CREDIT AGREEMENT
Dated as of December 24, 1998
among
XXX ENTERPRISES, INCORPORATED
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Administrative Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
NATIONSBANC XXXXXXXXXX SECURITIES LLC
TABLE OF CONTENTS
Section Page
ARTICLE IDEFINITIONS..............................................
1.1 Certain Defined Terms........................................
1.2 Other Interpretive Provisions................................
1.3 Accounting Principles........................................
ARTICLE IITHE CREDITS.............................................
2.1 Amounts and Terms of Commitments.............................
2.2 Loan Accounts................................................
2.3 Procedure for Borrowing......................................
2.4 Conversion and Continuation Elections........................
2.5 Voluntary Termination or Reduction of Commitments............
2.6 Optional Prepayments.........................................
2.7 Repayment....................................................
2.8 Interest.....................................................
2.9 Fees ........................................................
(a) Agency Fees.............................................
(b) Commitment Fees.........................................
2.10 Computation of Fees and Interest.............................
2.11 Payments by the Company......................................
2.12 Payments by the Lenders to the Agent.........................
2.13 Sharing of Payments, Etc.....................................
ARTICLE IIITAXES, YIELD PROTECTION AND ILLEGALITY.................
3.1 Taxes........................................................
3.2 Illegality...................................................
3.3 Increased Costs and Reduction of Return......................
3.4 Funding Losses...............................................
3.5 Inability to Determine Rates.................................
3.6 Certificates of Lenders......................................
3.7 Substitution of Lenders......................................
3.8 Survival.....................................................
ARTICLE IVCONDITIONS PRECEDENT....................................
4.1 Conditions of Initial Loans..................................
(a) Credit Agreement and Notes........................
(b) Resolutions; Incumbency...........................
(c) Organization Documents; Good Standing.............
(d) Legal Opinions....................................
(e) Payment of Fees...................................
(f) Certificate.......................................
(g) Other Documents...................................
4.2 Conditions to All Loans......................................
(a) Notice............................................
(b) Continuation of Representations and Warranties....
(c) No Existing Default...............................
ARTICLE VREPRESENTATIONS AND WARRANTIES...........................
5.1 Company Existence and Power..................................
5.2 Company Authorization; No Contravention......................
5.3 Governmental Authorization...................................
5.4 Binding Effect...............................................
5.5 Litigation...................................................
5.6 No Default...................................................
5.7 ERISA Compliance.............................................
5.8 Use of Proceeds; Margin Regulations..........................
5.9 Title to Properties..........................................
5.10 Taxes........................................................
5.11 Financial Condition..........................................
5.12 Environmental Matters........................................
5.13 Regulated Entities...........................................
5.14 No Burdensome Restrictions...................................
5.15 Copyrights, Patents, Trademarks and Licenses, etc............
5.16 Subsidiaries.................................................
5.17 Insurance....................................................
5.18 Full Disclosure..............................................
5.19 Year 2000....................................................
ARTICLE VIAFFIRMATIVE COVENANTS...................................
6.1 Financial Statements.........................................
6.2 Certificates; Other Information..............................
6.3 Notices......................................................
6.4 Preservation of Corporate Existence, Etc.....................
6.5 Maintenance of Property......................................
6.6 Insurance....................................................
6.7 Payment of Obligations.......................................
6.8 Compliance with Laws.........................................
6.9 Compliance with ERISA........................................
6.10 Inspection of Property and Books and Records.................
6.11 Environmental Laws...........................................
6.12 Use of Proceeds..............................................
ARTICLE VIINEGATIVE COVENANTS.....................................
7.1 Limitation on Liens..........................................
7.2 Sale of Assets...............................................
7.3 Consolidations and Mergers...................................
7.4 Limitation on Subsidiary Debt................................
7.5 Cash Flow Leverage...........................................
7.6 Transactions with Affiliates.................................
7.7 Use of Proceeds..............................................
7.8 Loans; Advances; and Contingent Obligations..................
7.9 Restricted Payments..........................................
7.10 ERISA........................................................
7.11 Change in Business...........................................
7.12 Accounting Changes...........................................
ARTICLE VIIIEVENTS OF DEFAULT.....................................
8.1 Event of Default.............................................
(a) Non-Payment.......................................
(b) Representation or Warranty........................
(c) Specific Defaults.................................
(d) Other Defaults....................................
(e) Cross-Default.....................................
(f) Insolvency; Voluntary Proceedings.................
(g) Involuntary Proceedings...........................
(h) ERISA.............................................
(i) Monetary Judgments or Settlements.................
(j) Non-Monetary Judgments............................
(k) Change of Control.................................
(l) Adverse Change....................................
8.2 Remedies.....................................................
8.3 Rights Not Exclusive.........................................
ARTICLE IXTHE AGENT...............................................
9.1 Appointment and Authorization; "Agent".......................
9.2 Delegation of Duties.........................................
9.3 Liability of Agent...........................................
9.4 Reliance by Agent............................................
9.5 Notice of Default............................................
9.6 Credit Decision..............................................
9.7 Indemnification of Agent.....................................
9.8 Agent in Individual Capacity.................................
9.9 Successor Agent..............................................
9.10 Withholding Tax..............................................
ARTICLE XMISCELLANEOUS............................................
10.1 Amendments and Waivers......................................
10.2 Notices.....................................................
10.3 No Waiver; Cumulative Remedies..............................
10.4 Costs and Expenses..........................................
10.5 Company Indemnification.....................................
10.6 Payments Set Aside..........................................
10.7 Successors and Assigns......................................
10.8 Assignments, Participation, etc.............................
10.9 Confidentiality.............................................
10.10 Set-off.....................................................
10.11 Notification of Addresses, Lending Offices, Etc.............
10.12 Counterparts................................................
10.13 Severability................................................
10.14 No Third Parties Benefited..................................
10.15 Governing Law and Jurisdiction..............................
10.16 Waiver of Jury Trial........................................
10.17 Entire Agreement............................................
SCHEDULES
Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 5.5 Litigation
Schedule 5.7 ERISA
Schedule 5.11 Financial Condition
Schedule 5.12 Environmental Matters
Schedule 5.16 List of Subsidiaries and Equity Investments
Schedule 7.1 Permitted Liens
Schedule 7.8 Contingent Obligations
Schedule 10.2 Offshore and Domestic Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of Counsel to the Company
Exhibit D-2 Form of Legal Opinion of FCC Counsel to the Company
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Promissory Note
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 24, 1998, among XXX
ENTERPRISES, INCORPORATED, a Delaware corporation (the "Company"), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and the several financial
institutions which from time to time become a party to this Agreement
(collectively the "Lenders"; individually each a "Lender"), and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative agent for the Lenders.
WHEREAS, the Agent has agreed to make available to the Company a revolving
credit facility upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
I.1 Certain Defined Terms. The following terms have the following meanings:
Acceptable Consideration means, with respect to any Transfer of any
Property of the Company or any Subsidiary, cash consideration, promissory
notes or such other consideration (or any combination of the foregoing) as
is, in each case, determined by the board of directors of the Company, in
its good faith opinion, to be in the best interests of the Company and the
Subsidiaries and to reflect the Fair Market Value of such Property.
