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EXHIBIT 10.2(3)
CREDIT AGREEMENT
dated as of
January 31, 1997
among
A. H. BELO CORPORATION
as Borrower,
The Lenders Party Hereto,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Competitive Advance Facility Agent
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
BANK OF TOKYO-MITSUBISHI, LTD.
as Co-Syndication Agents
NATIONSBANK
as Documentation Agent
364-DAY
$500,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Classification of Loans and Borrowings . . . . . . . . . . . . . . 15
SECTION 1.03. Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
The Credits
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SECTION 2.01. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.02. Loans and Borrowings . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.03. Requests for Revolving Borrowings . . . . . . . . . . . . . . . . . 17
SECTION 2.04. Competitive Bid Procedure . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.05. Funding of Borrowings . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.06. Interest Elections . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.07. Termination and Reduction of Commitments . . . . . . . . . . . . . 21
SECTION 2.08. Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . . . 22
SECTION 2.09. Prepayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.10. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.12. Alternate Rate of Interest . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.13. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.14. Break Funding Payments . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.15. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs . . . . 28
SECTION 2.17. Mitigation Obligations; Replacement of Lenders . . . . . . . . . . 29
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.02. Authorization; Enforceability . . . . . . . . . . . . . . . . . . . 31
SECTION 3.03. Governmental Approvals; No Conflicts . . . . . . . . . . . . . . . 31
SECTION 3.04. Financial Condition; No Material Adverse Change . . . . . . . . . . 31
SECTION 3.05. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.06. Litigation and Environmental Matters . . . . . . . . . . . . . . . 32
SECTION 3.07. Compliance with Laws and Agreements . . . . . . . . . . . . . . . . 32
SECTION 3.08. Certain Legal Matters . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.10. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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SECTION 3.11. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.12. Acquisition of The Providence Journal Company . . . . . . . . . . . 33
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.02. Each Credit Event . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information . . . . . . . . . . . . 35
SECTION 5.02. Notices of Material Events . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.03. Existence; Conduct of Business . . . . . . . . . . . . . . . . . . 37
SECTION 5.04 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.05. Maintenance of Properties; Insurance . . . . . . . . . . . . . . . 37
SECTION 5.06. Books and Records; Inspection Rights . . . . . . . . . . . . . . . 38
SECTION 5.07. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.08. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VI
Negative Covenants
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SECTION 6.01. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.02. Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.03. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 39
SECTION 6.04. Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.05. Leverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.06. Interest Coverage . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VII
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 40
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ARTICLE VIII
The Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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ARTICLE IX
Miscellaneous
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SECTION 9.01 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.02 Waivers, Amendments . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.03 Expenses; Indemnity; Damage Waiver . . . . . . . . . . . . . . . . 46
SECTION 9.04 Successors & Assigns . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.05 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.06 Counterparts; Integration; Effectiveness . . . . . . . . . . . . . 49
SECTION 9.07 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.08 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.09 Governing Law; Jurisdiction; Consent to
Service of Process . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.10 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.12 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.13 Interest Rate Limitations . . . . . . . . . . . . . . . . . . . . . 52
Exhibits and Schedules
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Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Opinion of Counsel -- General Counsel of A. H. Belo Corporation
Exhibit B-2 Form of Opinion of Counsel -- Xxxxx Xxxxxxx Rain Xxxxxxx
Exhibit B-3 Form of Opinion of Counsel -- Wiley, Rein & Fielding
Schedule 2.01 Commitments
Schedule 3.06 Litigation, Labor and Environmental Matters
Schedule 6.01 Liens
Schedule 6.05 Subordinated Debt
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CREDIT AGREEMENT dated as of January 31, 1997,
among A. H. BELO CORPORATION, the LENDERS party
hereto, THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as Competitive Advance
Facility Agent (in such capacity, the "CAF Agent"),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION and BANK OF TOKYO-MITSUBISHI, LTD., as
Co-Syndication Agents, NATIONSBANK, as Documentation
Agent, and TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Administrative Agent (in such capacity, the
"Administrative Agent"; and, together with the CAF
Agent, the "Agents").
The Borrower (such term and each other capitalized term used but
not otherwise defined herein having the meaning assigned to it in Article I)
has requested the Lenders to extend credit in order to enable it to borrow on a
revolving credit basis on and after the date hereof and at any time and from
time to time prior to the Termination Date a principal amount not to exceed
$500,000,000. The proceeds of such borrowings are to be used to finance a
portion of the cost of acquiring The Providence Journal Company (including
related refinancing of indebtedness and transaction costs) and for general
corporate purposes, including working capital, acquisitions, stock repurchases
and, if the Borrower shall so determine, commercial paper backup. Up to
$100,000,000 of the proceeds of such borrowings and the borrowings under the
five-year revolving credit and competitive advance facility established
pursuant to the credit agreement dated the date hereof among the Borrower, the
Lenders and the Agents may be used to fund the operations of AHN and TVFN. The
Borrower has also requested the Lenders to provide a procedure pursuant to
which the Lenders may be invited to bid on an uncommitted basis on short-term
borrowings by the Borrower. The Lenders are willing to extend such credit to
the Borrower on the terms and subject to the conditions herein set forth.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted CD Rate" means, with respect to any CD Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the sum of (a) the Fixed CD Rate for such
Interest Period multiplied by the Statutory Reserve Rate, plus (b) the
Assessment Rate.
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"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Texas Commerce Bank National
Association, as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"AHN" means America's Health Network, a subsidiary of The
Providence Journal Company.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Percentage" means, with respect to any Eurodollar
Loan (other than any Eurodollar Competitive Loan) or CD Loan or with respect to
the facility fees referred to in Section 2.10(a), as the case may be, the
applicable percentage set forth in the table below under the caption
"Eurodollar Spread", "CD Spread" or "Facility Fee Percentage", as the case may
be, based upon the ratio of Funded Debt to Pro Forma Operating Cash Flow as of
the end of and for the most recent period of four consecutive fiscal quarters
for which financial statements of the Borrower are required to have been
delivered under Section 5.01(a) or (b), whether or not financial statements in
respect of any subsequent period shall have been delivered:
Facility Fee Eurodollar Spread CD Spread
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Ratio Percentage
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Category 1 Below 3.0 to 1.0 0.055% 0.170% 0.295%
Category 2 At least 3.0 to 1.0 but below
3.5 to 1.0 0.060% 0.190% 0.315%
Category 3 At least 3.5 to 1.0 but below
4.0 to 1.0 0.070% 0.255% 0.380%
Category 4 At least 4.0 to 1.0 but below
4.5 to 1.0 0.090% 0.310% 0.435%
Category 5 At least 4.5 to 1.0 but below
5.0 to 1.0 0.125% 0.375% 0.500%
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Category 6 Greater than or equal to 5.0
to 1.0 0.150% 0.475% 0.600%
At any time when financial statements required to have been delivered under
Section 5.01 (a) or (b) have not been delivered, the Applicable Percentage
shall be determined by reference to Category 6.
"Assessment Rate" means, for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost to the Lenders of such insurance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or another form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Termination Date and the
date of termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means A. H. Belo Corporation, a Delaware corporation.
"Borrowing" means (a) a group of Revolving Loans of the same Type
and, in the case of CD Loans or Eurodollar Loans, as to which a single Interest
Period is in effect, (b) a Competitive Loan or group of Competitive Loans of
the same Type made on the same date and as to which a single Interest Period is
in effect.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
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"CAF Agent" means The Chase Manhattan Bank as competitive advance
facility agent for the Lenders hereunder.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CD", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted CD Rate.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange
Act of 1934 as in effect on the date hereof) other than officers of the
Borrower and Continuing Directors shall own, directly or indirectly,
beneficially or of record, shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock
of the Borrower; or (b) a majority of the seats (other than vacant seats) on
the board of directors of the Borrower shall at any time be occupied by persons
who are not Continuing Directors.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13, by any lending office of such Lender or by such
Lender's holding company, if any) with any law, rule or regulation, or any
guideline or directive (whether or not having the force of law) of any
Governmental Authority, or any request of any Governmental Authority with which
such Lender believes in good faith that it would be disadvantageous not to
comply, in each case made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" means, with respect to each Lender, the commitment
of such Lender to make Revolving Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in
the
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Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Continuing Directors" means (i) the members of the Board of
Directors of the Borrower on the date hereof and (ii) future members of such
Board of Directors who were nominated or appointed by a majority of the
Continuing Directors at the date of their nomination or appointment.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings,
labor controversies and the environmental matters disclosed in Schedule 3.06.
The disclosure of information in Schedule 3.06 or in any other schedule or
exhibit to this Agreement shall not constitute an admission by the Borrower
that such information is material for any purpose, including applicable
securities laws, other than this Agreement and the transactions provided for
herein.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
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"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; or (f) the receipt by the Borrower or any ERISA Affiliate of any
notice concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate
(or, in the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the jurisdiction under the laws of which
it is organized, or the jurisdiction in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America
or
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any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.17(b)), any U.S. Federal
withholding tax imposed on amounts payable to such Foreign Lender under this
Agreement because of its failure or inability to comply with Section 2.15(e) or
for any other reason, unless (and to the extent that) (i) such withholding tax
liability arises or is increased by reason of a Change in Law occurring after
such Foreign Lender becomes a Lender under this Agreement or (ii) such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
liability pursuant to Section 2.15(a).
"FCC" means the Federal Communications Commission and any
successors thereto.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Film Contracts" mean contracts or agreements with suppliers
which provide the right to broadcast certain specified film or video tape
motion pictures.
"Financial Officer" means the chief financial officer, vice
president of finance, principal accounting officer, treasurer or controller of
the Borrower.
