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Exhibit 10.7
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CLUB TRUST REVOLVING CREDIT AGREEMENT
(the "Club Trust Credit Agreement")
among
MAJOR LEAGUE BASEBALL TRUST
and
FLEET NATIONAL BANK
and
CLUB TRUSTS DEEMED TO BE PARTIES HERETO
Dated as of April 17, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions and Accounting Terms.........................................................................1
SECTION 1.01. Certain Defined Terms.....................................................................1
SECTION 1.02. Computation of Time Periods...............................................................1
SECTION 1.03. Accounting Terms..........................................................................1
ARTICLE II
Amounts and Terms of the Loans...........................................................................1
SECTION 2.01. The Club Trust Loans......................................................................1
SECTION 2.02. Making the Loans..........................................................................2
SECTION 2.03. Fees......................................................................................3
SECTION 2.04. Reduction of Maximum Available Amount.....................................................4
SECTION 2.05. Principal Repayment.......................................................................7
SECTION 2.06. Interest..................................................................................8
SECTION 2.07. Additional Interest......................................................................10
SECTION 2.08. Interest Rate Determination and Protection...............................................11
SECTION 2.09. Prepayments..............................................................................12
SECTION 2.10. Increased Costs..........................................................................14
SECTION 2.11. Illegality...............................................................................14
SECTION 2.12. Payments; Limited Recourse; No Cross Collateralization and
Computations....................................................................15
SECTION 2.13. Taxes....................................................................................18
SECTION 2.14. Additional Club Trusts; Creation of Additional Sub-Facilities............................23
ARTICLE III
Conditions of Lending...................................................................................26
SECTION 3.01. Condition Precedent to Initial Loans.....................................................26
SECTION 3.02. Conditions Precedent to Each Loan........................................................28
ARTICLE IV
Representations and Warranties..........................................................................30
SECTION 4.01. Representations and Warranties of each Club Trust........................................30
ARTICLE V
Covenants of the Club Trusts............................................................................31
SECTION 5.01. Affirmative Covenants....................................................................31
SECTION 5.02. Negative Covenants.......................................................................34
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ARTICLE VI
Default.................................................................................................37
SECTION 6.01. Club Trust Events of Default.............................................................37
SECTION 6.02. Remedies.................................................................................41
ARTICLE VII
The Facilitating Agent..................................................................................41
SECTION 7.01. Authorization and Action.................................................................41
SECTION 7.02. Facilitating Agent's Reliance, etc. .....................................................42
SECTION 7.03. Indemnification..........................................................................42
SECTION 7.04. Successor Facilitating Agent.............................................................43
ARTICLE VIII
Miscellaneous...........................................................................................44
SECTION 8.01. Amendments, etc..........................................................................44
SECTION 8.02. Notices, etc.............................................................................45
SECTION 8.03. No Waiver; Remedies......................................................................47
SECTION 8.04. Costs and Expenses; Indemnification......................................................47
SECTION 8.05. Binding Effect; Third Party Beneficiary; Liquidity Funding
Event...........................................................................48
SECTION 8.06. The Register.............................................................................49
SECTION 8.07. Limitation of Liability..................................................................49
SECTION 8.08. Governing Law; Consent to Jurisdiction; Other Matters....................................50
SECTION 8.09. Execution in Counterparts................................................................50
ANNEX A Definitions
EXHIBIT A Club Trust Promissory Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Club Trust Pledge and
Security Agreement
EXHIBIT D Form of Ratification Agreement
EXHIBIT E Form of Administration Agreement
SCHEDULE Schedule of Club Trusts, Participating Clubs and Maximum Available
Amounts
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CLUB TRUST REVOLVING CREDIT AGREEMENT
Dated as of April 17, 1998
MAJOR LEAGUE BASEBALL TRUST, a Delaware
business trust (the "MLB Trust"), FLEET NATIONAL
BANK, a national banking association ("Fleet"), as
facilitating agent (the "Facilitating Agent") for the
MLB Trust and the Club Trusts deemed to be parties
hereto as a result of the execution of a Ratification
Agreement.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. Unless otherwise defined herein,
capitalized terms shall have the meanings set forth in Annex A hereto. In
addition, the interpretive guidelines set forth in such Annex A shall be
applicable to this Agreement.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. THE CLUB TRUST LOANS. The MLB Trust agrees, on the terms
and subject to the conditions hereinafter set forth, to make Loans to the Club
Trusts pursuant to this Agreement from time to time on any Monthly Settlement
Date during the period from the
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date hereof until the Revolver Termination Date in an amount with respect to
each Club Trust up to the Maximum Available Amount for such Club Trust and in an
aggregate amount not to exceed at any time the sum of all the outstanding
Maximum Available Amounts corresponding to the Club Trust Sub-Facilities
(initially, $405,000,000), as such amount shall be reduced pursuant to Section
2.04 and increased pursuant to Section 2.14 and 8.01 (the "Total Commitment");
PROVIDED, HOWEVER, that the aggregate amount of all Loans made to any particular
Club Trust shall not at any time exceed such Club Trust's Maximum Available
Amount under its Club Trust Sub-Facility (initially $45,000,000). Each Loan with
respect to a Club Trust shall be in a minimum of $1,000,000 and an integral
multiple of $500,000; PROVIDED, HOWEVER, that at any time any Loan(s) shall be
outstanding hereunder with respect to such Club Trust, such Loan(s) shall
aggregate at least $5,000,000. The Loans with respect to each Club Trust shall
be evidenced by a Club Trust Note. Each Club Trust Note shall be payable as set
forth in Section 2.05. Within the limits of the Commitment and its Maximum
Available Amount, and provided that all conditions set forth in Section 3.01 or
3.02, as the case may be, have been satisfied, each Club Trust may borrow,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE LOANS.
(a) Each Loan to a Club Trust shall be made on notice, given not later
than 12:00 noon (Boston time) on the third Business Day prior to the Monthly
Settlement Date of the proposed Loan, by the related Club Trust to the MLB Trust
and the Facilitating Agent. Any such notice of a Borrowing (a "Notice of
Borrowing") shall be by telecopier, telex or cable, confirmed immediately in
writing, in substantially the form of Exhibit B hereto, specifying therein (i)
the Club Trust with respect to which the Loan is requested, (ii) the related
Monthly Settlement Date of such Loan, (iii) the amount of such Loan and (iv) any
amount of such Loan which is to be subject to a LIBO Rate Option (which amount
shall be a minimum of $1,000,000 and an integral multiple of $500,000) and the
initial Interest Period (consistent with the provisions of Section 2.06(b)) for
any such amount which is to be subject to a LIBO Rate Option. On the date of
each Loan and upon fulfillment of the applicable conditions set forth in Article
III, the MLB Trust shall make available such Loan proceeds to the Club
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Trusts in their respective Distribution Accounts or such account as a Club Trust
Administrator shall designate in writing.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
related Club Trust. Subject to the provisions of Section 2.12, each Club Trust
shall indemnify the MLB Trust against any loss, cost or expense incurred by the
MLB Trust as a result of any failure to fulfill, on or before the date specified
in such Notice of Borrowing for any related Loan, the applicable conditions
related to its Loan set forth in Article III, including any loss payable by the
MLB Trust to any Lender pursuant to MLB Credit Agreement because such related
Loan is not made on such date.
SECTION 2.03. FEES.
(a) Each Club Trust agrees to pay to the MLB Trust, prior to a
Liquidity Funding Event, a program fee payable in the amounts and on the dates
set forth in the Blue Keel Fee Letter.
(b) Each Club Trust agrees to pay to the MLB Trust an underwriting fee
payable in the amount and on the date set forth in the Underwriting Fee Letter.
(c) Each Club Trust agrees to pay to the MLB Trust a liquidity
commitment fee on the average daily unused portion of the Total Liquidity
Commitment attributable to such Club Trust from the date hereof until the
Termination Date at the rate of 1/4 of 1% per annum, payable in arrears on the
last day of each March, June, September and December during the term of the
Total Liquidity Commitment, commencing June 30, 1998, and ending on the
Termination Date (or, if any such day is not a Business Day, the immediately
following Business Day); PROVIDED, HOWEVER, that if within 270 days after any
Collective Bargaining Agreement Expiration Date, there does not occur a
subsequent Collective Bargaining Agreement Effective Date, then until a
subsequent Collective Bargaining Agreement Effective Date occurs, the liquidity
commitment fee shall be increased to 3/8 of 1% per annum; and, provided further,
that after a Liquidity Funding Event, such commitment fee shall continue to
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be paid and shall be paid to the MLB Trust on the average daily unused portion
of the Total Commitment attributable to such Club Trust.
(d) Each Club Trust agrees to pay to the MLB Trust a structuring fee
and an annual administrative fee payable in the amounts and on the dates set
forth in the Administrative Agent Fee Letter.
(e) All fees payable pursuant to this Section 2.03 shall be paid on the
date due in immediately available funds or fees shall be withheld by the MLB
Trust from any Loan if the Administrative Agent, in accordance with the terms of
the MLB Credit Agreement, shall have withheld such fees from the Club Trust
Related Advances made to the MLB Trust corresponding to such Loan. Once paid,
all fees shall be nonrefundable under all circumstances.
SECTION 2.04. REDUCTION OF MAXIMUM AVAILABLE AMOUNT.
(a) VOLUNTARY REDUCTIONS. Prior to the Termination Date, each Club
Trust shall have the right, upon at least three Business Days' prior notice to
the MLB Trust and the Facilitating Agent, to terminate in whole or reduce in
part the unused portion of the Maximum Available Amount under its Club Trust
Sub-Facility; PROVIDED that each partial reduction shall be in the aggregate
amount of $250,000 and integral multiples thereof; and PROVIDED FURTHER that
such Club Trust shall not be permitted prior to the Termination Date to reduce
its Maximum Available Amount below $5,000,000, unless the Maximum Available
Amount with respect to such Club Trust shall be reduced to zero. Any Club Trust
which shall have (i) reduced its Maximum Available Amount under its Sub-Facility
to zero, (ii) paid in full all other amounts owed by it hereunder and under its
Club Trust Pledge and Security Agreement and (iii) caused the agreement
with respect to the continuation of certain of its and its related Participating
Club's obligations to be delivered as contemplated in Section 11 of the related
Club Trust Pledge and Security Agreement shall be deemed no longer to be a party
to this Agreement.
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(b) REQUIRED REDUCTIONS.
(i) On each Reduction Date, unless the Lenders and the
Liquidity Banks unanimously consent to the contrary, all Revenues deposited into
the Collection Account pursuant to Section 7 of the MLB Pledge and Security
Agreement between January 1 and July 1 of the year in which such Reduction Date
occurs allocable to each Club Trust shall be transferred into the Debt Service
Account, held in escrow in the sub-account of such Club Trust for such period
and invested in Permitted Investments as provided in such Agreement, other than
amounts required to pay interest on such Club Trust's Loans and the related
Borrowings and fees in accordance with this Agreement and the MLB Credit
Agreement, which amounts shall be distributed to the Lenders in accordance with
the provision of Section 7 of the MLB Pledge and Security Agreement.