Acquisition means any transaction or series of related transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the
capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity.
Affiliate means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
Person, whether through the ownership of voting securities, membership
interests, by contract, or otherwise.
Agent means BofA in its capacity as administrative agent for the Lenders
hereunder, and any successor agent arising under Section 9.9.
Agent-Related Persons means BofA and any successor agent arising under
Section 9.9, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
Agent's Payment Office means the address for payments set forth on Schedule
10.2 or such other address as the Agent may from time to time specify.
Agreement means this Credit Agreement.
Applicable Margin means the specified percentage set forth in Schedule 1.1
opposite the applicable Cash Flow Leverage Ratio.
Asset Sale - see Section 7.2.
Assignee - see subsection 10.8(a).
Attorney Costs means and includes all fees and disbursements of any law
firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
ss.101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50% per annum above the
latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by
BofA based upon various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below such
announced rate.) Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in the public
announcement of such change.
Base Rate Loan means a Loan that bears interest based on the Base Rate.
B of A means Bank of America National Trust and Savings Association, a
national banking association.
Borrowing means a borrowing hereunder consisting of Loans of the same Type
made to the Company on the same day by the Lenders under Article II, and,
in the case of Offshore Rate Loans, having the same Interest Period.
Borrowing Date means any date on which a Borrowing occurs under Section
2.3.
Broadcast Programming Contracts means contracts pursuant to which the
Company obtains rights to broadcast programs, the cost of which is paid by
the Company over a period of time related to the usage of the programs.
Business Day means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City, Chicago or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
Capital Adequacy Regulation means any guideline, request or directive of
any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
Capital Lease means, at any time, a lease with respect to which the lessee
is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
Capitalized Lease Obligations means, with respect to any Person, all
outstanding obligations of such Person in respect of Capital Leases, taken
at the capitalized amount thereof accounted for as indebtedness in
accordance with GAAP.
Cash Flow Leverage Ratio means the ratio, as at any fiscal quarter end, of
(i) Consolidated Funded Indebtedness at such fiscal quarter end to (ii)
EBITDA for the Computation Period then ending.
Change of Control means any event or happening which after the Closing Date
results in the legal or beneficial ownership by any person or Control Group
of the number of outstanding shares of Voting Stock of the Company
sufficient to cast at least 30% of the votes entitled to be cast by the
owners of all of the outstanding shares of Voting Stock of the Company.
Closing Date means the date on which all conditions precedent set forth in
Section 4.1 are satisfied or waived by all Lenders (or, in the case of
subsection 4.1(e), waived by the Person entitled to receive the applicable
payment).
Code means the Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.
Commitment - see Section 2.1.
Commitment Fee Rate means the specified percentage set forth in Schedule
1.1 opposite the Cash Flow Leverage Ratio.
Company - see the Preamble.
Compliance Certificate means a certificate substantially in the form of
Exhibit C.
Computation Period means each period of four full fiscal quarters of the
Company, ending on the last day of a fiscal quarter of the Company.
Consolidated Capitalization means at any date the sum of (x) Consolidated
Funded Indebtedness plus (y) Consolidated Net Worth, all as determined on a
consolidated basis for the Company and its Subsidiaries.
Consolidated Funded Indebtedness means, at any date, without duplication,
all Indebtedness of the Company and its Subsidiaries, determined on a
consolidated basis, referred to in clauses (a), (b), (c) and (d) of the
definition of "Indebtedness" in this Section, all liabilities in respect of
banker's acceptances and Financial Letters of Credit, and all Guaranty
Obligations with respect to liabilities of any other Person of the
foregoing types.
Consolidated Indebtedness means, at any date, all Indebtedness of the
Company and its Subsidiaries, determined on a consolidated basis.
Consolidated Interest Expense for any period means the sum for the Company
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP, of all amounts which would be deducted in computing Consolidated Net
Income on account of interest on Indebtedness (including imputed interest
in respect of Capitalized Lease Obligations and amortization of debt
discount and expense).
Consolidated Net Income for any period means the net income of the Company
and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, excluding
(a) any gains arising from (i) the sale or other disposition of any assets
(other than current assets) to the extent that the aggregate amount of
the gains during such period exceeds the aggregate amount of the
losses during such period from the sale, abandonment or other
disposition of assets (other than current assets), (ii) any write-up
of assets or (iii) the acquisition of outstanding securities of the
Company or any Subsidiary;
(b) any amount representing any interest in the undistributed earnings of
any other Person (other than a Subsidiary);
(c) any earnings, prior to the date of acquisition, of any Person acquired
in any manner, and any earnings of any Subsidiary acquired prior to
its becoming a Subsidiary;
(d) any earnings of a successor to or transferee of the assets of the
Company prior to its becoming such successor or transferee;
(e) any deferred credit (or amortization of a deferred credit) arising
from the acquisition of any Person; and
(f) any extraordinary gains not covered by clause (b) above.
Consolidated Net Worth means, at any date, consolidated shareholders'
equity of the Company and its Subsidiaries determined in accordance with
GAAP.
Consolidated Total Assets means, at any time, the total assets of the
Company and its Subsidiaries that would be shown as assets on a
consolidated balance sheet of such Persons at such time, prepared in
accordance with GAAP, after eliminating all amounts properly attributable
to minority interests, if any, in the stock and surplus of Subsidiaries.
Contingent Obligation means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person
(the "primary obligor"), including any obligation of that Person (i) to
purchase, repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each, a "Guaranty Obligation") (it being understood that Guaranty
Obligations shall not include contingent indemnity obligations with respect
to the purchase or sale of a business as to which no claim has been
asserted or is anticipated); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered; or (d) in
respect of any Swap. The amount of any Contingent Obligation shall (a) in
the case of Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, (b) in the
case of Swaps, be determined in accordance with the definition of "Swap"
herein and (c) in the case of other Contingent Obligations, be equal to the
maximum reasonably anticipated liability in respect thereof.
Contractual Obligation means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
"Control Group" means any related persons constituting a "group" for the
purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended.
Conversion/Continuation Date means any date on which, under Section 2.4,
the Company (a) converts Loans of one Type to another Type or (b) continues
as Loans of the same Type, but with a new Interest Period, Loans having an
Interest Period expiring on such date.
Dollars, dollars and $ each mean lawful money of the United States.
EBITDA for any period means Consolidated Net Income for such period plus
all amounts deducted in the computation thereof on account of (a)
Consolidated Interest Expense, (b) depreciation and amortization expenses
and (c) income and profits taxes.
Effective Date means the date on which the Agent has received counterparts
of this Agreement executed by the parties hereto.
Eligible Assignee means (a) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the OECD), or a political subdivision
of any such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency
located in the United States; and (c) a Person that is primarily engaged in
the business of commercial banking and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary, or
(iii) a Person of which a Lender is a Subsidiary.
Environmental Claims means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment.
Environmental Laws means all federal, state or local laws, statutes, common
law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations
and permits of, and agreements with, any Governmental Authorities, in each
case relating to environmental, health, safety and land use matters.