"Fixed CD Rate" means, with respect to any CD Borrowing for any
Interest Period, the arithmetic average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the prevailing rates per annum bid at or about 10:00 a.m.,
New York City time, to the Administrative Agent on the first Business Day of
such Interest Period by three negotiable certificate of deposit dealers of
recognized standing selected by the Administrative Agent for the purchase at
face value of negotiable certificates of deposit of major United States money
center banks in a principal amount of $5,000,000 and with a maturity comparable
to such Interest Period.
"Fixed Rate" means, with respect to any Competitive Loan bearing
interest at a fixed rate, the fixed rate of interest per annum specified by the
Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
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located. For purposes hereof, the United States of America and each State
thereof shall be considered to constitute a single jurisdiction.
"Funded Debt" means without duplication, all Indebtedness, other
than short-term obligations under Film Contracts.
"GAAP" means generally accepted accounting principles in the
United States of America consistently applied.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means any agreement by which the Borrower or any
Subsidiary assumes, guarantees, endorses, contingently agrees to purchase or
provide funds for the payment of, or otherwise becomes liable upon, the
obligation of another Person, or agrees to maintain the net worth or working
capital or other financial condition of any other Person or otherwise assure
any creditor of such other Person against loss, but shall not include typical
and customary indemnifications, representations and warranties made in
connection with purchases and sales of property or issuances of securities.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Indebtedness" means, without duplication, the Borrower's and
each Subsidiary's (a) obligations for borrowed money, (b) obligations
representing the deferred purchase price of property (including, without
limitation, under Film Contracts) other than accounts payable arising in
connection with the purchase of inventory in the ordinary course of business,
(c) obligations, whether or not assumed, secured by Liens on or payable out of
the proceeds or production from property now or hereafter owned or acquired by
the Borrower or any Subsidiary, (d) obligations created under any conditional
purchase or other title retention agreements, (e) Capital Lease Obligations,
letters of credit, bonds or similar instruments, bankers' acceptances, (f)
obligations under Guarantees; provided, however, that Indebtedness shall not
include obligations of the Borrower or any Subsidiary incurred in connection
with the self- insurance program or employee benefit plans and programs of the
Borrower or the Subsidiaries, and (g) obligations to make payments that would
be required to be made in the event of an early termination, on the date
Indebtedness of the Borrower or any
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Subsidiary is being determined, in respect of outstanding Hedging Agreements.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" means the ratio of Pro Forma Operating
Cash Flow to Interest Expense.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Expense" means, with respect to the Borrower and the
Subsidiaries for any period, the interest expense of the Borrower and the
Subsidiaries determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) the amortization of debt discounts, (b) the
amortization of all fees (including, without limitation, fees with respect to
interest rate protection agreements) payable in connection with the incurrence
of Indebtedness and (c) the portion of any Capital Lease Obligation allocable
to interest expense.
"Interest Payment Date" means (a) with respect to any ABR Loan,
the last day of each March, June, September and December, (b) with respect to
any CD or Eurodollar Loan, the last day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration or a CD
Borrowing with an Interest Period of more than 90 days' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration or 90 days' duration, as the case may be, after the first day
of such Interest Period, (c) with respect to any Fixed Rate Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest Period of more than
90 days' duration (unless otherwise specified in the applicable Competitive Bid
Request), each day prior to the last day of such Interest Period that occurs at
intervals of 90 days' duration after the first day of such Interest Period, and
any other dates that are specified in the applicable Competitive Bid Request as
Interest Payment Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three
or six months thereafter, as the Borrower may elect, (b) with respect to any CD
Borrowing, the period commencing on the date of such Borrowing and ending 30,
60, 90, 180, 270 or 360 days thereafter, as the Borrower may elect, and (c)
with respect to any Fixed Rate Borrowing, the period (which shall not be less
than 1 day or more than 360 days) commencing on the date of such Borrowing and
ending on the date specified in the applicable Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period
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pertaining to a Eurodollar Borrowing that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the "LIBO Rate" with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered to the principal London office of the Administrative Agent
or any Affiliate designated by the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan
in its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, operations or condition, financial or
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otherwise, of the Borrower and the Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform any of its obligations under this Agreement
or (c) the rights of or benefits available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans), of any one or more of the Borrower and the Subsidiaries in a principal
amount for any such Indebtedness in excess of $20,000,000 or in an aggregate
principal amount for all such Indebtedness in excess of $35,000,000.
"Maturity Date" means January 31, 2000.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Operating Cash Flow" means, for the Borrower and its
Subsidiaries for any relevant period, on a consolidated basis, the sum of (i)
earnings before income taxes for such period (without taking into account
extraordinary or nonrecurring items), plus (ii) depreciation and amortization
expense during such period, plus (iii) Interest Expense actually incurred or
accrued during such period determined in accordance with GAAP; provided,
however, that Operating Cash Flow shall not include (i) any income or loss
attributable to any investment accounted for on the "equity" method of
accounting or (ii) any operating cash flow (positive or negative) attributable
to AHN or TVFN.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution or
delivery of, or otherwise with respect to, this Agreement.
"Participation Percentage" means, with respect to any Lender,
the percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Participation
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Permitted Liens" means (a) Liens for Taxes not yet due and
payable, mechanic's Liens and materialman's, shipper's or warehouseman's Liens
for services or materials and landlord's Liens for rental amounts for which
payment is not yet due or which are being contested in good faith by
appropriate proceedings, (b) Liens securing any purchase money Indebtedness
(including Capital Lease Obligations relating to assets acquired after the date
hereof) if such Liens do not encumber any property other than the property for
the purchase of which such purchase money Indebtedness was incurred, (c) the
currently existing Liens described in Schedule 6.01 hereto, if any, and
renewals thereof, (d) pledges or deposits made to secure payment of worker's
compensation, unemployment insurance, pensions, or other social security
programs, (e) good-faith pledges or deposits made to secure performance of
bids, tenders, contracts (other than for the repayment of borrowed money), or
leases, or to secure statutory obligations, surety or appeal bonds, or
indemnity, performance, or other similar bonds in the ordinary course of
business, (f) encumbrances consisting
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of zoning restrictions, easements, utility district assessments or other
restrictions on the use of property, none of which materially impairs the
operation by the Borrower and the Subsidiaries (taken as a whole) of their
business, and none of which is violated by existing or proposed structures or
land use where such violation would materially impair the operation by the
Borrower and the Subsidiaries (taken as a whole) of their business, (g) the
following, if the validity or amount thereof is being contested in good faith
and by appropriate and lawful proceedings and so long as levy and execution
thereon have been stayed and continue to be stayed, or they do not in the
aggregate materially detract from the value of any material assets or the
operations of the Borrower and the Subsidiaries taken as a whole: claims and
Liens for Taxes due and payable; claims and Liens upon, and defects of title
to, property, including any attachment of property or other legal process prior
to adjudication of a dispute on the merits; and claims and Liens of mechanics,
materialmen, warehousemen, carriers, landlords, or other Liens; judgment Liens;
and (h) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset
of any Person that becomes a Subsidiary after the date hereof prior to the time
the Person becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation or connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be.
"PBGC" means the Pension Benefit Guarantee Corporation
referred to and Defined in ERISA.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Texas Commerce Bank National Association as its
prime rate in effect at its principal office in Dallas; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Prior Agreement" means the Borrower's credit agreement dated
as of July 31, 1996.
"Pro Forma Operating Cash Flow" means, for any relevant
period, Operating Cash Flow of the Borrower and its Subsidiaries on a
consolidated basis adjusted to include the Operating Cash Flow of any operating
units or entities acquired during such relevant period and to exclude the
Operating Cash Flow of any operating units or entities
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divested or sold during such relevant period (in each case, as if the
acquisition or divestiture had occurred at the beginning of such relevant
period).
"Register" has the meaning set forth in Section 9.04.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 51% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time; provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
"Reportable Event" means any reportable event as defined by
Section 4043 of ERISA and the regulations issued under such Section with
respect to a Plan (other than a Multiemployer Plan), excluding, however, such
events as to which the PBGC by regulation or by technical update waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; provided that a failure to meet the minimum
funding standard of Section 412 of the Code and Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waiver in accordance with
Section 412(d) of the Code.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amounts of such Lender's
Revolving Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Adjusted CD Rate or the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to (i) the applicable Interest Period, in the
case of the Adjusted CD Rate, and (ii) three months, in the case of the Base CD
Rate, and (b) with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
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"Subordinated Debt" means Indebtedness of the Borrower for
borrowed money that satisfies the requirements set forth in Schedule 6.05
hereto.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Termination Date" means the date that is 364 days after the
date hereof.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate is not
so reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day is not a Business Day, on the next
preceding Business Day) by the Administrative Agent from three negotiable
certificate of deposit dealers of recognized standing selected by it.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement and the borrowing of the Loans hereunder.
"TVFN" means Television Food Network, a subsidiary of The
Providence Journal Company.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Adjusted CD Rate, the Alternate Base Rate or, in the case of a Competitive Loan
or Borrowing, the LIBO Rate or a Fixed Rate.
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"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. 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
(a) any definition of or reference to any agreement, instrument or other
document herein 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), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) 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. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that, if the Borrower
notifies the Administrative Agent that the Borrower requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender's Revolving Credit
Exposure exceeding such Lender's Commitment or (b) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments. No Competitive Loans or any
new additional Revolving Loans will be made after the Termination Date. Within
the foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Participation Percentages.
Each Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.04. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments and Competitive Bids of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(b) Subject to Section 2.12, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans, CD Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be comprised entirely of Eurodollar Loans or Fixed Rate Loans
as the Borrower may request in accordance herewith. Each Lender at its option
may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement; provided further, that if the
designation of any such foreign branch or Affiliate shall result in any costs,
reductions or Taxes which would not otherwise have been applicable and for
which such Lender would, but for this proviso, be entitled to request
compensation under Section 2.13 or 2.15, such Lender shall not be entitled to
request such compensation unless it shall in good faith have determined such
designation to be necessary or advisable to avoid any material disadvantage to
it.