(ii) if as of July 1 of such calendar year, Annual National
Media Revenues are not greater than or equal to eighty percent (80%) of Base
Annual National Media Revenues, the Maximum Available Amount under each Club
Trust's Sub-Facility shall be reduced to the corresponding amounts set forth
below based on actual Annual National Media Revenues as of July 1 of such year:
ANNUAL NATIONAL MEDIA REVENUES MAXIMUM AVAILABLE AMOUNT
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* 80% of Base Annual National Media Revenues $35,000,000
* 70% of Base Annual National Media Revenues $30,000,000
* 60% of Base Annual National Media Revenues $25,000,000
* 50% of Base Annual National Media Revenues $20,000,000
* Less than
(iii) from and after a Reduction Date, no Club Trust may
receive the proceeds of any Loans if such Loans, together with the Club Trust's
outstanding Loans (but
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excluding accrued interest not yet due thereon), would exceed the Maximum
Available Amount as reduced pursuant to Section 2.04(b)(ii) above.
(iv) Notwithstanding the provisions of Section 2.04(b)(ii), if
after any July 1 following the occurrence of a Reduction Date but prior to the
next Reduction Date, Annual National Media Revenues are restored to an amount
greater than the amount on such July 1 and greater than or equal to fifty
percent (50%) of Base Annual National Media Revenues, then (i) all amounts on
deposit in each Club Trust's sub-account of the Debt Service Account shall, to
the extent not required to be retained in such sub-account pursuant to the Debt
Service and Distribution Schedule then in effect, be transferred to such Club
Trust's Distribution Account, and (ii) each Club Trust's Maximum Available
Amount shall be restored to either (A) the amount specified in subsection
2.04(b)(ii) or (B), if Annual National Media Revenues are restored to an amount
greater than or equal to eighty percent (80%) of Base Annual National Media
Revenues, the amount otherwise in effect under this Agreement without giving
effect to Section 2.04(b)(ii).
(v) In addition to the foregoing, on and after any Collective
Bargaining Agreement Expiration Date but prior to a subsequent Collective
Bargaining Agreement Effective Date, the Maximum Available Amount under each
Club Trust's Sub-Facility shall be reduced, pursuant to a temporary reduction of
the unused portion of the MLB Trust's Total Commitment attributable to such Club
Trust, by an amount equal to the Labor Contingency Interest Reserve for such
Club Trust; PROVIDED, HOWEVER, that such Labor Contingency Interest Reserve
shall be eliminated and such Club Trust's Maximum Available Amount shall be
restored to the amount otherwise in effect under this Agreement without giving
effect to this Section 2.04(b)(ii) on and after any Collective Bargaining
Agreement Effective Date until the next Collective Bargaining Agreement
Expiration Date; and PROVIDED, FURTHER, that with respect to such a reduction
occurring on and after any Collective Bargaining Agreement Expiration Date, the
Labor Contingency Interest Reserve shall be established or reestablished as the
case may be by each Club Trust either (i) reducing its Maximum Available Amount
pursuant to a temporary reduction of the unused portion of the MLB Trust's Total
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Commitment attributable to such Club Trust or, (ii) if it does not have a
sufficient unused portion repaying (and not reborrowing) a corresponding amount
of unpaid principal of all outstanding Loans from the MLB Trust to such Club
Trust under its Club Trust Sub-Facility (in accordance with and subject to the
provisions of Section 2.12) ratably during the three-month period prior to the
applicable Collective Bargaining Agreement Expiration Date if projected revenues
from the National Media Contracts during such three-month period are sufficient
in the reasonable judgment of the Facilitating Agent to effect such a reduction
and if not, a period comprising a sufficient number of months in the reasonable
judgment of the Facilitating Agent to effect such a reduction prior to the
applicable Collective Bargaining Agreement Expiration Date.
(vi) In addition to the foregoing, if at any other time the
aggregate outstanding amount of all Loans from the MLB Trust to a Club Trust
exceeds the Maximum Available Amount under such Club Trust's Sub-Facility, such
Club Trust shall immediately repay the Loans in the amount of such excess.
SECTION 2.05. PRINCIPAL REPAYMENT. Following a Revolver Termination
Date, the MLB Trust shall no longer be obligated to make Loans and each Club
Trust shall repay the outstanding principal amount of all Loans from the MLB
Trust to such Club Trust under its Club Trust Sub-Facility (subject to the
provisions of Section 2.12) in the following manner.
(i) on January 10 of the first calendar year after the calendar year in
which the Revolver Termination Date occurs, such Club Trust shall repay an
amount equal to fifteen percent (15%) of the outstanding principal of all Loans
as of the Revolver Termination Date;
(ii) on January 10 of the second calendar year after the calendar year
in which the Revolver Termination Date occurs, such Club Trust shall repay an
amount equal to twenty percent (20%) of the outstanding principal of all Loans
as of the Revolver Termination Date;
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(iii) on January 10 of the third calendar year after the calendar year
in which the Revolver Termination Date occurs, such Club Trust shall repay an
amount equal to twenty-five percent (25%) of the outstanding principal of all
Loans as of the Revolver Termination Date; and
(iv) on the Final Payment Date, such Club Trust shall repay all
remaining outstanding principal of all Loans.
SECTION 2.06. INTEREST.
(a) ORDINARY INTEREST. Each Club Trust shall pay interest on the unpaid
principal amount of each Loan made to it by the MLB Trust from the date of such
Loan until such principal amount shall be paid in full at the interest rate or
rates determined pursuant to Section 2.08(a). Interest on each Loan (or portion
thereof) shall be payable quarterly in arrears on the last day of each March,
June, September and December, commencing June 30, 1998, and interest on each
LIBO Rate Portion of any Loan shall be payable on the last day of each Interest
Period and, if such Interest Period has a duration of six months, on the day
which is three months after the first day of such Interest Period and on the
last day of such Interest Period.
(b) INTEREST PERIODS. Subject to Section 2.02(a), Section 2.08(c) and
Section 2.10, any Administrator on behalf of the related Club Trust may (i)
request in any Notice of Borrowing delivered pursuant to Section 2.02(a) that
interest on the Loan requested in such Notice of Borrowing (or on a specified
principal amount thereof) be based on the LIBO Rate or (ii) request in any
Notice of Borrowing delivered pursuant to Section 2.02(a) that interest on any
then outstanding Loan (or on a specified principal amount thereof) be based on
the LIBO Rate, in each case for a period beginning on a Monthly Settlement Date
and ending on a day immediately preceding a Monthly Settlement Date (an
"Interest Period") for such Loan (or portion thereof) of one, three or six
months; PROVIDED, HOWEVER, that:
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(i) any Notice of Borrowing given on the Closing Date shall
satisfy the prior notice requirements set forth in Section 2.02(a) and the first
Interest Period shall run from the Closing Date through the applicable Monthly
Settlement Date.
(ii) if any Club Trust fails so to select the duration of any
Interest Period, the duration of such Interest Period shall be one month;
(iii) no more than three Interest Periods shall be outstanding
with respect to any Club Trust;
(iv) prior to a Liquidity Funding Event, no Interest Period
may extend beyond the Revolver Termination Date, and at all times, no Interest
Period may extend beyond the Final Payment Date;
(v) a Club Trust may not select any Interest Period which ends
after any principal repayment or reduction date unless, after giving effect to
such selection, the aggregate unpaid principal amount of Loans (or portions
thereof) with respect to such Club Trust which are not then subject to a LIBO
Rate Option, together with the appropriate unpaid principal amount of LIBO Rate
Portions of Loans having Interest Periods which end on or prior to such
principal repayment or reduction date shall be at least equal to the principal
amount of Loans with respect to such Club Trust due and payable on and prior to
such date;
(vi) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
PROVIDED that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the last day
of such Interest Period shall occur on the next preceding Business Day;
(vii) if any Club Trust (through its Administrator on behalf
of the Club Trust) shall not have delivered to the MLB Trust and the
Facilitating Agent, not later than
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12:00 noon (Boston time) on the third Business Day prior to the termination of
any Interest Period, a Notice of Borrowing requesting that interest on the LIBO
Rate Portion (or any portion thereof) corresponding to such Interest Period be
based on the LIBO Rate for a new Interest Period, then the interest on the
amount of such LIBO Rate Portion (or any portion thereof as to which such Club
Trust has not requested that interest be based on a LIBO Rate) shall be
calculated pursuant to Section 2.06(a)(i) of the MLB Credit Agreement following
termination of the applicable Interest Period and prior to a Liquidity Funding
Event, such Club Trust shall be deemed to have selected an Interest Period of
one month; and
PROVIDED, FURTHER, that in the case of a Business Interruption Event, the
selection of new Interest Periods for outstanding Loans shall continue to be
permitted.
(c) DEFAULT INTEREST. Each Club Trust shall pay interest on the unpaid
principal amount of each Loan made to such Club Trust that is not paid when due
and on the unpaid amount of all interest, fees and other amounts payable
hereunder that is not paid when due, payable on demand, at a rate per annum
equal at all times to (i) in the case of any amount of principal, 2% per annum
above the rate per annum required to be paid on such Loan immediately prior to
the date on which such amount became due and (ii) in the case of all other
amounts, 2% per annum above the Base Rate in effect from time to time; PROVIDED,
however, that in no event shall the amount contracted for and agreed to be paid
by any Club Trust under any provision of this Agreement or its Club Trust Note
exceed the highest lawful rate permissible under any law applicable thereto.
(d) BUSINESS INTERRUPTION EVENT INTEREST. Upon the occurrence of a
Business Interruption Event, each Club Trust shall pay interest on the unpaid
principal amount of each Loan at a rate per annum equal at all times to 2% per
annum above the rate per annum that would otherwise be required to be paid on
such Loan under this Agreement without giving effect to this Section 2.06(d);
PROVIDED, that following the earlier of the termination of the strike or dispute
which gave rise to a Business Interruption Event or the resumption of games
involving players of Major League Baseball and not replacement players, the
interest rate shall
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be restored to the rate that would otherwise be required under this Agreement
without giving effect to this Section 2.06(d).
SECTION 2.07. ADDITIONAL INTEREST. Each Club Trust shall pay to the MLB
Trust the amount of any additional interest required to be paid by the MLB Trust
to any Lender pursuant to Section 2.07 of the MLB Credit Agreement with respect
to the Club Trust Related Advances corresponding to the Loan(s) made by the MLB
Trust to such Club Trust under its Club Trust Sub-Facility. Such amounts shall
be paid to the MLB Trust at or prior to the time that the MLB Trust shall be
required to pay such amount to any Bank.
SECTION 2.08. INTEREST RATE DETERMINATION AND PROTECTION.