ERISA means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of Section 414(b)
or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
ERISA Event means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
substantial cessation of operations which is treated as such a withdrawal;
(c) a complete or partial withdrawal by the Company or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Section 4041
or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition
which might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition
of any liability under Title IV of ERISA, other than PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
Eurodollar Reserve Percentage has the meaning specified in the definition
of "Offshore Rate".
Event of Default - see Section 8.1.
Exchange Act means the Securities Exchange Act of 1934, and regulations
promulgated thereunder.
Fair Market Value means, with respect to any Property at any time, the sale
value of such Property that would be realized in an arm's-length sale at
such time between an informed and willing buyer, and an informed and
willing seller, under no compulsion to buy or sell, respectively.
Federal Funds Rate means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not
so published on any such preceding Business Day, the rate for such day will
be the arithmetic mean as determined by the Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Agent.
Fee Letter - see subsection 2.9(a).
Financial Letter of Credit means a Letter of Credit that is a "financial
letter of credit" as defined in the Board of Governors of the Federal
Reserve System's Capital Adequacy Guidelines, Regulation H, Appendix A,
effective March 15, 1989, as such classification may change from time to
time, as determined by the Agent, which determination shall be conclusive,
absent demonstrable error.
FRB means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
Further Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account of
amounts payable or paid pursuant to Section 3.1.
GAAP means generally accepted accounting principles set forth from time to
time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances as of the
date of determination.
Governmental Authority means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
Guaranty Obligation has the meaning specified in the definition of
Contingent Obligation.
Indebtedness with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property acquired
by such Person (excluding (i) accounts payable arising in the ordinary
course of business and not overdue by more than 30 days or being
contested in good faith and (ii) deferred payment obligations in
respect of Broadcast Programming Contracts entered into in the
ordinary course of business, but including all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien on any property
owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities);
(e) all its liabilities in respect of Surety Instruments; and
(f) all Guaranty Obligations of such Person with respect to liabilities of
any other Person of a type described in any of clause (a) through (e)
above.
Indebtedness of any Person shall include all obligations of such Person of
the character described in clauses (a) through (f) above to the extent such
Person remains legally liable in respect thereof notwithstanding than any
such obligation is deemed to be extinguished under GAAP.
Indemnified Liabilities - see Section 10.5.
Indemnified Person - see Section 10.5.
Independent Auditor - see subsection 6.1(a).
Insolvency Proceeding means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in
respect of its creditors generally or any substantial portion of its
creditors; undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
Interest Payment Date means, as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to any
Base Rate Loan, the last Business Day of each calendar quarter, provided
that if any Interest Period for an Offshore Rate Loan exceeds three months,
the date that falls three months after the beginning of such Interest
Period and after each Interest Payment Date thereafter shall also be an
Interest Payment Date.
Interest Period means, as to any Offshore Rate Loan, the period commencing
on the Borrowing Date of such Loan or, in the case of any Offshore Rate
Loan, on the Conversion/Continuation Date on which such Loan is converted
into or continued as an Offshore Rate Loan, and ending on the date one,
two, three or six months thereafter as selected by the Company in its
Notice of Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such
Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the Termination
Date.
IRS means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
Lender - see the Preamble.
Lending Office means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 10.2, or such
other office or offices as such Lender may from time to time notify the
Company and the Agent.
LIBOR has the meaning specified in the definition of "Offshore Rate".
Lien means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, or any financing
lease having substantially the same economic effect as any of the
foregoing, but not including the interest of a lessor under an operating
lease.
Loan means an extension of credit by a Lender to the Company under Article
II. A Loan may be a Base Rate Loan or an Offshore Rate Loan (each a "Type"
of Loan).
Loan Documents means this Agreement, any Notes, the Fee Letter and all
other documents delivered to the Agent or any Lender in connection
herewith.
Margin Stock means "margin stock" as such term is defined in Regulation T,
U or X of the FRB.
Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, financial condition
or prospects of the Company or the Company and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of the Company or any
Subsidiary to perform its obligations under any Loan Document; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Company or any Subsidiary of any Loan Document.
Multiemployer Plan means a "multiemployer plan", within the meaning of
Section 4001(a)(3) of ERISA, with respect to which the Company or any ERISA
Affiliate may have any liability.
Net Proceeds Amount means, with respect to any Transfer of Property by any
Person, an amount, after income taxes in respect of such Transfer, equal to
the result of (a) the aggregate amount of the consideration (valued at the
Fair Market Value of such consideration at the time of the consummation of
such Transfer) received by such person in respect of such Transfer minus
(b) all ordinary and reasonable out-of-pocket costs and expenses actually
incurred by such Person in connection with such Transfer.
Note means a promissory note executed by the Company in favor of a Lender
pursuant to subsection 2.2(b), in substantially the form of Exhibit F.
Notice of Borrowing means a notice in substantially the form of Exhibit A.
Notice of Conversion/Continuation means a notice in substantially the form
of Exhibit B.
Obligations means all advances, debts, liabilities, obligations, covenants
and duties arising under any Loan Document owing by the Company to any
Lender, the Agent or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, or now existing or hereafter arising.
Offshore Rate means, for any Interest Period, with respect to Offshore Rate
Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Agent as
follows:
Offshore Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred
to as "Eurocurrency Liabilities"); and
"LIBOR" means the rate of interest per annum determined by the Agent
to be the arithmetic mean (rounded upward to the next 1/16th of 1%) of
the rates of interest per annum at which dollar deposits in the
approximate amount of the amount of the Loan to be made or continued
as, or converted into, an Offshore Rate Loan by the Agent and having a
maturity comparable to such Interest Period would be offered to major
banks in the London interbank market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement
of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
Offshore Rate Loan means a Loan that bears interest based on the
Offshore Rate.
Organization Documents means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such
corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation.
Other Taxes means any present or future stamp court or documentary taxes or
any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
this Agreement or any other Loan Document.
Participant - see subsection 10.8(c).
PBGC means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
Pension Plan means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA with respect to which the Company or any ERISA
Affiliate may have any liability.
Permitted Acquisition means an Acquisition (a) (i) which is non-hostile,
(ii) which occurs when no Event of Default or Unmatured Event of Default
exists or will result therefrom and (iii) after giving effect to which no
Event of Default or Unmatured Event of Default will exist on a pro forma
basis (assuming that such Acquisition had occurred on the last day of the
fiscal quarter most recently ended from the date which is one year prior to
the date of such Acquisition).
Permitted Liens means Liens permitted pursuant to Section 7.1.
Person means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section 3(3) of ERISA)
with respect to which the Company may have any liability.
Property means real or personal property of any kind, tangible or
intangible, xxxxxx or inchoate.
Pro Rata Share means, as to any Lender at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at
such time of such Lender's Commitment divided by the combined Commitments
of all Lenders.
Replacement Lender - see Section 3.7.
Reportable Event means, any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder, other than any such event for which
the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
Required Lenders means at any time Lenders then holding at least 66 2/3% of
the then aggregate unpaid principal amount of the Loans, or, if no amounts
are outstanding, Lenders then having at least 66 2/3% of the aggregate
amount of the Commitments.
