drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with respect to
any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving
Credit Facility at such time, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of
any Revolving Credit Lender, plus such Lender’s Applicable Revolving Credit Percentage of
the Outstanding Amount of all L/C Obligations at such time shall not exceed such Lender’s Revolving
Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the
Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the preceding sentence. Within
the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.
(ii) No L/C Issuer shall issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance, unless the Required Revolving Lenders have approved such
expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry
date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit,
or any Law applicable to such L/C Issuer or any guideline, directed duty, request or
directive (whether or not having the force of law) from or agreement with any Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C
Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate any Laws or guideline, directed
duty or request of or agreement with any Governmental Authority (whether or not having the
force of law) or one or more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such
Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer has
entered into satisfactory arrangements with the Borrower or such Lender to eliminate such
L/C Issuer’s risk with respect to such Lender.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted
at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C
Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall
have all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX
included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to each L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit. (i) Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered
to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower.
Such Letter of Credit Application must be received by the applicable L/C Issuer and the
Administrative Agent not later than 12:00 p.m. at least two Business Days (or such later date and
time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance
in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing thereunder;
and (G) such other matters as the applicable L/C Issuer may require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature
of the proposed amendment; and (D) such other matters as the applicable L/C Issuer may require.
Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent
such other documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the applicable L/C Issuer or the Administrative Agent
may require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C
Issuer will provide the Administrative Agent with a copy thereof. Unless such L/C Issuer has
received written notice from any Revolving Credit Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter
into the applicable amendment, as the case may be, in each case in accordance with such L/C
Issuer’s usual and customary business practices. Immediately upon the issuance
of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s
Applicable Revolving Credit Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
applicable L/C Issuer shall notify the Borrower and the Administrative Agent of the date and amount
thereof. Not later than 12:00 p.m. on the date of any payment by the applicable L/C Issuer under a
Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse such L/C Issuer
through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify
each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable Revolving
Credit Percentage thereof. In such event, the Borrower shall be deemed to have requested a
Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal
to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the applicable L/C Issuer at
the Administrative Agent’s Office in an amount equal to its Applicable Revolving Credit Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate
Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to
the applicable L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 (other
than delivery by the Borrower of a Committed Loan Notice) cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the
account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation obligation under
this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Revolving Credit
Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances
to reimburse any L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against such L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however, that
each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Committed Loan Notice ). No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer
for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the
account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the applicable L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is immediately available to
such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by such L/C Issuer in accordance with banking industry rules on interbank compensation.
A certificate of the applicable L/C Issuer submitted to any Revolving Credit Lender (through the
Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi)
shall be conclusive absent manifest error.
(d) Repayment of Participations. (i) At any time after any L/C Issuer has made a
payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s
L/C Advance in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of such L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable Revolving Credit Percentage
thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of any L/C Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by such L/C
Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for
the account of such L/C Issuer its Applicable Revolving Credit Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse each L/C Issuer
for each drawing under each Letter of Credit issued by such L/C Issuer and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), any L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by any L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by any L/C Issuer under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any of its Subsidiaries.
In no event shall the foregoing be construed to excuse an L/C Issuer from liability to the
Borrower to the extent of any direct damages suffered by the Borrower that are found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such L/C Issuer. The Borrower shall promptly
examine a copy of each Letter of Credit and each amendment thereto that is delivered to it
and, in the event of any claim of noncompliance with the Borrower’s instructions or other
irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall
be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of any L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Revolving Credit Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other agreement.
None of any L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of
the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C
Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if an L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. The Borrower shall be entitled
at any time to Cash Collateralize the Outstanding Amount of any L/C Obligation. Sections
2.04 and 8.02(b) set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.03, Section 2.04 and Section
8.02(b), “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of each L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit
account balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and each L/C Issuer (which documents are hereby consented to by the Lenders),
and “Cash Collateral” means all cash and deposit account balances so pledged and deposited.
Derivatives of such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of each L/C Issuer and the Lenders, a security interest in
all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in a Cash Collateral Account. If, at any time that the Borrower is
under an obligation hereunder to Cash Collateralize the aggregate Outstanding Amount of L/C
Obligations, the Administrative Agent reasonably determines that any funds held as Cash Collateral
are subject to any right or claim of any Person other than the Administrative Agent or that the
total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations,
then the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to
the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any,
then held as Cash Collateral that the Administrative Agent reasonably determines to be free and
clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on
deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable
law, to reimburse the L/C Issuers or the Revolving Credit Lenders, as applicable.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C Issuer and
the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Percentage a Letter of
Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate in
respect of Eurodollar Rate Loans times the daily amount available to be drawn under such
Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears
and (ii) due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Revolving Lenders, while any Event of Default
exists and is continuing, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to each L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit issued by such L/C Issuer, at a rate per annum equal to 0.25%, computed on
the daily amount available to be drawn under such Letter of Credit and on a quarterly basis in
arrears, and due and payable on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.06. In addition, the Borrower shall pay directly to each L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
2.04 Prepayments. (a) Optional. The Borrower may, upon notice to the
Administrative Agent (which may be given by telephone if confirmed promptly thereafter in writing),
at any time or from time to time voluntarily prepay Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the Administrative Agent not
later than 12:00 p.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility. If
such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together
with any additional amounts required pursuant to Section 3.05. Each prepayment of the
outstanding Term B Loans pursuant to this Section 2.04(a) shall be applied to the principal
repayment installments thereof on a pro rata basis, and each such prepayment shall be paid to the
Lenders in accordance with their respective Applicable Percentages in respect of each of the
relevant Facilities. In the event that the Borrower fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied to the Term B Facility and to the
principal repayment installments thereof on a pro rata basis, and second to the Revolving Credit
Loans outstanding at such time on a pro rata basis. In the event that the Borrower fails to
specify the Type of Loan to which such prepayment shall be applied, prepayment shall be applied
first to repay outstanding Base Rate Loans to the fullest extent thereof, and second to repay
outstanding Eurodollar Rate Loans, each in a manner which minimizes to the extent possible any
amounts payable by the Borrower under Section 3.05.
(b) Mandatory. (i) Within five Business Days after financial statements have been
delivered pursuant to Section 6.01(a) (commencing with the delivery of financial statements
for the Fiscal Year ended December 31, 2006) and the related Compliance Certificate has been
delivered pursuant to Section 6.02(b), if the Consolidated Senior Secured Leverage Ratio
for the most recently ended Fiscal Year is not lower than the Prepayment Maximum Senior
Secured Leverage Ratio, then the Borrower shall prepay an aggregate principal amount of Loans
equal to 50% of Excess Cash Flow for the fiscal year covered by such financial statements.
(ii) If Holdings or any of its Subsidiaries (other than any of the Excluded Subsidiaries or any
Disqualified Subsidiary) Disposes of any property or assets (other than any Disposition of any
property or assets permitted by Section 7.05(a), (b), (c), (d), (f), (g), (h), (i)(x), (m),
(n), (o), (p), (q), (r), (s), (t), (u), (v) or (w) (but only (1) with respect to
Section 7.05(h), to the extent that Net Cash Proceeds received under such Section
7.05(h) do not exceed $10,000,000 in any Fiscal Year, (2) with respect to Section
7.05(c), to the extent of Net Cash Proceeds from (x) subleases, (y) leases of cellsite towers
and (z) other leases that do not exceed in the aggregate for this clause (z) $5,000,000 in
any fiscal year and (3) in the case of Section 7.05(w), except as otherwise set forth
therein)) which in the aggregate results in the realization by any Loan Party or such Subsidiary of
Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100%
of all Net Cash Proceeds received therefrom within two Business Days after receipt thereof by any
Loan Party or such Subsidiary; provided, however, that, with respect to any Net
Cash Proceeds realized (x) under a Disposition described in this Section 2.04(b)(ii) (other
than Net Cash Proceeds in excess of $20,000,000 realized under a disposition permitted under
Section 7.05(j)) or (y) proceeds of insurance and condemnation awards described in
Section 2.04(b)(v), at the option of the Borrower (as elected by the Borrower in writing to
the Administrative Agent no later than two (2) Business Days after the date of such Disposition or
the receipt of such insurance proceeds or condemnation awards), and so long as no Event of Default
shall have occurred and be continuing, the Borrower may retain all or any portion of such Net Cash
Proceeds for reinvestment in operating assets (including, without limitation, FCC Licenses) so long
as within twelve (12) months following receipt of such Net Cash Proceeds, (1) a definitive
agreement for the purchase of such assets with such proceeds shall have been entered into or, if
such proposed replacement asset is an FCC License to be acquired through an FCC auction, Holdings
or such Subsidiary or a Qualified Designated Entity partially owned, directly or indirectly, by
Holdings or any of its Subsidiaries shall have placed a bid with respect thereto in an FCC auction
(in each case, as certified by the Borrower in writing to the Administrative Agent), and (2) such
purchase shall have been consummated or such auction bid shall have been successful (as certified
by the Borrower in writing to the Administrative Agent); provided further that if,
at the end of such twelve (12)-month period, (x) the definitive agreement referred to in clause (1)
above has been executed and delivered by the parties thereto and the only conditions remaining to
consummation of the transactions contemplated by such agreement are customary conditions to closing
which the Borrower reasonably believes will be satisfied on a timely basis, including the receipt
of approval from the FCC for transfer of any relevant license, or (y) in the case of an FCC License
auction, the relevant auction has not concluded or the auction bid of Holdings, a Subsidiary or a
Qualified Designated Entity partially owned, directly or indirectly, by Holdings or a Subsidiary
has been successful but the relevant FCC License has not yet been transferred to Holdings, such
Subsidiary or such Qualified Designated Entity, then such twelve (12)-month period shall be
extended by up to an additional six (6) months; provided further, however,
that any Net Cash Proceeds not subject to such definitive agreement or FCC auction within such
twelve (12)-month period or so reinvested at the end of such twelve (12)-month period (as extended,
if applicable) shall be applied within two (2) Business Days to the prepayment of the Loans as set
forth in this Section 2.04.
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries (other than a
Disqualified Subsidiary) of any Indebtedness (other than Indebtedness expressly permitted to be
incurred or issued pursuant to Section 7.02(a)(i) or (ii)), then the Borrower shall prepay
an aggregate principal amount of Loans equal to 100% (or, if at such time after giving effect to
such incurrence or issuance the Consolidated Senior Secured Leverage Ratio is less than or equal to
the Prepayment Maximum Senior Secured Leverage Ratio, 50%) of all Net Cash Proceeds received
therefrom within two Business Days after receipt thereof by the Borrower or such Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of Holdings or
any of its Subsidiaries (other than a Disqualified Subsidiary), and not otherwise included in
clause (ii) or (iii) of this Section 2.04(b), the Borrower shall prepay an
aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom
within two Business Days after receipt thereof by Holdings or such Subsidiary.
(v) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments
then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.04(b)(v) unless after the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate Commitments then in effect.
(vi) Each prepayment of Loans pursuant to this Section 2.04(b) shall be applied,
first, to the principal repayment installments of the Term B Facility on a pro rata basis
and, thereafter, to the Revolving Credit Facility in the manner set forth in clause
(vii) of this Section 2.04(b). With respect to the Type of Loan to be prepaid, each
prepayment of Loan pursuant to this Section 2.04(b) shall be applied first to repay
outstanding Base Rate Loans to the fullest extent thereof, and second to repay outstanding
Eurodollar Rate Loans, each in a manner that minimizes to the extent possible any amounts payable
by the Borrower under Section 3.05.
(vii) Prepayments of the Revolving Credit Facility made pursuant to clause (i), (ii),
(iii), (iv) or (v) of this Section 2.04(b), first, shall be applied ratably to
the outstanding Revolving Credit Loans and the Unreimbursed Obligations, second, shall be
applied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit
Loans are paid in full and, third, shall be used to Cash Collateralize the remaining L/C
Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to
clause (i), (ii), (iii) or (iv) of this Section 2.04(b), the amount
remaining, if any, after the prepayment in full of all Revolving Credit Loans and Unreimbursed
Obligations outstanding at such time and the Cash Collateralization of the remaining L/C
Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and
remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for
use in the ordinary course of its business, and the Revolving Credit Facility shall be
automatically and permanently reduced by the Reduction Amount as set forth in Section
2.05(b)(ii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the
funds held as Cash Collateral shall be applied (without any further action by or notice to or from
the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders,
as applicable.
2.05 Termination or Reduction of Commitments. (a) Optional. The Borrower
may, upon notice to the Administrative Agent (which may be given by telephone if confirmed promptly
thereafter in writing), terminate the unused portions of the Letter of Credit Sublimit or the
unused Revolving Credit Commitments, or from time to time permanently reduce the unused portions of
the Letter of Credit Sublimit or the unused Revolving Credit Commitments, in each case without
premium or penalty; provided that (i) any such notice shall be received by the
Administrative Agent not later than 12:00 p.m. three Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce
the unused portions of the Letter of Credit Sublimit or the unused Revolving Credit Commitments if,
after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit
Outstandings would exceed the Revolving Credit Facility.
(b) Mandatory. (i) Subject to Section 2.13, the aggregate Term B Commitments
shall be automatically and permanently reduced to zero immediately after the Term B Borrowing.
(ii) The Revolving Credit Facility shall be automatically and permanently reduced on each date
on which the prepayment of Revolving Credit Loans outstanding thereunder is required to be made
pursuant to Section 2.04(b)(i), (ii), (iii) or (iv) by an amount equal to the
applicable Reduction Amount.
(iii) If after giving effect to any reduction or termination of unused Revolving Credit
Commitments under this Section 2.05, the Letter of Credit Sublimit exceeds the Revolving
Credit Facility at such time, the Letter of Credit Sublimit shall be automatically reduced by the
amount of such excess.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of unused portions of the Letter
of Credit Sublimit or the unused Revolving Credit Commitment under this Section 2.05. Upon
any reduction of the unused Revolving Credit Commitments, the Revolving Credit Commitment of each
Revolving Credit Lender shall be reduced by such Lender’s Applicable Revolving Credit Percentage of
such reduction amount. All fees accrued as of the effective date of any termination of the
Commitments shall, insofar as they relate to such terminated Commitments, be paid on the effective
date of such termination.
2.06 Repayment of Loans. (a) Term B Loans. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate principal amount
of all Term B Loans outstanding on the following dates in the respective amounts set forth opposite
such dates (which amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.05):
|
|
|
|
|
Date |
|
Amount |
|
|
September 30, 2006 |
|
$ |
2,250,000 |
|
December 31, 2006 |
|
$ |
2,250,000 |
|
March 31, 2007 |
|
$ |
2,250,000 |
|
June 30, 2007 |
|
$ |
2,250,000 |
|
September 30, 2007 |
|
$ |
2,250,000 |
|
December 31, 2007 |
|
$ |
2,250,000 |
|
March 31, 2008 |
|
$ |
2,250,000 |
|
June 30, 2008 |
|
$ |
2,250,000 |
|
September 30, 2008 |
|
$ |
2,250,000 |
|
December 31, 2008 |
|
$ |
2,250,000 |
|
March 31, 2009 |
|
$ |
2,250,000 |
|
June 30, 2009 |
|
$ |
2,250,000 |
|
September 30, 2009 |
|
$ |
2,250,000 |
|
December 31, 2009 |
|
$ |
2,250,000 |
|
March 31, 2010 |
|
$ |
2,250,000 |
|
June 30, 2010 |
|
$ |
2,250,000 |
|
September 30, 2010 |
|
$ |
2,250,000 |
|
December 31, 2010 |
|
$ |
2,250,000 |
|
March 31, 2011 |
|
$ |
2,250,000 |
|
June 30, 2011 |
|
$ |
2,250,000 |
|
September 30, 2011 |
|
$ |
2,250,000 |
|
December 31, 2011 |
|
$ |
2,250,000 |
|
March 31, 2012 |
|
$ |
2,250,000 |
|
June 30, 2012 |
|
$ |
2,250,000 |
|
September 30, 2012 |
|
$ |
211,500,000 |
|
December 31, 2012 |
|
$ |
211,500,000 |
|
March 31, 2013 |
|
$ |
211,500,000 |
|
Maturity Date |
|
$ |
211,500,000 |
|
provided, however, that the final principal repayment installment of the Term B
Loans shall be repaid on the Maturity Date for the Term B Facility and in any event shall be in an
amount equal to the aggregate principal amount of all Term B Loans outstanding on such date.
(b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for
the ratable account of the Revolving Credit Lenders on the Maturity Date for the Revolving Credit
Facility the aggregate principal amount of all Revolving Credit Loans outstanding on such date.
2.07 Interest. (a) Subject to the provisions of Section 2.07(b), (i) each
Eurodollar Rate Loan under a Facility shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest
Period plus the Applicable Rate for such Facility and (ii) each Base Rate Loan under a
Facility shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such
Facility.
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Term B Lenders, while any Event of Default in respect of
the Term B Facility exists and is continuing, and upon the request of the Required Revolving
Lenders while any Event of Default in respect of the Revolving Credit Facility exists and is
continuing, the Borrower shall pay interest on the principal amount of all outstanding Term B Loan
or Revolving Credit Loan Obligations hereunder, as applicable, at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.
2.08 Fees. In addition to certain fees described in Sections 2.03(i) and
(j):
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, a commitment fee equal to the Applicable Fee Rate times the actual daily
amount by which the aggregate Revolving Credit Commitments exceed the sum of (A) the
Outstanding Amount of Revolving Credit Loans and (B) the Outstanding Amount of L/C
Obligations; provided, however, that any commitment fee accrued with respect
to any of the Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such
commitment fee shall otherwise have been due and payable
by the Borrower prior to such time; and provided further that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender. The commitment fee shall accrue at all times during
the Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the Maturity Date for the Revolving Credit
Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Fee Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Fee Rate separately for each period during such
quarter that such Applicable Fee Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Joint Lead Arrangers and
the Administrative Agent for their own respective accounts fees in the amounts and at the
times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Administrative Agent such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.09 Computation of Interest and Fees. All computations of interest for Base Rate
Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall
not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.11(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
2.10 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent (set forth in the Register) shall control in the absence of manifest error.
Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a Note (but only to the extent that
the Loans evidenced by such Note are not already
evidenced by an existing Note), which shall evidence such Lender’s Loans in addition to such
accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date,
Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.10(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of
Credit. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.11 Payments Generally; Administrative Agent’s Clawback. (a) General. All
payments to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in
respect of the relevant Facility (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected on computing interest or
fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (B) in the case of a payment
to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have
against a Lender that shall have failed to make such payment to the Administrative Agent.
Nothing in this Section 2.11(b) shall be deemed to relieve any Lender of its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Holdings or its Subsidiaries may
have against any Lender or L/C Issuer as a result of any default by such Lender or L/C Issuer
hereunder.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment, then
each of the Appropriate Lenders or the applicable L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender
or such L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans and to fund participations in Letters of Credit and to make payments pursuant to Section
10.04(c) are several and not joint. The failure of any Lender to make any Loan or to fund any
such participation or make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.
(f) Insufficient Payment. Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient
to pay in full all amounts due and payable to the Administrative Agent and the Lenders under
or in respect of this Agreement and the other Loan Documents on any date, such payment shall be
distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in
the order of priority set forth in Section 8.03. If the Administrative Agent receives
funds for application to the Obligations of the Loan Parties under or in respect of the Loan
Documents under circumstances for which the Loan Documents do not specify the manner in which such
funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to
distribute such funds to each of the Lenders in accordance with such Lender’s Applicable Percentage
of the sum of (A) the Outstanding Amount of all Loans outstanding at such time and (b) the
Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of
such of the outstanding Loans or other Obligations then owing to such Lender.
2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of the Loans made by it, or the participations in L/C Obligations held by it resulting in such
Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations
and accrued interest thereon greater than its pro rata share thereof of the applicable Facility as
provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Loans and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and accrued interest on their
respective Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.13 Increase in Commitments. (a) Request for Increase. Provided there
exists no Default, upon notice to the Administrative Agent (which shall promptly notify the
Lenders), the Borrower may from time to time, request an increase in the Term B or Revolving Credit
Commitments by an amount (for all such requests) not exceeding $400,000,000; provided that
(i)
up to three such requests for increases which are in respect of the Revolving Credit
Facility may be in minimum amounts of $10,000,000 each and (ii) any other such request for an
increase shall be in a minimum amount of $50,000,000. At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time period within which
each Lender is requested to respond (which shall in no event be less than ten Business Days from
the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Term B or Revolving Credit
Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase, and subject to the approval of the
Administrative Agent and, in the case of any increase in the Revolving Credit Commitments, the L/C
Issuer (which approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations; Amortization; Technical Amendments. If the Term B
or Revolving Credit Commitments are increased in accordance with this Section, the Administrative
Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the
final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and
the Lenders of the final allocation of such increase (each such allocated increase as to which the
Increase Effective Date shall have occurred, an “Incremental Facility”) and the Increase Effective
Date. Loans in respect of any Incremental Facility consisting of Term B Commitments shall amortize
94% in the final year prior to the Maturity Date and in equal quarterly installments prior thereto,
commencing on the last day of the fiscal quarter in which such loans are made. In connection with
any increase, this Agreement may be amended in a writing executed and delivered by the Borrower and
the Administrative Agent to reflect any technical changes necessary to give effect to such increase
in accordance with its terms as set forth herein, which may include the addition of such increase
as a separate facility and the inclusion of any such separate facility in the provisions relating
to mandatory prepayments set forth in Section 2.04(b) and to sharing set forth in
Section 2.12 in a manner consistent with the treatment hereunder of the corresponding
existing facility; provided, that no such separate facility
shall have a maturity date earlier than the Maturity Date in respect
of the Term B facility or shall amortize in amounts greater than
1% per annum prior to the final year before the Maturity Date in
respect of the Term B Facility.
(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase, and (ii) in the case of each Holdings and the
Borrower, certifying that, before and after giving effect to such increase, (A) the representations
and warranties contained in Article V and the other Loan Documents are true and correct in
all material respects on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are
true and correct in all material respects as of such earlier date, and except that for
purposes of this Section 2.13, the representations and warranties contained in subsections
(a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (B) no
Default exists. The Borrower shall prepay any Revolving Credit Loans, as applicable, outstanding
on the Increase Effective Date in respect of any increase in the Revolving Credit Commitments (and
pay any additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Revolving Credit Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Revolving Credit Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.12 or 10.01 to the contrary.
(g) Pricing Parity. In the event that the Applicable Rate in respect of Loans made
under any Incremental Facility is more than 0.50% per annum higher than the Applicable Rate then in
effect for (i) if such Incremental Facility consists of Term B Commitments, Term B Loans or (ii) if
such Incremental Facility consists of Revolving Credit Commitments, Revolving Credit Loans, then
the Applicable Rate in respect of Loans under the Term B Facility or the Revolving Credit Facility,
as applicable, immediately prior to the Increase Effective Date for the applicable Incremental
Facility shall be automatically increased to a rate equal to the Applicable Rate in respect of such
Incremental Facility.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan Document shall be made
free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer, as the
case may be, receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c)
Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.
(d) Evidence of Payments. Within 30 days after the date of any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the information return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.
Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes
in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN or any successor form
claiming eligibility for benefits of an income tax treaty to which the United States is a
party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI or any successor
form certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (2) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service
Form W-8BEN (or any successor form) certifying that the Foreign Lender is not a United
States Person, or
(iv) any other form including Internal Revenue Service Form W-8IMY as applicable
prescribed by applicable law as a basis for claiming exemption from or a reduction in United
States Federal withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable law to permit the Borrower to determine the withholding
or deduction required to be made.
In addition, in each of the foregoing circumstances, each Foreign Lender shall deliver such
forms promptly upon the expiration or invalidity of any form previously delivered by such Foreign
Lender upon request of the Borrower or Administrative Agent. Each Foreign Lender shall promptly
notify the Borrower and Administrative Agent at any time it determines that it no longer satisfies
the legal requirements to provide any previously delivered form or certificate to the Borrower (or
any other form of certification adopted by the U.S. or other taxing authorities for such purpose).
Each Lender that is a United States person agrees deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on
which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Lender is legally entitled to
do so), duly completed copies of Internal Revenue Service Form W-9 (or successor form) establishing
that the Lender is not subject to U.S. backup withholding tax to the extent reasonably requested by
the Borrower or Administrative Agent to evidence an exemption from U.S. backup withholding tax.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund or credit (in lieu of such
refund other than a foreign tax credit) of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case may
be, and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of the Administrative
Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer
to make available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 Illegality . If any Lender determines that any Law or any guideline, directed duty or request of or any
agreement with any Governmental Authority (whether or not having the force of law) has made it
unlawful, or that any Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or
charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate
Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from
such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate
Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the LIBO Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the LIBO Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke, without any
penalty or payment, any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or any L/C Issuer;
(ii) subject any Lender or any L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of
Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender or any L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section 3.01 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or such L/C Issuer); or
(iii) impose on any Lender or any L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or any L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
such L/C Issuer and receipt of a certificate for reimbursement pursuant to Section 3.04(c),
the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or L/C Issuer’s holding company, if any, regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender’s or L/C Issuer’s capital or on the
capital of such Lender’s or L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below
that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C
Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with
respect to capital adequacy), then from time to time upon request by such Lender or LC Issuer and
receipt of a certificate for reimbursement pursuant to Section 3.04(c) the Borrower will
pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding
company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or such L/C Issuer
setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or
such L/C Issuer or its holding company, as the case may be, as specified in subsection (a)
or (b) of this Section and the basis for calculating such amounts (using any reasonable
averaging or attribution methods) and delivered to the Borrower shall be conclusive absent manifest
error. The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or such L/C
Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six (6) months prior to the date that such Lender or such L/C Issuer,
as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the six (6)-month period referred to above shall be extended to include the
period of retroactive effect thereof).
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on
a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the date or
in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;
including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged to similarly
situated borrowers by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the LIBO Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a
Different Lending Office. If any Lender requests compensation under Section 3.04, or
the Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future,
or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.
3.07 Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and
each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in
accordance with Section 10.01 of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the Administrative Agent and
each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in
number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) an amended and restated security agreement, in substantially the form of
Exhibit F (together with each other security agreement and security
agreement supplement delivered pursuant to Section 6.12, in each case as
amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Equity referred to therein
accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,
(B) proper financing statements, duly prepared for filing under the
Uniform Commercial Code of all jurisdictions that the Administrative Agent
may reasonably deem necessary or desirable in order to perfect and protect
the first priority liens and security interests created under the Security
Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of
the initial Credit Extension, listing the financing statements referred to
in clause (B) above and all other effective financing statements
filed in the jurisdictions referred to in clause (B) above that name
any Loan Party as debtor, together with copies of such other financing
statements,
(D) reasonable evidence of the completion of all other actions,
recordings and filings of or with respect to the Security Agreement that the
Administrative Agent may reasonably deem necessary or desirable in order to
perfect the Liens created thereby,
(E) copies of the Assigned Agreements referred to in the Security
Agreement, together with a consent to such assignment, in substantially the
form of Exhibit B to the Security Agreement, duly executed by each
party to such Assigned Agreements other than the Loan Parties, and
(F) reasonable evidence that all other action that the Administrative
Agent may reasonably deem necessary or desirable in order to perfect the
Liens created under the Security Agreement has been taken (including receipt
of duly executed payoff letters and UCC-3 termination statements to the
extent requested by the Administrative Agent);
(iv)
an amended and restated intellectual property security agreement or
an intellectual property security agreement supplement, in
substantially the form of Exhibit G hereto (together with each other
intellectual property security agreement and intellectual property security
agreement supplement delivered pursuant to Section 6.12, in each case as
amended, the “Intellectual Property Security Agreement”), duly executed by each Loan
Party, together with evidence that all action that the Administrative Agent may
reasonably deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Intellectual Property
Security Agreement has been taken;
(v) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
that each of the Borrower, Holdings and each of their respective Subsidiaries is
validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties,
addressed to each Agent and each Lender, as to the matters set forth in Exhibit
H-1 and such other matters concerning the Loan Parties and the Loan Documents as
the Required Lenders may reasonably request;
(viii) a favorable opinion of Boult, Cummings, Xxxxxxx & Xxxxx, PLC, local
counsel to the Loan Parties in Tennessee, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit H-2 and such other
matters concerning the Loan Parties and the Loan Documents as the Required Lenders
may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in connection with
the execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of Holdings, the statements
in which shall be true, certifying (A) that (1) the representations and warranties
of the Borrower and each other Loan Party contained in Article V or in any
other Loan Document are true and correct in all material respects on and as of the
Closing Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case as of such earlier date and (2)
no Default exists or would result from the initial Credit Extension or the
application of the proceeds thereof and (B) that there has been no event or
circumstance since the date of the Audited Financial Statements that has had or
could be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect;
(xi) certificates attesting to the Solvency of each Loan Party before and after
giving effect to the Transaction, from its Chief Financial Officer;
(xii) such financial, business and other information regarding each Loan Party
and its Subsidiaries as the Lenders shall have reasonably requested,
including, without limitation, information as to possible contingent
liabilities, tax matters, environmental matters, obligations under Plans and
Multiemployer Plans, collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31, 2005, interim
financial statements dated the end of the most recent fiscal quarter for which
financial statements are available (or, in the event the Lenders’ due diligence
review reveals material changes since such financial statements, as of a later date
within 45 days of the day of the initial Credit Extension), pro forma financial
statements
as to Holdings and forecasts prepared by management of Holdings, in form
and substance satisfactory to the Lenders, of balance sheets, income statements and
cash flow statements on a quarterly basis for the first year following the day of
the initial Credit Extension and on an annual basis for each year thereafter until
the Maturity Date for the Term B Facility;
(xiii) a Committed Loan Notice relating to the initial Credit Extension;
(xiv) (A) a duly completed Senior Secured Leverage Covenant Compliance
Certificate and (B) a duly completed Revolver Maintenance Covenant Compliance
Certificate, in each case as of the last day of the fiscal quarter of Holdings most
recently ended prior to the Closing Date for which financial statements are
available, each of which shall be completed as though the Loans borrowed on the
Closing Date had been incurred as of the first day of the four-quarter period
covered by such Compliance Certificate, assuming that such Loans were Eurodollar
Rate Loans and that the LIBO Rate applicable thereto was equal to a rate designated
by the Administrative Agent to the Borrower as of the Closing Date, and as though
the Indebtedness under the Existing Credit Agreement had been repaid as of such
date, signed by a Responsible Officer of Holdings;
(xv) reasonable evidence that all outstanding interest, fees, expenses and
other amounts (other than principal of Loans) under the Existing Credit Agreement
have been or concurrently with the Closing Date are being paid in full and all
commitments thereunder terminated;
(xvi) certified copies of each Qualified Designated Entity Agreement executed
prior to the closing date with respect to each ANB Entity, each Auction 66 Entity
and each Oregon Entity, which shall be in form and substance reasonably satisfactory
to the Administrative Agent; and
(xvii) such other assurances, certificates, documents, consents or opinions as
any Agent, any L/C Issuer or any Lender reasonably may require.
(b) The Lenders shall be reasonably satisfied with the amount, types and terms and
conditions of all insurance maintained by Holdings and its subsidiaries; and, to the extent
available on a commercially reasonably basis, the Lenders shall have received endorsements
naming the Administrative Agent or the Collateral Agent (as defined in the Security
Agreement) on behalf of the Lenders, as an additional insured or loss payee, as
the case may be, under all insurance policies maintained with respect to the assets and
properties of the Loan Parties that constitute Collateral.
(c) All accrued fees and expenses of the Administrative Agent, the Joint Lead Arrangers
and the Lenders (including the fees and expenses of counsel for the Administrative Agent and
local counsel for the Lenders) that are by their terms payable on or prior to the Closing
Date shall have been paid, to the extent that invoices in
customary detail have been received by the Company not later than the second Business Day before the Closing Date.
(d) The Closing Date shall have occurred on or before June 30, 2006.
(e) There shall exist no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of Holdings
or the Borrower, threatened before any Governmental Authority or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect or (ii) purports to materially and
adversely affect the Transaction.
(f) All governmental authorizations and all third party consents and approvals
necessary in connection with the Transaction shall have been obtained and shall remain in
effect; all applicable waiting periods in connection with the Transaction shall have expired
without any action being taken by any Governmental Authority, and no Law shall be applicable
in the reasonable judgment of the Lenders, in each case that restrains, prevents or imposes
materially adverse conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them.
(g) The Lenders shall have completed a due diligence investigation of the Borrower and
its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have
been given such access to the management, records, books of account, contracts and
properties of Holdings and its subsidiaries and shall have received such financial, business
and other information regarding each of the foregoing Persons and businesses as they shall
have requested, and no changes or developments shall have occurred, and no new or additional
information shall have been received or discovered by the Administrative Agent or the
Lenders regarding Holdings and it Subsidiaries or the transaction after May 10, 2006 that
(A) either individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect or (B) purports to adversely affect the Facilities or any other aspect of the
Transaction, and nothing shall have come to the attention of the Lenders during the course
of such due diligence investigation to lead them to believe (i) that the Information
Memorandum was or has become misleading, incorrect or incomplete in any material respect,
and (ii) that the Transaction will have a Material Adverse Effect; without limiting the
generality of the foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of Holdings and its
Subsidiaries as they shall have requested.
(h) After giving effect to the Transaction, including all Credit Extensions made in
connection therewith, there shall as of the Closing Date be no Revolving Credit Loans or L/C
Obligations outstanding other than the Existing Letters of Credit.
(i) The Lenders shall be satisfied with (i) the pro forma capital and ownership
structure and the shareholder arrangements of Holdings and its Subsidiaries, including,
without limitation, the charter and bylaws of Holdings and each such Subsidiary and each
agreement or instrument relating thereto, and (ii) the amount, tenor, ranking and other
terms and conditions of all other equity and debt financings comprising part of the
Transaction. Without limiting the generality of the foregoing, no Indebtedness for borrowed
money other than (x) the Existing Letters of Credit, (y) Permitted Unsecured Debt and (z)
Permitted Bridge Debt shall be outstanding.
(j) The Administrative Agent shall be reasonably satisfied that the amount of committed
financing available to Holdings and its Subsidiaries shall be sufficient to meet the ongoing
financial needs of Holdings and its Subsidiaries after giving effect to the Transaction.
The Lenders shall be reasonably satisfied with the amount, terms, conditions and holders of
all intercompany Indebtedness and all indebtedness and other material liabilities owing to
third parties to be outstanding on and after the Closing Date.
Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of
Loans to the other Type, or a continuation (including a rollover) of Eurodollar Rate Loans) is
subject to the satisfaction or waiver in accordance with Section 10.01 of the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct in all material respects on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 4.02, the representations
and warranties contained in Sections 5.05(a) and (b) shall be deemed to
refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b), respectively.
(b) No Default (excluding, in the case of a Request for Credit Extension in respect of
the Term B Facility, a Default under any Revolving Facility Covenant) shall
exist, or would result from such proposed Credit Extension or from the application of
the proceeds thereof.
(c) In the case of a Request for Credit Extension consisting of a Revolving Credit Loan
or Letter of Credit, no Default under any Revolver Maintenance Covenant shall exist, or
would result from such proposed Credit Extension or from the application of the proceeds
thereof.