(a) The interest rate for each Club Trust's Loan under its Sub-Facility
shall be the interest rate or rates on the Club Trust Related Advances
corresponding to such Loan as determined pursuant to Section 2.06 of the MLB
Credit Agreement.
(b) The Facilitating Agent shall give prompt notice to the related Club
Trust of the applicable interest rate or rates determined by the Administrative
Agent under the MLB credit Agreement for purposes of Section 2.06.
(c) If, pursuant to Section 2.08(c) of the MLB Credit Agreement, the
Administrative Agent determines that the LIBO Rate for any Interest Period for
the Club Trust Related Advances which correspond to the Loans made to the Club
Trusts hereunder is not available, or if following a Liquidity Funding Event the
Required Lenders notify the MLB Trust that the LIBO Rate for any Interest Period
for the Club Trust Related Advances which correspond to the Loans made to the
Club Trusts hereunder will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Club Trust Related
Advances for such Interest Period:
(i) the MLB Trust (or the Facilitating Agent on its behalf)
shall forthwith notify the Club Trusts of such event;
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(ii) consistent with this Section 2.08 and Section 2.08(c) of
the MLB Credit Agreement, the Lenders shall continue to make Club Trust Related
Advances in accordance with the other terms and conditions of this Agreement,
but the Base Rate shall be the applicable interest rate for each such Loan
hereunder from and after the last day of the then existing Interest Period
therefor; and
(iii) the LIBO Rate Option shall be suspended until reinstated
pursuant to paragraph (d) below.
(d) The LIBO Rate Option shall be reinstated upon notification by the
MLB Trust (or the Facilitating Agent on its behalf) to the Club Trusts that the
circumstances giving rise to the suspension of the LIBO Rate Option pursuant to
paragraph (c) above are no longer applicable.
SECTION 2.09. PREPAYMENTS.
(a) In addition to the required repayment of principal specified in
Section 2.05, with respect to each Club Trust, on any July 1 on which the
Maximum Available Amount under such Club Trust's Sub-Facility is reduced
pursuant to Section 2.04(b)(ii), principal in the amount equal to the excess, if
any, of (i) all outstanding Loans to such Club Trust under its Sub-Facility over
(ii) the Maximum Available Amount as so reduced shall be payable as set forth
hereunder and a "Club Trust Prepayment Event" with respect to such excess shall
be deemed to have occurred. Upon the occurrence of a Club Trust Prepayment
Event, all amounts held in escrow in the Debt Service Account (other than
amounts required to pay interest and fees) pursuant to Section 2.04 shall
immediately be applied by the Administrative Agent to repay such excess
principal and all Revenues allocable to such Club Trust deposited into the
Collection Account pursuant to Section 7 of the MLB Pledge and Security
Agreement between July 1 of such year and January 10 of the immediately
succeeding year (plus all interest earned on such amounts) shall be transferred
into the Debt Service Account and applied to repay such excess principal, after
the application of amounts required to pay interest on such Club Trust's Loans
and the related Borrowings and fees in accordance with
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this Agreement and the MLB Credit Agreement. If a Club Trust Prepayment Event
occurs and all excess principal with respect to any Club Trust's Loans is not
repaid in full by January 10 of the year immediately succeeding the year in
which such Club Trust Prepayment Event occurs so that such Club Trust's Loans
outstanding as of the end of such day do not exceed such Club Trust's Maximum
Available Amount as so reduced, it shall constitute a Club Trust Event of
Default with respect to such Club Trust pursuant to Section 6.01(a).
(b) Other than with respect to any prepayment pursuant to the
provisions of paragraph (c) below, each Club Trust may, upon at least three
Business Days' notice in the case of any LIBO Rate Loan and one Business Day's
notice in the case of any Base Rate Loan to the MLB Trust and the Facilitating
Agent stating the Club Trust with respect to which any such prepayment relates,
the proposed date and aggregate principal amount of each such prepayment, prepay
the Loan(s) under its Club Trust Sub-Facility in whole or ratably in part, and,
if such notice is given, the related Club Trust shall prepay the Loan(s) under
its Club Trust Sub-Facility in whole or ratably in part in the aggregate
principal amount designated in such notice, together with accrued interest to
the date of such prepayment on the principal amount prepaid; PROVIDED, HOWEVER,
that with respect to each Club Trust (i) each partial prepayment shall be in an
aggregate principal amount not less than $250,000, (ii) any prepayment of any
LIBO Rate Portion of any Club Trust's Loan(s) under its Club Trust Sub-Facility
shall be made on, and only on, the last day of an Interest Period for such LIBO
Rate Portion (PROVIDED, THAT prepayments may be made at other times as long as
all costs payable pursuant to Section 8.04(b) are paid) and (iii) no prepayment
shall be permitted pursuant to this Section 2.09 if, after giving effect to such
prepayment, the aggregate principal amount of Loans outstanding under such Club
Trust's Sub-Facility shall be less than $5,000,000, unless the amount of Loans
outstanding under such Club Trust Sub-Facility shall be reduced by such
prepayment to zero.
(c) In accordance with the provisions of Section 2.07 of each Club
Trust Agreement, each Club Trust may, upon at least three Business Days' notice
to the MLB Trust and the Facilitating Agent stating the Club Trust with respect
to which any such prepayment
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relates and the proposed date and aggregate principal amount of such prepayment,
prepay all of its Loans under its Club Trust Sub-Facility in whole, and, if such
notice is given, the related Club Trust shall prepay any and all Loans under its
Sub-Facility in whole, together with accrued interest to the date of such
prepayment on the principal amount prepaid. Any Club Trust which shall have (i)
made such a prepayment pursuant to this paragraph (c), (ii) paid in full all
other amounts owed by it hereunder and under its Club Trust Pledge and Security
Agreement and (iii) caused the agreement with respect to the continuation of
certain of its and its related Participating Club's obligations to be delivered
as contemplated in Section 11 of the related Club Trust Pledge and Security
Agreement shall be deemed no longer to be a party to this Agreement.
SECTION 2.10. INCREASED COSTS. Each Club Trust shall pay to the MLB
Trust the amount of any increased costs required to be paid by the MLB Trust to
any Lender or Liquidity Bank pursuant to Section 2.10 of the MLB Credit
Agreement with respect to the Club Trust Related Advances corresponding to the
Loan(s) made by the MLB Trust to such Club Trust under its Club Trust
Sub-Facility and its allocable portion of the Liquidity Commitment. Such amounts
shall be paid to the MLB Trust at or prior to the time that the MLB Trust shall
be required to pay such amount to any Lender or Liquidity Bank.
SECTION 2.11. ILLEGALITY.
(a) Notwithstanding any other provision of this Agreement but subject
to the provisions of this Section, if, pursuant to Section 2.11 of the MLB
Credit Agreement, any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Lending Office to
perform its obligations thereunder to make, fund or maintain Club Trust Related
Advances subject to a LIBO Rate Option thereunder, (i) the obligation of the MLB
Trust to make Loans (or portions thereof) subject to a LIBO Rate Option under
any Club Trust Sub-Facility shall be suspended until the Administrative Agent
under the MLB Credit Agreement shall notify the MLB Trust and the Lenders that
the circumstances causing such suspension no longer
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exist (prompt notice of which will be given to the Club Trusts by the MLB Trust
(or the Facilitating Agent on its behalf)) and (ii) the Base Rate shall be the
applicable interest for all Loans unless such Club Trust, within five Business
Days of notice from the MLB Trust (or the Facilitating Agent on its behalf) of
the above described events, elects to prepay in full all Loans (or portions
thereof) subject to a LIBO Rate Option under its Club Trust Sub-Facility then
outstanding, together with interest accrued thereon.
(b) Upon the occurrence of the events specified in Section 2.11(a), the
MLB Trust shall continue to make Loans in accordance with the other terms and
conditions of this Agreement, but the Base Rate shall be the applicable interest
rate for each such Loan until the MLB Trust and the Club Trusts receive the
notice described in 2.11(a)(i) above.
SECTION 2.12. PAYMENTS; LIMITED RECOURSE; NO CROSS COLLATERALIZATION
AND COMPUTATIONS.
(a) Subject to the provisions of this Section, on any day on which any
amount is due hereunder or under the related Club Trust Pledge and Security
Agreement with respect to any Club Trust Sub-Facility or on which any Club Trust
in accordance with Section 2.09 elects to make a principal payment, subject to
the provisions of the MLB Pledge and Security Agreement, amounts on deposit in
the Debt Service Account attributable to the related Club Trust shall be
withdrawn from the Debt Service Account and such amounts shall be applied to
make actual or deemed distributions with respect thereto. Deemed distributions
consist of payments to the Lenders and the Liquidity Banks under MLB Credit
Agreement with respect to Club Trust Related Advances and related obligations
(including Secured Obligations) corresponding to the such Club Trust's
outstanding Loans, payment with respect to which will satisfy such Club's
payment obligation to the MLB Trust hereunder or under the MLB Trust Agreement.
(b) [Reserved].
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(c) Each Club Trust's obligations hereunder shall (subject to Section
2.12(d)) be satisfied solely by recourse to the assets of such Club Trust and
its related Club Trust Collateral and none of the Major League Clubs (except as
provided in any Transfer Agreement), the Commissioner, the National League or
the American League or any of their Affiliates shall be obligated with respect
thereto.
(d) (i) The assets of a particular Club Trust and its related Club
Trust Collateral shall be used solely to pay obligations attributable to such
Club Trust and in no event, except as provided in (iii) below, shall the Club
Trust Collateral of one Club Trust be used to pay any obligations attributable
to another Club Trust. Obligations hereunder or under the MLB Pledge and
Security Agreement not specifically attributable to a Club Trust shall be
allocated equally among the Club Trusts.
(ii) As further provided in paragraphs (e), (f) and (g) below,
the MLB Trust and the Facilitating Agent agree to account for all Loans under
the Club Trust Sub-Facilities, payments and the Club Trust Collateral so as to
prevent cross-collateralization between the assets and obligations attributable
to each of the Club Trusts. Except as permitted in (iii) below, any amounts
received by the MLB Trust in satisfaction of any obligations attributable to any
Club Trust from the assets of, or assets attributable to, another Club Trust
shall be deposited by the MLB Trust into the Debt Service Account and the
obligation previously satisfied by such deposited amounts shall be reinstated
effective as of the date on which such amount was incorrectly applied.