Requirement of Law means, as to any Person, any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
Responsible Officer means the chief executive officer, the president, the
chief financial officer, chief accounting officer, or the treasurer of the
Company, or any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants,
the chief financial officer or the treasurer of the Company, or any other
officer having substantially the same authority and responsibility.
Restricted Payment - see Section 7.9.
Same Day Funds means immediately available funds.
SEC means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
Senior Debt means Consolidated Funded Indebtedness less any such
Consolidated Funded Indebtedness of the Company, subordinated to the
Obligations in form satisfactory to the Required Lenders.
Spin-Off - see Section 7.2.
Subsidiary of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which
more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
Subsidiary Stock - see Section 7.2.
Substantial Part means, at any time, with respect to any Transfer of
Property, any portion of Property of the Company and its Subsidiaries if
the book value of the Property subject to such Transfer, when added to the
book value of all other Property of the Company and the Subsidiaries that
was subject to a Transfer (other than a Transfer described in Section
7.2(a)(i) or Section 7.2(b)(i) through Section 7.2(b)(iii), inclusive)
during the then most recently ended period of 12 consecutive calendar
months, exceeds an amount equal to 15% of Consolidated Total Assets,
determined as at the beginning of such 12 month period.
Surety Instruments means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, surety bonds and
similar instruments.
Swap means, with respect to any Person, any payment obligation with respect
to any interest rate swap, currency swap or similar obligation obligating
such Person to make payments, whether periodically or upon the happening of
a contingency. For the purposes of this Agreement, the amount of the
obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such
Person, based on the assumption that such Swap had terminated at the end of
such fiscal quarter, and in making such determination, if any agreement
relating to such Swap provides for the netting of amounts payable by and to
such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount so determined.
Taxes means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, charges or withholdings, fees, withholdings or
similar charges, and all liabilities with respect thereto imposed by any
Governmental Authority, excluding, in the case of each Lender and the
Agent, such taxes (including income taxes or franchise taxes) as are taxes
imposed on or measured by its net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender or the
Agent, as the case may be, is organized or maintains a lending office.
Termination Date means the earlier to occur of:
(a) December 24, 2003; and
(b) the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
Transfer - see Section 7.2.
Type has the meaning specified in the definition of "Loan."
Unfunded Pension Liability means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
United States and U.S. each means the United States of America.
Unmatured Event of Default means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
Voting Interests means, with respect to any Person, any shares of stock or
other equity interests of any class or classes of such Person whose holders
are entitled under ordinary circumstances (irrespective of whether at the
time stock or other equity interests of any other class or classes shall
have or might have voting power by reason of the happening of any
contingency) to vote for the election of a majority of the directors,
managers, trustees or other governing body of such Person.
Wholly-Owned Subsidiary means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
I.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments
and other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative
and shall each be performed in accordance with their terms. Unless
otherwise expressly provided herein, any reference to any action of
the Agent, the Lenders or the Required Lenders by way of consent,
approval or waiver shall be deemed modified by the phrase "in
its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the
Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Agent merely because of the Agent's or Lenders' involvement in their
preparation.
I.3 Accounting Principles. Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied; provided that if the Company
notifies the Agent that the Company wishes to amend any covenant in Article
VII to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Agent notifies the Company that the Required Lenders
wish to amend Article VII for such purpose), then the Company's compliance
with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Company and the Required Lenders.
ARTICLE II
THE CREDITS
II.1 Amounts and Terms of Commitments. Each Lender severally agrees, on the
terms and conditions set forth herein, to make loans to the Company (each
such loan, a "Loan") from time to time on any Business Day during the
period from the Closing Date to the Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth on
Schedule 2.1 (such amount, as the same may be reduced under Section 2.5
or revised as a result of one or more assignments under Section 10.8,
such Lender's "Commitment"); provided, however, that the aggregate
principal amount of all outstanding Loans shall not at any time exceed
the combined Commitments; and provided, further, that the aggregate
principal amount of the Loans of any Lender shall not at any time exceed
such Lender's Commitment. Within the limits of each Lender's Commitment,
and subject to the other terms and conditions hereof, the Company may
borrow under this Section 2.1, prepay under Section 2.6 and reborrow
under this Section 2.1.
II.2 Loan Accounts.
(a) The Loans made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender in the ordinary course
of business. The accounts or records maintained by the Agent and
each Lender shall be conclusive (absent manifest error) of the
amount of the Loans made by the Lenders to the Company, and the
interest and payments thereon. Any failure so to record or any error
in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with
respect to the Loans.
(b) Upon the request of any Lender made through the Agent, the Loans
made by such Lender may be evidenced by one or more Notes, instead
of or in addition to loan accounts. Each such Lender shall endorse
on the schedules annexed to its Note(s) the date, amount and
maturity of each Loan made by it and the amount of each payment of
principal made by the Company with respect thereto. Each such Lender
is irrevocably authorized by the Company to endorse its Note(s) and
each Lender's record shall be conclusive absent manifest error;
provided, however, that the failure of a Lender to make, or an error
in making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of the Company hereunder
or under any such Note to such Lender.
II.3 Procedure for Borrowing.
(a) Each Borrowing shall be made upon the Company's irrevocable written
notice delivered to the Agent in the form of a Notice of Borrowing
(which notice must be received by the Agent prior to 11:00 a.m.
(Chicago time) (i) three Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans; and (ii) on the
requested Borrowing Date, in the case of Base Rate Loans)
specifying:
(A) the amount of the Borrowing, which shall be in an aggregate
amount not less than $2,500,000 or a higher multiple of
$1,000,000;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Committed Borrowing;
(D) in the case of a Borrowing of Offshore Rate Loans, the duration
of the Interest Period therefor; and
provided that with respect to the Borrowing to be made on the
Closing Date, the Notice of Borrowing shall be delivered to the
Agent not later than 9:00 a.m. (Chicago time) one Business Day
before the Closing Date and such Borrowing will consist of Base Rate
Loans only.
(b) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office on the Borrowing Date requested by the
Company in Same Day Funds by 12:00 noon (Chicago Time). The proceeds
of all such Loans will then be made available to the Company by the
Agent at such office by crediting the account of the Company on the
books of BofA with the aggregate of the amounts made available to
the Agent by the Lenders and in like funds as received by the Agent.
(c) After giving effect to any Borrowing, there may not be more than 10
different Interest Periods in effect.