(c) At the commencement of each Interest Period for any CD
Revolving Borrowing or Eurodollar Revolving Borrowing, such Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $5,000,000. At the time that each ABR Revolving Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000; provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments. Each Competitive Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any
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time be more than a total of 15 CD and Eurodollar Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request, or elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. In order to
request a Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., Dallas time, three Business Days before the date of
the proposed Borrowing, (b) in the case of a CD Borrowing, not later than 11:00
a.m., Dallas time, two Business Days before the date of the proposed Borrowing
or (c) in the case of an ABR Borrowing, not later than 10:00 a.m., Dallas time,
on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a CD
Borrowing or a Eurodollar Borrowing;
(iv) in the case of a CD Borrowing or a Eurodollar Borrowing,
the initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested CD or Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of 30 days' duration, in the case of a CD Borrowing, or one month's
duration, in the case of a Eurodollar Borrowing. Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the
Availability Period the Borrower may request Competitive Bids and may (but
shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans; provided that the sum of the total Revolving
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Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans at any time shall not exceed the total Commitments. In order to request
Competitive Bids, the Borrower shall notify the CAF Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
Dallas time, four Business Days before the date of the proposed Borrowing and,
in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., Dallas time,
one Business Day before the date of the proposed Borrowing; provided that a
Competitive Bid Request shall not be made within five Business Days after the
date of any previous Competitive Bid Request, unless any and all such previous
Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the CAF
Agent of a written Competitive Bid Request in a form approved by the CAF Agent
and signed by the Borrower. Each such telephonic and written Competitive Bid
Request shall specify the following information in compliance with Section
2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the CAF Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by
the CAF Agent and must be received by the Administrative Agent by telecopy, in
the case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m.,
Dallas time, three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
Dallas time, on the proposed date of such Competitive Borrowing. Competitive
Bids that do not conform substantially to the form approved by the CAF Agent
may be rejected by the CAF Agent, and the CAF Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at
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which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The CAF Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph (d), the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify
the CAF Agent by telephone, confirmed by telecopy in a form approved by the CAF
Agent, whether and to what extent it has decided to accept or reject each
Competitive Bid, in the case of a Eurodollar Competitive Borrowing, not later
than 10:30 a.m., Dallas time, three Business Days before the date of the
proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 10:30 a.m., Dallas time, on the proposed date of the Competitive
Borrowing; provided, that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) the Borrower
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
the Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if
a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph (d) shall
be irrevocable.
(e) The CAF Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to
make the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If any Lender that is an Affiliate of the CAF Agent shall
elect to submit a Competitive Bid in its capacity as a Lender, it shall submit
such Competitive Bid directly to the Borrower at least one quarter of an hour
earlier than the time by which the other
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Lenders are required to submit their Competitive Bids to the CAF Agent pursuant
to paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, Dallas time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received,
in like funds, to an account of the Borrower maintained with the Administrative
Agent in Dallas and designated by the Borrower in the applicable Borrowing
Request or Competitive Bid Request.
(b) 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 paragraph (a) of this
Section 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 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 (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate borne by
the applicable Borrowing. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a CD or Eurodollar Revolving Borrowing, shall have
an initial Interest Period as specified in such Borrowing Request. Thereafter,
the Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a CD or Eurodollar Revolving
Borrowing, may elect new Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Competitive Borrowings,
which may not be converted or continued.
(b) In order to make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall
be confirmed
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promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative Agent and
signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a CD Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a CD Borrowing or a
Eurodollar Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a CD Borrowing or Eurodollar
Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of 30 days' duration, in the case of
a CD Borrowing, or one month's duration, in the case of a Eurodollar Borrowing.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a CD or Eurodollar Revolving Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a CD or Eurodollar
Borrowing and (ii) unless repaid, each CD and Eurodollar Revolving Borrowing
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the
Termination Date; provided that the Commitments shall terminate at 3:00 p.m.,
Dallas time, on March 31, 1997, if the Effective Date has not occurred prior to
such time.
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(b) Subject to Section 2.09(d), the Borrower may at any time
terminate, or from time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
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(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent.
SECTION 2.09. Prepayment of Loans. (a) Subject to Section
2.09(d), the Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part.
(b) In the event of any termination of the Commitments, the
Borrower shall prepay all outstanding Borrowings on the date of such
termination. In the event of any reduction of the Commitments, the Borrower
shall prepay outstanding Borrowings to the extent, if any, necessary so that,
on the date of and after giving effect to such reduction, the sum of the
Revolving Credit Exposures and the aggregate principal amount of the
outstanding Competitive Loans does not exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.,
Dallas time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of a CD Borrowing, not later than 11:00 a.m., Dallas time,
two Business Days before the date of prepayment, (iii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., Dallas
time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.07, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.07.
Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Revolving Borrowing shall be in an
amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11.e
(d) The Borrower shall not have the right to prepay any
Competitive Loan and shall not terminate or reduce the Commitments if such
termination or reduction would require prepayment of any Competitive Loan.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Percentage per annum on the daily amount of the
Commitment of such Lender (whether used or unused) during the period from and
including the date hereof to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving
Credit Exposure after its
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Commitment terminates, then such facility fee shall continue to accrue on the
daily amount of such Lender's Revolving Credit Exposure from and including the
date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any facility fees accruing after the date on which the Commitments terminate
shall be payable on demand. All facility fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender, ratably in accordance with its respective
Commitment, the upfront fee separately agreed upon between the Borrower and the
Lenders. The upfront fee shall be payable on the Effective Date.
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate.
(b) The Loans comprising each CD Borrowing shall bear
interest at a rate per annum equal to the Adjusted CD Rate for the Interest
Period in effect for such Borrowing plus the Applicable Percentage from time to
time in effect.
(c) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Percentage from time to
time in effect (or, in the case of a Competitive Loan, the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Margin offered by the
Lender making such loan and accepted by the Borrower pursuant to Section 2.04).
(d) Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the Fixed Rate applicable to such Loan.
(e) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, the rate otherwise applicable to such Loan as provided above plus 2%
or (ii) in
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the case of any other amount, the rate applicable to ABR Loans as provided
above plus 2%.
(f) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (e) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Loan (other than an ABR Revolving Loan) prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion and (d) in the event the Commitments are
terminated, all accrued and unpaid interest on the Loans shall be paid on the
date of such termination.
(g) All interest hereunder shall be computed on the basis of
a year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted CD Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.12 Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a CD Borrowing or Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted CD Rate,
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period or, in the case of a Eurodollar Borrowing, that a
Change in Law makes it unlawful for any one or more of the Lenders to
make a Eurodollar Loan; or
(b) the Administrative Agent is advised by the Required
Lenders that, as a result of a Change in Law or other unusual events
or conditions affecting the markets in which such Lenders conduct
their funding operations, the Adjusted CD Rate, the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period will be
lower than the actual cost to such Lenders of obtaining the funds
necessary to make or maintain their Loans comprising such Borrowing
for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a CD Borrowing or Eurodollar
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a CD or
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Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR
Borrowing and (iii) any request by the Borrower for a Eurodollar Competitive
Borrowing shall be ineffective; provided that (A) if the circumstances giving
rise to such notice do not affect all the Lenders, then requests by the
Borrower for Eurodollar Competitive Borrowings may be made to Lenders that are
not affected thereby and (B) if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.
SECTION 2.13. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted CD Rate or the Adjusted
LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement, CD Loans or Eurodollar Loans
or Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any CD Loan, Eurodollar Loan or Fixed Rate Loan
or to increase the cost to such Lender or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time the Borrower will pay to such Lender, as the case may
be, such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section, and setting forth
in reasonable detail the manner in which such amount or amounts shall have been
determined, shall be delivered to the Borrower and shall, if submitted in good
faith, be conclusive absent manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of
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such Lender's right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a)
the payment of any principal of any CD Loan, Eurodollar Loan or Fixed Rate Loan
other than on the last day of an Interest Period applicable thereto, (b) the
conversion of any CD Loan or Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, prepay
or continue any Revolving Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
and is revoked in accordance herewith), (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e)
the assignment of any CD Loan, Eurodollar Loan or Fixed Rate Loan other than on
the last day of the Interest Period applicable thereto as a result of a request
by the Borrower pursuant to Section 2.17, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to
such event by payment to such Lender of an amount determined by such Lender to
be equal to the excess, if any, of (i) the amount of interest that such Lender
would pay for a deposit equal to the principal amount of the applicable Loan
for the period from the date of such payment, conversion, failure or assignment
to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow, convert, prepay or continue, the duration of the
Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate, the Adjusted CD Rate or the Fixed Rate, as the case may be,
in effect (or that would have been in effect) for such Interest Period, over
(ii) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount for
such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for dollar deposits at other banks in the London
interbank market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section, and setting forth in reasonable detail the
manner in which such amount or amounts shall have been determined, shall be
delivered to the Borrower and shall, if submitted in good faith, be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
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SECTION 2.15. Taxes. (a) Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any Indemnified Taxes
or 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) each of the Agents or
Lender (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 pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agents and each Lender
within 10 days after written 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 Agents or such Lender, as the case may be, and any liability
(including 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, by the Administrative Agent on its own
behalf or on behalf of a Lender, or by the CAF Agent, and setting forth in
reasonable detail the manner in which such amount shall have been determined,
shall, if submitted in good faith, be conclusive absent manifest error.