(iii) The assets attributable to a particular Club Trust or
Club Trusts and any other portion of the Club Trust Collateral attributable to
such Club Trust or Club Trusts may be used to the extent provided in this clause
(iii) to satisfy the obligations of any other Club Trust (A) if for any reason
any such other Club Trust receives less than its Pro Rata share of Revenues or
(B) if (x) such other Club Trust's related Participating Club is expelled or
withdraws from its respective League or Major League Baseball, as a whole, and
such other Club Trust's share of Revenues is reduced or eliminated and (y) the
American League or the
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National League, as appropriate, elects to allow a new Major League Club to
become a member of Major League Baseball. The amount permitted to be paid with
respect to the obligations of any such adversely affected Club Trust (x) in the
case of subclause (A), shall equal the incremental dollar increase in Revenues
allocated to the nonadversely affected Club Trusts as a result of such
nonadversely affected Club Trusts' Pro Rata share of Revenues being increased by
such reduction in or elimination of the adversely affected Club Trust's Pro Rata
share of Revenues and (y) in the case of subclause (B), shall equal any amounts
paid to the remaining Participating Clubs and included the Club Trusts' Rights
in connection with the addition of the next Major League Club following the
expulsion or withdrawal of such Club; PROVIDED, HOWEVER, that in the case of
each of the immediately preceding clause (x) and clause (y), in no event shall
the aggregate amounts paid by all nonadversely affected Club Trusts exceed the
amount of the obligations of the adversely affected Club Trust under the
Transaction Documents. The obligation of any nonadversely affected Club Trust or
Club Trusts to pay any amount on behalf of an adversely affected Club Trust or
Club Trusts shall be allocated Pro Rata based upon Maximum Available Amount
among the nonadversely affected Club Trusts.
(e) The MLB Trust shall maintain an account or accounts evidencing the
indebtedness of each Club Trust resulting from each Loan under such Club Trust's
Sub-Facility made by the MLB Trust to such Club Trust from time to time,
including the amounts of principal and interest payable and paid to the MLB
Trust from time to time under this Agreement, the Club Trust Pledge and Security
Agreement or the MLB Pledge and Security Agreement with respect to such Club
Trust.
(f) The Facilitating Agent shall maintain the Register pursuant to
Section 8.07 hereof in which Register shall be reported with respect to each
Club Trust and its Sub-Facility (i) each Loan hereunder made with respect to
such Club Trust and the amount of each such Loan, (ii) the Interest Period and
principal amount of each LIBO Rate Portion of each such Loan, (iii) the amount
of any principal or interest due and payable or to become due and payable with
respect to each such Loan and (iv) the amount of any sum received by the MLB
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Trust hereunder, under the Club Trust Pledge and Security Agreement or under the
MLB Pledge and Security Agreement from such Club Trust.
(g) The entries made in the accounts or the Register maintained
pursuant to paragraphs (e) and (f) of this Section 2.12 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and the
amounts of the obligations of each Club Trust with respect to each Loan therein
recorded; PROVIDED, HOWEVER, that the failure of the Facilitating Agent to
maintain any such accounts or such Register, as applicable, or any error therein
shall not in any manner affect the obligation of any Club Trust in accordance
with the terms hereof.
(h) It is the intent of the parties hereto that all computations of
interest on the Loans hereunder correspond to the calculation of interest on the
corresponding Club Trust Related Advances and that the calculation of fees
hereunder correspond to the calculation of fees under the MLB Credit Agreement.
Consistent with such intent, all computations of interest based on the LIBO Rate
shall be made by the Facilitating Agent on the basis of a year of 360 days, and
all computations of interest based on the Base Rate and of fees shall be made by
the Facilitating Agent on the basis of a year of 365 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or additional interest are
payable. Each determination by the Facilitating Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(i) Whenever any payment hereunder or under the Club Trust Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or any fee, as
the case may be; PROVIDED, HOWEVER, that if such extension would cause payment
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
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SECTION 2.13. TAXES.
(a) Any and all payments by each Club Trust hereunder or under the Club
Trust Notes shall be made, in accordance with Section 2.12, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING, in the case of each of the MLB Trust and the Facilitating Agent,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which the MLB Trust or the Facilitating Agent (as
the case may be) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Club Trust shall
be required by law to deduct any Taxes from or in respect of, any sum payable
hereunder or under the Club Trust Notes to the MLB Trust or the Facilitating
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under Section 2.13(a), (b) or (c)) the MLB Trust or the
Facilitating Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Club Trust shall
make such deductions and (iii) such Club Trust shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Club Trust agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Club
Trust Notes or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement, the Notes or any other Transaction Document
(hereinafter referred to as "Other Taxes").
(c) Each Club Trust will indemnify the MLB Trust and the Facilitating
Agent for the full amount of Taxes or Other Taxes which are attributable to such
Club Trust (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under Section 2.13(a), (b) or (c)) paid by
the MLB Trust or the Facilitating Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
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respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within 30 days from the
date the MLB Trust or the Facilitating Agent (as the case may be) makes written
demand therefor. If the MLB Trust or the Facilitating Agent shall become aware
or shall be notified by any Club Trust that it is entitled to receive a refund
in respect of Taxes or Other Taxes as to which it has been indemnified by such
Club Trust pursuant to Section 2.13(a), (b) or (c), it shall promptly notify
such Club Trust of the availability of such refund and shall, within 30 days
after receipt of a written request by any such Club Trust, apply for such refund
at the such Club Trust's expense. If the MLB Trust or the Facilitating Agent
receives a refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by any Club Trust pursuant to Section 2.13(a), (b) or (c), it shall
promptly notify the appropriate Club Trust of such refund and shall, within 30
days after receipt of a written request by such Club Trust (or promptly upon
receipt, if such Club Trust has requested application for such refund pursuant
hereto), repay such refund to such Club Trust (to the extent of amounts that
have been paid by such Club Trust under Section 2.13(a), (b) or (c) with respect
to such refund), net of all out-of-pocket expenses (including the net amount of
taxes, if any, imposed on such MLB Trust or Facilitating Agent with respect to
such refund) of the MLB Trust or the Facilitating Agent, PROVIDED that each Club
Trust, upon the request of the MLB Trust or Facilitating Agent, agrees to return
such refund (plus penalties, interest or other charges) to the MLB Trust or
Facilitating Agent in the event the MLB Trust or the Facilitating Agent is
required to repay such refund to any person, including the relevant taxing
authority.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by a Club Trust in respect of any payment to the MLB Trust or the
Facilitating Agent, each Club Trust will furnish to the Facilitating Agent, at
its address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof.
(e) (i) Each Club Trust, without duplication of any amounts paid or
indemnified pursuant to Section 2.13(a), (b) or (c), shall indemnify the MLB
Trust and the Facilitating Agent for any MLB Taxes required to be paid by the
MLB Trust or Facilitating Agent (as the
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case may be) to any Lender, Liquidity Bank, Bank Transferee, and the
Administrative Agent pursuant to Section 2.13 of the MLB Credit Agreement in an
amount equal to the sum of (x) the amount of MLB Taxes that are specifically
attributable to such Club Trust and (y) an amount equal to the product of (I)
the amount of MLB Taxes not specifically attributable to any Club Trust and (II)
the quotient of (A) the sum of the amount of the Loans made to such Club Trust
that is outstanding on each day in the period to which such MLB Taxes relate
divided by the number of days in such period divided by (B) the sum of the
amount of the Loans made to all the Club Trusts that is outstanding on each day
in the period to which such MLB Taxes relate divided by the number of days in
such period; PROVIDED, HOWEVER, that with respect to MLB Taxes described in
clause (y)(I) if (C) there are no Loans outstanding during any period to which
such MLB Taxes relate or (D) such MLB Taxes would have been imposed if none of
the Loans to any Club Trust were outstanding, then each such Club Trust shall
indemnify the MLB Trust and the Facilitating Agent in an amount equal to the
amount of such MLB Taxes divided by the number of Club Trusts parties to this
Agreement; PROVIDED FURTHER, HOWEVER, that if for any reason after the
application of the foregoing formulas to determine the amount that a Club Trust
must indemnify the MLB Trust and the Facilitating Agent with respect to MLB
Taxes, an amount of MLB Taxes has not been indemnified, then each such Club
Trust shall indemnify the MLB Trust and Facilitating Agent in an amount equal to
the amount of such MLB Taxes that has not been indemnified divided by the number
of Club Trusts parties to this Agreement; and PROVIDED FURTHER that no Club
Trust shall be responsible for the payment of any such amounts payable by any
other Club Trust. Any such MLB Taxes that are required to be indemnified by a
Club Trust shall be paid by such Club Trust at or prior to the time that the MLB
Trust or Facilitating Agent shall be required to pay such MLB Taxes. The
Facilitating Agent shall have the exclusive authority to apply and interpret the
provisions of this Section 2.13(e) to determine the amounts each Club Trust is
required to indemnify the MLB Trust or Facilitating Agent pursuant to this
Section 2.13(e).
(ii) If the MLB Trust or the Facilitating Agent shall become
aware that it is entitled to receive a refund in respect of MLB Taxes as to
which it has been indemnified by any Club Trust pursuant to this Section
2.13(e), it shall promptly notify the Club Trust(s) that
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made the related indemnity payment(s) of the availability of such refund and
shall, within 30 days after receipt of a written request by any such Club Trust,
apply or cause any Lender, Liquidity Bank, Bank Transferee or Administrative
Agent to apply for such refund at the expense of such Club Trust(s). If the MLB
Trust or the Facilitating Agent receives a refund in respect of any MLB Taxes as
to which it has been indemnified by any Club Trust(s) pursuant to this Section
2.13(e), it shall promptly notify the appropriate Club Trust(s) of such refund
and shall, within 30 days after receipt of a written request by such Club
Trust(s) (or promptly upon receipt, if such Club Trust has requested application
for such refund pursuant hereto), repay to such Club Trust an amount equal to
the product of (x) such refund, including any interest thereon, net of all
out-of-pocket expenses (including expenses incurred to apply for such refund and
the net amount of taxes, if any, imposed on the MLB Trust or the Facilitating
Agent in respect of such refund) of the MLB Trust or the Facilitating Agent, and
(y) the quotient of (I) the amount paid by such Club Trust and (II) the total
amounts paid by all the Club Trusts, each pursuant to this Section 2.13(e) with
respect to the MLB Taxes giving rise to such refund (excluding any expense
reimbursements paid to the MLB Trust or Facilitating Agent with respect to such
refund), plus an amount equal to any expense reimbursed by such Club Trust to
the MLB Trust or Facilitating Agent pursuant to this Section 2.13(e) to apply
for such refund which was deducted by the MLB Trust from the amount of such
refund as an out-of-pocket expense, PROVIDED that each Club Trust, upon request
of the MLB Trust or Facilitating Agent, agrees to return such refund (plus
penalties, interest or other charges) to the MLB Trust or Facilitating Agent in
the event the MLB Trust or the Facilitating Agent is required to repay such
refund to any person, including the relevant taxing authority.