(d) The Administrative Agent and, if applicable, the L/C Issuer shall have received a
Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the Agents and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and
each of its Subsidiaries (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party and consummate the Transaction, (c) is
duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws; except in each case referred to
in clause (b)(i), (c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is or is to be a party have been duly
authorized by all necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, or require any payment to be
made under (i) any Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance
with all Contractual Obligations referred to in clause (b)(i), except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with (a) the execution, delivery or (other than
filings required to be made in the ordinary course of business after the date hereof) performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the
consummation of the Transaction, (b) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents or (c) other than filing of the documents referred to in
clauses (B) and (D) of Section 4.01(a)(iii) and in Section
4.01(a)(iv) and any other filings contemplated by the Security Agreement, the perfection or
maintenance of the Liens created under the Collateral Documents (including the first priority
nature thereof). All
applicable waiting periods in connection with the Transaction have expired
without any action having been taken by any Governmental Authority restraining, preventing or
imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms, except as enforceability may be limited
by applicable Debtor Relief Laws or similar laws affecting creditors’ rights generally or by
equitable principles relating to enforceability.
5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material
respects the consolidated financial condition of Holdings and its Subsidiaries (including Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries) as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and
other material liabilities, direct or contingent, of Holdings and its Subsidiaries as of the date
thereof, including material liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of Holdings and its Subsidiaries dated
March 31, 2006, and the related consolidated statements of income or operations and cash flows for
the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the
consolidated financial condition of Holdings and its Subsidiaries (including Qualified Designated
Entities and Joint Venture Entities that are required under GAAP to be consolidated with Holdings
and its Subsidiaries) as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of
disclosures in footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.
(d) The consolidated forecasted balance sheets, statements of income and statements of cash
flows of Holdings and its Subsidiaries (including any Qualified Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with Holdings and its
Subsidiaries) delivered to the Lenders pursuant to Section 4.01 or 6.01 were
prepared in good faith on the basis of assumptions which were fair in light of the conditions
existing at the time of delivery of such forecasts, and represented, at the time of delivery,
Holdings’ good faith estimate of its future financial performance on a consolidated basis.
5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of Holdings, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or pertain to this
Agreement, any other Loan Document or the consummation of the Transaction, or (b) either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect,
or (c) as of the date hereof, except as specifically disclosed on Schedule 5.06 (the
“Disclosed Litigation”), either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect, and since the date hereof there has been
no adverse change in the status, or financial effect on any Loan Party or any Subsidiary thereof,
of the Disclosed Litigation that (either individually or taken together with all other such adverse
changes) could reasonably be expected to have a Material Adverse Effect.
5.07 No Default. None of Holdings, the Borrower or any Subsidiary is in default under
or with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.08 Ownership of Property; Liens; Investments. (a) Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business, except for such
defects in title or in leasehold interests as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each of the Loan Parties and each of its Subsidiaries is in compliance with
all of its obligations in respect of leases of real property to which it is a party and has not
allowed any such lease to lapse or be terminated or any rights to renew such leases to be forfeited
or canceled except, in any case, where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) Schedule 5.08(b) sets forth a complete and accurate list as of April 30, 2006 of
all Liens of the types described in clauses (b), (i), (n),
(o) and (p) of Section 7.01 on the property or assets of each Loan Party
and each of its Subsidiaries, showing as of such date the lienholder thereof, the principal amount
of the obligations secured thereby and the property or assets of such Loan Party or such Subsidiary
subject thereto. The property of each Loan Party and each of its Subsidiaries is subject to no
Liens, other than Liens set forth on Schedule 5.08(b), and as otherwise permitted by
Section 7.01.
(c) Schedule 5.08(c) sets forth a complete and accurate list as of the date of this
Agreement of all real property owned by each Loan Party and each of its Subsidiaries, showing as of
the date hereof the street address, county or other relevant jurisdiction, state, record owner and
book and estimated fair value thereof. Each Loan Party and each of its Subsidiaries has good,
marketable and insurable fee simple title to the real property owned by
such Loan Party or such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan
Documents.
(d) Schedule 5.08(d) sets forth a complete and accurate list as of April 30, 2006 of
all Investments held by any Loan Party or any Subsidiary of a Loan Party, showing as of such date
the amount (except with respect to Indebtedness between Loan Parties), obligor or issuer and maturity, if any, thereof.
5.09 Environmental Compliance. No Loan Party has any Environmental Liabilities that
could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10 Insurance. The material tangible properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried
by companies engaged in similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates.
5.11 Taxes. Except as set forth in Schedule 5.11, to the knowledge of
Holdings, Holdings and its Subsidiaries have filed all material Federal, state and other tax
returns and reports required to be filed, and have paid all material Federal, state and other
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. To the knowledge of Holdings, there is no proposed tax
assessment against Holdings or any Subsidiary that would, if made, have a Material Adverse
Effect. Neither any Loan Party nor any of its Subsidiaries is party to any tax sharing agreement
other than one or more tax sharing agreements between and among Loan Parties (excluding
Disqualified Subsidiaries).
5.12 ERISA Compliance. (a) Except for such non-compliance as could not reasonably be
expected to have a Material Adverse Effect, each Plan other than a Multiemployer Plan is in
compliance in all material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the knowledge of Holdings,
nothing has occurred which would prevent, or cause the loss of, such qualification, except as could
not reasonably be expected to have a Material Adverse Effect. Holdings and each ERISA Affiliate
have made all required contributions in all material respects to each Plan subject to Section 412
of the Code, and no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of Holdings, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could be
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules under ERISA with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur that could reasonably
be expected to result in a material liability to any Loan Party or any of their Affiliates; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither Holdings nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Holdings nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069(a) or 4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests; Loan Parties. As of the date of this Agreement,
each Loan Party has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been
validly issued, are fully paid and non-assessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens except those created
under the Collateral Documents. As of the date hereof, each Loan Party has no equity investments
in any other corporation or entity other than such Loan Party’s Subsidiaries and those equity
investments specifically disclosed in Part (b) of Schedule 5.13. All of the outstanding
Equity Interests in the Borrower have been validly issued, are fully paid and
non-assessable and are owned by Holdings in the amounts specified on Part (c) of Schedule
5.13 free and clear of all Liens except those created under the Collateral Documents. Set
forth on Part (d) of Schedule 5.13 is a complete and accurate list as of the date hereof of
all Loan Parties, showing as of the date hereof (as to each Loan Party) the jurisdiction of its
incorporation, the address of its principal place of business and its U.S. taxpayer identification
number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification
number, its unique identification number issued to it by the jurisdiction of its incorporation. As
of the date hereof, the copy of the charter of each Loan Party and each amendment thereto provided
pursuant to Section 4.01(a)(vi) is a true and correct copy of each such document, each of
which is valid and in full force and effect.
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock and no proceeds of any Borrowings or drawings under any Letter of Credit will be used
to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing
or carrying any margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is a
“holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.
5.15 Disclosure. Holdings has no knowledge of any event or circumstance that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect, except as Holdings or the Borrower has disclosed to the Administrative Agent and the
Lenders. No report, financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender
(other than industry information, which, if provided by any Loan Party, was selected in good faith
by such Loan Party as being in such Loan Party’s estimate not materially inaccurate or misleading)
in connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case as modified or supplemented by
other information so furnished) contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to projected
financial information, each of Holdings and the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time made, it being
recognized by Lenders that such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such projections may differ from
the projected results.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 Intellectual Property; Licenses, Etc. Each Loan Party and its Subsidiaries own,
or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for or material to the operation of their respective
businesses, without conflict with the rights of any other Person, except for any infringements
that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. Schedule 5.17 sets forth a complete and accurate list as of the date hereof of all
patent, trademark and copyright registrations and pending applications therefor of each Loan Party
and its Subsidiaries. To the knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now contemplated to be
employed, by any Loan Party or any of its Subsidiaries infringes upon any rights held by any other
Person, except for any infringements that, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. No claim or litigation regarding any of the
foregoing is pending or, to the knowledge of the Borrower, threatened, which, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.18 Solvency. Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
5.19 Qualified Designated Entity Agreements. The Qualified Designated Entity
Agreements delivered pursuant to Section 4.01(a)(xi), Section 7.03(n) or
Section 7.03(o) constitute all existing Qualified Designated Entity Agreements to which
Holdings or any of its Subsidiaries is a party, and have not been amended other than in accordance
with Section 7.12, and copies of all material written amendments and waivers executed by
the parties to such Qualified Designated Entity Agreement have been delivered to the Administrative
Agent in accordance with Section 6.02(i).
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each of Holdings and the Borrower shall, and shall (except in the case of the covenants set forth
in Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent (which shall deliver
to each Lender), in form and detail satisfactory to the Administrative Agent and the Required
Lenders:
(a) as soon as available, but in any event within 90 days after the end of each fiscal
year of Holdings, a consolidated balance sheet of Holdings and its Subsidiaries (including
Qualified Designated Entities and Joint Venture Entities that are required under GAAP to be
consolidated with Holdings and its Subsidiaries) as at the end of such fiscal year, and the
related consolidated statements of income or operations, shareholders’ equity and cash flows
for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of Holdings, a consolidated balance sheet of
Holdings and its Subsidiaries (including Qualified Designated Entities and Joint Venture
Entities that are required under GAAP to be consolidated with Holdings and its Subsidiaries)
as at the end of such fiscal quarter, and the related consolidated statements of income or
operations and cash flows for such fiscal quarter and for the portion of Holdings’ fiscal
year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of
the Borrower as fairly presenting in all material respects the financial condition, results
of operations and cash flows of Holdings and its Subsidiaries (including Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be
consolidated with Holdings and its Subsidiaries) on a consolidated
basis in accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of disclosures in footnotes; and
(c) as soon as available, but in any event no more than 45 days after the end of each
fiscal year, forecasts prepared by management of Holdings, in form reasonably satisfactory
to the Administrative Agent and the Required Lenders, of consolidated balance sheets and
statements of income or operations and cash flows of Holdings and its Subsidiaries
(including Qualified Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries) on a quarterly basis for such
fiscal year and on an annual basis for each fiscal year thereafter until the Maturity Date
for the Term B Facility.
As to any information contained in materials furnished pursuant to Section 6.02(c), neither
Holdings nor the Borrower shall be separately required to furnish such information under
Section 6.01(a) or (b), but the foregoing shall not be in derogation of the
obligation of Holdings to furnish the information and materials described in Sections
6.01(a) and (b) at the times specified therein.
6.02 Certificates; Other Information. Deliver to the Administrative Agent (which
shall deliver to each Lender), in form and detail reasonably satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), (i) a duly completed Senior Secured Leverage
Covenant Compliance Certificate, (ii) a duly completed Revolver Maintenance Covenant
Compliance Certificate (it being understood that any non-compliance shown in such
certificate shall not give rise to a Default or Event of Default if as of the last day of
the fiscal quarter to which such certificate pertains no Revolving Credit Loans or
Uncollateralized Letters of Credit are outstanding) and (iii) a list of all (A) Investments
consisting of cash contributions to equity or purchases of Equity Interests, (B) secured
loans for borrowed money, (C) Permitted Debt Put Rights incurred and payments made in
respect thereof, (D) Guarantees of debt for borrowed money of Joint Venture Entities and
Qualified Designated Entities and (E) payments in respect of Permitted Make-Whole
Obligations, in each case made or incurred during the most recently completed fiscal quarter
pursuant to Sections 7.03(k), 7.03(l), 7.03(n), and 7.03(o)
and (iv) if at such time any Revolving Credit Loans or Uncollateralized Letters of Credit
are outstanding, a duly completed Revolver Maintenance Covenant Compliance Certificate, in
each case signed by a Responsible Officer of Holdings;
(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or written recommendations submitted to the board
of directors (or the audit committee of the board of directors) of any Loan Party by
independent accountants in connection with the accounts or books of any Loan Party or any of
its Subsidiaries, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of
Holdings, and copies of all annual, regular, periodic and special reports and
registration statements filed by Holdings with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, or with any national securities exchange, and in any case
not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to any other clause of this Section 6.02;
(e) as soon as available and in any event within 60 days after the end of each fiscal
year, commencing with the fiscal year ended December 31, 2006, a report summarizing the
material insurance coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as the Administrative
Agent, or any Lender through the Administrative Agent, may reasonably specify;
(f) promptly and in any event within five Business Days after receipt thereof by any
Loan Party or any of its Subsidiaries, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Loan Party or any of its
Subsidiaries (but excluding correspondence and comment letters received from the SEC in
connection with the SEC’s review of annual, regular, periodic and special reports and
registration statements filed by Holdings with the SEC);
(g) promptly after the written assertion or occurrence thereof, notice of any
Environmental Action against any Loan Party or of any noncompliance by any Loan Party or any
of its Subsidiaries with any Environmental Law or Environmental Permit that could reasonably
be expected to have a Material Adverse Effect;
(h) as soon as available and in any event within 30 days after the end of each fiscal
year (commencing with the fiscal year ended December 31, 2006), a report supplementing
Schedules 5.08(c) hereto, including an identification of all owned real property
disposed of by any Loan Party or any of its Subsidiaries during such fiscal year, a list and
description (including the street address, county or other relevant jurisdiction, state,
record owner and book value thereof) of all real property acquired during such fiscal year
and a description of such other changes in the information included in such Schedules as may
be necessary for such Schedules to be accurate and complete;
(i) as soon as available and in any event within 30 days after the execution thereof,
certified copies of each material written amendment or waiver executed by the parties to any
Qualified Designated Entity Agreement; and
(j) promptly, such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may from time to
time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on
Holdings’ website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on Holdings’ behalf on an Internet or intranet website, if any,
to which each Lender and each Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) upon request by the
Administrative Agent or any Lender, Holdings shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests Holdings to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) Holdings shall notify the Administrative Agent, which shall notify each Lender, (by
telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance Holdings shall be required
to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the
Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have
no obligation to request the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the Borrower with any such
request for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
Each of Holdings and the Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Joint Lead Arrangers will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of Holdings or the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system
(the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with respect to Holdings or its
securities) (each, a “Public Lender”). Each of Holdings and the Borrower hereby agrees that it
will use commercially reasonable efforts to identify that portion of the Borrower Materials that
may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the
L/C Issuer and the Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and proprietary) with respect
to the Borrower or its securities for purposes of United States Federal and state securities laws;
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of
the Platform designated “Public Investor”; and (z) the Administrative Agent and the Joint Lead
Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only
for posting on a portion of the Platform not designated “Public Investor.”
6.03 Notices. Promptly upon a Responsible Officer of Holdings or the Borrower
obtaining knowledge thereof, notify the Administrative Agent, which shall notify each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (but in each case only to the extent the same has
resulted or could reasonably be expected to result in a Material Adverse Effect) (i) breach
or non-performance of, or any default under, a Contractual Obligation of any Loan Party or
any Subsidiary thereof; (ii) any dispute, litigation, investigation, proceeding or
suspension between any Loan Party or any Subsidiary thereof and any Governmental Authority;
or (iii) the commencement of, or any material development in, any litigation or proceeding
affecting any Loan Party or any Subsidiary thereof, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting practices by
any Loan Party or any Subsidiary (other than changes disclosed in the financial statements
referred to in Sections 6.01(a) and (b));
(e) of the (A) occurrence of any Disposition of property or assets for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.04(b)(ii),
(B) incurrence or issuance of any Indebtedness for which the Borrower is required to make a
mandatory repayment pursuant to Section 2.04(b)(iii) and (C) receipt of any
Extraordinary Receipt for which the Borrower is required to make a mandatory prepayment
pursuant to Section 2.04(b)(iv); and
(f) of the occurrence of any default under any QDE Credit Documents of a type described
in Section 6.23 as to which the applicable grace period, if any, has expired.
Each notice pursuant to Section 6.03(a), (b), (c) or (d) shall be accompanied
by a statement of a Responsible Officer of Holdings setting forth details of the occurrence
referred to therein and stating what action Holdings has taken or caused the Borrower to take and
proposes to take or cause the Borrower to take with respect thereto.
6.04
Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by Holdings, the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien upon its property (except as
otherwise permitted by
Section 7.01); and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness and except, in the case of this clause (c), with respect to
Indebtedness not for borrowed money to the extent failure to so pay and discharge could not
reasonably be expected to have a Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05 and except,
in the case of any Loan Party other than Holdings and the Borrower, to the extent failure to do so
could not reasonably be expected to have a Material Adverse Effect; (b) take all reasonable action
to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain and preserve all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted and (b) make all necessary repairs thereto and renewals
and replacements thereof except, in each case with respect to clause (a) and (b),
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing in the case of all material insurance
policies for not less than 10 days’ prior notice to the Administrative Agent of termination, lapse
or cancellation of such insurance.
6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of Holdings, the Borrower or
such Subsidiary, as the case may be, subject to normal adjustments at the end of fiscal periods;
and (b) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such
Subsidiary, as the case may be.
6.10
Inspection Rights. Permit representatives and independent contractors (to the
extent that such independent contractors have agreed to be bound by the terms of Section 10.07 as
set forth therein) of each Agent and each Lender to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that when an Event of
Default exists any Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any time during normal
business hours and without advance notice; provided further that in all cases the
Information obtained during such visits and inspections shall be subject to the provisions of
Section 10.07.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for (a) the
Refinancing and the making of payments to the FCC for Auction 66, (b) the payment of fees and
expenses incurred in connection with the Transaction and (c) acquisitions, acquisition-related
build-outs, Investments, working capital and general corporate purposes in each case not in
contravention of any Law or of any Loan Document.