(d) As soon as practicable after 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 return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) 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 located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law, properly completed and executed forms prescribed by applicable
law (together with such other documentation or certification as the Borrower
may reasonably request) that will permit the Borrower to make such payments
without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or otherwise) prior to 12:00
noon, Dallas time, on the date when
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due, in immediately available funds, to the Administrative Agent at its offices
at Dallas, Texas, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. The Administrative Agent shall distribute any
such payments received for the account of any other Person to the appropriate
recipient in the amount owed to it promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to fully pay all amounts then due
hereunder, such funds shall be applied to the amounts then due hereunder in
such order and priority as the Administrative Agent may elect; provided that
any funds that the Administrative Agent elects to apply to principal, interest
or fees then due shall be applied ratably to all amounts of principal, interest
or fees (as the case may be) then due.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participation in the Revolving Loans of other Lenders to the extent
necessary 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 Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payments giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant other than the Borrower or any Subsidiary or Affiliate
thereof. The Borrower 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 the
Borrower rights of set- off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.13, 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 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking
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its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the good faith judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender in such
Lender's good faith judgment. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.13,
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
2.15, or if any Lender defaults in its obligation to fund Loans hereunder, 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 Section 9.04), all its interests, rights and obligations under this
Agreement (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent,
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
(other than Competitive Loans, as to which such Lender will continue to have
all of its rights hereunder), accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, 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) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and 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.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and
its Subsidiaries is (i) duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required and, (ii) possesses all requisite authority and power and material
licenses, permits, franchises (including, without limitation
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licenses, permits and franchises issued by the FCC), and valid and subsisting
network affiliation agreements in the case of each Subsidiary that operates a
network affiliated television broadcasting enterprise, to conduct its business
as presently conducted.
SECTION 3.02. Authorization; Enforceability. The
Transactions are within the Borrower's corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action.
This Agreement has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except (i)
such as have been obtained or made and are in full force and effect, and (ii)
routine filings after the Effective Date with Securities and Exchange
Commission and the FCC made pursuant to the requirements of 47 CFR 73.3613, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any Subsidiary or any order
of any Governmental Authority, (c) will not violate or result in a default
under any indenture, or other material agreement or instrument binding upon the
Borrower or any Subsidiary or its assets, or give rise to a right thereunder to
require any material payment to be made by the Borrower or any Subsidiary, and
(d) will not result in the creation or imposition of any Lien other than a
Permitted Lien on any asset of the Borrower or any Subsidiary.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of earnings, shareholders equity and
cash flows (i) as of and for the fiscal year ended December 31, 1995, reported
on by Ernst & Young LLP, independent auditors, and (ii) as of and for the
fiscal quarter ended September 30, 1996, certified by its chief financial
officer. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Since September 30, 1996, there has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title or interest that do not interfere with its
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ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. Litigation, Labor and Environmental Matters.
(a) There are not any actions, suits or proceedings by or before any arbitrator
or Governmental Authority now pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary (i) as
to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters, there are no actual or,
to the knowledge of the Borrower, threatened labor controversies, including
strikes, work stoppages, work slow downs or National Labor Relations Board
proceedings affecting the Borrower or its Subsidiaries, that could,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(c) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, neither the Borrower
nor any Subsidiary (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(d) There has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
the Borrower and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Certain Legal Matters. (a) Neither the
Borrower nor any Subsidiary is (i) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (ii) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
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(b) Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying margin stock, within the
meaning of Regulation U of the Board. Margin stock will at all times
constitute less than 25% of the assets of the Borrower individually and the
Borrower and the Subsidiaries on a consolidated basis that are subject to the
restrictions of Section 6.01 and 6.02.
SECTION 3.09. Taxes. Each of the Borrower and its
Subsidiaries has filed or caused to be filed all tax returns and reports
required to have been filed and paid or caused to be paid all Taxes required to
have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, shall have set aside on its books adequate reserves or (b) to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events, could reasonably be expected to result in a Material Adverse
Effect. As of the date hereof, the present value of all accrued benefit
liabilities under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87), determined at the most
recent annual valuation date for such Plan, does not exceed by more than
$10,000,000 the fair market value of the assets of such Plan, and the present
value of all accrued benefit liabilities of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87), determined at the most recent annual valuation dates for such Plans,
does not exceed by more than $10,000,000 the fair market value of the assets of
all such underfunded Plans.
SECTION 3.11. Disclosure. There are no agreements,
instruments or corporate restrictions to which the Borrower or any of its
Subsidiaries is subject, and no other matters known to the Borrower, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
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 and pro forma financial information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.12. Acquisition of The Providence Journal Company.
The purchase price for the acquisition of The Providence Journal Company
payable by the Borrower or any of its Affiliates shall not exceed $600,000,000
exclusive of (i) any consideration payable in capital stock of the Borrower,
(ii) Indebtedness of The Providence Journal Company assumed by the Borrower or
any of its Affiliates (other than any Indebtedness created in contemplation of
such
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acquisition), (iii) transaction costs related to the acquisition (including
those items set forth in footnote 1 on page 139 of the Borrower's Proxy
Statement dated January 8, 1997) and (iv) cash paid in lieu of fractional
shares.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable
written opinions of Xxxxxxx X. XxXxxxxx, the General Counsel of the
Borrower, Xxxxx Xxxxxxx Rain Xxxxxxx, counsel for the Borrower, and
Wiley, Rein & Fielding, special regulatory counsel to the Borrower,
substantially in the forms of Exhibits X-0, X-0 and B-3 hereto and
covering such other matters relating to this Agreement and the
Transactions as the Required Lenders shall reasonably request. Each
of such opinions shall be addressed to the Administrative Agent and
the Lenders and shall be dated the Effective Date. The Borrower
hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and
good standing of the Borrower, the authorization of the Transactions
and any other legal matters relating to this Agreement or the
Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (b) and (c) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
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(f) The Prior Agreement shall have been terminated and the
obligations of the Borrower and the Subsidiaries thereunder paid in
full.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived) on or prior to March 31, 1997. The Administrative Agent
shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing (but not on the occasion
of any interest election pursuant to Section 2.06 that does not increase the
outstanding principal amount of the Loans of any Lender), is subject to the
satisfaction of the following conditions:
(a) In the case of a Borrowing of Revolving Loans, the
Administrative Agent shall have received a Borrowing Request for such
Borrowing in accordance with Section 2.03; or, in the case of a
Borrowing of Competitive Loans, Borrower shall have accepted the
Competitive Bid or Bids in respect of such Loans in accordance with
Section 2.04.
(b) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the
date of such Borrowing.
(c) At the time of and immediately after giving effect to
such Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to matters specified in paragraphs (b) and
(c) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related
statements of earnings, stockholders' equity and cash flows as of the
end of and for such year, all reported on by Ernst & Young LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like emphasis paragraph and without any
qualification or exception as to the scope of such audit) to the
effect that such consolidated
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financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its condensed
consolidated balance sheet and related statements of earnings and cash
flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP for interim financial information and with the instructions to
Form 10Q and Article 10 of Regulation S-X (and accordingly, such
statements will not include all of the information and footnotes
required by GAAP for complete financial statements);
(c) concurrently with each delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.05 and 6.06 and (iii) stating whether any
change in GAAP or in the application thereof has occurred since the
date of the most recent audited financial statements referred to in
Section 3.04 or delivered pursuant to this Section 5.01 and, if any
such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether, in connection
with their audit, anything came to their attention that caused them to
believe that the Borrower had failed to comply with the terms,
covenants, provisions or conditions of Sections 6.05 and 6.06;
(e) promptly after the same become publicly available, copies
of all annual and quarterly reports to shareholders, reports to the
Securities and Exchange Commission on Form 10-K, Form 10-Q, Form 8-K
or any successor form, proxy statements and registration statements
(other than those relating only to employee benefit plans) filed or
distributed by the Borrower or any Subsidiary; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
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SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries
in an aggregate amount exceeding $15,000,000;
(d) the receipt of any notice from the FCC or any other
Governmental Authority of the expiration without renewal, termination
or suspension of, or the institution of any proceedings to terminate
or suspend, any main transmitter license granted by the FCC or any
other material license now or hereafter held by the Borrower or any
Subsidiary which is required to operate any television broadcasting
station in compliance with all applicable laws; and,
(e) any other development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower
will, and will cause each Subsidiary to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Borrower and its Subsidiaries taken as a
whole; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.02.
SECTION 5.04. Payment of Obligations. The Borrower will, and
will cause each Subsidiary to, pay its Indebtedness and other obligations,
including tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Borrower will, and will cause each Subsidiary to, (a) keep and
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maintain all property material to the conduct of the business of the Borrower
and its Subsidiaries taken as a whole in good working order and condition,
ordinary wear and tear and obsolescence excepted, (b) keep and maintain all
licenses, permits, franchises and major network affiliation agreements
(including those with American Broadcasting Companies, Inc. ("ABC"), National
Broadcasting Companies ("NBC"), the Columbia Broadcasting System, Inc. ("CBS"),
or Fox Broadcasting Company ("FOX") necessary for their business except as the
loss of the same could not individually or in the aggregate reasonably be
expected to cause a Material Adverse Effect, it being understood and agreed
that a change from one such major network to another shall not be considered to
have such an effect; and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Borrower will, and will cause each Subsidiary to, keep proper books of record
and account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities. The Borrower
will, and will cause each Subsidiary to, permit any representatives designated
by the Administrative Agent or any Lender, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at reasonable times and as often as
shall be reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and
will cause each Subsidiary to, comply with all laws (including Environmental
Laws), regulations and orders of any Governmental Authority applicable to it or
its property, except to the extent that failures to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08. Use of Proceeds. The Borrower will cause the
proceeds of the Loans to be used only for the purposes referred to in the
preamble to this Agreement. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations G, U and X.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
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Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except that the Borrower and the Subsidiaries may
assign or sell delinquent receivables and rights in respect thereof and may
create, incur, assume or permit to exist (a) Permitted Liens and (b) other
Liens securing obligations in an aggregate amount at any time not greater than
$40,000,000.