(iii) This Section 2.13(e) is intended to equitably apportion
the burden of MLB Taxes among the Club Trusts and equitably apportion the
benefit of any refund received in respect of MLB Taxes. Each Club Trust, the MLB
Trust and the Facilitating Agent agree to negotiate in good faith to amend this
Section 2.13(e) to achieve the intent of this Section 2.13(e) if, as a result of
any unusual circumstances, pursuant to Section 2.13(e) the burden of MLB Taxes
is not equitably apportioned among the Club Trusts or the benefit of
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refunds of MLB Taxes are not equitably apportioned among the Club Trusts;
PROVIDED, HOWEVER, each Club Trust shall comply with this Section 2.13(e) until
any such amendment.
(f) Without prejudice to the survival of any other agreement of each
Club Trust hereunder, the agreements and obligations of each Club Trust
contained in this Section 2.13 shall survive the payment in full of principal
and interest hereunder and under the related Club Trust Note.
(g) If any Club Trust is required to pay any amount pursuant to this
Section 2.13 to any Lender, Liquidity Bank, Bank Transferee, Administrative
Agent, Facilitating Agent, taxing jurisdiction, or other third party, the
Administrative Agent shall have the power and authority (but not the duty) to
pay such amounts as specified in the MLB Pledge and Security Agreement.
SECTION 2.14. ADDITIONAL CLUB TRUSTS; CREATION OF ADDITIONAL
SUB-FACILITIES.
(a) Subsequent to the Closing Date, but prior to the Revolver
Termination Date, at any time upon sixty (60) days prior written notice to the
Administrative Agent, additional Club Trusts may be added as parties to this
Agreement and, in connection with any such addition, a Club Trust Sub-Facility
with respect to each such additional Club Trust shall be created hereunder. The
consent of the Club Trusts party hereto at the time of any such proposed
addition shall not be required in connection with such proposed addition;
PROVIDED, HOWEVER, that such proposed addition shall be subject to the
satisfaction of any conditions thereto established by the Administrative Agent
on behalf of the MLB Trust; and PROVIDED FURTHER, HOWEVER, that any proposed
addition shall be at a minimum subject to the satisfaction of the conditions
that:
(i) the Maximum Available Amount under such proposed Club
Trust's Club Trust Sub-Facility shall not exceed $45,000,000, subject to all
required reductions in any Club Trust's Maximum Available Amount pursuant to
Section 2.04(b));
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(ii) the Total Commitment and Total Liquidity Commitment shall
have been increased under and in accordance with the provisions of the MLB
Credit Agreement to make Club Trust Related Advances to the Borrower in an
amount equal to such proposed Club Trust's Maximum Available Amount under its
Sub-Facility;
(iii) no Club Trust Event of Default or event which would
constitute a Club Trust Event of Default but for the requirement that notice be
given or time elapse or both will result from the proposed addition of such Club
Trust and such Club Trust's related Participating Club must be entitled to, and
must have transferred to such Club Trust, a full Pro Rata Share of the Rights
and Revenues;
(iv) the representations and warranties contained in Section 3
of the MLB Pledge and Security Agreement and the representations and warranties
contained in Section 4.01 of this Agreement and Section 3 of the Club Trust
Pledge and Security Agreement with respect to such Club Trust will be true and
correct in all material respects as of the date of such proposed addition;
(v) subject to provisions of paragraph (c) below, such
proposed Club Trust shall have delivered to the MLB Trust and the Facilitating
Agent those items required to be delivered to them by a Club Trust and such Club
Trust shall have taken such actions as are required to be taken by a Club Trust
pursuant to Section 3.01;
(vi) the conditions under the MLB Credit Agreement to the
proposed addition of any Club Trust and the corresponding increase in the Total
Commitment thereunder to make Club Trust Related Advances and Total Liquidity
Commitment shall have been satisfied;
(vii) such proposed Club Trust shall have entered into a
Ratification Agreement;
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(viii) the MLB Trust and the Facilitating Agent shall have
received such other approvals, opinions or documents as the MLB Trust and
Facilitating Agent shall have reasonably requested; and
(ix) such proposed Club Trust shall be responsible for the
payment of its allocable share of all amounts payable by the MLB Trust to the
Lenders pursuant to Section 8.04(b) of the MLB Credit Agreement as a result of
any reallocation of the Club Trust Related Advances among the Lenders in
connection with the increase in the aggregate Club Trust Related Advances of the
Lenders related to the addition of such propose Club Trust.
(b) Following the addition of any such proposed Club Trust, (i) all
references herein or any Transaction Document to Club Trust, Participating Club,
Administrator, Maximum Available Amount and Club Trust Sub-Facility shall be
deemed to include such proposed Club Trust, its related Participating Club and
Administrator and, as appropriate, such proposed Club Trust's Maximum Available
Amount and Club Trust Sub-Facility and (ii) for all purposes such proposed Club
Trust shall be deemed to be a party to this Agreement.
(c) In connection with the addition of any proposed Club Trust whose
related Participating Club is located outside of the United States, the
Administrative Agent may, in addition to or in lieu of any Uniform Commercial
Code financing statements (and any related requests for information) required to
be delivered in connection with (i) the perfection of the ownership interest of
such proposed Club Trust in the Rights and Revenues contributed to it by such
proposed Club Trust's related Participating Club and (ii) the perfection of the
security interest created by such proposed Club Trust in the Club Trust
Collateral pursuant to its Club Trust Pledge and Security Agreement, require
such proposed Club Trust to deliver such other documents and/or any Opinion of
Counsel as the Administrative Agent may deem appropriate or necessary to assure
itself of such proposed Club Trust's perfected ownership interest in the Rights
and Revenues under the laws of such other jurisdiction. In addition, with
respect to any proposed Club Trust whose related Participating Club is located
outside of the United
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States, the Administrative Agent may require such proposed Club Trust to deliver
such other documents and/or any Opinion of Counsel necessary to assure itself of
the absence of any withholding tax imposed by such other jurisdiction with
respect to such proposed Club Trust's Rights and Revenues.
(d) As contemplated in and subject to the provisions of Section
8.01(b), this Agreement, the MLB Credit Agreement and the MLB Pledge and
Security Agreement may be amended to the extent necessary or desirable in the
sole judgment of the Administrative Agent in connection with the addition of a
proposed Club Trust.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITION PRECEDENT TO INITIAL LOANS. The obligation of
the MLB Trust to make its initial Loan to any Club Trust under its Sub-Facility
hereunder is subject to the condition precedent that the MLB Trust and the
Facilitating Agent shall have received on or before the day of the initial Loan
thereunder the following, each dated such day, in form and substance
satisfactory to the MLB Trust and the Facilitating Agent (except for the Club
Trust Note):
(a) A pledge and security agreement, duly executed by such Club Trust
and the MLB Trust in substantially the form of Exhibit C hereto (the "Club Trust
Pledge and Security Agreement"), together with (i) executed copies of proper
financing statements to be filed under the Uniform Commercial Code of all
jurisdictions that the MLB Trust may deem necessary or desirable in order to
perfect the ownership interest in the Rights and Revenues contributed by such
Club Trust's related Participating Club to such Club Trust and (ii) executed
copies of proper financing statements to be filed under the Uniform Commercial
Code of all jurisdictions that the MLB Trust may deem necessary or desirable in
order to perfect the security interests by such Club Trust in the Club Trust
Collateral pursuant to the Club Trust Pledge and Security Agreement.
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(b) A certificate of the Club Trustee certifying the names and true
signatures of their officers authorized to sign each Transaction Document to
which such Club Trust is a party and the other documents to be delivered
hereunder or thereunder.
(c) The list of Authorized officers for each Administrator.
(d) Certified copies of all corporate or partnership action taken by
such Club Trust's related Participating Club, including appropriate resolutions
authorizing the execution, delivery and performance of the Transaction Documents
to which it is a party and each other document delivered pursuant to such
documents.
(e) Copies of the Ratification Agreement executed by such Club Trust.
(f) A Certificate of such Club Trust's Administrator certifying that
(a) as of the date of such Club Trust's Ratification Agreement no event has
occurred and is continuing, or would result from any Loan under such Club
Trust's Sub-Facility or from the application of the proceeds therefrom on such
date, which constitutes a Club Trust Event of Default or would constitute a Club
Trust Event of Default but for the requirement that notice be given or time
elapse or both and (b) as of the date of the initial Loan, with respect to each
Club Trust in existence prior to the date of this Agreement, such Club Trust's
related Participating Club is Solvent, and with respect to each Club Trust
organized after the date of this Agreement, such Club Trust's related
Participating Club is Solvent prior to, and will be Solvent after giving effect
to, the transfer of the Rights and Revenues to such Club Trust and that such
Participating Club is receiving fair and reasonably equivalent value for the
transfer of the Rights and Revenues to its related Club Trust.
(g) The Club Trust Note with respect to the related Club Trust to the
order of the MLB Trust.
(h) Copies of the Transfer Agreement executed by such Club Trust.
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(i) The delivery of all collateral with respect to such Club Trust
under the Club Trust Pledge and Security Agreement (including the related Club
Trust Note) to the Administrative Agent for the benefit of all the Lenders and
the third party benefit of the Liquidity Banks under the MLB Credit Agreement.
(j) A favorable opinion of counsel to such Club Trust, substantially in
the form of Exhibit B to its Transfer Agreement and as to such other matters as
the MLB Trust and the Facilitating Agent may reasonably request.
(k) Copies of the Administration Agreement executed by such Club Trust.
(1) Copies of all documents, certificates and opinions delivered by
such Club Trust or its related Participating Club pursuant to the Transaction
Documents.