6.12 Covenant to Guarantee Obligations and Give Security. (a) Upon the formation or
acquisition of any new direct or indirect Subsidiaries (other than a Disqualified Subsidiary) by
any Loan Party, Holdings or the Borrower shall, in each case at its own expense (provided,
that upon request of the Borrower, the time period for complying with any provision of this
Section 6.12(a) may be extended by the Administrative Agent in its discretion, up to an
additional 15 days):
(i) within 15 days after such formation or acquisition, cause each such Subsidiary
(other than, to the extent material adverse tax consequences would otherwise result, any
Subsidiary that is a CFC), and cause each direct and indirect parent of such Subsidiary (if
it has not already done so), to duly execute and deliver to the Administrative Agent a
guaranty or guaranty supplement, in form and substance satisfactory to the Administrative
Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(ii) within 15 days after such formation or acquisition, furnish to the Administrative
Agent a description of the real and personal properties of such Subsidiary in detail
satisfactory to the Administrative Agent,
(iii) within 30 days after such formation or acquisition, cause such Subsidiary (other
than, to the extent material adverse tax consequences would otherwise result, any Subsidiary
that is a CFC) and each direct and indirect parent of such Subsidiary (if it has not already
done so) to duly execute and deliver, to the Administrative Agent, with respect solely to
owned personal property, pledges, assignments, Security Agreement Supplements, IP Security
Agreement Supplements and other security and pledge agreements, as reasonably specified by
and in form and substance reasonably satisfactory to the Administrative Agent (including
delivery of all Pledged Equity in and of such Subsidiary, and other instruments of the type
specified in Section 4.01(a)(iii)), securing payment of all the Obligations of such
Subsidiary or such parent, as the case may be, under the Loan Documents and constituting
Liens on all such owned properties (to the extent such properties are of a type purported to
be subject to the Liens created under the Collateral Documents),
(iv) within 30 days after such formation or acquisition, take, and cause such
Subsidiary (other than, to the extent material adverse tax consequences would otherwise
result, any CFC) and each direct and indirect parent of such Subsidiary (if it has not
already done so) to take, whatever action (including the recording of mortgages, the filing
of Uniform Commercial Code financing statements, the giving of notices and the endorsement
of notices on title documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any representative of the
Administrative Agent designated by it) valid and subsisting Liens on the owned personal
properties purported to be subject to the pledges, assignments, Security Agreement
Supplements, IP Security Agreement Supplements and security and pledge agreements delivered
pursuant to this Section 6.12, enforceable against all third parties in accordance
with their terms,
(v) within 60 days after the request of the Administrative Agent in its sole discretion
(if such request is made within 30 days after receipt by the Administrative Agent of the
information referred to in clause (ii) above), deliver to the Administrative Agent a
signed copy of a favorable opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative
Agent as to the matters contained in clauses (i), (iii) and (iv)
above, and as to such other matters as the Administrative Agent may reasonably request,
(b) Upon the acquisition of any owned property of the type not excluded from the definition of
“Collateral” under the Collateral Documents by any Loan Party, and such property, in the judgment
of the Administrative Agent, shall not already be subject to a perfected first priority security
interest in favor of the Administrative Agent for the benefit of the Secured Parties, then Holdings
or the Borrower shall, at its own expense (provided, that upon request of the Borrower, the
time period for complying with any provision of this Section 6.12(b) may be extended by the
Administrative Agent in its discretion, up to an additional 15 days):
(i) within 15 days after such acquisition, furnish to the Administrative Agent a
description of the property so acquired in detail satisfactory to the Administrative Agent,
(ii) within 15 days after such acquisition, cause the applicable Loan Party to duly
execute and deliver to the Administrative Agent Security Agreement Supplements, IP Security
Agreement Supplements and other security and pledge agreements, as specified by and in form
and substance satisfactory to the Administrative Agent, securing payment of all the
Obligations of the applicable Loan Party under the Loan Documents and constituting Liens on
all such properties subject to the terms set forth in the Security Agreement,
(iii) within 30 days after such acquisition, cause the applicable Loan Party to take
whatever action (including the filing of Uniform Commercial Code financing statements, the
giving of notices and the endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated by it) valid and subsisting
Liens on such property, enforceable against all third parties,
(iv) within 60 days after the request of the Administrative Agent in its sole
discretion (if such request is made within 30 days after receipt by the Administrative Agent
of the information referred to in clause (i) above), deliver to the Administrative
Agent a signed copy of a favorable opinion, addressed to the Administrative Agent and the
other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to the matters contained in clauses (ii) and (iii)
above and as to such other matters as the Administrative Agent may reasonably request, and
(c) Upon the request of the Administrative Agent following the occurrence and during the
continuance of an Event of Default, the Borrower shall, at the Borrower’s expense:
(i) within 10 days after such request, furnish to the Administrative Agent a
description of the real and personal properties of the Loan Parties and their respective
Subsidiaries in detail satisfactory to the Administrative Agent,
(ii) within 15 days after such request, duly execute and deliver, and cause each Loan
Party and each Subsidiary of a Loan Party (other than, to the extent that material adverse
tax consequences would otherwise result, any CFC) to duly execute and deliver, to the
Administrative Agent deeds of trust, trust deeds, mortgages, Security Agreement Supplements,
IP Security Agreement Supplements and other security and pledge agreements, as specified by
and in form and substance reasonably satisfactory to the Administrative Agent (including
delivery of all Pledged Equity Interests in and of any Subsidiary, and other instruments of
the type specified in Section 4.01(a)(iii)), securing payment of all the Obligations
of the applicable Loan Party under the Loan Documents and constituting Liens on all such
properties,
(iii) within 30 days after such request, take, and cause each Loan Party and each
Subsidiary (other than, to the extent that material adverse tax consequences would result,
any CFC) of a Loan Party to take, whatever action (including the recording of mortgages, the
filing of Uniform Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or advisable in the opinion of
the Administrative Agent to vest in the Administrative Agent (or in any representative of
the Administrative Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the deeds of trust, trust deeds, mortgages, Security Agreement
Supplements, IP Security Agreement Supplements and security and pledge agreements delivered
pursuant to this Section 6.12, enforceable against all third parties in accordance
with their terms,
(iv) within 60 days after the request of the Administrative Agent in its sole
discretion, deliver to the Administrative Agent a signed copy of a favorable opinion,
addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties reasonably acceptable to the Administrative Agent as to the matters contained in
clauses (ii) and (iii) above, and as to such other matters as the
Administrative Agent may reasonably request, and
(v) as promptly as practicable after such request, deliver, upon the request of the
Administrative Agent in its sole discretion, to the Administrative Agent with respect to
each parcel of real property owned by the Borrower and its Subsidiaries, title reports,
surveys and engineering, soils and other reports, and environmental assessment reports, each
in scope, form and substance satisfactory to the Administrative Agent, provided,
however, that to the extent that any Loan Party or any of its Subsidiaries shall
have otherwise received any of the foregoing items with respect to such real property, such
items shall, promptly after the receipt thereof, be delivered to the Administrative Agent.
6.13 Compliance with Environmental Laws. Comply, and cause any sub-lessees of
Holdings and its Subsidiaries to comply, in all respects, with all applicable Environmental Laws
and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations
and properties; and conduct any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials
from any of its properties, in accordance with the requirements of all Environmental Laws, except,
in each case, to the extent that any failure to do so could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; provided,
however, that none of Holdings, the Borrower or any of their Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
6.14 Provision and Preparation of Environmental Reports. At the reasonable request of
the Required Lenders from time to time, including if reasonably requested in connection with any
acquisition of owned real property, provide to the Lenders (a) within 15 days (or such longer
period as may be reasonably necessary to respond to a specific request) after such request any
existing environmental site assessment reports for any of its properties described in such request
and (b) within 60 days (or such longer period as may be reasonably necessary to respond to a
specific request) after the reasonable request of the Required Lenders following receipt and review
of such existing reports, an environmental site assessment report for any of its properties
described in such request under this clause (b), prepared by an environmental consulting
firm acceptable to the Administrative Agent, indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance, removal or remedial action in connection with
any Hazardous Materials on such properties; without limiting the generality of the foregoing, if
the Administrative Agent determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the Administrative Agent may retain an
environmental consulting firm to prepare such report at the expense of the Borrower, and the
Borrower hereby agrees to and agrees to cause any Subsidiary that owns any property described in
such request to cooperate fully with the Administrative Agent and such environmental consulting
firm in their preparation of such environmental assessment report, including permitting any of
their representatives to visit and inspect the affected properties at reasonable times. If
reasonably requested by the Borrower, the Borrower shall be entitled to have a copy of such
environmental assessment report and access to the data relating thereto.
6.15
Further Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or error that may
be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation
thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and other instruments as
the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) to the fullest extent permitted by applicable law, subject any Loan Party’s owned properties,
assets, rights or interests to the Liens now or hereafter intended to be created by any of the
Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured
Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under
any Loan Document or under any other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.
6.16 Compliance with Terms of Leaseholds. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which Holdings, or any of their
Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not be reasonably likely to have a Material Adverse Effect.
6.17 Interest Rate Hedging. Enter into prior to December 31, 2006, and maintain at
all times thereafter, interest rate Swap Contracts on terms and with Persons acceptable to the
Administrative Agent, covering a notional amount such that at least 50% of Indebtedness for
borrowed money (other than Indebtedness of a Disqualified Subsidiary) at all times bears interest
at a fixed rate and providing for such Persons to make payments thereunder for a period of no less
than two years.
6.18 Lien Searches. Promptly following receipt of the acknowledgment copy of any
financing statements filed under the Uniform Commercial Code in any jurisdiction by or on behalf
of the Secured Parties, deliver to the Administrative Agent completed requests for information
listing such financing statement and all other effective financing statements filed in such
jurisdiction that name any Loan Party as debtor, together with copies of such other financing
statements.
6.19
Cash Collateral Accounts. (a) Maintain the Cash Collateral Account in accordance
with the terms set forth in the definition of “Cash Collateral Account” and (b) maintain all other
deposit and securities accounts with Bank of America or another commercial bank located in the
United States, which has (i) accepted the assignment of such accounts to the Collateral Agent for
the benefit of the Secured Parties pursuant to the terms of and except as otherwise permitted
pursuant to the Security Agreement and (ii) within 60 days after the date of this Agreement,
acknowledged the continued effectiveness of such Account Control Agreement (as defined in the
Security Agreement) with respect to the Obligations under this Agreement;
provided that,
with respect to any such acknowledgement as to which the Loan
Parties have used commercially reasonable efforts to comply with the terms of this Section
6.19, the Loan Parties shall have an additional 30 days beyond the date set forth above to
either obtain such acknowledgement or move such account to a bank that has entered into an Account
Control Agreement.
6.20 Material Contracts. Perform and observe all of the terms and provisions of each
Material Contract to be performed or observed by it, maintain each such Material Contract in full
force and effect, enforce each such Material Contract in accordance with its terms, take all such
action to such end as may be from time to time reasonably requested by the Administrative Agent
and, upon the reasonable request of the Administrative Agent, make to each other party to each such
Material Contract such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each
of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.21 Qualified Designated Entities, Joint Venture Entities and Disqualified Subsidiaries
Separateness. Comply with the following (provided that all references in this
Section 6.21 to “Qualified Designated Entities” shall mean Qualified Designated Entities in
which Holdings and its Subsidiaries have an Investment at the relevant time):
(i) (A) Holdings and its Subsidiaries (other than a Disqualified Subsidiary) will, to
the extent that any such Subsidiary has one or more deposit accounts, maintain their own
deposit account or accounts, separate from those of each Qualified Designated Entity, each
Joint Venture Entity and each Disqualified Subsidiary, with commercial banking institutions
and will not commingle their funds with any Qualified Designated Entity, any Joint Venture
Entity or any Disqualified Subsidiary; and (B) each Disqualified Subsidiary and each
Controlled Joint Venture Entity, to the extent that any such Disqualified Subsidiary or
Controlled Joint Venture Entity has one or more deposit accounts, will maintain its own
deposit account or accounts, separate from those of each Qualified Designated Entity and
each of Holdings and each of its other Subsidiaries, with commercial banking institutions
and will not commingle its funds with any Qualified Designated Entity or Holdings or any of
its other Subsidiaries;
(ii) (A) Holdings and its Subsidiaries (other than a Disqualified Subsidiary) will
maintain a separate address from the address of each Qualified Designated Entity, each Joint
Venture Entity and each Disqualified Subsidiary, or to the extent any Qualified Designated
Entity, Joint Venture Entity or Disqualified Subsidiary may have offices in the same
location as any of Holdings and its other Subsidiaries, maintain a fair and appropriate
allocation of overhead costs among them, with each such entity bearing its fair share of
such expense; and (B) each Disqualified Subsidiary and each Controlled Joint Venture Entity
will maintain a separate address from the address of each Qualified Designated Entity and
each of Holdings and its other Subsidiaries, or to the extent any Disqualified Subsidiary or
Controlled Joint Venture Entity may have offices in the same location as any Qualified
Designated Entity or any of Holdings and its other Subsidiaries, maintain a fair and
appropriate allocation of overhead costs among them, with each such entity bearing its fair
share of such expense;
(iii) each Disqualified Subsidiary and each Controlled Joint Venture Entity will issue
separate financial statements prepared not less frequently than quarterly and prepared in
accordance with GAAP (except for the omission of certain footnotes and other presentation
items required by GAAP with respect to audited financial statements), which financial
statements need not be separately audited or reviewed by an independent accounting firm;
(iv) each Disqualified Subsidiary and each Controlled Joint Venture Entity will be a
corporation, limited liability company or limited partnership and each Disqualified
Subsidiary and each Controlled Joint Venture Entity will conduct its affairs in accordance
with its certificate of incorporation or formation and by-laws or limited liability company
agreement or partnership agreement (or similar constitutive documents) and observe all
necessary, appropriate and customary company (or corporate or partnership) formalities,
including, but not limited to, holding all regular and special members’ and board of
managers’ (or stockholders’ and directors’, partners’ or other similar Persons’) meetings
appropriate to authorize company (or corporate or partnership) action, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents necessary to authorize
actions taken or to be taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and intercompany transaction accounts, to
the extent applicable;
(v) (A) no Disqualified Subsidiary or Controlled Joint Venture Entity will assume or
guarantee any of the liabilities of, or pledge any of its assets for the benefit of any of,
Holdings and its other Subsidiaries or any Qualified Designated Entity (other than
assumptions, Guarantees or pledges that are made or given prior to such entity’s becoming a
Disqualified Subsidiary or Controlled Joint Venture Entity or that are associated with
assets transferred to a Qualified Designated Entity, Disqualified Subsidiary or Joint
Venture Entity in exchange for, or contributed in respect of the issuance of, any Equity
Interests in or other consideration from such entity pursuant to Section 7.05(r) or
transferred by such entity to Holdings or its Subsidiaries), (B) each of Holdings and its
Subsidiaries (other than a Disqualified Subsidiary) will not assume or guarantee any of the
liabilities of, or pledge any of its assets for, the benefit of any Qualified Designated
Entity, Joint Venture Entity or Disqualified Subsidiary or hold out its credit as being
available to satisfy the obligations of any Qualified Designated Entity, Joint Venture
Entity or Disqualified Subsidiary (which shall be deemed not to refer to any disclosure by
Holdings and its Subsidiaries of Investments or obligations that Holdings or its
Subsidiaries are permitted to make in or incur with respect to Qualified Designated
Entities, Joint Venture Entities and Disqualified Subsidiaries in compliance with this
Agreement), other than with respect to Permitted Guarantees and (C) no Disqualified
Subsidiary or Controlled Joint Venture Entity will hold out the credit of Holdings and its
other Subsidiaries as being able to satisfy the obligations of such Disqualified Subsidiary
or Controlled Joint Venture Entity (which shall be deemed not to refer to any disclosure by
a Disqualified Subsidiary or Controlled Joint Venture Entity of Investments or obligations
that Holdings or its Subsidiaries are permitted to make in or incur with respect to
Disqualified Subsidiaries and Controlled Joint Venture Entities in compliance with this
Agreement), other than with respect to Permitted Guarantees;
(vi) (A) Holdings and each of its Subsidiaries (other than a Disqualified Subsidiary)
will not authorize the use of its name or trademarks or service marks by any Disqualified
Subsidiary, Qualified Designated Entity or Joint Venture Entity except pursuant to a written
license agreement; (B) each Disqualified Subsidiary and Controlled Joint Venture Entity will
not authorize the use of its name or trademarks or service marks by any Qualified Designated
Entity except pursuant to a written license agreement; and (C) each Qualified Designated
Entity, Disqualified Subsidiary and Joint Venture Entity may use the same domain name for
electronic mail as Holdings and its Subsidiaries;
(vii) (A) None of Holdings or any of its Subsidiaries (other than a Disqualified
Subsidiary) will conduct a material amount of its own business with suppliers of goods and
services, lenders or purchasers of securities in the name of Qualified Designated Entities,
Joint Venture Entities or Disqualified Subsidiaries, provided, however, that
Holdings and its Subsidiaries may provide services and, to the extent permitted under
Section 7.05, inventory, equipment and other property, to Qualified Designated
Entities, Joint Venture Entities and Disqualified Subsidiaries and may conduct the business
of Qualified Designated Entities, Joint Venture Entities and Disqualified Subsidiaries by or
on behalf of such Qualified Designated Entities, Joint Venture Entities or Disqualified
Subsidiaries, as applicable, under a management or services agreement so long as, except as
permitted under Section 6.21(vi), any material business so conducted is conducted in
the name of such Qualified Designated Entity, Joint Venture Entity or Disqualified
Subsidiary, as applicable and (B) except as permitted under Section 6.21(vi), no
Disqualified Subsidiary or Controlled Joint Venture Entity will conduct a material amount of
its own business with suppliers of goods and services, lenders or purchasers of securities
in the name of Holdings or any of its other Subsidiaries or any Qualified Designated Entity;
(viii) If Holdings or any of its Subsidiaries obtains actual knowledge that any
Qualified Designated Entity or Joint Venture Entity has represented or indicated to any
supplier of goods and services to, lender to or purchaser of securities of such Qualified
Designated Entity or Joint Venture Entity that the credit of Holdings and its Subsidiaries
is available to satisfy the obligations of such Qualified Designated Entity or Joint Venture
Entity (which shall be deemed not to refer to any disclosure by a Qualified Designated
Entity or Joint Venture Entity of Investments or obligations that Holdings or its
Subsidiaries are permitted to make in or incur with respect to Qualified Designated Entities
and Joint Venture Entities in compliance with this Agreement), other than in respect of
Permitted Guarantees, then Holdings and its Subsidiaries shall take such action as shall be
reasonable in the circumstances, which may include providing written notice to any Person to
whom such representation or indication was made, to make clear that the credit of Holdings
and its Subsidiaries is not available to satisfy the obligations of such Qualified
Designated Entity or Joint Venture Entity, other than in respect of Permitted Guarantees;
and
(ix) Holdings and its Subsidiaries will, (A) to the extent each may reasonably be able
to do so without materially adversely affecting any license, license-related application or
other governmental relationship, include in one or more Qualified Designated Entity
Agreements with each Qualified Designated Entity or analogous
agreements with each Joint Venture Entity entered into after the date of this Agreement
(other than the agreements with respect to the initial Investment by Holdings and its
Subsidiaries in an Oregon Entity), whether a limited liability company agreement,
partnership agreement, loan or credit agreement, or otherwise, provisions under which such
Qualified Designated Entity or Joint Venture Entity will agree to comply, and to cause its
Subsidiaries to comply, with separateness covenants for the benefit of Holdings and its
Subsidiaries not materially dissimilar from those contained in Sections 6.21(i)
through 6.21(viii) hereof and (B) in any circumstance where Holdings or such
Subsidiary shall have the right, as a result of its ownership of an Investment in a
Qualified Designated Entity or Joint Venture Entity, to consent to the incurrence of
Indebtedness owed to a third party by such entity, require as a condition to granting such
consent (but only in the case of Indebtedness for borrowed money of such Joint Venture
Entity or Qualified Designated Entity in excess of $5,000,000 in the aggregate) that the
third-party lender acknowledge that in extending credit to such Qualified Designated Entity
or Joint Venture Entity such lender is not relying on the credit of Holdings or any of its
Subsidiaries (except to the limited extent of any Permitted Guarantees and of any
Investments that Holdings or its Subsidiaries are obligated to make in any such entities in
compliance with this Agreement).