SECTION 6.02. Fundamental Changes. (a) The Borrower will not
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired), or
liquidate or dissolve, except that any Subsidiary or other Person may merge
into the Borrower if the Borrower is the surviving corporation and at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing and the Borrower shall be in compliance with the
financial covenants contained in this Article VI on a pro forma basis with such
merger being deemed to have occurred at the beginning of each relevant period.
(b) The Borrower will not, and will not permit any Subsidiary
to, engage to an extent material to the Borrower and the Subsidiaries on a
consolidated basis in any business other than businesses of the type conducted
by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
SECTION 6.03. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, enter into any transaction
(including, without limitation, the purchase or sale of any property or
service) with, or make any payment or transfer to, any of its Affiliates (other
than the Borrower or any Subsidiary) except in the ordinary course of business
and upon terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary could obtain in a comparable arms-length
transaction.
SECTION 6.04. Restrictive Agreements. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary, other than (i) such restrictions in the partnership agreements for
TVFN and AHN in effect on the date hereof and (ii) such restrictions on
Subsidiaries (other than TVFN and AHN) that are partnerships, joint ventures,
limited liability companies or other similar entities, and in which the
aggregate equity investment of the Borrower does not exceed $20,000,000.
SECTION 6.05. Leverage. The Borrower will not permit (a) the
ratio of Funded Debt to Pro Forma Operating Cash Flow as of the end of and for
any period of four consecutive fiscal quarters ending after the Effective Date
to be greater than 5.5 to 1.0, (b) the
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ratio of Funded Debt (excluding Subordinated Debt) to Pro Forma Operating Cash
Flow as of the end of and for any period of four consecutive fiscal quarters
ending after the Effective Date to be greater than 5.0 to 1.0 or (c) Funded
Debt of Subsidiaries (other than Funded Debt owed to the Borrower or any other
Subsidiary) to constitute more than 10% of the Funded Debt that would at any
time be permitted to exist under clause (a) of this Section 6.05.
SECTION 6.06. Interest Coverage. The Borrower will not permit
the ratio of Pro Forma Operating Cash Flow to Interest Expense for any period
of four consecutive fiscal quarters ending after the Effective Date to be less
than 2.5 to 1.0.
SECTION 6.07. Investments in AHN and TVFN. The Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, make any
loans or advances to, or make any other investment in AHN or TVFN during the
term of the Facility in excess of $100,000,000.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this
Agreement, shall prove to have been incorrect in any material respect
when so made or deemed made;
(b) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(c) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in
clause (b) above) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a), (b) or
(e), Section 5.03 (with respect to the Borrower's existence) or in
Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(c) or (d),
and such failure shall continue unremedied for a period of five
Business Days;
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(f) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (b), (c), (d) or (e) above) and such
failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or any Lender to the Borrower;
(g) the Borrower or any Subsidiary shall fail to make any
payment of principal, regardless of amount, in respect of any Material
Indebtedness, when and as the same shall become due and payable;
(h) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity;
(i) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of the property or
assets of the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of the property or assets of the
Borrower or any Subsidiary; and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(j) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (i)
above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of the
property or assets of the Borrower or any Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(k) one or more judgments for the payment of money in an
amount in excess of $20,000,000 individually or $35,000,000 (in each
case net of insurance coverage) in the aggregate shall be rendered
against the Borrower, any Subsidiary or any combination thereof (it
being understood that the outstanding adverse declaratory judgment in
the Cable L.P. I, Inc. litigation disclosed in The Providence Journal
Company's SEC filings shall
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not constitute an Event of Default and that any amount payable in
respect thereof shall not be included in the individual or aggregate
limit) and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any property or assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) any main transmitter license, permit or authorization
issued to the Borrower or any Subsidiary by the FCC shall be
forfeited, revoked or not renewed, or any proceeding with respect to
any such forfeiture or revocation shall be instituted by the FCC,
where such forfeiture, revocation or non-renewal or such proceeding,
as the case may be, shall be reasonably likely to result in a Material
Adverse Effect;
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (i) or (j) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other liabilities of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in any event with respect to the Borrower described in clause (i) or (j)
above, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other liabilities of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints the Agents as
its agents and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to the Agents by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
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The bank 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
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing (a) the Agents shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, and (b)
the Agents shall not have any duty to take any discretionary action or exercise
any discretionary powers permitted hereunder unless requested to do so in
writing by the Required Lenders. No Agent shall be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
or in the absence of its own gross negligence or wilful misconduct. In
addition, the Agents 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, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or
document, or (v) 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 Agents.
The Agents 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 believed by it to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each of the Agents 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.
Each of the Agents may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by such Agent. The Administrative Agent, the CAF Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through Affiliates or its or its Affiliates' employees. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent, to
the Affiliates of the Administrative Agent, the CAF Agent and any such
sub-agent and to the directors, officers, employees, agents and advisors of the
Administrative Agent, the CAF Agent, any such sub-agent and their respective
Affiliates.
Subject to the appointment and acceptance of a successor Agent
as provided below, either Agent may resign at any time by
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notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders, with the consent of the Borrower (which shall not be
unreasonably withheld) shall have the right to appoint a successor Agent. If
no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, with the consent of the
Borrower (which shall not be unreasonably withheld), on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in Dallas or The
City of New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in
the amount of its pro rata share at the time reimbursement is sought (based on
its Commitment hereunder or, if the Commitments shall have expired or
terminated, based on its portion of the total Revolving Credit Exposures and
outstanding Competitive Loans) of any expenses incurred for the benefit of the
Lenders by the Agent, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, that shall not
have been reimbursed by the Borrower and (b) to indemnify and hold harmless
each of the Agents and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or arising out of this
Agreement or any action taken or omitted by it or any of them under this
Agreement, to the extent the same shall not have been reimbursed by the
Borrower, provided that no Lender shall be liable to any Agent or any such
other indemnified person for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees or
agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender 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 also
acknowledges that it will, independently and without reliance upon the Agents
or any other Lender 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 related
agreement or any document furnished hereunder or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, 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 telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx, XX 00000, Attention of the Chief Financial Officer (Telecopy
No. 214-977-8209) with a copy to the General Counsel;
(b) if to the Administrative Agent, to the attention of Loan
Syndication Services/Xxxx Xxxxxxx (Telecopy No. 713-750-3810), with a
copy to Texas Commerce Bank National Association, at Dallas, TX,
Attention of Xxxxx Xxxxx (Telecopy No. 214-965-2997);
(c) if to the CAF Agent, to it at Loan and Agency Service
Group, at One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxx Xxxxxxxx (Telecopy No. 212-552-5658);
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, except that notices and communications to the Agents
pursuant to Article II shall be deemed to have been given only when received by
the Agents.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay
by the Administrative Agent, the CAF Agent or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the CAF Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
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agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase or decrease the
Commitment of any Lender (except for a ratable decrease in the Commitments of
all the Lenders), without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount
of any Loan, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, or (iv) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required in order to waive, amend or modify any
rights hereunder or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, hereunder
without the prior written consent of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred by
any Agent and its Affiliates, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Xxxxx, counsel for the Agents, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Agents or any Lender,
including the reasonable fees, charges and disbursements of any counsel for the
Agents or any Lender, in connection with the enforcement or protection of its
rights in connection with this Agreement.
(b) The Borrower agrees to indemnify each of the Agents and
each Lender, each Affiliate of any of them and each of the respective
directors, officers, employees, agents and advisors of the foregoing (each such
Person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance
by the parties hereto of their respective obligations hereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or the use of the proceeds thereof, (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 claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to
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the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee (BUT SHALL BE AVAILABLE TO THE EXTENT THEY ARE DETERMINED TO
HAVE RESULTED FROM, IN WHOLE OR IN PART, THE SIMPLE NEGLIGENCE OF SUCH
INDEMNITEE).
(c) To the extent permitted by applicable law, the Borrower
agrees not to 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 or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds
thereof.
(d) All amounts due under this Section shall be payable no
later than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent 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 and their
respective successors and assigns permitted hereby) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may 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 and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of the Borrower (and, except in the case of an assignment limited
to rights in respect of an outstanding Competitive Loan, the Administrative
Agent) must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment
to a Lender or an Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $20,000,000,
(iii) 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,
except that this clause shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the Lenders party to each such assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500, and (v) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, the
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assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, 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 Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance 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 2.13, 2.14, 2.15
and 9.03).
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans 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.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and any written consent to such assignment required by paragraph (b)
above, the Administrative Agent shall (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Lenders. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (d).
(e) Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities ("Participants") in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans 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 Agents, and the other Lenders 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, modification or
waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (f) below, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14
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and 2.15 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. In
connection with any sale of a participation pursuant to this paragraph, the
selling Lender shall obtain from the Participant an undertaking to be bound by
the provisions of Section 9.12. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with paragraph
(b) above 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
this paragraph.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.13 or 2.15 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 2.15 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 2.15(e) as though it were a Lender.