II.4 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans,
or as of the last day of the applicable Interest Period, in the
case of Offshore Rate Loans, to convert any such Loans (or any
part thereof in an aggregate amount not less than $1,000,000 or
a higher integral multiple of $1,000,000) into Loans of any
other Type; or
(ii) elect as of the last day of the applicable Interest Period, to
continue any Loans having Interest Periods expiring on such day
(or any part thereof in an amount not less than $1,000,000 or a
higher integral multiple of $1,000,000);
provided that if at any time the aggregate amount of Offshore Rate
Loans in respect of any Borrowing is reduced, by payment,
prepayment, or conversion of part thereof, to be less than
$1,000,000, such Offshore Rate Loans shall automatically convert
into Base Rate Loans and the right of the Company to continue such
Loans as and convert such Loans into Offshore Rate Loans shall
terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to be
received by the Agent not later than 9:00 a.m. (Chicago time) at
least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into
or continued as Offshore Rate Loans; and (ii) one Business Day in
advance of the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type of Loans resulting from the proposed conversion or
continuation; and
(D) in the case of conversions into Offshore Rate Loans, the
duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to Offshore
Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, the Company
shall be deemed to have elected to convert such Offshore Rate Loans
into Base Rate Loans effective as of the expiration date of such
Interest Period. If the Company has failed to select a new Interest
Period to be applicable to Offshore Rate Loans prior to the third
Business Day in advance of the expiration date of the current
Interest Period applicable thereto as provided in subsection 2.4(b),
or if any Event of Default or Unmatured Event of Default shall then
exist, the Company shall be deemed to have elected to continue such
Offshore Rate Loans on the basis of a one month Interest Period.
(d) The Agent will promptly notify each Lender of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Agent will promptly notify each Lender
of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the
notice was given held by each Lender.
(e) Unless the Required Lenders otherwise consent, during the existence
of an Event of Default or Unmatured Event of Default, the Company
may not elect to have a Loan converted into or continued as an
Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Agent shall otherwise consent, there may not be more than
ten different Interest Periods in effect.
II.5 Voluntary Termination or Reduction of Commitments. The Company may, upon
not less than three Business Days' prior notice to the Agent, terminate
the Commitments, or permanently reduce the Commitments by an aggregate
amount of $2,500,000 or a higher integral multiple of $1,000,000; unless,
after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the aggregate principal amount of all Loans would
exceed the amount of the combined Commitments then in effect. Once
reduced in accordance with this Section, the Commitments may not be
increased. Any reduction of the Commitments shall be applied to each
Lender according to its Pro Rata Share. All accrued commitment fees to,
but not including, the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such reduction or
termination.
II.6 Optional Prepayments. Subject to Section 3.4, the Company may, from time
to time, upon not less than one Business Day's irrevocable notice to the
Agent in the case of Base Rate Loans, and three Business Days'
irrevocable notice to the Agent in the case of Offshore Rate Loans,
ratably prepay Loans in whole or in part, in minimum amounts of
$5,000,000 or a higher integral multiple of $1,000,000. Such notice of
prepayment shall specify the date and amount of such prepayment and the
Loans to be prepaid. The Agent will promptly notify each Lender of its
receipt of any such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein, together with, in
the case of Offshore Rate Loans, accrued interest to each such date on
the amount prepaid and any amounts required pursuant to Section 3.4.
II.7 Repayment. The Company shall repay to the Lenders on the Termination Date
the aggregate principal amount of all Loans outstanding on such date.
II.8 Interest.
(a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal
to the Offshore Rate or the Base Rate, as the case may be (and
subject to the Company's right to convert to the other Type of Loan
under Section 2.4), plus the Applicable Margin as in effect from
time to time.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest also shall be paid on the date of any
prepayment of Offshore Rate Loans under Section 2.6 for the portion
of the Loans so prepaid and upon payment (including prepayment) in
full thereof. During the existence of any Event of Default, interest
shall be paid on demand of the Agent at the request or with the
consent of the Required Lenders.
(c) Notwithstanding subsection (a) of this Section, while any Event of
Default exists or after acceleration, the Company shall pay interest
(after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans
and, to the extent permitted by applicable law, on any other amount
payable hereunder or under any other Loan Document, at a rate per
annum equal to the rate otherwise applicable thereto pursuant to the
terms hereof or such other Loan Document (or, if no such rate is
specified, the Base Rate) plus 2% and after any applicable Interest
Period at the Base Rate plus 2%. All such interest shall be payable
on demand.
(d) Anything herein to the contrary notwithstanding, the obligations of
the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment
by such Lender would be contrary to the provisions of any law
applicable to such Lender limiting the highest rate of interest that
may be lawfully contracted for, charged or received by such Lender,
and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
II.9 Fees.
(a) Agency Fees. The Company shall pay an arrangement fee to the
Arranger for the Arranger's own account and shall pay an agency fee
to the Agent for the Agent's own account as required by the letter
agreement ("Fee Letter") between the Company and the Agent dated
October 27, 1998.
(b) Commitment Fees. The Company shall pay to the Agent for the account
of each Lender a commitment fee on the daily unused portion of such
Lender's Commitment, computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter at the Commitment Fee
Rate. Such commitment fee shall accrue from the Closing Date to the
Termination Date and shall be due and payable quarterly in arrears
on the last Business Day of each calendar quarter commencing on the
Closing Date through the Termination Date, with the final payment to
be made on the Termination Date; provided that, in connection with
any reduction of Commitments under Section 2.5, the accrued
commitment fee calculated for the period ending on such date shall
also be paid on the date of such reduction, with the following
quarterly payment being calculated on the basis of the period from
such reduction date to such quarterly payment date. The commitment
fees provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during
which one or more conditions in Article IV are not met.
II.10 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base Rate
is determined by BofA's "reference rate" shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed. Interest and
fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day
thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company and the Lenders in the absence
of manifest error. The Agent will, at the request of the Company or
any Lender, deliver to the Company or such Lender, as the case may
be, a statement showing the quotations used by the Agent in
determining any interest rate and the resulting interest rate.
II.11 Payments by the Company.
(a) All payments to be made by the Company shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Company shall be made to the
Agent for the account of the Lenders at the Agent's Payment Office,
and shall be made in Dollars and in immediately available funds, no
later than 12:00 noon (Chicago time) on the date specified herein.
The Agent will promptly distribute to each Lender its Pro Rata Share
(or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Agent
later than 12:00 noon (Chicago time) shall be deemed to have been
received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business Day, such
payment shall be made on the following Business Day (unless, in the
case of an Offshore Rate Loan, the following Business Day is in
another calendar month, in which case such payment shall be made on
the preceding Business Day), and such extension of time shall in
such case be included in the computation of interest or fees, as the
case may be.
(c) Unless the Agent receives notice from the Company prior to the date
on which any payment is due to the Lenders that the Company will not
make such payment in full as and when required, the Agent may assume
that the Company has made such payment in full to the Agent on such
date in immediately available funds and the Agent may (but shall not
be so required), in reliance upon such assumption, distribute to
each Lender on such due date an amount equal to the amount then due
such Lender. If and to the extent the Company has not made such
payment in full to the Agent, each Lender shall repay to the Agent
on demand such amount distributed to such Lender, together with
interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Lender until the date
repaid.
II.12 Payments by the Lenders to the Agent.
(a) Unless the Agent receives notice from a Lender on or prior to the
date of a Borrowing that such Lender will not make available as and
when required hereunder to the Agent for the account of the Company
the amount of such Lender's Pro Rata Share of such Borrowing, the
Agent may assume that such Lender has made such amount available to
the Agent in immediately available funds on the Borrowing Date and
the Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Lender shall not have
made its full amount available to the Agent in immediately available
funds and the Agent in such circumstances has made available to the
Company such amount, such Lender shall on the Business Day following
such Borrowing Date make such amount available to the Agent,
together with interest at the Federal Funds Rate for each day during
such period. A notice of the Agent submitted to any Lender with
respect to amounts owing under this subsection (a) shall be
conclusive, absent manifest error. If such amount is so made
available, such payment to the Agent shall constitute such Lender's
Loan on the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to the Agent on the Business Day
following the Borrowing Date, the Agent will notify the Company of
such failure to fund and, upon demand by the Agent, the Company
shall pay such amount to the Agent for the Agent's account, together
with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable
at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to
be made by such other Lender on any Borrowing Date.