(m) Such other documents as the MLB Trust or the Facilitating Agent
shall reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH LOAN. The obligation of the
MLB Trust to make a Loan (including the initial Loan) under any Club Trust's
Sub-Facility shall be subject to the receipt by the MLB Trust of the Club Trust
Related Advances with respect to the related Club Trust necessary to make such
Loans and to the further conditions precedent that on the date of such Loan (i)
the following statements shall be true (and each of the giving of the applicable
Notice of Borrowing with respect to such Club Trust and the acceptance of the
Loan proceeds by such Club Trust shall constitute a representation and warranty
by such Club Trust that on the date of such Loan such statements are true):
(a) the representations and warranties contained in Section 3 of the
MLB Pledge and Security Agreement and the representations and warranties with
respect to such Club Trust contained in Section 4.01 of this Agreement and
Section 3 of the Club Trust Pledge and Security Agreement are correct in all
material respects on and as of the date of such Loan,
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before and after giving effect to such Loan and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from such
Loan or from the application of the proceeds therefrom, which constitutes a Club
Trust Event of Default or would constitute a Club Trust Event of Default but for
the requirement that notice be given or time elapse or both;
(c) no Business Interruption Event has occurred and is continuing as
evidenced by a notice from the Facilitating Agent to the Club Trusts;
(d) except as provided in the Transaction Documents, none of the
Central Fund Custody Account, the MLB Properties Royalty Account, the Collection
Account or the Debt Service Account or Eligible Investments otherwise to the
credit of, the Central Fund Custody Account, the MLB Properties Royalty Account,
the Collection Account or the Debt Service Account shall be subject to any Lien,
writ, judgment, warrant of attachment, execution or other similar process;
PROVIDED, that with respect to the Central Fund Custody Account and the MLB
Properties Royalty Account, this restriction shall not apply to any Lien, writ,
judgment, warrant of attachment, execution or other similar process which (i)
attaches or relates solely to the interests of the non-Participating Clubs in
such accounts or (ii) relates only to the interests of a specific Club Trust in
such accounts and not the interests of the Club Trust requesting the Loan, all
of the Club Trusts or the MLB Trust in such accounts;
(e) the MLB Trust shall have received such evidence and instruments
(including stamped receipt Uniform Commercial Code release statements) as it or
the Facilitating Agent may request with respect to the release of any Lien
(other than any Lien created pursuant to the Transaction Documents) on the Club
Trust Collateral existing on the Closing Date as described in Schedule
3.02(b)(v) of the related Transfer Agreement; and
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(f) the MLB Trust and the Facilitating Agent shall have received from
such Club Trust such other approvals, opinions or documents as the MLB Trust and
the Facilitating Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF EACH CLUB TRUST. Each
Club Trust represents and warrants to the MLB Trust as follows:
(a) Such Club Trust is a Delaware business trust duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by such Club Trust of each
Transaction Document to which it is or will be a party are within such Club
Trust's trust powers, have been duly authorized by all necessary trust action,
and do not contravene (i) such Club Trust's certificate of trust or the related
Club Trust Agreement or (ii) any law or any contractual restriction binding on
or affecting such Club Trust, and do not result in or require the creation of
any lien, security interest or other charge or encumbrance (other than pursuant
hereto or the related Club Trust Pledge and Security Agreement) upon or with
respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by such Club Trust of any
Transaction Document to which it is or will be a party.
(d) This Agreement is, and each other Transaction Document to which
such Club Trust will be a party when delivered hereunder will be, legal, valid
and binding obligations of such Club Trust enforceable against such Club Trust
in accordance with their respective terms,
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except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(e) There is no pending or, to the knowledge of such Club Trust,
threatened action or proceeding affecting such Club Trust or the related Club
Trust Collateral before any court, governmental agency or arbitrator, which may
materially adversely affect the financial condition or operations of such Club
Trust or the related Club Trust Collateral or which purports to affect the
legality, validity or enforceability of this Agreement or any Transaction
Document to which such Club Trust will be a party.
(f) Such Club Trust is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Loan will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
(g) The proceeds of each Loan are being used solely for the purpose of
(i) refinancing existing indebtedness under the Major League Baseball League
Wide Credit Facility, (ii) paying Transaction Costs and (iii) making
distributions for general corporate purposes of such Participating Club
including, without limitation, refinancing such Participating Club's existing
indebtedness (including indebtedness to Affiliates).
ARTICLE V
COVENANTS OF THE CLUB TRUSTS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Club Trust's Club
Trust Note shall remain unpaid or any Club Trust Secured Obligation of such Club
Trust hereunder shall be outstanding or the MLB Trust shall have any Commitment
under such Club Trust's
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Club Trust Sub-Facility, such Club Trust will, unless the MLB Trust shall
otherwise consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property except
to the extent contested in good faith.
(b) EXISTENCE. Keep in full effect its existence, rights and franchises
as a business trust under the laws of the State of Delaware and obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, any other Transaction Document and each other
instrument or agreement included in the Collateral.
(c) REPORTING REQUIREMENTS. Furnish to the MLB Trust, the Facilitating
Agent for distribution to the Lenders, the Liquidity Agent for distribution to
the Liquidity Banks and the Rating Agency:
(i) as soon as possible and in any event within five days
after the occurrence of each Club Trust Event of Default and each event which,
with the giving of notice or lapse of time, or both, would constitute a Club
Trust Event of Default, which is continuing on the date of such statement, a
statement of such Club Trust setting forth details of such Club Trust Event of
Default or other event and the action which such Club Trust has taken and
proposes to take with respect thereto;
(ii) promptly after the filing or receiving thereof, copies of
all reports and notices which such Club Trust files under ERISA with the
Internal Revenue Service or the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which such Club Trust receives from such corporation; and
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(iii) such other information respecting the condition or
operations, financial or otherwise, of such Club Trust as the MLB Trust or
Facilitating Agent may from time to time reasonably request.
(d) FINANCIAL STATEMENTS AND ANNUAL STATEMENT AS TO COMPLIANCE. Cause
to be delivered to the Facilitating Agent for distribution to the Lenders, the
Liquidity Agent for distribution to the Liquidity Banks and the Rating Agency,
within 120 days after the end of each fiscal year of such Club Trust (commencing
with the fiscal year 1998), a balance sheet of such Club Trust and the related
statement of income and cash flows audited upon by the Accountants, together
with a certificate of such accounting firm stating that:
(i) a review of the activities of such Club Trust during such
year and of performance under this Agreement and each other Transaction Document
has been made; and
(ii) based on such review, such Club Trust has fulfilled all
its obligations under this Agreement and each other Transaction Document
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to the Accountants and the
nature and status thereof.
(e) ADMINISTRATOR'S CERTIFICATE. Cause to be delivered to the
Facilitating Agent for distribution to the Lenders, the Liquidity Agent for
distribution to the Liquidity Banks and the Rating Agency, within 120 days after
the end of each fiscal year of such Club Trust (commencing with the fiscal year
1998), a certificate of an Authorized Officer of the such Club Trust's
Administrator stating that:
(i) a review of the activities of such Club Trust during such
year and of performance under this Agreement and each other Transaction Document
has been made; and
(ii) based on such review, such Club Trust has fulfilled all
its obligations under this Agreement and each other Transaction Document
throughout such year, or, if there
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has been a default in the fulfillment of any such obligation, specifying each
such default known to such Administrator and the nature and status thereof.
(f) PROTECTION OF COLLATERAL. In addition to any obligation under the
Club Trust Pledge and Security Agreement, from time to time execute and deliver
all such supplements and amendments to the Club Trust Pledge and Security
Agreement and all such financing statements, continuation statements,
instruments of further assurance and other instruments, and take such other
action reasonably requested by the MLB Trust and the Facilitating Agent
necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of the Club Trust Pledge and Security Agreement and the
MLB Pledge and Security Agreement or carry out more effectively the purposes of
this Agreement and any other Transaction Document and the transactions
contemplated hereby or thereby;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by the Club Trust Pledge and Security Agreement;
(iii) enforce any agreements included in the Club Trust
Collateral; or
(iv) preserve and defend title to and the rights of the MLB
Trust in the Club Trust Collateral against the claims of all persons and
parties.
Pursuant to the Transfer Agreement, the Club Trust Pledge and Security
Agreements and the MLB Pledge and Security Agreement, each Participating Club,
each Club Trust and the MLB Trust have designated the Administrative Agent as
its agent and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required by such party pursuant to the Transfer
Agreement, the Club Trust Pledge and Security Agreement, the MLB Pledge and
Security Agreement or this Agreement, as appropriate.
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SECTION 5.02. NEGATIVE COVENANTS. So long as any Club Trust's Club
Trust Note shall remain unpaid or any obligation of such Club Trust shall be
outstanding or the MLB Trust shall have any Commitment under such Club Trust's
Club Trust Sub-Facility, such Club Trust will not, without the written consent
of the MLB Trust:
(a) DISPOSE OF COLLATERAL. Except as expressly permitted by this
Agreement or the Club Trust Pledge and Security Agreement, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of such Club
Trust or the related Club Trust Collateral unless directed to do so by the
Administrative Agent (acting at the direction of or with the consent of all the
Lenders and all the Liquidity Banks);
(b) SECURITY INTEREST. (i) Permit the validity or effectiveness of the
Club Trust Pledge and Security Agreement to be impaired, or permit the lien of
the Club Trust Pledge and Security Agreement to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the obligations under this
Agreement or the Club Trust Pledge and Security Agreement except as may be
expressly permitted hereby or thereby, (ii) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than any Lien
under any Transaction Document) to be created on or extend to or otherwise arise
upon or burden the related Club Trust Collateral or any part thereof or any
interest therein or the proceeds thereof (other than tax liens and other liens
that arise by operation of law) or (iii) permit the lien of the Club Trust
Pledge and Security Agreement not to constitute a valid first priority (other
than with respect to any such tax or other lien or the lien of the MLB Pledge
and Security Agreement) security interest in the related Club Trust Collateral.
(c) NO OTHER ACTIVITY. Engage in any activity other than borrowing
amounts with respect to Loans in the manner contemplated by this Agreement, the
Club Trust Agreement or any other Transaction Document and activities reasonably
incidental thereto or otherwise contemplated by the Transaction Documents.
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(d) NO BORROWING. Issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any Debt (including, without limitation,
interest rate swap agreements, interest rate collar agreements, interest rate
futures contracts and interest rate option contracts) except for the Club Trust
Secured Obligations or any other obligation hereunder or under the Club Trust
Pledge and Security Agreement.
(e) GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by this Agreement or any other Transaction Document, make any loan
or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
(f) CAPITAL EXPENDITURES. Make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or personalty).
(g) REMOVAL OF ADMINISTRATOR. Remove its Administrator without cause
and the written consent of the MLB Trust, the Facilitating Agent and the
Liquidity Agent, which consent shall not be unreasonably withheld.
(h) RESTRICTED PAYMENTS. Directly or indirectly, (i) pay any dividend
or make any distribution (by reduction of capital or otherwise), whether in
cash, property, securities or a combination thereof, to the Club Trustee or any
owner of a beneficial interest in such Club Trust or otherwise with respect to
any ownership or equity interest or security in or of such Club Trust, (ii)
redeem, purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; PROVIDED, HOWEVER, that the Club Trust may pay, or
cause to be paid, amounts to the Commissioner, the Club Trust Trustee and such
Club Trust's Administrator and such Club
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Trust may make, or cause to be made, distributions as permitted by, and to the
extent funds are available for such purpose under, the MLB Pledge and Security
Agreement and the related Club Trust Agreement.
(i) MERGERS, ETC. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) any or all of its assets (whether now owned or hereafter
acquired) to any Person except as permitted by the Club Trust Pledge and
Security Agreement.
(j) FEDERAL INCOME TAX. Take any action which might cause it to be
classified for Federal income tax purposes as an association taxable as a
corporation.