6.22 Holding Company. Cause the business and operations of Holdings and its
Subsidiaries to be conducted primarily through the Subsidiaries of Holdings and Qualified
Designated Entities and Joint Venture Entities in which Loan Parties have made Investments in
compliance with this Agreement.
6.23
Qualified Designated Entity Security; Rights as a Creditor. (a) As promptly as
practicable, with respect to each Qualified Designated Entity in which any Loan Party has made an
Investment pursuant to Section 7.03(l) or Section 7.03(n) that owes Indebtedness
(other than Permitted ANB Unsecured Investments and Permitted QDE Unsecured Investments) to a Loan
Party, take, and use commercially reasonable efforts to cause each Qualified Designated Entity to
take, all action reasonably necessary or, in the reasonable judgment of the Administrative Agent,
desirable to perfect the security interest of any Loan Party in the assets (but excluding FCC
Licenses and non-owned real property and subject to reasonable exceptions for other property the
value of which does not exceed 10% of the total assets of such Qualified Designated Entity) of such
Qualified Designated Entity securing Indebtedness (other than Permitted ANB Unsecured Investments
and Permitted QDE Unsecured Investments) owed by such Qualified Designated Entity to such Loan
Party, as required by Sections 7.03(l) and 7.03(n).
(b) Diligently enforce the provisions of the ANB Credit Documents and any QDE Credit Documents
by pursuing such legal remedies as the Borrower deems appropriate in its reasonable business
judgment (taking into account the collateral interest of the Lenders in the Loan Parties’
Investments in the applicable Qualified Designated Entity, any unjust enrichment or other penalties
that may be or become payable to the FCC as a result of the exercise of legal remedies, and other
factors relevant to the value of such Investment) in the case of any material payment default, any
material breach of the restrictions on debt or liens or any material breach of the covenants to
grant and perfect security interests, in each case which has not been cured prior to the expiration
of the applicable grace period, if any.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each of Holdings and the Borrower shall not, nor shall either of them permit any Subsidiary (other
than, in the case of Sections 7.01, 7.03, 7.04, 7.05, 7.06,
7.09, 7.14 and 7.17, a Disqualified Subsidiary) to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to
exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist any security agreement
authorizing any secured party thereunder to file such financing statement, or assign any accounts
or other right to receive income, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date of this Agreement listed on Schedule 5.08(b) and
any renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased and (iii) the
direct or any contingent obligor with respect thereto is not changed;
(c) Liens for taxes, fees, assessments or other charges of a Governmental Authority not
yet due or which are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’,
statutory, bankers, or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested in good faith and
by appropriate proceedings diligently conducted, if adequate reserves with respect thereto
are maintained on the books of the applicable Person in accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;
(f) Liens incurred or deposits made (including deposits with the FCC) to secure the
performance of tenders, bids, trade contracts and leases (other than Indebtedness),
statutory or regulatory obligations, surety bonds, government contracts, performance and
return of money bonds and other obligations of a like nature incurred in the ordinary course
of business in any case so long as the same does not secure Indebtedness for borrowed money;
(g) easements, rights-of-way, restrictions, encroachments, leases, subleases and other
similar encumbrances affecting real property which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;
(h) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) or securing appeal or other surety bonds related to
such judgments;
(i) Liens securing Indebtedness permitted under Section 7.02(a)(ii)(D);
provided that (i) in the case of Liens in respect of purchase money Indebtedness,
Capitalized Leases or Synthetic Lease Obligations, such Liens do not at any time encumber
any property other than the property financed by such Indebtedness or, if applicable,
subject to such Capitalized Lease, (ii) in the case of Liens in respect of purchase money
Indebtedness, the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition and
(iii) the sum of the Indebtedness secured by such Liens plus all Indebtedness
secured by Liens permitted under Section 7.01(q) does not exceed at any time
$150,000,000 in the aggregate;
(j) Any (i) interest or title of a lessor or sublessor under any lease, (ii)
restriction or encumbrance that the interest or title of such lessor or sublessor may be
subject to or (iii) subordination of the interest of the lessee or sublessee under such
lease to any restriction or encumbrance referred to in the preceding clause (ii);
(k) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(l) Any zoning or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property;
(m) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements entered into in
the ordinary course of business;
(n) Liens on property of a Person existing at the time such Person is merged into or
consolidated with Holdings or any Subsidiary of Holdings or becomes a Subsidiary of
Holdings; provided that such Liens were not created in contemplation of such merger,
consolidation or investment and do not extend to any assets other than those of the Person
merged into or consolidated with Holdings or such Subsidiary or acquired by Holdings or such
Subsidiary;
(o) Liens securing Indebtedness permitted under Section 7.02(a)(ii)(F) so long
as such Liens are limited to the property and assets of the relevant Disqualified
Subsidiary;
(p) Liens on cash collateral not in excess of $15,000,000 in the aggregate at any time
securing letters of credit; and
(q) other Liens covering Collateral not existing on the date hereof securing
Indebtedness not to exceed in the aggregate at any time $25,000,000.
7.02 Indebtedness. (a) Create, incur, assume or suffer to exist (collectively,
“Incur” and “Incurrence” has a meaning correlative thereto) any Indebtedness; provided,
however, that Holdings, the Borrower or any Subsidiary Guarantor may Incur Indebtedness
that satisfies the criteria set forth in clauses (a), (b) and (c) of the definition of
Permitted Unsecured Debt, if, after giving effect to the creation, incurrence or assumption of such
Indebtedness and the receipt and application of the proceeds therefrom, (x) no Default exists or
would result therefrom, (y) Holdings is in Pro Forma Compliance with the Senior Secured Leverage
Covenant and (z) the Consolidated Leverage Ratio would be less than the Maximum Incurrence Ratio
(the “Incurrence Test”); provided, that as used in the foregoing clause (x), the
term “Default” excludes any Default in the performance of a Revolver Maintenance Covenant. The
provisions of the preceding sentence shall not prohibit the Incurrence of any of the following
items of Indebtedness:
(i) in the case of Holdings and the Borrower:
(A) Indebtedness in respect of Swap Contracts entered into pursuant to
Section 6.17;
(B) Indebtedness owed to a Subsidiary Guarantor, which Indebtedness (x) shall
constitute Pledged Debt, (y) shall be subordinated to the Loan Parties’ Obligations
under the Loan Documents on terms reasonably acceptable to the Administrative Agent
and (z) shall be evidenced by promissory notes in form and substance reasonably
satisfactory to the Administrative Agent and such promissory notes shall be pledged
as security for the Obligations of the holder thereof under the Loan Documents and
delivered to the Administrative Agent pursuant to the terms of the Security
Agreement;
(C) any combination of Permitted Unsecured Debt and Permitted Bridge Debt in an
aggregate principal amount outstanding at any time not to exceed $1,200,000,000; and
(D) in the case of Holdings only, Permitted Equity Forwards, and
(ii) in the case of Holdings and its Subsidiaries,
(A) Indebtedness under the Loan Documents, including any Incremental Facility;
(B) Guarantees of the Borrower or any Guarantor in respect of Indebtedness
otherwise permitted under this Agreement of the Borrower or any other Guarantor
(excluding, for the avoidance of doubt, Guarantees of Indebtedness described in
subclause (F) of this clause (a)(ii));
(C) obligations (contingent or otherwise) of Holdings or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a “market view”; and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its obligation
to make payments on outstanding transactions to the defaulting party;
(D) Indebtedness in respect of (x) Capitalized Leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(i) and (y) not more than $25,000,000
of secured Indebtedness for borrowed money; provided, however, that
the aggregate amount of all such Indebtedness at any one time outstanding pursuant
to this subclause (D) shall not exceed $150,000,000;
(E) Indebtedness owed to a Loan Party, which Indebtedness (x) shall constitute
Pledged Debt, (y) shall be on terms (including subordination terms subordinating
such Indebtedness to the Obligations) reasonably acceptable to the Administrative
Agent and (z) shall be evidenced by promissory notes in form and substance
satisfactory to the Administrative Agent and such promissory notes shall be pledged
as security for the Obligations of the holder thereof under the Loan Documents and
delivered to the Administrative Agent;
(F) Indebtedness of any Disqualified Subsidiary owed to Persons other than Loan
Parties and existing at the time such Disqualified Subsidiary becomes a wholly owned
Subsidiary of Holdings pursuant to Section 7.03(k), Section 7.03(l),
Section 7.03(n) or Section 7.03(o), so long as such Indebtedness (x)
does not exceed $200,000,000 in aggregate principal amount (excluding capitalized
interest on such Indebtedness) outstanding at any time for all such Indebtedness
owed to Persons other than Loan Parties and (y) other than with respect to Permitted
Guarantees, is non-recourse to Holdings and its other Subsidiaries, and any
refinancings, refundings, renewals or extensions thereof, provided that (1)
the amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension, (2) the direct or any contingent obligor with
respect thereto is not changed (and other than with respect to Permitted Guarantees,
such Indebtedness remains non-recourse to Holdings and its other Subsidiaries) and
(3) the Liens securing such Indebtedness do not extend to the assets of Holdings or
any of its other Subsidiaries;
(G) To the extent permitted under Section 7.03(l), obligations to make
Investments in or loans to or to acquire Equity Interests in ANB Entities and
obligations to pay any management, origination or other similar fees to third
parties in connection therewith;
(H) To the extent permitted under Section 7.03(k), Section
7.03(n) or Section 7.03(o), obligations to make Investments in or loans
to or to acquire Equity Interests in Joint Venture Entities or Qualified Designated
Entities or Disqualified Subsidiaries and obligations to pay any management,
origination or other similar fees to third parties in connection therewith;
(I) Indebtedness consisting of reimbursement obligations in respect of letters
of credit having an aggregate face amount not in excess of $15,000,000 outstanding
secured by Liens permitted by Section 7.01(p);
(J) Indebtedness constituting Permitted Guarantees; and
(K) Other unsecured Indebtedness in an aggregate outstanding amount not to
exceed $5,000,000 at any time.
(b) Whether or not otherwise permitted to do so by the provisions of Section 7.02(a),
at any time that any Revolving Credit Loan or Uncollateralized Letter of Credit shall be
outstanding, Holdings and the Borrower shall not, nor shall either of them permit any Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness except
Indebtedness expressly permitted under clause (i) or clause (ii) of Section
7.02(a) unless, after giving effect to the Incurrence and the existence of such Indebtedness,
Holdings and its Subsidiaries are in compliance (and in the case of any such Incurrence, Pro Forma
Compliance) with the Revolver Maintenance Covenants.