(g) Any Lender may at any time assign all or any portion of
its rights under this Agreement to a Federal Reserve Bank to secure extensions
of credit by such Federal Reserve Bank to such Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such Federal Reserve Bank for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the Lenders and
shall survive the execution and delivery of this Agreement and the making of
any Loans, regardless of any investigation made by the Lenders or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 9.03 shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans or the termination of the
Commitments, this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the Agents
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
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hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Agents and when the Agents
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. 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.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of 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 for recognition or enforcement of any judgment,
and each of the parties hereto hereby 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 or, to the extent permitted by 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 shall affect any right that the Administrative Agent,
the CAF Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
55
51
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement 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 law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
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 THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (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, (c) to the extent required by
applicable laws or regulations or 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, to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, or any Lender on a nonconfidential basis
from a source other than the Borrower. For the purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or its business including any potential acquisition or proposed
business transaction, other than any such information that is available to the
Agents or any Lender on
56
52
a nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof (other
than information obtained by any Lender in the course of examining the books or
records of the Borrower or any Subsidiary as permitted by Section 5.06) such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section 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.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the "Charges"),
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
A. H. BELO CORPORATION,
by
/s/ XXXXXX X. XXXXXX
--------------------------------
Name:Xxxxxx X. Xxxxxx
Title:Vice President/Treasurer
57
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
individually and as Administrative Agent,
by /s/ J. XXXXX XXXXX
--------------------------------
Name: J. Xxxxx Xxxxx
Title: Senior Vice President
58
by /s/ XXXXXXX XXXXX
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
59
BANK OF AMERICA NT & SA,
by /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
60
BANK OF TOKYO-MITSUBISHI, LTD.,
by /s/ X. XXXXXXXX
---------------------------
Name: X. Xxxxxxxx
Title: Vice President
61
NATIONSBANK OF TEXAS, N.A.,
by /s/ XXXX XXXXXXX
---------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
62
XXXXXX GUARANTY TRUST COMPANY,
by /s/ XXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
63
SOCIETE GENERALE,
by /s/ XXXXXXXXXXX X. XXXXXX
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
64
THE FIRST NATIONAL BANK OF BOSTON,
by /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
65
FLEET BANK,
by /s/ XXXXXXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President
66
THE FUJI BANK, LIMITED,
by /s/ XXXXXXX X. XXXXXXXX, III
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx, III
Title: Vice President &
Joint Manager
00
XXXXXX XXXXXXXXX XX XXXXX,
XXXXXXX AGENCY,
by /s/ XXXXX X. XXXXXX
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
68
CIBC INC.,
by /s/ XXXXXXX X. XXXXX
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
69
MELLON BANK, N.A.,
by /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
70
THE SAKURA BANK LIMITED,
HOUSTON AGENCY,
by /s/ XXXXXXXX XXXXXXX
--------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
71
THE TOKAI BANK, LIMITED,
by /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Deputy General Manager
72
THE TOYO TRUST & BANKING CO LTD.,
by /s/ TAKAO SHIDA
--------------------------------
Name: Takao Shida
Title: Deputy General Manager
73
THE SANWA BANK LIMITED,
DALLAS AGENCY,
by /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
74
WACHOVIA BANK OF GEORGIA, N.A.,
by /s/ XXXX X. XXXX
----------------------------
Name: Xxxx X. Xxxx
Title: Vice President
75
XXXXX FARGO BANK (TEXAS), N.A.,
by /s/ XXX XXXXXX
--------------------------------
Name: Xxx Xxxxxx
Title: Assistant Vice President
76
CREDIT LYONNAIS, NEW YORK BRANCH,
by /s/ XXXXXXX-XXXX XXXXXXX
--------------------------------
Name: Xxxxxxx-Xxxx Xxxxxxx
Title: Senior Vice President
77
THE DAI-ICHI KANGYO BANK, LTD.,
by /s/ X. XXXXXXX
-----------------------------
Name: X. Xxxxxxx
Title: Vice President
78
FIRST HAWAIIAN BANK,
by /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
00
XXX XXXXXXXXXX XXXX XX XXXXX,
XXXXXXX XXX XXXX BRANCH,
by /s/ XXXXXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Executive Vice President,
Houston Office
80
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
by /s/ XXXX X. XXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Joint General Manager
81
MICHIGAN NATIONAL BANK,
by /s/ XXXXXXXXX XXXXX
-----------------------------
Name: Xxxxxxxxx Xxxxx
Title: Relationship Manager
82
THE NORTHERN TRUST COMPANY,
by /s/ XXXX X. XXXXX
-----------------------------
Name: Xxxx X. Xxxxx
Title: Second Vice President
83
CRESTAR BANK,
by /s/ XXXXXX X. XXXXXX
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
84
HIBERNIA NATIONAL BANK,
by /s/ XXXX X. XXXXXXXXXX
---------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
85
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
by /s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
86
SUNTRUST BANK, CENTRAL FLORIDA, N.A.,
by /s/ XXXXX XXXXXXX
--------------------------------
Name: Xxxxx Summons
Title: Vice President
00
XXXXXXX XXXXXXXX (XXXXX) INC.,
by /s/ XXXX XXXXXXX
----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
00
XXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX,
XXX XXXX BRANCH,
by /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
by /s/ XXXXXXXXX XXXXXXXXXX
--------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President Credit
Department
00
XXXXX XXXXX XXXXXXXX XXXX XX
XXXXX XXXXXXXX,
by /s/ XXXXX X. LOFIRA
------------------------------
Name: Xxxxx X. Lofira
Title: Senior Vice President
90
CREDIT AGRICOLE,
by /s/ XXXXX XXXXX
--------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President Head of
Corporate Banking Chicago
00
X.X. XXXX XX XXXXXXXXXX, X.X.,
by /s/ XXXX XXXXX
--------------------------------
Name: Xxxx Xxxxx
Title: Vice President
92
THE YASUDA TRUST & BANKING CO., LTD.,
by /s/ XXXXXX XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Deputy General Manager
93
EXHIBIT A
[Form of]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of January
31, 1997 (the "Credit Agreement"), among A. H. Belo Corporation, a Delaware
corporation (the "Borrower"), the lenders listed on Schedule 2.01 thereto (the
"Lenders"), Texas Commerce Bank National Association, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent") and The Chase
Manhattan Bank, as Competitive Advance Facility Agent (the "CAF Agent"). Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse,
to the Assignee, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Effective Date set forth below
(but not prior to the registration of the information contained herein in the
Register pursuant to Section 9.04(c) of the Credit Agreement), the interests
set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
amounts and percentages set forth below of (i) the Commitment of the Assignor
on the Effective Date and (ii) the Loans owing to the Assignor which are
outstanding on the Effective Date. Each of the Assignor and the Assignee
hereby makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 9.04(b) of the Credit Agreement, a copy of
which has been received by each such party. From and after the Effective Date
(i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the interests assigned by this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in
Section 2.15(e) of the Credit Agreement, duly completed and executed by such
Assignee, (ii) if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
94
Percentage Assigned of
Applicable Facility/Commitment
(set forth, to at least 8
decimals, as a percentage of the
Facility and the aggregate
(Principal Amount Assigned and Commitments of all Lenders
Identifying Information as to thereunder)
individual Competitive Loans)
Facility/Commitment
----------------------------------------------------------------------------------------------------
Revolving Credit $ %
Competitive Loans $ %
The terms set forth above are
hereby agreed to: Accepted */
-
___________________, as Assignor TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
as Administrative Agent
by:__________________________ by:_______________________
Name: Name:
Title: Title:
___________________, as Assignee
by:__________________________
Name:
Title:
95
EXHIBIT B-1
[Letterhead of]
A. H. BELO CORPORATION
January [ ], 1997
Texas Commerce Bank National Association
as Administrative Agent
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Lenders from time to time party to the Credit
Agreement referred to below (all of
the Addressees, collectively, the
"Creditors")
Dear Ladies and Gentlemen:
I have acted as General Counsel to A. H. Belo Corporation, a
Delaware corporation (the "Borrower"), in connection with the execution and
delivery today of, and the consummation of the transactions contemplated by,
the Credit Agreement dated as of January 31, 1997, (the "Credit Agreement"),
among the Borrower, the financial institutions party thereto as lenders (the
"Lenders"), Texas Commerce Bank National Association, as administrative agent
(in such capacity, the "Administrative Agent") and The Chase Manhattan Bank, as
Competitive Advance Facility Agent (the "CAF Agent"), Bank of America National
Trust and Savings Association and Bank of Tokyo-Mitsubishi, Ltd., as
Co-Syndication Agents, and NationsBank, as Documentation Agent and any
promissory notes ("Notes") delivered in connection with the Credit Agreement.
This opinion is delivered pursuant to Section 4.01(b)of the Credit Agreement.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to our satisfaction, of the Credit
Agreement and such other records, agreements, instruments and other documents,
and have made such other investigations, as I have deemed necessary for the
purpose of this opinion.
Based upon the foregoing, it is my opinion that:
1. The Borrower and each Subsidiary (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite corporate power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business and
is in good standing in each jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) in the case of the Borrower, has
the corporate power and authority to execute, deliver and perform its
obligations under the Credit Agreement and to borrow thereunder.
96
2. The execution, delivery and performance of the Credit
Agreement by the Borrower and the borrowings thereunder (a) have been duly
authorized by all requisite corporate and, if necessary, stockholder action of
the Borrower and each Subsidiary and (b) will not (i) violate (A) any provision
of the certificate of incorporation or by laws of the Borrower or any
Subsidiary, (B) to my knowledge after reasonable inquiry any law, statute, rule
or regulation or any order of any Governmental Authority applicable to the
Borrower or any Subsidiary or their properties or (C) any provision of any
indenture or other material agreement or other material instrument to which the
Borrower or any Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (along or with notice or lapse of time or both) a default under, or
give rise to any right to accelerate or to require the prepayment, repurchase
or redemption of any obligation under any such indenture, agreement or other
instrument or (iii) result in the creating or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the
Borrower or any Subsidiary.
3. If, contrary to the intent of the parties, the Credit
Agreement were held to be governed by the laws of the State of Texas, the
Credit Agreement would nevertheless constitute a valid and binding agreement of
the Borrower, enforceable in accordance with its terms, except (a) enforcement
of the indemnification and exculpatory provisions of the Credit Agreement may
be limited by applicable securities laws and other laws and public policies,
(b) enforcement of the Credit Agreement may be limited by Debtor Relief Laws
and is subject to equitable principles, and (c) certain provisions of the
Credit Agreement may be limited by, modified or unenforceable under applicable
state and federal laws, regulations, rulings and decisions in addition to those
referenced herein, if any; however, such limitation, modification or
unenforceability should not in our opinion materially diminish or substantially
interfere with the practical realization of benefits intended to be afforded by
the Credit Agreement except for the economic consequences of any procedural
delay which may result therefrom.