II.13 Sharing of Payments, Etc. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share (or other
share contemplated hereunder), such Lender shall immediately (a) notify
the Agent of such fact and (b) purchase from the other Lenders such
participation in the Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment pro rata with each of
them; provided that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to
that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an
amount equal to such paying Lender's ratable share (according to the
proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company agrees that any
Lender so purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.10) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation. The Agent
will keep records (which shall be conclusive and binding in the absence
of manifest error) of participation purchased under this Section and will
in each case notify the Lenders following any such purchases or
repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
III.1 Taxes.
(a) Any and all payments by the Company to each Lender or the Agent
under this Agreement and any other Loan Document shall be made free
and clear of, and without deduction or withholding for, any Taxes.
In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums
payable under this Section), such Lender or the Agent, as the
case may be, receives and retains an amount equal to the sum
it would have received and retained had no such deductions or
withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Company shall also pay to each Lender or the Agent for the
account of such Lender, at the time interest is paid, all
additional amounts which such Lender specifies as necessary to
preserve the after-tax yield the Lender would have received if
such Taxes, Other Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Lender and
the Agent for the full amount of Taxes, Other Taxes and Further
Taxes in the amount that such Lender specifies as necessary to
preserve the after-tax yield such Lender would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed, and any
liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not
such Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30
days after the date such Lender or the Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the Company of
Taxes, Other Taxes or Further Taxes (as required by ss.3.1(c)), the
Company shall furnish to each Lender and the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to such Lender or the Agent.
(e) If the Company is required to pay any amount to any Lender or the
Agent pursuant to subsection (b) or (c) of this Section, then such
Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending
Office or take other appropriate action so as to eliminate any such
additional payment by the Company which may thereafter accrue, if
such change or other action in the sole judgment of such Lender is
not otherwise disadvantageous to such Lender.
III.2 Illegality.
(a) If any Lender determines that the introduction of any Requirement of
Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made
it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make Offshore Rate Loans, then, on
notice thereof by the Lender to the Company through the Agent, any
obligation of that Lender to make Offshore Rate Loans shall be
suspended until the Lender notifies the Agent and the Company that
the circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any Offshore
Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Agent), prepay
in full such Offshore Rate Loans of that Lender then outstanding,
together with interest accrued thereon and amounts required under
Section 3.4, either on the last day of the Interest Period thereof,
if the Lender may lawfully continue to maintain such Offshore Rate
Loans to such day, or immediately, if the Lender may not lawfully
continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with
such prepayment, the Company shall borrow from the affected Lender,
in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain Offshore Rate
Loans has been so terminated or suspended, the Company may elect, by
giving notice to the Lender through the Agent that all Loans which
would otherwise be made by the Lender as Offshore Rate Loans shall
be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section, the
affected Lender shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid
the need for giving such notice or making such demand and will not,
in the judgment of the Lender, be illegal or otherwise
disadvantageous to the Lender.
III.3 Increased Costs and Reduction of Return.
(a) If after the date hereof any Lender determines that, due to either
(i) the introduction of or any change (other than any change by way
of imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate) in or in the interpretation of any
law or regulation or (ii) the compliance by that Lender with any
guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be
any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Offshore Rate Loan, then the
Company shall be liable for, and shall from time to time, upon
demand (with a copy of such demand to be sent to the Agent), pay to
the Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If after the date hereof any Lender shall have determined that (i)
the introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation
by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the
Lender (or its Lending Office) or any corporation controlling the
Lender with any Capital Adequacy Regulation, affects or would affect
the amount of capital required or expected to be maintained by the
Lender or any corporation controlling the Lender and (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's desired return on
capital) determines that the amount of such capital is increased as
a consequence of its Commitment, loans, credits or obligations under
this Agreement, then, upon demand of such Lender to the Company
through the Agent, the Company shall pay to the Lender, from time to
time as specified by the Lender, additional amounts sufficient to
compensate the Lender for such increase.
III.4 Funding Losses. The Company shall reimburse each Lender and hold each
Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
(a the failure of the Company to make on a timely basis any payment of
principal of any Offshore Rate Loan;
(b the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c the failure of the Company to make any prepayment in accordance with
any notice delivered under Section 2.6;
(d the prepayment or other payment (including after acceleration
thereof) of an Offshore Rate Loan on a day that is not the last day
of the relevant Interest Period; or
(e the automatic conversion under Section 2.4 of any Offshore Rate Loan
to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans
or from fees payable to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable by the Company to
the Lenders under this Section and under subsection 3.3(a), each Offshore
Rate Loan made by a Lender (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at
the LIBOR used in determining the Offshore Rate for such Offshore Rate
Loan by a matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, whether or
not such Offshore Rate Loan is in fact so funded.
III.5 Inability to Determine Rates. If the Agent determines that for any reason
adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan, or any Lender determines that the Offshore Rate
applicable pursuant to subsection 2.8(a) for any requested Interest
Period with respect to a proposed Offshore Rate Loan does not adequately
and fairly reflect the cost to such Lender of funding such Loan the Agent
will promptly so notify the Company and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Offshore Rate Loans,
hereunder shall be suspended until the Agent revokes such notice in
writing. Upon receipt of such notice, the Company may revoke any Notice
of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Lenders shall make,
convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such
Loans shall be made, converted or continued as Base Rate Loans instead of
Offshore Rate Loans.
III.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a
copy to the Agent) a certificate setting forth in reasonable detail the
amount payable to the Lender hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest error.
III.7 Substitution of Lenders. Upon the receipt by the Company from any Lender
(an "Affected Lender") of a claim for compensation under Section 3.3 or
of a notice under Section 3.5, the Company may: (i) request the Affected
Lender to use its best efforts to obtain a replacement bank or financial
institution satisfactory to the Company to acquire and assume all or a
ratable part of all of such Affected Lender's Loans and Commitment (a
"Replacement Lender"); (ii) request one more of the other Lenders to
acquire and assume all or part of such Affected Lender's Loans and
Commitment; or (iii) designate a Replacement Lender. Any such designation
of a Replacement Lender under clause (i) or (iii) shall be subject to the
prior written consent of the Agent (which consent shall not be
unreasonably withheld).
III.8 Survival. The agreements and obligations of the Company in this Article
III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
IV.1 Conditions of Initial Loans. The obligation of each Lender to make its
initial Loan is subject to the condition that the Agent shall have
received all of the following, in form and substance satisfactory to the
Agent and each Lender, and in sufficient copies for each Lender:
(a Credit Agreement and Notes. This Agreement and the Notes executed by
each party thereto:
(b Resolutions; Incumbency.