ARTICLE VI
DEFAULT
SECTION 6.01. CLUB TRUST EVENTS OF DEFAULT. The occurrence of any one
or more of the following events shall constitute a "Club Trust Event of Default"
with respect to the Sub-Facility of any Club Trust and any Loans made to such
Club Trust hereunder:
(a) default shall be made by such Club Trust in the payment of any
principal of any Loan outstanding under such Club Trust's Sub-Facility when and
as the same shall become due and payable, whether at the due date thereof or by
acceleration thereof or otherwise;
(b) default shall be made by such Club Trust in the payment of any
interest on any Loan outstanding under such Club Trust's Sub-Facility or any fee
or any other amount allocable to such Club Trust (other than an amount referred
to in paragraph (a) above) due hereunder, under any other Transaction Document
or under any other agreement with the MLB Trust with respect to such
Sub-Facility, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of three days;
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(c) any representation or warranty made (or deemed made pursuant to
Section 3.02) by such Club Trust in or in connection with the execution and
delivery of this Agreement or any Transaction Document to which such Club Trust
is a party or the Loans hereunder or in any document, certificate, written
statement or report delivered to the MLB Trust, the Facilitating Agent, the
Administrative Agent, any Lender, the Liquidity Agent or any Liquidity Bank
pursuant to this Agreement or any Transaction Document executed by such Club
Trust, shall prove to have been false or misleading in any material respect when
so made, deemed made or furnished;
(d) default shall be made by such Club Trust in the due observance or
performance of any covenant or agreement of such Club Trust contained herein
(other than those specified in (a), (b) or (c) above or specified elsewhere in
this Section) or in any Transaction Document executed by such Club Trust, and
such default shall continue unremedied for a period of ten days after the giving
of written notice of such default to such Club Trust by the MLB Trust, which
notice shall be given by the MLB Trust at the request of the Facilitating Agent
(itself acting at the request, or with the consent of the Required Lenders) or
may be given by the MLB Trust with the consent of the Facilitating Agent (itself
acting at the request, or with the consent of the Required Lenders);
(e) default shall be made by such Club Trust's related Participating
Club in the due observance or performance of any covenant or agreement of such
Participating Club under its Transfer Agreement or any Transaction Document
executed by such Participating Club, and such default shall continue unremedied
for a period of ten days after the giving of written notice of such default to
such Participating Club by the MLB Trust, which notice shall be given by the MLB
Trust at the request of the Facilitating Agent (itself acting at the request, or
with the consent of the Required Lenders) or may be given by the MLB Trust with
the consent of the Facilitating Agent (itself acting at the request, or with the
consent of the Required Lenders);
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(f) the occurrence of any Bankruptcy Event with respect to such Club
Trust or its related Participating Club;
(g) any judgment, writ, warrant of attachment or execution or similar
process involving an amount in excess of $125,000 shall be issued or levied
against any of the properties of such Club Trust and such judgment, writ,
warrant of attachment or execution or similar process shall not be released,
vacated or fully bonded within 30 days of its issue or levy;
(h) the occurrence of any event of default under any interest rate swap
agreement, interest rate cap agreement , interest rate collar agreement,
interest rate futures contract, interest rate option contract or other similar
agreement or arrangement acceptable to the Administrative Agent entered into by
or obtained for the benefit of such Club Trust with an Agent Bank with respect
to the Loans under such Club Trust's Sub-Facility;
(i) any representation or warranty made by such Club Trust's related
Participating Club in or in connection with the execution and delivery of its
Transfer Agreement or any other Transaction Document executed by such
Participating Club or in any document, certificate, written statement or written
report delivered to such Club Trust, the MLB Trust, the Facilitating Agent, the
Administrative Agent, any Lender, the Liquidity Agent or any Liquidity Bank
pursuant to such Transfer Agreement or any Transaction Document shall prove to
have been false or misleading in any material respect when so made or furnished;
(j) the failure of such Club Trust at any time, to have a valid
unencumbered ownership interest (other than any Lien under the Transaction
Documents and other than tax liens and other liens that arise by the operation
of law) in the Club Trust Collateral (including the Rights and Revenues
contributed by the such Club Trust's related Participating Club to such Club
Trust pursuant to the related Transfer Agreement);
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(k) the failure of the MLB Trust at any time, to have a first priority
unencumbered security interest (other than any Lien under the Transaction
Documents and other than tax liens and other liens that arise by the operation
or law) in the Club Trust Collateral (including the Rights and Revenues) pledged
to the MLB Trust by such Club Trust pursuant to its Club Trust Pledge and
Security Agreement except as permitted by Section 5.02(b);
(1) the occurrence of any material adverse event with respect to such
Club Trust's related Participating Club, which event has or may have the effect
of reducing or delaying the receipt of Revenues by such Club Trust or otherwise
materially impairing the assets of such Club Trust or delaying payment of any
obligation of such Club Trust under its Club Trust Sub-Facility or Club Trust
Note or any obligation under such Club Trust's Club Trust Pledge and Security
Agreement; PROVIDED, HOWEVER, that a Business Interruption Event shall not
constitute a Club Trust Event of Default under this Section 6.01(1) so long as
such Club Trust makes all payments required to be made by it hereunder or under
any Transaction Document on a timely basis during such period;
(m) any accumulated funding deficiency, prohibited transaction,
reportable event, penalty, withdrawal liability, disqualification or termination
under (and as such words and phrases are defined in) ERISA or the Code, as
applicable, in respect of any Plan shall occur, or any action, suit or
proceeding involving or affecting any Plan or any assets of properties of any
Plan shall be adversely determined, that would have or has had (in the
reasonable judgment of the MLB Trust) a material and adverse effect on the
related Participating Club and its ERISA affiliates;
(n) the occurrence of (i) any Club Trust Event of Default under
Sections 6.01(b) or (c) of the MLB Credit Agreement with respect to such Club
Trust or (ii) any Event of Default under Section 6.02 of the MLB Credit
Agreement; or
(o) if as a result of an arbitration between a National Media Contract
Obligor and the Commissioner under any National Media Contract, an award is made
in favor of such
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National Media Contract Obligor and such award remains outstanding under any
material National Media Contract at the time such National Media Contract is
renewed or extended or a replacement contract is executed, and such renewal,
extension or replacement contract contains a provision which offsets future fees
payable under such renewal, extension or replacement contract in order to cause
the National Media Contract Obligor in whose favor the award was entered to be
paid the remaining balance of the award.
SECTION 6.02. REMEDIES. In the event that any Club Trust Event of
Default has occurred and is continuing, the MLB Trust shall at the request, or
may with the consent of the Facilitating Agent (itself acting at the request, or
with the consent of the Required Lenders) (a) declare its obligation to make
Loans under the Sub-Facility to any Club Trust that is the subject of the Club
Trust Event of Default to be terminated and (b) declare the Club Trust Note for
the Club Trust which is the subject of the Club Trust Event of Default, all
interest thereon and all other amounts payable hereunder to be forthwith due and
payable, whereupon such Club Trust Note, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are waived by such Club
Trust hereunder; PROVIDED, HOWEVER, that, in the event of an actual or deemed
entry of an order for relief with respect to any Club Trust under the Federal
Bankruptcy Code, (A) the obligation of the MLB Trust to make Loans to such Club
Trust under its Club Trust Sub-Facility shall automatically be terminated and
(B) the related Club Trust Note, all such interest and all such amounts shall
automatically become due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by such Club
Trust.
ARTICLE VII
THE FACILITATING AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. The MLB Trust hereby appoints
and authorizes the Facilitating Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the Transaction Documents
as are delegated to the
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Facilitating Agent by the terms hereof or thereof, as the case may be, together
with such powers as are reasonably incidental thereto.
SECTION 7.02. FACILITATING AGENT'S RELIANCE, ETC. Neither the
Facilitating Agent, nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or any other Transaction Document, except
for its or their own gross negligence, willful misconduct or unlawful conduct
hereunder. Without limitation of the generality of the foregoing, the
Facilitating Agent: (a) may consult with legal counsel (including counsel for
the MLB Trust), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (b) makes no warranty or representation to MLB Trust and shall not be
responsible to the MLB Trust for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement or any
other Transaction Document; (c) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or the Transaction Documents on the part of any
Club Trust or to inspect the property (including the books and records) of the
Club Trusts; (d) shall not be responsible to the MLB Trust for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any Transaction Document or any other instrument or document
furnished pursuant hereto; and (e) shall incur no liability under or in respect
of this Agreement or any Transaction Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. INDEMNIFICATION. Subject to the provisions of Section
2.12, the MLB Trust agrees to indemnify the Facilitating Agent (to the extent
not reimbursed by the Club Trusts), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Facilitating Agent, in any way
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relating to or arising out of this Agreement, any Transaction Document or any
action taken or omitted by the Facilitating Agent under this agreement or any
Transaction Document; PROVIDED that the MLB Trust shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Facilitating Agent's gross negligence, willful misconduct or unlawful conduct
hereunder. Without limitation of the foregoing, the MLB Trust agrees to
reimburse the Facilitating Agent (from equal and several assessments to each
Club Trust) promptly upon demand for any out-of-pocket expenses (including
counsel fees) incurred by the Facilitating Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Facilitating Agent is not reimbursed for such expenses
directly or indirectly by the Club Trusts.
SECTION 7.04. SUCCESSOR FACILITATING AGENT. The Facilitating Agent may
resign at any time by giving written notice thereof to the MLB Trust and the
Club Trusts and the Facilitating Agent may be removed at any time with or
without cause by the MLB Trust. Upon any such resignation or removal, the MLB
Trust shall have the right to appoint a successor or Facilitating Agent. If no
such successor shall have been so appointed by the MLB Trust and shall have
accepted such appointment, within 30 days after the retiring Facilitating
Agent's giving of notice of resignation or the MLB Trust's removal of the
retiring Facilitating Agent, then the retiring Facilitating Agent may, on behalf
of the MLB Trust, appoint a successor Facilitating Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Facilitating Agent
hereunder by a successor Facilitating Agent, such successor Facilitating Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Facilitating Agent, and the retiring
Facilitating Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Facilitating Agent's resignation or removal
hereunder as Facilitating Agent, the provisions of this Article VII shall
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inure to its benefit as to any actions taken or omitted to be taken by it while
it was Facilitating Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC.
(a) GENERAL AMENDMENTS, ETC. Subject to paragraph (b) with respect to
certain amendments, no amendment or waiver of any provision of this Agreement or
the Club Trust Notes, nor consent to any departure by any Club Trust therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the MLB Trust and the Facilitating Agent (at the request or with the consent
of the Required Lenders and the Required Liquidity Banks), and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no amendment, waiver or consent
shall, unless in writing and signed by the Facilitating Agent (at the request or
with the consent of all of the Lenders and all the Liquidity Banks), in addition
to the MLB Trust, affect Section 2.04 or Section 2.05 of this Agreement, the
Revolver Termination Date or the rights or duties of the Facilitating Agent
under this Agreement or any Club Trust Note.