4. No action, consent or approval of, registration or filing
with or any other action by any Governmental Authority is or will be required
in connection with the execution, delivery and performance of the Loan
Documents by the Borrower party thereto or the consummation of the transactions
contemplated thereby, other than routine filings with the SEC and FCC or
required of public companies and FCC licensees and such authorizations and
approvals as have already been obtained and are in full force and effect.
5. There are not any actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or, to our
knowledge, threatened against or affecting the Borrower or any Subsidiary or
any business, property or rights of any such person (i) that involve the Credit
Agreement or the transactions contemplated thereby or (ii) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
97
6. All shares of capital stock of each Subsidiary have been
duly and validly authorized and issued, are fully paid and non-assessable and,
except as set forth on Schedule 6.01 to the Credit Agreement, are owned by the
Borrower, directly or indirectly, free and clear of all Liens. No authorized
but unissued or treasury shares of capital stock of any Subsidiary are subject
to any option, warrant, right to call or commitment of any kind. Other than
the ongoing stock repurchase program of the Borrower, neither the Borrower nor
any Subsidiary is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock or
any securities convertible into or for shares of its capital stock. Neither
the Borrower nor any Subsidiary is a party to any agreement restricting the
transfer or voting of any shares of any capital stock of any Subsidiary.
7. Neither the Borrower nor any of the Subsidiaries is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940.
8. Neither the Borrower nor any of the Subsidiaries is a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935.
9. The making of the Loans to the Borrower and the
application of the proceeds thereof by the Borrower pursuant to the terms of
the Credit Agreement will not violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
I am admitted to practice in the State of Texas. I express no
opinion as to matters under or involving the laws of any jurisdiction other
than the laws of the State of Texas, the General Corporation Law of the State
of Delaware and the Federal Laws of the United States.
This opinion may be relied upon by each of you, by any
successors and assigns of the Administrative Agent, and any participant,
assignee or successor to the interests of the Lenders under the Credit
Agreement.
Very truly yours,
98
EXHIBIT B-2
[Letterhead of]
XXXXX XXXXXXX RAIN XXXXXXX
January [ ], 1997
Texas Commerce Bank National Association
as Administrative Agent
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Lenders from time to time party to the Credit
Agreement referred to below (all of
the Addressees, collectively, the
"Creditors")
Dear Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section
4.01(b) of that certain $500,000,000 Credit Agreement dated as of January 31,
1997 (the "Credit Agreement") among A. H. Belo Corporation, a Delaware
corporation ("Borrower"), the financial institutions who are parties thereto as
Lenders, Texas Commerce Bank National Association ("TCB"), as Administrative
Agent and the Chase Manhattan Bank ("Chase"), as Competitive Advance Facility
Agent, Bank of America National Trust and Savings Association and Bank of
Tokyo-Mitsubishi, Ltd., as Co-Syndication Agents, and NationsBank
("NationsBank"), as Documentation Agent. Terms which are defined in the Credit
Agreement and which are used but not defined herein shall have the meanings
given them in the Credit Agreement. We have acted as counsel for Borrower in
connection with the transactions provided for in the Credit Agreement. Please
be advised that we are engaged by Borrower and/or its Subsidiaries from time to
time to assist with selected matters and do not serve as general counsel to any
of such entities. Also, please be advised that we are engaged by TCB, Chase,
NationsBank and certain other Lenders (or affiliates of TCB, Chase and such
other Lenders) from time to time to assist in selected matters unrelated to the
Credit Agreement.
For purposes of this opinion, we have examined originals or
copies of the Credit Agreement and the promissory notes evidencing the Loans
(referred to herein individually as a "Principal Loan Document" and
collectively as the "Principal Loan Documents") and such corporate records of
Borrower and such other documents and matters of law which we have considered
necessary for such purposes. In connection with our examination, we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as copies, and the authenticity of the originals of
such copies. As to matters of fact material to this opinion, we have relied,
without any
99
independent investigation or verification upon the accuracy of the
representations, warranties and other statements of fact made in or pursuant to
the Principal Loan Documents.
In rendering the opinions expressed below, we have assumed the
accuracy and validity of the opinions of Borrower's General Counsel expressed
to you by letter of even date herewith, and to the extent relevant to our
opinions, have relied upon such opinions without independent investigation or
verification. Furthermore, we have assumed, with respect to the Credit
Agreement, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and constitute
legal, valid, binding and enforceable obligations of,
all of the parties to such documents (other than
Borrower);
(ii) all signatories to such documents (other than on
behalf of Borrower) have been duly authorized;
(iii) all of the parties to such documents (other than
Borrower) are duly organized and validly existing and
have the power and authority (corporate or other) to
execute, deliver and perform such documents; and
(iv) no course of dealing, custom or practice between
Borrower and any Agent or Lender shall supersede any
provision thereof.
The opinions expressed herein are limited to the laws of the
State of Texas and federal laws of the United States except that we express no
opinion with respect to, and have not taken into account the effect of, (i) the
Communications Act of 1934, as amended, the Telecommunications Act of 1996, as
amended, or the rules, regulations and policies of the FCC or (ii) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other similar laws relating to or affecting the rights of creditors
or the obligations of debtors generally ("Debtor Relief Laws"). We call your
attention to the fact that each Principal Loan Document (to the extent provided
therein) provides that it is to be governed by and construed in accordance with
the laws of the State of New York, as to which we have made no independent
examination and express no opinion. With your permission we have assumed that
the laws of the State of New York relevant to the matters addressed in our
opinion are identical to the laws of the State of Texas.
Based upon the foregoing, having due regard for the legal
considerations we deem relevant and subject to the qualifications, assumptions
and exceptions herein set forth, we are of the opinion that the Principal Loan
Documents have been duly executed and delivered by the Borrower and constitute
legal, valid and binding obligations of the Borrower and are enforceable
against the Borrower in accordance with their terms, except (a) enforcement of
the indemnification and exculpatory provisions of the Principal Loan Documents
may be limited by applicable securities laws and other laws and public
policies, (b) enforcement of the Principal Loan Documents may be limited by
Debtor Relief Laws and is subject to equitable principles, and (c) certain
provisions of the Principal Loan Documents may be limited, modified or
100
unenforceable under applicable state and federal laws, regulations, rulings and
decisions in addition to those referenced herein, if any; however, such
limitation, modification or unenforceability should not in our opinion
materially diminish or substantially interfere with the practical realization
of benefits intended to be afforded by the Principal Loan Documents except for
the economic consequences of any procedural delay which may result therefrom.
In rendering the opinions expressed herein, we have assumed
that (a) every provision of the Principal Loan Documents limiting the rate and
amount of interest charged thereunder to the maximum amount permitted by
applicable law has been and will continue to be complied with and that each and
every usury savings clause contained in the Principal Loan Documents has been
and will continue to be complied with; (b) no other fees, sums, or benefits,
whether direct or indirect, have been charged, paid, or received or are, or may
be payable to or chargeable or receivable by any Agent or Lender except as
expressly mentioned in the Principal Loan Documents, the Commitment Letter and
the fee letter referred to therein; (c) any fees or charges which have been or
may be paid to any Agent or any Lender or to any other party are, or will be,
for services actually rendered, and that such fees and charges will not exceed
just and reasonable compensation for such services rendered; and (d) any fees
paid or to be paid by the Borrower to any Agent or any Lender and denominated
"commitment fees" or the like are in fact commitment fees and not sums paid for
the use, forbearance or detention of money.
The opinions herein expressed are solely for your benefit in
connection with the transactions contemplated by the Credit Agreement, and no
one else is entitled to rely hereon (other than permitted successors and
assigns) without our written consent. No person is entitled to rely hereon to
the extent such person or its counsel shall have any knowledge why any opinion
expressed herein is not accurate in any material respect. We hereby disclaim
any obligation to advise you of any changes in fact or law which might affect
the opinions expressed herein.
Sincerely,
XXXXX XXXXXXX RAIN XXXXXXX
(A Professional Corporation)
By: __________________________
Xxx Xxxx
101
EXHIBIT B-3
[Form of Opinion of Wiley, Rein & Fielding-
FCC Counsel for Borrower]
January [ ], 1997
Texas Commerce Bank National Association
as Administrative Agent
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Chase Securities, Inc.
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Lenders from time to time party to the
Credit Agreement referred to below
(all of the Addressees, collectively, the "Creditors")
Dear Ladies and Gentlemen:
We have acted as special communications counsel to A. H. Belo
Corporation, a Delaware Corporation (the "Borrower"), in connection with the
execution and delivery today of, and the consummation of the transactions
contemplated by, the Credit Agreement dated as of January 31, 1997, (the
"Credit Agreement"), among the Borrower, the financial institutions party
thereto as lenders (the "Lenders") and Texas Commerce Bank National
Association, as administrative agent (in such capacity, the "Administrative
Agent"). This opinion is delivered pursuant to Section 4.01(b) of the Credit
Agreement. Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
In rendering this opinion, we have examined the Credit Agreement and
such other documents and instruments and such questions of law as we have
deemed necessary for the purpose of rendering the opinion set forth herein.