(i Copies of the resolutions of the board of directors of the
Company authorizing the transactions contemplated hereby,
certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Company; and
(ii A certificate of the Secretary or Assistant Secretary of the
Company certifying the names and true signatures of the
officers of the Company authorized to execute, deliver and
perform this Agreement, and the other documents to be delivered
by it hereunder.
(c Organization Documents; Good Standing. Originals or photocopies of
each of the following documents:
(i the articles or certificate of incorporation and the bylaws of
the Company as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company as of the
Closing Date; and
(ii a good standing certificate for the Company from the Secretary
of State (or similar, applicable Governmental Authority) of its
state of incorporation;
(d Legal Opinions.
An opinion of Lane & Xxxxxxxx, counsel to the Company and addressed
to the Agent and the Lenders, substantially in the form of Exhibit
D-1 and an opinion of Wiley, Rein & Fielding, special FCC counsel to
the Company and addressed to the Agent and the Lenders,
substantially in the form of Exhibit D-2;
(e Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses payable to or incurred by or on
behalf of the Agent to the extent then due and payable on the
Closing Date, together with Attorney Costs of the Agent to the
extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute the Agent's
reasonable estimate of Attorney Costs incurred or to be incurred by
it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the
Company and the Agent), including any such costs, fees and expenses
arising under or referenced in Sections 2.9 and 10.4.
(f Certificate. A certificate signed by a Responsible Officer, dated as
of the Closing Date, stating that:
(i the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and
as of such date;
(ii no Event of Default or Unmatured Event of Default exists or
would result from the initial Borrowing; and
(iii since September 30, 1997, no event or circumstance has occurred
that has resulted or could reasonably be expected to result in
a Material Adverse Effect.
(g Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may request.
IV.2 Conditions to All Loans. The obligation of each Lender to make any Loan
to be made by it is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date:
(a Notice. The Agent shall have received a Notice of Borrowing.
(b Continuation of Representations and Warranties. The representations
and warranties in Article V shall be true and correct on and as of
such Borrowing Date with the same effect as if made on and as of
such Borrowing Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they
shall be true and correct as of such earlier date).
(c No Existing Default. No Event of Default or Unmatured Event of
Default shall exist or shall result from such Borrowing.
Each Notice of Borrowing submitted by the Company hereunder shall constitute a
representation and warranty by the Company that, as of the date of such notice
and as of the applicable Borrowing Date, the conditions in this Section 4.2 are
satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Lender that:
V.1 Company Existence and Power. The Company and each of its Subsidiaries:
(a is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization;
(b has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, to carry on
its business and to execute, deliver, and perform its obligations
under the Loan Documents;
(c is duly qualified and is licensed and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification
or license; and
(d is in compliance with all Requirements of Law;
except, in each case referred to in clause (c) or clause (d), to the
extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
V.2 Company Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement and each other Loan Document
to which such Person is party have been duly authorized by all necessary
company action, and do not and will not:
(a contravene the terms of any of the Company's Organization Documents;
(b conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual
Obligation to which such Person is a party or any order, injunction,
writ or decree of any Governmental Authority to which such Person or
its property is subject; or
(c violate any Requirement of Law.
V.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the
Company of the Agreement or any other Loan Document.
V.4 Binding Effect. This Agreement and each other Loan Document constitute
the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or
by equitable principles relating to enforceability.
V.5 Litigation. Except as specifically disclosed in Schedule 5.5, there are
no actions, suits, proceedings, claims or disputes pending or, to the
best knowledge of the Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the
Company, or its Subsidiaries or any of their respective properties which:
(a purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby;
or
(b if determined adversely to the Company or its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
V.6 No Default. No Event of Default or Unmatured Event of Default exists or
would result from the incurring of any Obligations by the Company. As of
the Closing Date, neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Closing Date, create an Event of Default
under subsection 8.1(e).
V.7 ERISA Compliance. Except as specifically disclosed in Schedule 5.7:
(a Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS
and to the best knowledge of the Company, nothing has occurred which
would cause the loss of such qualification. The Company and each
ERISA Affiliate has made all required contributions to any Plan
subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(b There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted
or could reasonably be expected to result in a Material Adverse
Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no contribution failure has occurred with respect to a Pension
Plan sufficient to give rise to a Lien under Section 312(f) of
ERISA; (iii) no Pension Plan has any Unfunded Pension Liability;
(iv) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (v) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (vi) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
V.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be
used solely for the purposes set forth in and permitted by Section 6.12
and Section 7.7. Neither the Company nor any Subsidiary is generally
engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
V.9 Title to Properties. The Company and each Subsidiary have good record and
marketable title in fee simple to, or valid leasehold interests in, all
real property necessary or used in the ordinary conduct of their
respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of
each of the Effective Date and the Closing Date, the property of the
Company and its Subsidiaries is subject to no Liens, other than Permitted
Liens.
V.10 Taxes. The Company and its Subsidiaries have filed all Federal and other
material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed
tax assessment against the Company or any Subsidiary that would, if made,
have a Material Adverse Effect.
V.11 Financial Condition.
(a) The audited consolidated financial statements of the Company and its
Subsidiaries dated September 30, 1997 and the unaudited consolidated
financial statements of the Company and its Subsidiaries dated June
30, 1998 and the related consolidated statements of income and cash
flows for the periods ended on such dates:
(i were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise
expressly noted therein subject, in the case of the June 30,
1998 statements, to ordinary, good faith year-end audit
adjustments and to the extent GAAP is applicable to quarterly
financial statements;
(ii fairly present the financial condition of the Company and its
Subsidiaries as of the dates thereof and results of operations
for the periods covered thereby; and
(iii except as specifically disclosed in Schedule 5.11, show all
material indebtedness and other liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as
of the dates thereof, including liabilities for taxes, material
commitments and Contingent Obligations.
(b Since September 30, 1997, there has been no Material Adverse Effect.
V.12 Environmental Matters. The Company conducts in the ordinary course of
business a review of the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties,
and as a result thereof the Company has reasonably concluded that, except
as specifically disclosed in Schedule 5.12, such Environmental Laws and
Environmental Claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
V.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary, is an "Investment Company" within the meaning
of the Investment Company Act of 1940. The Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
V.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary is a
party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.
V.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company or its
Subsidiaries own or are licensed or otherwise have the right to use all
of the patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are
reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best
knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes
upon any rights held by any other Person. Except as specifically
disclosed in Schedule 5.5, no claim or litigation regarding any of the
foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or
code is pending or, to the knowledge of the Company, proposed, which, in
either case, could reasonably be expected to have a Material Adverse
Effect.
V.16 Subsidiaries. As of the Closing Date, the Company has no Subsidiaries
other than those specifically disclosed in part (a) of Schedule 5.16
hereto and has no equity investments (in excess of 10% of Consolidated
Capitalization) in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 5.16.
V.17 Insurance. The properties of the Company and its Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Company
or such Subsidiary operates.
V.18 Full Disclosure. None of the representations or warranties made by the
Company in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained
in any exhibit, report, statement or certificate furnished by or on
behalf of the Company in connection with the Loan Documents, contains any
untrue statement of a material fact or omits any material fact required
to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading as
of the time when made or delivered.