7.03 Investments. Make or hold any Investments or, in the case of obligations of
Holdings and its Subsidiaries with respect to a Qualified Designated Entity, Disqualified
Subsidiary or Joint Venture Entity, any obligation to make an Investment, except:
(a) Investments held by Holdings or any of its Subsidiaries in the form of Cash
Equivalents;
(b) (i) advances to officers, directors and employees of Holdings and Subsidiaries in
an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel,
entertainment, relocation and analogous ordinary business purposes, (ii) notes or other
obligations not in excess of $5,000,000 in the aggregate of one or more officers, directors
or employees of Holdings or any Subsidiary in connection with such officers’, directors’ or
employees’ acquisition of shares of Holdings’ common stock pursuant to any equity incentive
plan, so long as no cash is actually advanced by Holdings or any Subsidiary to such
officers, directors or employees and (iii) cancellation of notes issued by one or more
officers, directors or employees of Holdings or any Subsidiary in connection with the
termination of such officers’, directors’ or employees’ employment or any put rights such
officers, directors or employees may have under employment or service agreements in an
aggregate amount not in excess of $5,000,000, so long as no cash was actually advanced by
Holdings or any Subsidiary to such officers, directors or employees;
(c) equity Investments of the Borrower in any Guarantor and Investments of any
Guarantor in the Borrower or in another Guarantor;
(d) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;
(e) Guarantees permitted by Section 7.02(a)(ii)(B);
(f) Investments existing on the date of this Agreement set forth on Schedule
5.08(d);
(g) promissory notes and other non-cash consideration to the extent permitted to be
received in connection with a Disposition under Section 7.05;
(h) Equity Interests that constitute security for, and are acquired in connection with
the enforcement of, Indebtedness or claims due or owing to Holdings or such Subsidiary;
(i) Investments by Holdings or the Borrower in Swap Contracts permitted under
Section 7.02(a)(i)(A) or (D) and Section 7.02(a)(ii)(C);
(j) Investments in Loan Parties consisting of intercompany debt permitted under
Section 7.02(a)(i)(B) or 7.02(a)(ii)(E), in each case, for the avoidance of
doubt, other than investments in any Disqualified Subsidiary;
(k) Investments or obligations to make Investments (other than Investments or
obligations to make Investments in any Qualified Designated Entity in which any Investment
under Section 7.03(n) has previously been made, unless (i) all amounts invested in
such Qualified Designated Entity prior to the date of an Investment therein under this
Section 7.03(k) would be able to be invested therein on such date in compliance with
this Section 7.03(k) or (ii) such Investment constitutes an Acquisition);
provided that, with respect to each Investment made or obligation to make an
Investment incurred pursuant to this Section 7.03(k):
(A) each Loan Party and any newly created or acquired Subsidiary shall comply
with the requirements of Section 6.12, unless such new Subsidiary is a
Disqualified Subsidiary;
(B) the lines of business of the Person to be (or the property and assets of
which are to be) purchased or otherwise acquired or in which such Investment is made
shall be substantially one or more of the same lines of business described in
Section 7.07;
(C) such Investment or obligation to make an Investment shall not include or
result in any contingent liabilities that could reasonably be expected to be
material to the business, financial condition, operations or prospects of Holdings
and its Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or the persons performing similar functions) of Holdings or
such Subsidiary if the board of directors is otherwise approving such
transaction and, in each other case, by a Responsible Officer), other than (1)
Permitted Guarantees, (2) Excluded Assumed Liabilities, (3) future obligations to
invest in or to lend or purchase Equity Interests of a Joint Venture Entity or
Qualified Designated Entity permitted under subclause (G) hereof, and (4) if
any new Subsidiary resulting from such Investment is a Disqualified Subsidiary,
obligations of such Disqualified Subsidiary of the type permitted under Section
7.02(a)(ii)(F);
(D) immediately before and immediately after giving effect to each such
Investment or incurrence of an obligation to make an investment, the Loan Parties
shall have an aggregate amount of $100,000,000 in any combination of available cash,
Cash Equivalents held by Loan Parties free and clear of all Liens other than the
Liens created under the Collateral Documents and bankers’ or similar liens and
unused Revolving Credit Commitments which are then available to be drawn in
accordance with the requirements of Section 4.02; provided that the
requirements of this clause (D) shall not apply to an acquisition by the
Borrower of (1) the remaining portion of the Equity Interests of ANB 1 that the
Borrower did not own as of July 22, 2005 for a purchase price not exceeding
$6,000,000, if at the time of such acquisition ANB 1 and ANB 1 License do not owe to
any Persons other than Loan Parties Indebtedness in an aggregate amount in excess of
$5,000,000 or (2) the remaining portion of the Equity Interests of any other Joint
Venture Entity or Qualified Designated Entity if such acquisition is made in
exchange for common Equity Interests of Holdings or Qualified Preferred Stock (or
any combination thereof) and an amount of cash that does not exceed, when taken
together with all other obligations to purchase Equity Interests of Joint Venture
Entities and Qualified Designated Entities that are not Stock-Pay Obligations,
$20,000,000 in amount at any time;
(E) (1) immediately before and immediately after giving pro forma effect to any
such Investment, no Default shall have occurred and be continuing and (2)
immediately after giving effect to such purchase or other acquisition, Holdings and
its Subsidiaries (including any Qualified Designated Entities and Joint Venture
Entities that are required under GAAP to be consolidated with Holdings and its
Subsidiaries) shall be in Pro Forma Compliance with (x) in the case of any
Investment that results in the Incurrence of Indebtedness not otherwise permitted
under Sections 7.02(a)(i) or (ii) by Holdings or any of its Subsidiaries (or
any Qualified Designated Entity or Joint Venture Entity that is required in
accordance with GAAP to be consolidated with Holdings and its Subsidiaries, unless
such Indebtedness is owed to a Loan Party), the Incurrence Test and (y) the Senior
Secured Leverage Covenant;
(F) if such newly-acquired Subsidiary is a Disqualified Subsidiary, the sole
consideration paid for the acquisition of the remaining Equity Interests of such
former Qualified Designated Entity or Joint Venture Entity shall be common Equity
Interests of Holdings or Qualified Preferred Stock (or any combination thereof)
plus, at the option of Holdings, (i) if such entity is an ANB Entity, an
amount in cash not in excess of that portion of the $325,000,000 permitted (in
accordance with clause (y) of Section 7.03(l)) to be invested in ANB
Entities that is at such time available to be so invested, (ii) if such entity is an
Oregon Entity, an amount in cash not in excess of that portion of the $85,000,000
permitted (in accordance with clause (y) of Section 7.03(o)) to be invested
in Oregon Entities at such time available to be so invested, (iii) if such entity is
a former Qualified Designated Entity under Section 7.03(n), an amount in
cash not in excess of the amount that would otherwise be permitted to be invested in
Qualified Designated Entities and Disqualified Subsidiaries pursuant to Section
7.03(n) that is at such time available to be so invested or (iv) otherwise, the
amount then available to be invested under subclause (G) of this Section
7.03(k);
(G) the aggregate amount of all Investments made and obligations to make
Investments incurred pursuant to this Section 7.03(k) that do not constitute
Acquisitions from the Effective Date through the date of such Investment (which
amount shall be calculated excluding (1) any capitalized interest owed by a Person
in whom an Investment is made under this Section 7.03(k) to Loan Party, (2) Excluded
Assumed Liabilities and (3) Stock-Pay Obligations) shall not exceed the sum of
$150,000,000 plus the Available Cash Flow Basket as of such date;
provided that no more than $20,000,000 in the aggregate of Investments
pursuant to this Section 7.03(k) may take the form of Guarantees of
obligations of Joint Venture Entities or Qualified Designated Entities (excluding
Permitted Debt Put Rights); and
(H) Holdings shall have delivered to the Administrative Agent, on behalf of the
Lenders, at least five Business Days prior to the date on which any such Investment
is to be consummated (in the case of an Investment in a Joint Venture Entity or
Qualified Designated Entity, only at the time of the initial Investment or
incurrence of an obligation to make an Investment therein or the initial Investment
or incurrence of an obligation to make an Investment therein pursuant to this
Section 7.03(k)), a certificate of a Responsible Officer, in form and
substance reasonably satisfactory to the Administrative Agent, certifying that all
of the requirements set forth in this Section 7.03(k) have been satisfied or
will be satisfied on or prior to the consummation of such purchase or other
acquisition and demonstrating the calculations used to determine such compliance;
(l) (w) Investments (other than Guarantees or assumptions of debt which are not
Permitted Guarantees) by Holdings and its Subsidiaries in ANB Entities, (x) commitments to
lend to or invest in ANB Entities, (y) those portions of all put obligations to purchase
Equity Interests of ANB Entities that are not by their terms Stock-Pay Obligations (which
portions shall not exceed when taken together with all other portions of obligations to
purchase Equity Interests in respect of Qualified Designated Entities and Joint Venture
Entities that are not Stock-Pay Obligations, $20,000,000 in amount at any time) and (z)
payments of or obligations to pay management, origination or other similar fees or penalties
in connection with any of the foregoing, in an aggregate amount for all such Investments and
other obligations referred to in clauses (w), (x), (y) and
(z) outstanding at any time not to exceed in the aggregate $325,000,000 (which
amount shall
(i) be permanently reduced by amounts of the type referred to in clause (z)
once any such amount has been paid to a Person other than a Loan Party and (ii) be
calculated without giving effect to (A) any capitalized interest on obligations owed by any
ANB Entity to a Loan Party, (B) Excluded Assumed Liabilities and (C) Stock-Pay Obligations);
provided that, except for Permitted ANB Unsecured Investments, amounts invested
pursuant to this Section 7.03(l) after the date hereof must be in the form of
Investments consisting of loans to ANB 1 or ANB 1 License, or Investments resulting in
contractual obligations of ANB 1 or ANB 1 License to a Loan Party, in each case that are
secured by substantially all of the assets of ANB 1 and ANB 1 License (but excluding FCC
Licenses and non-owned real property) on the terms set forth in the ANB Credit Documents;
provided further that, with respect to each Investment made or other
obligation incurred pursuant to this Section 7.03(l):
(A) such Investment or other obligation shall not include or result in any
contingent liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of Holdings and its
Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or persons performing similar functions) of Holdings or such Subsidiary
if the board of directors is otherwise approving such transaction and, in each other
case, by a Responsible Officer), other than in respect of Permitted Guarantees and
future obligations to invest in or to lend to or purchase Equity Interests of an ANB
Entity that do not in the aggregate when taken together with all other outstanding
Investments and obligations of a type referred to in this Section 7.03(l)
(excluding Stock-Pay Obligations, any capitalized interest on obligations owed by
any ANB Entity to a Loan Party and Excluded Assumed Liabilities) exceed
$325,000,000;
(B) such Investment or other obligation shall be in or in respect of property
and assets which are part of, or in lines of business which are, substantially one
or more of the same lines of business as described in Section 7.07;
(C) (1) immediately before and immediately after giving effect to such
Investment or other incurrence of such other obligation, the Loan Parties shall have
an aggregate amount of $100,000,000 (or, in the case of an Investment in ANB 1 or
ANB 1 License at a time when ANB 1 and ANB 1 License do not owe to any Persons other
than Loan Parties Indebtedness in an aggregate amount in excess of $5,000,000,
$50,000,000) in any combination of available cash, Cash Equivalents held by Loan
Parties free and clear of all Liens other than Liens created under the Collateral
Documents and bankers’ or similar liens and unused Revolving Credit Commitments
which are then available to be drawn in accordance with the requirements of
Section 4.02, (2) immediately before and immediately after giving pro forma
effect to any such Investment or other obligation, no Default shall have occurred
and be continuing and (3) immediately after giving effect to such Investment or
other obligation, Holdings and its Subsidiaries (including any Designated Entities
and Joint Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries) shall be in Pro Forma Compliance with (x) in the case
of any Investment that results in
the Incurrence of Indebtedness not otherwise permitted under Sections
7.02(a)(i) or (ii) by Holdings or any of its Subsidiaries (or any Qualified
Designated Entity or Joint Venture Entity that is required under GAAP to be
consolidated with Holdings and its Subsidiaries, unless such Indebtedness is owed to
a Loan Party), the Incurrence Test and (y) the Senior Secured Leverage Covenant; and
(D) (1) Each of the Loan Parties shall comply with the requirements of
Section 6.12(b) as they relate to any Equity Interests, notes or other
property received by such Loan Party in connection with any Investment under this
Section 7.03(l), and (2) any Investment consisting of a loan or advance to
an ANB Entity (other than Permitted ANB Unsecured Investments) (x) shall be secured
by a perfected security interest in substantially all of the assets of such ANB
Entity (but excluding FCC Licenses and non-owned real property) pursuant to the
terms of the ANB Credit Documents and (y) shall be evidenced by a promissory note,
and all such promissory notes shall constitute Pledged Debt and shall, together with
all related collateral, be pledged as security for the Obligations of the holder
thereof under the Loan Documents and delivered to the Administrative Agent;
(m) other Investments by Holdings and its Subsidiaries not to exceed $10,000,000 in the
aggregate; and
(n) (w) Investments (other than Guarantees or assumptions of debt which are not
Permitted Guarantees) by Holdings and its Subsidiaries in Qualified Designated Entities in
which Holdings or one of its Subsidiaries owns, directly or indirectly, more than 50% of the
Equity Interests (other than an ANB Entity or an Oregon Entity), (x) commitments to lend to
or invest in Qualified Designated Entities (other than an ANB Entity or an Oregon Entity),
(y) those portions of all put obligations to purchase Equity Interests of Qualified
Designated Entities (other than ANB Entities or Oregon Entities) that are not by their terms
Stock-Pay Obligations (which portion shall not exceed, when taken together with all other
portions of obligations to purchase Equity Interests in respect of ANB Entities, Oregon
Entities, Joint Venture Entities and Qualified Designated Entities that are not Stock-Pay
Obligations, $20,000,000 in amount at any time) and (z) payments of or obligations to pay
management, origination or other similar fees or penalties in connection with any of the
foregoing; provided that, with respect to each Investment made or other obligation
incurred pursuant to this Section 7.03(n):
(i) Holdings or the relevant Subsidiary shall comply with the requirements of
Section 6.12(b) as they apply to any Equity Interests or other property
obtained by them in connection with such Investment;
(ii) the lines of business of the Person in which such Investment is made shall
be substantially one or more of the same lines of business as described in
Section 7.07;
(iii) such Investment or other obligation shall not include or result in any
contingent liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of Holdings and its
Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or the persons performing similar functions) of Holdings or such
Subsidiary if the board of directors is otherwise approving such transaction and, in
each other case, by a Responsible Officer), other than in respect of (A) Permitted
Guarantees, (B) future obligations to invest in or to lend to or purchase Equity
Interests of a Qualified Designated Entity (other than ANB 1 or ANB 1 License) that
at the time incurred comply with the requirements of this Section 7.03(n)
and (C) Permitted Make-Whole Obligations;
(iv) immediately before and immediately after giving effect to such Investment
or the incurrence of such other obligation, the Loan Parties shall have an aggregate
amount of $100,000,000 in any combination of available cash, Cash Equivalents held
by Loan Parties free and clear of all Liens other than the Liens created under the
Collateral Documents and bankers’ or similar liens and unused Revolving Credit
Commitments which are then available to be drawn in accordance with the requirements
of Section 4.02;
(v) (1) immediately before and immediately after giving pro forma effect to any
such Investment or the incurrence of such other obligation, no Default shall have
occurred and be continuing and (2) immediately after giving effect to such
Investment or the incurrence of such other obligation, Holdings and its Subsidiaries
(including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) shall be
in Pro Forma Compliance with (x) in the case of any Investment or other obligation
that results in the Incurrence of Indebtedness not otherwise permitted under
Sections 7.02(a)(i) or (ii) by Holdings or any of its Subsidiaries (or by
any Qualified Designated Entity or Joint Venture Entity that is required under GAAP
to be consolidated with Holdings and its Subsidiaries, unless such Indebtedness is
owed to a Loan Party), the Incurrence Test and (y) the Senior Secured Leverage
Covenant;
(vi) except with respect to Permitted QDE Equity Investments and Permitted QDE
Unsecured Investments, at least 75% of the aggregate amount invested by Holdings or
any of its Subsidiaries in each single Qualified Designated Entity and its
respective Subsidiaries on a consolidated basis pursuant to this Section
7.03(n) shall consist of loans to such Qualified Designated Entity or any of its
Subsidiaries, or Investments resulting in contractual obligations of such Qualified
Designated Entity or any of its Subsidiaries to a Loan Party, that in each case are
secured by the assets of such Qualified Designated Entity (other than FCC licenses
and non-owned real property and subject to reasonable exceptions for other property
the value of which does not exceed 10% of the total assets of such Qualified
Designated Entity and its Subsidiaries) pursuant to loan and security documents
which have been executed and delivered and certified copies thereof provided to the
Administrative Agent prior to the making of the initial Investment therein pursuant
to this Section 7.03(n) (“QDE Credit Documents”), which documents (A) shall
prohibit the incurrence by such Qualified Designated Entity and its Subsidiaries of
Indebtedness owed to third
parties except (u) Indebtedness constituting purchase money financing (which
may be secured) of telecommunications equipment of up to $20,000,000 in the
aggregate outstanding at any one time, (v) Indebtedness constituting purchase money
financing (which may be secured) for tangible personal property in the nature of
office equipment utilized in the ordinary course of business, (w) secured
Indebtedness constituting liabilities or obligations of the Qualified Designated
Entity and its Subsidiaries underlying the Auction 66 Priority Put Right, (x)
unsecured Indebtedness in an aggregate principal amount not to exceed $20,000,000 at
any one time outstanding, (y) intercompany Indebtedness by and among the Qualified
Designated Entity and its Subsidiaries, Guarantees by the Qualified Designated
Entity and its Subsidiaries of Indebtedness of such Qualified Designated Entity and
its Subsidiaries of the types described in subclauses (u)-(z), and any
refinancings, refundings, renewals or extensions of Indebtedness of the types
described in subclauses (u)-(z), and (z) unsecured Indebtedness as to which
(1) the Lender has acknowledged that it is not relying on the credit of Holdings or
its Subsidiaries to satisfy such Indebtedness, (2) the maturity is no earlier than
180 days after the Maturity Date in respect of the Term B Facility and there are no
scheduled amortization payments or mandatory prepayments and (3) the aggregate
principal amount (excluding capitalized interest on such Indebtedness) does not
exceed, for all Qualified Designated Entities in which Holdings and its Subsidiaries
have made Investments under this Section 7.03(n), $150,000,000 (of which no
more than $100,000,000 in the aggregate shall be owed to any third parties that are
not Affiliates of Holdings) and (B) except as provided in subclauses (A)(u),
(v) and (w) above, shall provide for first priority (subject, in the
case of Auction 66 Entities, to the Auction 66 Priority Put Right) security
interests held by such Loan Parties over all of the assets of such Qualified
Designated Entity and its Subsidiaries (excluding FCC Licenses and non-owned real
property and subject to reasonable exceptions for other property the value of which
does not exceed 10% of the total assets of such Qualified Designated Entity and its
Subsidiaries); provided that any portion of the secured loans or advances to
such Qualified Designated Entity or its Subsidiaries that has been repaid by such
Qualified Designated Entity or its Subsidiaries shall be treated as outstanding for
purposes of calculating the percentage referred to in this subclause (n)(vi)
except for purposes of subsequent Investments, which shall be in the form of secured
loans and advances until such time as such ratio shall be met with respect to
Investments actually outstanding; and provided further, that no
term, provision or condition that is included in, or added to or omitted or deleted
from, the QDE Credit Documents from time to time, that Holdings reasonably deems
advisable in order to comply with requests, directives, rules or regulations of the
FCC, shall result in a breach of or constitute a failure to perform or observe any
of the covenants or agreements set forth in this subclause (n)(vi) unless
such term, provision or condition is a material change to a provision of such QDE Credit Document specifically referred to in this subclause (n)(vi) and is
not otherwise approved by the Administrative Agent; and
(vii) except for Investments of the type permitted by Section 7.05(s),
(t), (u) or (v), and except for Permitted Guarantees, Holdings
shall have delivered to
the Administrative Agent, on behalf of the Lenders, at least five Business Days
prior to the date on which any initial Investment in a Qualified Designated Entity
is to be consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this clause (n) have been satisfied or will be
satisfied on or prior to the consummation of such Investment and demonstrating the
calculations used to determine such compliance; and
(o) (w) Investments (other than Guarantees or assumptions of debt which are not Permitted
Guarantees) by Holdings and its Subsidiaries in an Oregon Entity, (x) commitments to lend to or
invest in an Oregon Entity, (y) those portions of all put obligations to purchase Equity Interests
of an Oregon Entity that are not by their terms Stock-Pay Obligations (which portions shall not
exceed, when taken together with all other portions of obligations to purchase Equity Interests in
respect of ANB Entities, Joint Venture Entities and Qualified Designated Entities that are not
Stock-Pay Obligations, $20,000,000 in amount at any time) and (z) payments of or obligations to pay
management, origination or other similar fees in connection with any of the foregoing, in an
aggregate amount for all such Investments and other obligations referred to in clauses
(w), (x), (y) and (z) outstanding at any time not to exceed in the
aggregate an amount equal to $85,000,000 including an amount equal to 85% of the Net Cash Proceeds
from any sale of the Toledo/Sandusky Assets which amount shall be invested pursuant to this
Section 7.03(o) as required by Section 7.05(w) (the “Required Toledo Reinvestment”)
(which amount shall (i) be permanently reduced by amounts of the type referred to in clause (z)
once any such amount has been paid to a Person other than a Loan Party and (ii) be calculated
without giving effect to (A) any capitalized interest on obligations owed by any Oregon Entity to a
Loan Party, (B) Excluded Assumed Liabilities and (C) Stock-Pay Obligations); provided that,
with respect to each Investment made pursuant to this Section 7.03(o):
(i) Holdings or the relevant Subsidiary shall comply with the requirements of
Section 6.12(b) as they apply to any Equity Interests or other property obtained by
them in connection with such Investment;
(ii) the lines of business of the Person in which such Investment is made shall be
substantially one or more of the same lines of business as described in Section
7.07;
(iii) such Investment shall not include or result in any contingent liabilities that
could reasonably be expected to be material to the business, financial condition, operations
or prospects of Holdings and its Subsidiaries, taken as a whole (as determined in good faith
by the board of directors (or the persons performing similar functions) of Holdings or such
Subsidiary if the board of directors is otherwise approving such transaction and, in each
other case, by a Responsible Officer), other than in respect of Permitted Guarantees and
future obligations to invest in or to lend to or purchase Equity Interests of an Oregon
Entity that at the time incurred comply with the requirements of this Section
7.03(o), and obligations to pay any management, origination or other similar fees to
third parties in connection therewith, that do not in the aggregate when taken together with
all other outstanding Investments and obligations of a type referred to in this Section
7.03(o) (excluding Stock-Pay Obligations, any capitalized
interest on obligations owed by any Oregon Entity to a Loan Party and Excluded Assumed
Liabilities) exceed $85,000,000 (as such amount may have been reduced by the amount of the
Required Toledo Reinvestment);
(iv) immediately before and immediately after giving effect to such Investment, the
Loan Parties shall have an aggregate amount of $100,000,000 in any combination of available
cash, Cash Equivalents held by Loan Parties free and clear of all Liens other than the Liens
created under the Collateral Documents and bankers’ or similar liens and unused Revolving
Credit Commitments which are then available to be drawn in accordance with the requirements
of Section 4.02; provided, that the requirements of this clause (iv) shall
not apply to an acquisition of Equity Interests in an Oregon Entity pursuant to put
obligations so long as the consideration therefore consists entirely of any combination of
common stock of Holdings, Qualified Preferred Stock and cash in an amount that does not
exceed, when taken together with the amount of all obligations to purchase Equity Interests
of ANB Entities, Oregon Entities, Joint Venture Entities and Qualified Designated Entities
that are not Stock-Pay Obligations, $20,000,000 in the aggregate;
(v) (1) immediately before and immediately after giving pro forma effect to any such
Investment, no Default shall have occurred and be continuing and (2) immediately after
giving effect to such Investment, Holdings and its Subsidiaries (including any Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be
consolidated with Holdings and its Subsidiaries) shall be in Pro Forma Compliance with (x)
in the case of any Investment that results in the Incurrence of Indebtedness not otherwise
permitted under Sections 7.02(a)(i) or (ii) by Holdings or any of its Subsidiaries
(or any Qualified Designated Entity or Joint Venture Entity that is required under GAAP to
be consolidated with Holdings and its Subsidiaries, unless such Indebtedness is owed to a
Loan Party), the Incurrence Test and (y) the Senior Secured Leverage Covenant; and
(vi) except for Investments of the type permitted by Section 7.05(s), (t), (u) or
(v), and except for Permitted Guarantees, Holdings shall have delivered to the
Administrative Agent, on behalf of the Lenders, (A) at least five Business Days prior to the
date on which the initial Investment under this Section 7.03(o) after the date
hereof is to be consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the requirements
set forth in this clause (o) have been satisfied or will be satisfied on or prior to
the consummation of such Investment and demonstrating the calculations used to determine
such compliance and (B) from time to time as they are executed, copies of all Qualified
Designated Entity Agreements or joint venture agreements relating to the Oregon Entities.