Additionally, we have relied upon the representations made by the Borrower in
the Credit Agreement, upon the statements of officers and representatives of
the Borrower, and upon records relating to the Borrower and the television
broadcast stations owned and operated by the Borrower and its several
Subsidiaries (the "Stations") that are routinely available for public
inspection at the Federal Communications Commission ("FCC"). We have assumed
the genuineness of all signatures on all original documents, the conformity to
original documents of all copies submitted to us, and the full authorization,
execution, and delivery of all documents by parties responsible therefor. We
also have assumed that the documents and instruments described or referred to
herein fully express the agreements of any party thereto. Finally, we have
assumed the completeness of the public files relating to the Borrower, its
Subsidiaries, and the Stations maintained by the FCC and the accuracy and
authenticity of all documents contained therein.
Whenever our opinion herein with respect to the existence (or absence)
of facts is qualified by the phrase "to the best of our knowledge," it is
intended to indicate that, during the course of our
102
representation of the Borrower, no information has come to our attention which
would give us actual knowledge of the existence (or absence) of such facts. We
have undertaken no on site inspection whatsoever of any of the Stations and,
except as otherwise specifically stated herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts,
and no inference as to our knowledge of the existence (or absence) of such
facts should be drawn from the fact of our representation of the Borrower.
We are admitted to practice law in the District of Columbia. We
address herein only matters within the jurisdiction of the FCC under the
Communications Act of 1934, as amended, and the rules, regulations and
published orders of the FCC (Collectively, the "Communications Laws")
applicable to the Stations. We express no opinion as to matters arising under
or involving any other laws.
Based upon the subject to the foregoing, it is our opinion that:
1. The Borrower or its Subsidiaries are the respective holders of the
licenses, permits, and authorizations issued by the FCC listed in Attachment A
hereto (the "FCC Licenses"). The FCC Licenses are in full force and effect for
the terms specified in Attachment A and, where applicable, timely renewal
applications have been filed with the FCC with respect to such FCC Licenses.
The FCC Licenses are not subject to any condition, restriction or limitation
materially adverse to the Borrower or the Stations except for conditions,
restrictions or limitations that appear on the faces of the FCC Licenses or
that are set forth in the rules, regulations or policies of the FCC that are
applicable generally to stations of the types, nature, classes, or locations of
the Stations.
2. To the best of our knowledge, no judgment, decree, order or notice
has been issued by the FCC which permits, or after notice or lapse of time or
both, would permit, revocation, nonrenewal, or termination of any of the FCC
Licenses prior to the respective expiration dates thereof, or which results or
would result in any other material impairment of any rights thereunder.
3. Neither the execution and delivery by the Borrower of the Credit
Agreement nor the fulfillment of or compliance with any of the provisions
thereof will (a) result in a violation of the Communications Laws, or (b)
require any authorization, consent, approval, exemption or other action by, or
any notice or filing with, the FCC pursuant to the Communications Laws (other
than routine filings after the date of this opinion with the FCC under Section
73.3613(b)(5) of the FCC's Rules and Regulations).
4. Other than as set forth in Attachment A and except as to any other
matters relating to the television broadcast industry in general, to the best
of our knowledge, no proceeding, claim, lawsuit, investigation or other action
is (a) currently pending before the FCC or (b) threatened in writing and
received by any Station operated by the Borrower or any Subsidiary and not
currently before the FCC, which has a substantial likelihood of resulting in a
Material Adverse Effect.
This opinion is being furnished to you subject to the qualifications
and limitations expressed herein, and has been prepared
103
solely for your information in connection with the transactions contemplated
under the Credit Agreement. This opinion may not be quoted in whole or in part
or otherwise referred to, or furnished to any governmental agency or other
entity or person, without our written consent. It may not be used or replied
upon by any other person or entity without our written consent, and may be
relied upon by you only with respect to the specific matters which are the
subject hereof. The opinions expressed herein are as of the date hereof, and
we specifically disclaim any obligation to advise you of any changes in the
matters addressed in the foregoing opinion occurring after such date.
Very truly yours,
WILEY, REIN & FIELDING
104
Schedule 2.01
NAME ADDRESS COMMITMENT
---- ------- ----------
Texas Commerce Bank National 0000 Xxxx Xxxxxx $37,500,000
Association 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Bank of America NT & SA 000 Xxxxx Xxxxxx Xxxxxx $35,000,000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Bank of Tokyo-Mitsubishi, Ltd. 0000 Xxxx Xxxxxx x00,000,000
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
NationsBank 000 Xxxx Xxxxxx $35,000,000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Xxxxx Xxxx Xxx Xxxxxxx Xxxxxx XX/XX/XX0X $24,375,000
Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxx
Xxxxxx Guaranty Trust Company 00 Xxxx Xxxxxx $24,375,000
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxx
Societe Generale 0000 Xxxx Xxxxxx x00,000,000
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
The Fuji Bank, Limited One Houston Center $24,375,000
0000 XxXxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Banque Nationale de Paris 000 Xxxxx Xxxxxxx Xxxxxx $12,500,000
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx
105
NAME ADDRESS COMMITMENT
---- ------- ----------
First National Bank of Boston 000 Xxxxxxx Xxxxxx $12,500,000
01-08-08
Xxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
First Union Bank of North One First Union Center $12,500,000
Carolina Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
Xxxxxx Bank, N.A. One Mellon Bank Center $12,500,000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Mitsubishi Trust 000 Xxxxxxx Xxxxxx $12,500,000
Xxx Xxxx, XX 00000
Attn: Xx. Xxx Xxxxx Xx Xxxx
Suntrust Banks Inc. 000 Xxxxx Xxxxxx Xxxxxx $12,500,000
Tower 4
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
The Sakura Bank, Limited, 3940 Interfirst Plaza $12,500,000
Houston Agency. 0000 Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
The Sanwa Bank Limited, Dallas 4100W $12,500,000
Agency Texas Commerce Tower
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxx
The Tokai Bank, Limited 00 Xxxx 00xx Xxxxxx $12,500,000
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
The Toyo Trust & Banking Co. 000 Xxxxx Xxxxxx $12,500,000
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
106
NAME ADDRESS COMMITMENT
---- ------- ----------
Xxxxxxx-Xxxxxxxx 000 Xxxxx, Xxxxx 0000 $12,500,000
Xxxxxxx, XX 00000
Attn: Ms. Xxxxxxxx Burlesca
000 Xxxxxxxxx Xxxxxx $8,750,000
CIBC Inc. Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxxx Xxxxxx
Credit Agricole 000 Xxxxxx Xxxxxx $8,750,000
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxx Xxxxxxx
Credit Lyonnais New York 1301 Avenue of the Americas $8,750,000
Branch Xxx Xxxx, XX 00000
Attn: Legal Dept.
w/copy to:
0000 Xxxx Xxxxxx
Xxxxxx, XX
Attn: Xxxxxx Xxxx
Xxx-Xxxx Xxxxxx 0000 Louisiana $8,750,000
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxxx
Hibernia National Bank 000 Xxxxxxxxxx Xxxxxx $8,750,000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
Industrial Bank of Japan 3 Xxxxx Center $8,750,000
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Mr. Xxxxx Xxx, II
Long-Term Credit Bank 0000 Xxxx Xxxxxx $8,750,000
of Japan Xxxxx 0000 Xxxx
Xxxxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxxx
The Northern Trust Company 00 Xxxxx XxXxxxx Xxxxxx $8,750,000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
107
NAME ADDRESS COMMITMENT
---- ------- ----------
Wachovia Bank of Georgia, N.A. 000 Xxxxxxxxx Xxxxxx, XX $8,750,000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Xxxxx Fargo Bank (Texas), N.A. 0000 Xxxx Xxxxxx x0,000,000
0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx
Westdeutsche Landesbank 1211 Avenue of the Americas $8,750,000
Xxx Xxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxxx
Crestar Bank 000 Xxxx Xxxx Xxxxxx $6,250,000
HDQ 1022
Xxxxxxxx, XX 00000-0000
Attn: Mr. Xxxxxx Xxxxxx
First Hawaiian Bank 0000 Xxxxxxxxx Xxxxx $6,250,000
Xxxxxx, XX 00000
Attn: Mr. Xxx Xxxxx
Michigan National 00000 Xxxxxxx Xxxx $5,000,000
Bank Xxxxxxxxxx Xxxxx, XX 00000-0000
Attn: Xx. Xxxxxxxxx Xxxxx
The Yasuda Trust & Banking 000 Xxxxx Xxxxxxxx Xxxxxx $5,000,000
Co., Inc. Xxxxx 0000
Xxx Xxxxxxx, XX 00000
U.S. Bank of Washington, N.A. 0000 Xxxxx Xxxxxx, XXX000 $3,750,000
Xxxxxxx, XX 00000
108
Schedule 3.06
Litigation, Labor and Environmental Matters
None.
109
Schedule 6.01
Liens
The liens created in connection with the $6,400,000 City of Arlington
Industrial Development Corporation Industrial Development Revenue Bonds
(Dallas-Fort Worth Suburban Newspapers Inc. Project) Series 1985.
110
Schedule 6.05
Subordinated Debt
Subordinated Debt shall mean any debt for borrowed money of the
Borrower or its Subsidiaries expressly subordinate to the Indebtedness of the
Borrower under the Credit Agreement which satisfies the following criteria or
other criteria which may be acceptable to the Required Lenders: (i) such
subordinated debt will not amortize or be subject to any scheduled prepayment,
redemption or repurchase requirement (other than a repurchase requirement
triggered by a change in control or similar event) until after the Maturity
Date; (ii) the financial covenants taken as a whole under any such subordinated
debt will not be more restrictive of the Borrower than those contained in this
Credit Agreement; (iii) the terms of such subordinated debt will not permit
payments to subordinated debt holders when an Event of Default has occurred and
is continuing under this Credit Agreement; and (iv) the subordinated debt
holders' rights will be subordinate to those of the Agents and the Lenders
under the Credit Agreement in the event of bankruptcy and/or liquidation of the
Borrower.