(b) CLUB TRUST CONSENT; ADDITIONAL CLUB TRUST RELATED AMENDMENTS. No
amendment of this Agreement shall be effective unless the same shall be in
writing and signed by a majority in number of the Club Trusts; PROVIDED,
HOWEVER, that no such amendment shall be effective to reduce the number of Club
Trusts required to consent to any such amendment, without the consent of all the
Club Trusts; PROVIDED, FURTHER, that no amendment to this Agreement to change
the Final Payment Date shall be effective without the consent of (i) all the
Club Trusts deemed to be parties hereto at the time of such proposed amendment
and (ii) all Clubs which are no longer Participating Clubs but which have (or
their related Club Trusts have) continuing obligations pursuant to Section
2.12(d)(iii) of this Agreement as contemplated by Section 11 of the related Club
Trust Pledge Agreements. Notwithstanding the foregoing, this Agreement, the MLB
Credit Agreement and the MLB
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Pledge and Security Agreement, to the extent necessary or appropriate in the
sole judgment of the Administrative Agent, may be amended (i) in case of this
Agreement, by action of only the Facilitating Agent acting at the direction of
the Administrative Agent, which direction shall be given by the Administrative
Agent with the consent of the Required Lenders and the Required Liquidity Banks,
or (ii) in the case of the MLB Credit Agreement or the MLB Pledge and Security
Agreement, by action of only the Administrative Agent with the consent of the
Required Lenders and Required Liquidity Banks in connection with any amendment
(i) to give effect to the addition of any additional Club Trust and the creation
of an additional Sub-Facility hereunder with respect to such addition pursuant
to Section 2.14 and to give effect to the corresponding increase in the Total
Commitment hereunder and Total Liquidity Commitment, and (ii) to give effect to
any increase in the Total Commitment hereunder and Total Liquidity Commitment as
a result of any increase in the Maximum Available Amount of any Club Trust under
its Club Trust Sub-Facility (which increase shall be subject to the conditions
determined by the Administrative Agent); PROVIDED, HOWEVER, that any such
amendment shall be subject to the condition that such amendment not have a
material adverse effect on the Club Trusts party hereto immediately prior to the
time of such amendment. Promptly following any amendment as provided in the
immediately preceding sentence, the Administrative Agent shall provide duplicate
copies of such amendments to the MLB Trust and the Club Trusts.
SECTION 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the MLB Trust, at its address at Wilmington Trust
Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration (facsimile number (000) 000-0000), with copies to
(a) the Commissioner at The Baseball Office of the Commissioner, 000 Xxxx
Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Xxxxxxx Xxxxx (facsimile number (212)
888-8632), (b) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue of the
Americas, New York, N.Y. 10019 Attention: Xxxxxxx Xxxxxx, Esq. (facsimile number
(000) 000-0000), (c) the Facilitating Agent, at its address at Xxx Xxxxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx
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X. XxXxxxxxx (facsimile number (617) 346- 0590), (d) the Liquidity Agent, at its
address at Xxx Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X. XxXxxxxxx
(facsimile number (000) 000-0000) and (e) Xxxxxx, Hall & Xxxxxxx, Exchange
Place, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx, Xx., Esq.
(facsimile number (000) 000-0000); if to the Facilitating Agent, at its address
at Xxx Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X. XxXxxxxxx (617)
346-0590), with copies to (a) the Administrative Agent, at its address at Xxx
Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxx X. Xxxxxx (facsimile number
(000) 000-0000), (b) the Liquidity Agent, at its address at Xxx Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000, Attention: Xxxxxxx X. XxXxxxxxx (facsimile number (617)
346-0590), (c) Xxxxxx, Hall & Xxxxxxx, Exchange Place, 00 Xxxxx Xxxxxx, Xxxxxx,
XX 00000, Attention: Xxxxx X. Xxxxxxx, Xx., Esq. (facsimile number (617)
248-4000) and (d) Global Securitization Services, LLC, 00 Xxxx 00xx Xxxxxx,
Xxxxx 000, Xxx Xxxx, X.X. 00000, Attention: Xxxxx Xxxxx (facsimile number (212)
302-8767); if to the Rating Agency, at its address at 00 Xxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx (facsimile
number (000) 000-0000); if to any Club Trust, at its address at Wilmington Trust
Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration (facsimile number (000) 000-0000), with copies to
(a) its Administrator at the address set forth in the related Administration
Agreement, (b) the Commissioner at The Baseball Office of the Commissioner, 000
Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Xxxxxxx Xxxxx (facsimile number
(000) 000-0000), and (c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue
of the Americas, New York, N.Y. 10019 Attention: Xxxxxxx Xxxxxx, Esq. (facsimile
number (000) 000-0000); or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall; when mailed, telecopied, telegraphed, telexed
or cabled, be effective either three days after being deposited in the mails or
when received, or when telecopied, delivered to the telegraph company, confirmed
by telex answerback or delivered to the cable company, respectively, except that
notices and communications to the Facilitating Agent pursuant to Article II or
VII shall not be effective until received by the Facilitating Agent.
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SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of the MLB
Trust or the Facilitating Agent to exercise, and no delay in exercising, any
right under any Transaction Document shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS AND EXPENSES; INDEMNIFICATION.
(a) Subject to the conditions that each Club Trust shall be responsible
for the payment of (x) all amounts specifically attributable solely to it and
(y) an equal portion of all amounts not attributable solely to any other Club
Trust, the Club Trusts are to equally pay on demand all costs and expenses of
the Facilitating Agent and the MLB Trust in connection with the preparation,
execution, delivery, administration, modification and amendment of the
Transaction Documents and the other documents to be delivered under the
Transaction Documents, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Facilitating Agent with respect
thereto. Subject to the same conditions set forth in the immediately preceding
sentence, each Club Trust further agrees to pay on demand all costs and expenses
of the MLB Trust and the Facilitating Agent, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement against such Club Trust (whether through negotiations, legal
proceedings or otherwise) of the Transaction Documents and the other documents
to be delivered under the Transaction Documents, including, without limitation,
reasonable counsel fees and expenses in connection with the enforcement of
rights under this Section 8.04(a); PROVIDED, HOWEVER, that the costs and
expenses incurred solely with respect to any amendment contemplated in Section
8.01(b) shall be borne equally by the Club Trust(s) with respect to which such
amendment relates.
(b) If any payment of principal of the LIBO Rate Portion of any Loan
under a Club Trust Sub-Facility is made other than on the last day of an
Interest Period relating to such LIBO Rate Portion, as a result of a payment
pursuant to Section 2.09 or 2.11 or acceleration of the maturity of the Club
Trust Notes pursuant to Section 6.02 or for any other
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reason, the related Club Trust shall, upon demand by the MLB Trust (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of the MLB Trust any amounts required to compensate the MLB Trust
for any additional losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or redeployment of deposits or other funds acquired to fund or maintain such
Loan.
(c) Subject to the restrictions on cross-collateralization contained in
the Transaction Documents (including Section 2.12(d) of the Club Trust Credit
Agreement), (i) each Club Trust hereby indemnifies and holds harmless each
Indemnified Party from and against all Liabilities arising from or relating to
such Club Trust or the Club Trust Collateral owned by such Club Trust and (ii)
all of the Club Trusts hereby ratably and severally indemnify and hold harmless
each Indemnified Party from and against all Liabilities arising in any other
manner, in each case other than any such Liability that arises out of the gross
negligence or willful misconduct of such Indemnified Party.
SECTION 8.05. BINDING EFFECT; THIRD PARTY BENEFICIARY; LIQUIDITY
FUNDING EVENT.
(a) This Agreement shall become effective (a) with respect to the MLB
Trust and the Facilitating Agent, when it shall have been executed by the MLB
Trust and the Facilitating Agent and (b) with respect to each Club Trust, when
such Club Trust shall have signed and the Administrative Agent shall have
accepted its Ratification Agreement and, thereafter, this Agreement shall be
binding upon and inure to the benefit of the MLB Trust, the Facilitating Agent
and each Club Trust party hereto and their respective successors and assigns,
except that none of the MLB Trust or the Club Trusts party hereto shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the other.
(b) Each Club Trust and the Facilitating Agent acknowledge and
agree that the Liquidity Agent is an intended third party beneficiary of this
Agreement. Each Club Trust
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and the Facilitating Agent further acknowledge and agree that, upon the
occurrence of a Liquidity Funding Event, the Liquidity Agent shall become the
Facilitating Agent hereunder and all references to the Facilitating Agent shall
be deemed to be references to the Liquidity Agent; PROVIDED, that the
indemnification provisions set forth in this Agreement shall continue to apply
to Blue Keel and its assignees following a Liquidity Funding Event.
SECTION 8.06. THE REGISTER. The Facilitating Agent shall maintain at
one of its offices in The City of Boston a register (the "Register") in which it
shall record the identity of each Club Trust, the Maximum Available Amount for
each Club Trust under its Sub-Facility, the principal amount of each Loan and
the Interest Period and principal amount of each LIBO Rate Portion of each
outstanding Loan under the related Club Trust Sub-Facility for each Club Trust.
The Facilitating Agent will make reasonable efforts to maintain the accuracy of
the Register and to promptly update the Register from time to time, as
necessary. The Register shall be available for inspection by the MLB Trust, each
Club Trust and its related Participating Club, at any reasonable time and from
time to time upon reasonable prior notice.
SECTION 8.07. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
trustee of the MLB Trust under the MLB Trust Agreement, in the exercise of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the MLB
Trust is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the MLB Trust, (c) except as Wilmington Trust Company shall
otherwise expressly agree, nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressly or implied contained herein, all such
liability, if any, being expressly waived by the Facilitating Agent, the
Administrative Agent and the Lenders and by any Person claiming by, through or
under any of them and (d) under no circumstances shall Wilmington Trust company
be personally liable for the payment of any indebtedness or expense of the MLB
Trust or be liable for the breach
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or failure of any obligation, representation, warranty or covenant made or
undertaken by the MLB Trust under this Agreement or the other Transaction
Documents.
SECTION 8.08. GOVERNING LAW; CONSENT TO JURISDICTION; OTHER MATTERS.
This Agreement and the Club Trust Notes shall be governed by, and construed in
accordance with, the laws of the State of New York without reference to its
choice of law provisions. Each Club Trust hereby submits to the extent effective
under applicable law to the jurisdiction and venue of the state and Federal
courts of New York and agrees that the MLB Trust may, at its option, enforce its
rights hereunder in such courts. To the extent permitted by applicable law, each
Club Trust hereby irrevocably waives the defense of an inconvenient forum to
maintenance of any action or proceeding by the MLB Trust in such courts. Each
Club Trust hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or any
other Transaction Document or any of the transactions contemplated hereby or
thereby.
SECTION 8.09. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument by their respective officers thereunto duly
authorized, as of the date first above written.
MAJOR LEAGUE BASEBALL TRUST,
as Lender,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
MLB Trustee
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as Facilitating Agent
By: /s/ Xxxxxxx X XxXxxxxxx
-----------------------------------------
Xxxxxxx X. XxXxxxxxx
Executive Vice President
Acknowledged and Accepted:
FLEET NATIONAL BANK, as Administrative
Agent
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------------
Xxxxxxx X. XxXxxxxxx
Executive Vice President