7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, with respect to clauses (a) through (d) so long as no Event of Default
or, to the knowledge of Holdings, Default exists and no Default would result therefrom:
(a) any Subsidiary (other than a Disqualified Subsidiary) may merge with (i) Holdings
or the Borrower, provided that Holdings or the Borrower shall be the continuing or
surviving Person, or (ii) any one or more other Subsidiaries, provided that when any
Loan Party (other than Holdings) is merging with another Subsidiary that is not a Loan
Party, such Loan Party shall be the continuing or surviving Person;
(b) any Loan Party (other than the Borrower) may Dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Loan
Party;
(c) any Subsidiary that is not a Loan Party may dispose of all or substantially all its
assets to (i) another Subsidiary which is not a Loan Party or (ii) to a Loan Party for no
consideration, or, in the case of this clause (ii), pursuant to a Disposition which
is in the nature of a liquidation;
(d) in connection with any acquisition permitted under Section 7.03, any
Subsidiary of Holdings (other than the Borrower) may merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate with it; provided
that the Person surviving such merger shall be a wholly owned Subsidiary of Holdings;
provided further that if the Subsidiary of Holdings involved in such merger
or consolidation is a Guarantor then the surviving entity shall also be a Guarantor; and
(e) in the case of any Subsidiary other than the Borrower, pursuant to a transaction
otherwise permitted by Section 7.05 (other than Section 7.05(g)).
7.05 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Leases or sub-leases in the ordinary course of business or with durations not
exceeding two years, of a type customarily entered into by Persons engaged in the same or
similar business as Holdings and its Subsidiaries;
(d) Non-exclusive licenses or sub-licenses of intellectual property in the ordinary
course of business or with durations not exceeding two years and any standstill contract,
agreement, arrangement or commitment under which Holdings or any of its Subsidiaries agrees
not to bring suit for infringement of any of its patent rights but reserves its rights to
recover royalties or damages for any infringing activities during the standstill period;
(e) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;
(f) Dispositions of property by any Subsidiary to Holdings or to a wholly owned
Subsidiary (other than a Disqualified Subsidiary); provided that if the transferor
of such property is a Guarantor, the transferee thereof must either be the Borrower or a
Guarantor;
(g) Dispositions permitted by Section 7.04;
(h) Dispositions of surplus property by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition, (ii) the purchase
price for such asset shall be paid to the Borrower or such Subsidiary at least 75% in cash,
(iii) no FCC License shall be Disposed of in reliance on this clause (h) and (iv)
any Net Cash Proceeds from Dispositions pursuant to this clause (h) in excess of
$10,000,000 in the aggregate during any fiscal year shall be applied in accordance with
Section 2.04(b)(ii);
(i) Dispositions (x) by any Excluded Subsidiary or by any Disqualified Subsidiary, (y)
of any Excluded Subsidiary or of any Disqualified Subsidiary and (z) of Equity Interests in
any Joint Venture Entity or Qualified Designated Entity;
(j) Dispositions of cell-site towers in a sale-leaseback transaction; provided
that 50% of any Net Cash Proceeds in excess of $20,000,000 received by Holdings or any
Subsidiary in connection with such Disposition shall be immediately applied to prepay the
Loans under Section 2.04(b)(ii) (without regard to the reinvestment provisions
thereof);
(k) (A) Dispositions of one or more FCC Licenses solely to the extent that at least 80%
of the consideration received therefor consists entirely of one or more FCC Licenses having
an identical coverage area and equal or greater bandwidth and (B) Dispositions of FCC
Licenses not in commercial operation to the extent that at least 80% of the consideration
therefor consists of other FCC Licenses and equipment, leases or other property related
thereto; provided that any cash received in connection with a transaction under this
clause (B) shall be deemed to be the fair market value of assets Disposed of for
purposes of Section 7.05(l);
(l) other Dispositions of property having a fair market value in the aggregate for all
such Dispositions pursuant to this Section 7.05(l) not in excess (when taken
together with any cash received in transactions under Section 7.05(k) or Section
7.05(r)) of $150,000,000; provided that in each case the consideration therefor
is paid at least 75% in cash;
(m) the transfer by Holdings of an amount not to exceed $7,000,000 to the Leap Creditor
Trust as required by the Plan of Reorganization;
(n) non-exclusive licenses or sublicenses of intellectual property to ANB 1 License;
(o) Dispositions of inventory to ANB 1 License for a sale price not less than the cost
thereof for sale or use by ANB 1 License in the ordinary course of business;
provided that to the extent that the consideration received from ANB 1 License is
not cash, the amount of such non-cash consideration shall constitute an Investment that is
subject to the limitations set forth in Section 7.03(l);
(p) Dispositions of property or equipment to ANB 1 License by Holdings or any of its
Subsidiaries for fair market value in connection with providing services to ANB 1 License
under a management or services agreement, provided the aggregate fair market value
for all such equipment and property disposed of is not in excess of $5,000,000 in the
aggregate in any fiscal year; provided further that to the extent that the
consideration received from ANB 1 License is not cash, the amount of such non-cash
consideration shall constitute an Investment that is subject to the limitations set forth in
Section 7.03(l);
(q) subleases of cell sites, switch sites, retail sites and administrative sites to ANB
1 License at rents not less than the rents paid by Holdings or its Subsidiaries under the
corresponding primary leases for such sites, provided that (i) the aggregate annual
rents under all primary leases subject to such subleases do not exceed $20,000,000 and (ii)
any amount not paid by ANB 1 or ANB 1 License in cash by such time as the rent is due under
the terms of the corresponding primary lease shall constitute an Investment that is subject
to the limitations set forth in Section 7.03(l);
(r) Dispositions of property transferred in exchange for, or contributed in respect of
the issuance of, any Equity Interests from any Joint Venture Entity, Qualified Designated
Entity or Disqualified Subsidiary in which Holdings or any of its Subsidiaries makes an
Investment of the type permitted by Section 7.03(k), Section 7.03(n) or
Section 7.03(o) and any other consideration received in connection therewith;
provided that the amount of Investment in such Equity Interests for the purposes of
Section 7.03(k), Section 7.03(n) or Section 7.03(o), as applicable,
shall be deemed to be the fair market value of the property so Disposed minus any cash and
the fair market value of any non-cash consideration (other than such Equity Interests)
received in such transfer or exchange, as determined in good faith by the Board of Directors
or its delegate; and provided further that any cash consideration received
in a transfer or exchange under this Section 7.05(r) shall be deemed to be the fair
market value of assets Disposed of for purposes of Section 7.05(l);
(s) non-exclusive licenses or sublicenses of intellectual property to any Joint Venture
Entity, Qualified Designated Entity or Disqualified Subsidiary in which Holdings or any of
its Subsidiaries makes or has made an Investment of the type permitted by Section
7.03(k), Section 7.03(n) or Section 7.03(o) at the time such license or
sublicense is granted;
(t) Dispositions of inventory to any Joint Venture Entity, Qualified Designated Entity
or Disqualified Subsidiary in which Holdings or any of its Subsidiaries makes an Investment
of the type permitted by Section 7.03(k), Section 7.03(n) or Section
7.03(o), for a sale price not less than the cost thereof for sale or use by such Joint
Venture Entity, Qualified Designated Entity or Disqualified Subsidiary in the ordinary
course of business; provided that to the extent that the consideration received from
such Joint
Venture Entity, Qualified Designated Entity or Disqualified Subsidiary is not cash, the
amount of such non-cash consideration shall constitute an Investment that is subject to the
limitations set forth in Section 7.03(k), 7.03(n) or 7.03(o), as
applicable.;
(u) Dispositions of property or equipment to any Joint Venture Entity, Qualified
Designated Entity or Disqualified Subsidiary in which Holdings or any of its Subsidiaries
makes an Investment of the type permitted by Section 7.03(k), 7.03(n) or
7.03(o), by Holdings or any of its Subsidiaries for fair market value in connection
with providing services to such Joint Venture Entity, Qualified Designated Entity or
Disqualified Subsidiary under a management or services agreement, provided the
aggregate fair market value for all such equipment and property disposed of is not in excess
of $10,000,000 in the aggregate in any fiscal year; provided further that to
the extent that the consideration received from such Joint Venture Entity, Qualified
Designated Entity or Disqualified Subsidiary is not cash, the amount of such non-cash
consideration shall constitute an Investment that is subject to the limitations set forth in
Section 7.03(k), 7.03(n) or 7.03(o), as applicable;
(v) subleases of cell sites, switch sites, retail sites and/or administrative sites to
any Joint Venture Entity, Qualified Designated Entity or Disqualified Subsidiary in which
Holdings or any of its Subsidiaries makes an Investment of the type permitted by Section
7.03(k), 7.03(n) or 7.03(o), at rents not less than the rents paid by
Holdings or its Subsidiaries under the corresponding primary leases for such sites,
provided that (i) the aggregate annual rents under all primary leases subject to
such subleases do not exceed $20,000,000 and (ii) any amount not paid by such Joint Venture
Entity, Qualified Designated Entity or Disqualified Subsidiary in cash by such time as the
rent is due in under the terms of the corresponding primary lease shall constitute an
Investment that is subject to the limitations set forth in Section 7.03(k),
7.03(n) or 7.03(o), as applicable; and
(w) the Disposition of the Toledo/Sandusky Assets for fair market value so long as an
amount equal to at least 85% of the Net Cash Proceeds thereof is invested in an Oregon
Entity pursuant to Section 7.03(o) within 6 months after the consummation of such
Disposition (whether such Investment is made in cash or in kind) or, if not so invested,
used to prepay obligations pursuant to Section 2.04(b).
provided, however, that any Disposition pursuant to Section 7.05(a) through
Section 7.05(l) shall be for fair market value.
7.06 Restricted Payments. (a) Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell
any Equity Interests (other than common Equity Interests of Holdings or Qualified Preferred Stock) or accept
any capital contributions, unless, that the time of and after giving effect thereto, (x) no Default
shall have occurred and be continuing or would result therefrom, (y) Holdings is in Pro Forma
Compliance with the Senior Secured Leverage Covenant and the Incurrence Test and (z) the amount of
such Restricted Payment does not exceed the Available Cash Flow Basket as of such date of
determination; provided, that as used in the foregoing clause (x), the term
“Default” excludes any Default in the performance of a Revolver Maintenance Covenant. The
provisions
of the preceding sentence shall not prohibit the declaration or making of the following Restricted
Payments:
(i) so long as no Default shall have occurred and be continuing or would result
therefrom, each Subsidiary may make Restricted Payments to any Loan Party and any other
Person that owns a direct Equity Interest in such Subsidiary, ratably according to their
respective holdings of the type of Equity Interest in respect of which such Restricted
Payment is being made;
(ii) any Loan Party may make Restricted Payments to, or issue or sell any Equity
Interests to, or accept any capital contribution from, any other Loan Party;
(iii) Holdings and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or Qualified Preferred Stock or other
common Equity Interests of such Person and Holdings may declare and make dividend payments
or other distributions on common stock of Holdings or Qualified Preferred Stock payable
solely in shares of common stock of Holdings or Qualified Preferred Stock;
(iv) so long as no Event of Default, or, to the knowledge of Holdings, Default shall
have occurred and be continuing and no Default would result therefrom, Holdings and each
Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other
common Equity Interests with the proceeds received from the substantially concurrent issue
of new shares of its common stock or other common Equity Interests;
(v) Holdings may repurchase shares of its common stock pursuant to employee benefit and
incentive plans and agreements with employees in an aggregate amount not in excess of
$100,000;
(vi) so long as no Default under Section 8.01(a) or Event of Default shall have
occurred and be continuing or would result therefrom, Holdings and its Subsidiaries may make
payments not exceeding $250,000 in the aggregate relating to the wind-up, liquidation and
dissolution of the Excluded Subsidiaries; and
(vii) in the case of Holdings, Permitted Equity Forwards.
(b) Whether or not otherwise permitted to do so by the provisions of Section 7.06(a),
for so long as any Revolving Credit Loan or Uncollateralized Letter of Credit shall be outstanding,
Holdings and the Borrower shall not, nor shall either of them permit any Subsidiary to, declare or
make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, or issue or sell any Equity Interests (other than common equity of Holdings or
Qualified Preferred Stock) or accept any capital contributions unless such action is expressly
permitted under one or more of clauses (i) through (vii) of Section 7.06(a)
unless at such time and after giving effect thereto, Holdings would be in Pro Forma Compliance with
the Revolver Maintenance Covenants.
7.07
Change in Nature of Business. Engage in any material line of business other than
(a) the delivery or distribution of wireless telecommunications services (including
voice, data or video services), (b) any business or activity reasonably related or ancillary to
those listed in the foregoing clause (a), and (c) the acquisition, holding or exploitation
of any license relating to the delivery of such wireless services.
7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of Holdings, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to Holdings or such Subsidiary as would be obtainable
by Holdings or such Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate; provided that the foregoing restriction shall not apply to
transactions between and among Loan Parties or to (i) customary directors’ fees and expenses, (ii)
employment agreements, employee benefit and compensation plans approved by the Board of Directors
of Holdings or otherwise generally available to employees of Holdings and its Subsidiaries, (iii)
payments under customary officers’ and directors’ indemnification arrangements or (iv) payments
permitted under any of Sections 7.06(a)(v) and 7.06(a)(vi) and transactions
permitted under Section 7.03(b).
7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits in any material respect the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to
otherwise transfer property to or invest in the Borrower or any Guarantor, except for any agreement
in effect (A) on the date hereof or (B) at the time any Subsidiary becomes a Subsidiary of
Holdings, so long as such agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of Holdings, (ii) of any Subsidiary to Guarantee the Indebtedness of the
Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume or suffer to exist
Liens on property of such Person; provided, however, that this clause (iii)
shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under Section 7.02(a)(ii)(D)(x) or 7.02(a)(ii)(F) solely to the extent
any such negative pledge relates to the property financed by or the subject of such Indebtedness or
the assets of the Disqualified Subsidiary referred to in Section 7.02(b)(F) or (b) requires
the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person; provided that clauses (a)(ii), (a)(iii) and
(b) shall not be deemed to refer to customary covenants contained in any documents
governing Permitted Unsecured Debt or Permitted Bridge Debt, so long as such covenants contain
express exceptions permitting the Guarantees of the Obligations and the Liens created under the
Loan Documents.
7.10
Financial Covenants. (a) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the last day of any Measurement Period, if on such date
a Revolving Credit Loan or Uncollateralized Letter of Credit is outstanding, to be less than (i)
prior to June 30, 2008, 1.70:1.00 and (ii) from and after June 30, 2008, 2.00:1.00.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at as of any
date on which a Revolving Credit Loan or Uncollateralized Letter of Credit is outstanding to be
greater than the ratio set forth below for the applicable Measurement Period:
any other Loan Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by the
Borrower;
(iii) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and
(iv) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents; and
(b) If any Event of Default consisting of the failure to perform or observe any Revolving
Facility Covenant occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Revolving Lenders, take any or all of the following actions:
(i) declare the commitment of each Revolving Credit Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(ii) declare the unpaid principal amount of all outstanding Revolving Credit Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly waived by the
Borrower;
(iii) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and
(iv) exercise on behalf of itself and the Revolving Credit Lenders all rights and
remedies available to it and the Lenders under the Loan Documents;
provided, however, that the Administrative Agent shall give prompt notice to the
Term B Lenders of any action taken under Section 8.02(b), and thereafter shall, at the
request of, or may, with the consent of, the Required Term B Lenders, take any or all of the
actions described in clauses (i) through (iv) above with respect to the Term B
Facility as well as the Revolving Credit Facility; provided, further that upon the
occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under
the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
8.03
Application of Funds. After the exercise of remedies provided for in
Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (other than principal and
interest but including fees, charges and disbursements of
counsel to the Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders and
the L/C Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer and amounts payable under Article III), ratably among
them in proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably among the
Lenders and the L/C Issuer in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements,
ratably among the Lenders, the L/C Issuer and the Hedge Banks in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of each L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
outstanding Letters of Credit issued by such L/C Issuer;
Sixth, to the payment of all other Obligations of the Loan Parties owing under
or in respect of the Loan Documents that are due and payable to the Administrative Agent and
the other Secured Parties on such date, ratably based upon the respective aggregate amounts
of all such Obligations owing to the Administrative Agent and the other Secured Parties on
such date; and
Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of outstanding Letters of Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all outstanding Letters of Credit have either been fully drawn or expired, such
remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. (a) Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.
(b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender and potential Hedge Bank) and
each L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the
agent of such Lender and such L/C Issuer for purposes of acquiring, holding and enforcing any and
all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured
Obligations, together with such powers and discretion as are reasonably incidental thereto. In
this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for
purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of
the Administrative Agent), shall be entitled to the benefits of all provisions of this Article
IX and Article X (including Section 10.04(c), as though such co-agents,
sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set
forth in full herein with respect thereto.
9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or an L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or an L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of Bank of America as L/C Issuer, (ii) Bank of America as
L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, (iii) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to Bank of America as L/C Issuer to effectively assume the
obligations of Bank of America as L/C Issuer with respect to such Letters of Credit issued by the
Bank of America as L/C Issuer, and (iv) all references to “Bank of America” herein (other than in
provisions that by their terms survive the termination of this Agreement) shall be deemed to refer
to the bank which is the successor Administrative Agent or to the primary bank Affiliate of the
successor Administrative Agent.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each L/C
Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Joint Lead Arrangers, Joint Book Managers or Documentation Agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the
L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and its agents and counsel and all other amounts due the Lenders, the
L/C Issuer and the Administrative
Agent under Sections 2.03
(i) and (j), 2.08 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.08 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) if approved, authorized or ratified in writing in accordance with Section
10.01 hereof;
(b) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder; and
(c) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(i).
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release its interest in particular types or items
of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this
Section 9.10. In each case as specified in this Section 9.10, the Administrative
Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the Collateral Documents, or to
release such Guarantor from its obligations under the Guaranty, in each case in accordance with the
terms of the Loan Documents and this Section 9.10.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc.. (a) Subject to the provisions of Section 2.13(d) and
except as otherwise set forth in Section 10.01(b), no amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or
any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders
and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:
(i) waive any condition set forth in Section 4.01, or, in the case of the
initial Credit Extension, Section 4.02, without the written consent of each Lender;
(ii) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;
(iii) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest or fees or other amounts
due to the Lenders (or any of them), including the Maturity Date, or any scheduled reduction of the Revolving Credit
Facility hereunder or under any other Loan Document without the written consent of each
Lender entitled to such payment;
(iv)
reduce or forgive the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to such amount; provided,
however, that only the consent of the Required Lenders shall be necessary (A) to
amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (B) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such amendment would be
to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(v) change (A) Section 2.12 or 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender or
(B) the order of application of any reduction in the Commitments or any prepayment of Loans
among the Facilities from the application thereof set forth in the provisions of Section
2.04(b) or 2.05(b), respectively, in any manner that materially and adversely affects
the Lenders under a Facility without the written consent of (x) if such Facility is the Term
B Facility, the Required Term B Lenders and (y) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders;
(vi) (a) change any provision of this Section 10.01 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender,
(ii) change the definition of “Required Revolving Lenders” without the written consent of
each Revolving Credit Lender and (iii) change the definition of “Required Term B Lenders”
without the written consent of each Term B Lender;
(vii) release all or substantially all of the Collateral in any transaction or series
of related transactions, without the written consent of each Lender;
(viii) release all or substantially all of the value of the Guaranty, without the
written consent of each Lender; or
(ix) impose any greater restriction on the ability of any Lender to assign any of its
rights or obligations hereunder without the written consent of Lenders having more than 50%
of the Aggregate Credit Exposures then in effect within each of the following classes of
Commitments, Loans and other Credit Extensions: (i) the class consisting of the Revolving
Credit Commitment combined on an aggregate basis, (ii) the class consisting of the Term B
Commitment, combined on an aggregate basis. For purposes of this clause, the aggregate
amount of each Lender’s risk participation and funded participation in L/C Obligations shall
be deemed to be held by such Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by each L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuers under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by an L/C Issuer; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
(iii) Section 10.06(i) may not be amended, waived or otherwise modified without the consent
of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of
such amendment, waiver or other modification; and (iv) each Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.
(b) No amendment or waiver of any Revolving Facility Covenant, and no consent to any departure
by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by
the Required Revolving Lenders and the Borrower or the applicable Loan Party, as the case may be,
and no consent or signed writing from any Term B Lender shall be required with respect thereto.
10.02
Notices and Other Communications; Facsimile Copies . (a)
Notices
Generally. Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in
subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as follows,
and all notices and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent or any L/C Issuer, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative Agent and each
L/C Issuer may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower, the Administrative Agent and each L/C Issuer.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, each L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices ) purportedly given by or on behalf of the Borrower
even if (i) such notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify
the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer, the
Administrative Agent or any Loan Party to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder or any other Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and
provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
10.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent
and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit facilities provided for
herein (in the case of fees to syndicate members, on the terms set forth in the Arrangement Fee
Letter), the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder
and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C
Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent,
any Lender or the L/C Issuer), in connection with the enforcement or protection of its rights (A)
in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), the other Agents, the Joint Lead Arrangers, the Joint Book
Managers, each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including the reasonable
fees, charges and disbursements of a single outside law firm for the Indemnitees (provided
that, in the event a conflict is identified among the Indemnitees, one additional counsel may be
selected on behalf of each Indemnitee subject to such conflict), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or thereunder or
the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any
way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or
creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of
the transactions contemplated hereunder or under any of the other Loan Documents is consummated, in
all cases, whether or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee
arising out of, related to or in connection with any of the matters referred to in either of
clause (i) or (ii) above or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing (and without limiting its
obligation to do so), each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of Section
2.11(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it
through electronic telecommunications or other information transmission systems customarily used
for transactions of this type or otherwise authorized by the Borrower in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to
the extent that such damages arise from the gross negligence or willful misconduct of such
Indemnitee in the use of such electronic telecommunications or other information transmission
systems.
(e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent and any L/C Issuer, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds
of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally
agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b)
of the preceding sentence shall survive the payment in full of the Obligations and the termination
of this Agreement.
10.06 Successors and Assigns. (a) Successors and Assigns Generally. The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that neither the Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of Section 10.06(b), (ii) by way of participation in
accordance with the provisions of Section 10.06(d), (iii) by way of pledge or assignment of
a security interest subject to the restrictions of
Section 10.06(g), or (iv) to an SPC in
accordance with the provisions of Section 10.06(i) (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement. Notwithstanding any other provision
of this Agreement, if at any time a Lender proposes to assign or otherwise transfer all or any
portion of its rights hereunder to any Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund and is not a commercial bank, finance company, insurance company, financial
institution or Fund (a “Non-Financial Entity”), then such Lender shall notify the Administrative
Agent that such proposed assignee or transferee is a Non-Financial Entity. Prior to granting its
approval to such proposed assignment or transfer, the Administrative Agent shall notify the
Borrower of the identity of such Non-Financial Entity. No assignment shall be made to any
Non-Financial Entity that is designated by the Borrower, within three Business Days after receipt
by the Borrower of notification from the Administrative Agent pursuant to the immediately preceding
sentence, as a direct or indirect competitor of Holdings or any Subsidiary of Holdings.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this Section
10.06(b), participations in L/C Obligations) at the time owing to it); provided that
any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;
and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000, in the case of any assignment in respect of the Revolving Credit
Facility, or $1,000,000, in the case of any assignment in respect of the Term
Facility, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (a) or subsection
(b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) any Term Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable Facility,
an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii)
any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund; and
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters
of Credit (whether or not then outstanding).
(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set forth in Schedule
11.06; provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries (other than any Affiliate that
is not Holdings or a Subsidiary of Holdings and becomes a Lender in connection with the
primary syndication of the Facilities, or an Affiliate of such a Lender).
(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.
(c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request and following the delivery to the Borrower of the original note issued
to the assignor Lender, if any, the Borrower (at its expense) shall execute and deliver a
replacement Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 10.06(d).
(d) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (other than an
Affiliate that qualifies as an Eligible Assignee pursuant to the definition of “Eligible Assignee”)
or, subject to the last two sentences of this clause (e), a Non-Financial Entity) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in clauses (iii),
(iv), (vii) or (viii) of the first proviso to Section 10.01 that directly affects such
Participant. Subject to subsection (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 10.06(b). To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a
Lender, provided
such Participant agrees to be subject to Section 2.12 as though it were a Lender.
Notwithstanding the foregoing, if at any time a Lender proposes to sell a participation to a
Non-Financial Entity, then such Lender shall notify the Borrower of the identity of such proposed
participant. No participation shall be sold to any Non-Financial Entity that is designated by the
Borrower, within three Business Days after receipt by the Borrower of notification from the
applicable Lender pursuant to the immediately preceding sentence, as a direct or indirect
competitor of Holdings or any Subsidiary of Holdings.
(f) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) and (f) as though it were a Lender.
(g)
Certain Pledges. Any Lender may, without the consent of the
Borrower or the Administrative Agent, at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
(h)
Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the
New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
(i) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
or, if it fails to do so, to make such payment to the Administrative Agent as is required under
Section 2.11(b)(ii). Each party hereto hereby agrees that (i) neither the grant to any SPC
nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise
increase or change the obligations of any Loan Party under this Agreement (including the Borrower’s
obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other
modification of any provision of any Loan Document, remain the lender of record hereunder. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. 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 debt of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right to receive payment
with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any
non-public information relating to its funding of Loans to any rating agency, commercial paper
dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Revolving Credit
Commitments and Revolving Credit Loans pursuant to Section 10.06(b), Bank of America may,
upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any
such resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no failure by the Borrower
to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer. If
Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties
of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the
right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer, (a)
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.
10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
herein defined), except that Information may be disclosed (a) to its Affiliates and to its
Affiliates’ respective partners, directors, officers, employees,
agents, advisors, auditors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it; (c) to the extent required by applicable Laws or guidelines, requests or
directed duties of, or agreements with, any Governmental Authority (whether or not having the force
of law) or obligations imposed by non-governmental international
bodies or regulations or obligations imposed by non-governmental
international bodies or regulations by any subpoena or similar legal process; (d) to any other party to this
Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder; (f) subject to an
agreement containing provisions substantially the same as those of this Section 10.07, to
(i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this
Agreement, (ii) any pledge referred to in Section 10.06(g)
or (iii) any direct or
indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s
or prospective counterparty’s professional advisor) to any credit derivative transaction relating
to obligations of the Loan Parties; (g) with the consent of the Borrower; (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section
10.07 or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any
of their respective Affiliates on a nonconfidential basis from a source other than the Borrower;
(i) to any state, Federal or foreign authority or examiner (including the National Association of
Insurance Commissioners or any other similar organization) regulating any Lender; or (j) to any
rating agency when required by it (it being understood that, prior to any such disclosure, such
rating agency shall undertake to preserve the confidentiality of any Information relating to the
Loan Parties received by it from such Lender); provided that, unless specifically
prohibited by applicable Law or court order, each Lender shall notify the Borrower of any request
by any Governmental Authority or representative thereof (other than any such request in connection
with an examination of the financial condition of such Lender by such Governmental Authority) or
subpoena for disclosure of any such non-public information prior to the disclosure of such
information. In addition, the Administrative Agent, the L/C Issuer and the Lenders may disclose
the existence of this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the Administrative
Agent and the Lenders in connection with the administration and management of this Agreement, the
other Loan Documents, the
Commitments, and the Credit Extensions. For the purposes of this Section, “Information” means
all information received from any Loan Party relating to any Loan Party or its business, other than
any such information that is available to the Administrative Agent, any L/C Issuer or any Lender on
a nonconfidential basis prior to disclosure by any Loan Party; provided that, in the case
of information received from a Loan Party after the date hereof, such information is clearly
identified in writing at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section 10.07 shall be considered to
have complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information. The agreements in this Section shall survive any assignment by a Lender,
any sale of a participation by a Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower
or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to such Lender or such
L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such obligations of the
Borrower or such Loan Party may be contingent or unmatured or are
owed to a branch or office of
such Lender or such L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, each L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender
and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of the Obligations
hereunder.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
10.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by each Agent and
each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and
notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the
time of any Credit Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
10.12 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
10.13 Replacement of Lenders. If (i) any Lender or any participant of such Lender
requests compensation under Section 3.04, or (ii) if the Borrower is required to pay any additional
amount to any Lender or any participant of such Lender or any Governmental Authority for the
account of any Lender or any participant of such Lender pursuant to Section 3.01, or (iii)
if any Lender is a Defaulting Lender, or (iv) if any amendment, waiver or consent hereunder
requiring the consent of all Lenders or all Lenders directly affected thereby would be effective
but for the failure of no more than two Lenders to consent thereto (each, a “Non-Consenting
Lender”) or if any other
circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party
hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws or guidelines, directed
duties or requests of, or agreements with, any Governmental Authority (whether or not having
the force of law); and
(e) no more than two (2) Non-Consenting Lenders may be replaced in connection with any
proposed amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
10.14
Governing Law; Jurisdiction; Etc. (a)
GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
(b)
SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF
NEW YORK SITTING IN
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16
USA PATRIOT Act Notice. Each Lender (unless such Lender is
not, in its sole determination, subject to the Act referred to below) and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance
with the Act.
10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower and Holdings each acknowledge and agree, and
acknowledge their respective Affiliates’ understanding, that: (i) the credit facilities provided
for hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the Borrower, Holdings and their respective
Affiliates, on the one hand, and the Administrative Agent and each of the Lead Arrangers, on the
other hand, and each of the Borrower and Holdings is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated hereby and
by the other Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent
and each Lead Arranger each is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for the Borrower, Holdings or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the Administrative Agent
nor any Lead Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Borrower or Holdings with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the Administrative Agent or any Lead
Arranger has advised or is currently advising the Borrower, Holdings or any of their respective
Affiliates on other matters) and neither the Administrative Agent nor any Lead Arranger has any
obligation to the Borrower, Holdings or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; (iv) the Administrative Agent and each of the Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower, Holdings and their respective Affiliates, and neither the
Administrative Agent nor any Lead Arranger has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and each
of the
Lead Arrangers have not provided and will not provide any legal, accounting, regulatory or
tax advice with respect to any of the transactions contemplated hereby (including any amendment,
waiver or other modification hereof or of any other Loan Document) and each of the Borrower and
Holdings has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate. Each of the Borrower and Holdings hereby waives and releases, to the fullest
extent permitted by law, any claims that it may have against the Administrative Agent and either of
the Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty arising
out of the Transaction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.
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CRICKET COMMUNICATIONS, INC. |
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By: |
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/s/ Xxxx X. Xxxxxx |
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Name: Xxxx X. Xxxxxx |
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Title: Acting Chief Financial Officer |
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LEAP WIRELESS INTERNATIONAL, INC. |
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By: |
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/s/ Xxxx X. Xxxxxx |
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Name: Xxxx X. Xxxxxx |
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Title: Acting Chief Financial Officer |
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BANK OF AMERICA, N.A., as
Administrative Agent
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By: |
/s/ Xxxxx Xxxxxx
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Name: |
Xxxxx Xxxxxx |
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Title: |
Vice President |
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BANK OF AMERICA, N.A., as a
Lender and L/C Issuer
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By: |
/s/ Xxxxx Xxxxxx
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Name: |
Xxxxx Xxxxxx |
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Title: |
Vice President |
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EXPORT DEVELOPMENT CANADA
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By: |
/s/ X. Xxxxxxxxx
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Name: |
Xxxxx Xxxxxxxxx |
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Title: |
Financial Services Manager |
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By: |
/s/ X. XxXxxxxx
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Name: |
Xxxxx XxXxxxxx |
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Title: |
Manager |
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XXXXXXX XXXXX CREDIT PARTNERS L.P.
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By: |
/s/ X. X. Xxxxxx
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Director |
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Citicorp North America, Inc.
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By: |
/s/ Xxxxxx X. Xxxxxx
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Vice President |
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DEUTSCHE BANK TRUST COMPANY,
AMERICAS
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By: |
/s/ illegible
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Name: |
Anca Triffen |
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Title: |
Director |
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By: |
/s/ X. X. Xxxxxxxxxx
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Name: |
Xxxxxx X. Xxxxxxxxxx |
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Title: |
Director |
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XXXXXX XXXXXXX BANK
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By: |
/s/ X. Xxxxxx
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Vice President
Xxxxxx Xxxxxxx Bank |
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