V.19 Year 2000. The Company's management has completed an evaluation of the
impact on the Company and its Subsidiaries of the "Year 2000 problem"
(that is, the inability of information technology ("IT") systems and
equipment using microprocessors to recognize and process date-sensitive
information after 1999 due to the use of only the last two digits to
refer to a year). Evaluation of date-sensitive publishing equipment is
expected to be complete by December 31, 1998, and the evaluation of
broadcasting equipment is expected to be complete by March 31, 1999.
Renovation and testing have been completed on all significant IT systems
that utilize Company-developed software that were not Year 2000
compliant, with the exception of the newspaper advertising system. That
system has been renovated and is currently being tested. Installation of
the renovated advertising system is scheduled to be complete by January
31, 1999. The Company has received representations that software material
to the Company's operations developed by outside vendors is Year 2000
compliant. Testing of these systems is expected to be complete by March
31, 1999. Installation of a new Year 2000-compliant financial system is
approximately 70% complete and is expected to be complete by July 31,
1999. Testing of computer hardware for IT systems is approximately 90%
complete. Renovation efforts and testing of such systems/equipment are
expected to be complete by June 30, 1999.
The Company will monitor the progress of Year 2000 compliance by its
material vendors and suppliers whose uninterrupted delivery of products
or services is material to the production or distribution of the
Company's print and broadcast products and services. Material vendors and
suppliers include electric utilities, telecommunications, news and
content providers, television networks, other television programming
suppliers, the U.S. Postal Service and financial institutions.
The Company started its Year 2000 efforts in fiscal 1995. Through
September 30, 1998, the Company has spent approximately $500,000 to
address Year 2000 problems for IT systems (exclusive of the cost of the
new financial, newspaper production and other systems that were scheduled
to be replaced before 2000 for reasons other than Year 2000 compliance).
The Company's total costs to address Year 2000 problems for IT systems
are currently estimated to be less than $1,000,000 and consist primarily
of staff and consultant costs. Year 2000 compliance will require the
replacement of telephone switches and software at a cost of $600,000 to
$1,000,000. The Company has spent, through September 30, 1998,
approximately $300,000 for new telephone equipment. An estimate of the
cost of replacement of newspaper and broadcasting equipment will be
available after the completion of the evaluations described above. Funds
for these costs are expected to be provided from the Company's operating
cash flows or lines of credit from financial institutions.
The Company could be faced with severe consequences if the Year 2000
issues are not identified and resolved in a timely manner by the Company
and its material third parties. A worst-case scenario would result in the
short-term inability of the Company to produce/distribute newspapers or
broadcast television programming due to unresolved Year 2000 problems.
This would result in lost revenues to the Company; however, the amount
would be dependent on the length and nature of the disruption, which
cannot be predicted or estimated. In light of the possible consequences,
the Company is devoting the resources it believes are appropriate to
address the Year 2000 problems in a timely manner. While the Company's
management expects a successful resolution of these problems, there can
be no guarantee that material third parties, on which the Company relies,
will address all Year 2000 problems on a timely basis or that their
failure to successfully address all Year 2000 problems would not have a
Material Adverse Effect on the Company.
The Company is in the process of reviewing its existing contingency plans
in case business interruptions do occur. The Company's management expects
the review of these plans to be complete by June 30, 1999.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Required Lenders waive
compliance in writing:
VI.1 Financial Statements. The Company shall deliver to the Agent, in form and
detail satisfactory to the Agent and the Required Lenders, with
sufficient copies for each Lender:
(a as soon as available, but not later than 120 days after the end of
each fiscal year, a copy of the audited consolidated balance sheet
of the Company and its Subsidiaries as at the end of such year and
the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal
year, and accompanied by the opinion of McGladrey & Xxxxxx, LLP or
another nationally-recognized independent public accounting firm
("Independent Auditor") which report (x) shall state that such
consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied
on a basis consistent with prior years and (y) shall not be
qualified or limited because of a restricted or limited examination
by the Independent Auditor of any material portion of the Company's
or any Subsidiary's records;
(b as soon as available, but not later than 60 days after the end of
each of the first three fiscal quarters of each fiscal year, a copy
of the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and the related
consolidated statements of income, shareholders' equity and cash
flows for the period commencing on the first day and ending on the
last day of such quarter (it being understood that a Form 10Q filed
by the Company with the SEC will satisfy the foregoing content
requirements of this Section 6.1(b)), and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to
ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Company and the
Subsidiaries.
VI.2 Certificates; Other Information. The Company shall furnish to the Agent,
with sufficient copies for each Lender:
(a concurrently with the delivery of the financial statements referred
to in subsection 6.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no
knowledge was obtained of any Event of Default or Unmatured Event of
Default, except as specified in such certificate;
(b concurrently with the delivery of the financial statements referred
to in subsections 6.1(a) and (b), a Compliance Certificate executed
by a Responsible Officer;
(c promptly, copies of all financial statements and reports that the
Company sends to its members, and copies of all financial statements
and regular, periodical or special reports (including Forms 10K, 10Q
and 8K), if any, that the Company or any Subsidiary may make to, or
file with, the SEC;
(d promptly, such additional information regarding the business,
financial, company or corporate affairs of the Company or any
Subsidiary as the Agent, at the request of any Lender, may from time
to time reasonably request; and
(e upon the request from time to time of any Lender, a list of the
obligations of the Company and its Subsidiaries in respect of Swaps.
VI.3 Notices. The Company shall promptly notify the Agent and each Lender
promptly after a Responsible Officer obtains knowledge of:
(a the occurrence of any Event of Default or Unmatured Event of
Default;
(b any of the following matters that has resulted or may reasonably be
expected to result in a Material Adverse Effect: (i) any breach or
non-performance of, or any default under, a Contractual Obligation
of the Company or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any
Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary including any litigation or
proceeding pursuant to any applicable Environmental Law;
(c the occurrence of any of the following events affecting the Company
or any ERISA Affiliate (but in no event more than 10 days after such
event; provided that the Company shall notify the Agent and each
Lender not less than ten days before the occurrence of any event
described in clause (ii) below), and deliver to the Agent and each
Lender a copy of any notice with respect to such event that is filed
with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with
respect to such event:
(i an ERISA Event;
(ii a contribution failure with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of
ERISA;
(iii a material increase in the Unfunded Pension Liability of any
Pension Plan;
(iv the adoption of, or the commencement of contributions to, any
Plan subject to Section 412 of the Code by the Company or any
ERISA Affiliate; or
(v the adoption of any amendment to a Plan subject to Section 412
of the Code, if such amendment results in a material increase
in contributions or Unfunded Pension Liability; and
(d any material change in accounting policies or financial reporting
practices by the Company or any of its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company
or any affected Subsidiary proposes to take with respect thereto and
at what time. Each notice under subsection 6.3(a) shall describe
with particularity any and all clauses or provisions of this
Agreement or other Loan Document that have been breached or
violated.
VI.4 Preservation of Corporate Existence, Etc. The Company shall, and shall
cause each Subsidiary to:
(a preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or
jurisdiction of organization;
(b preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 7.3 and sales
of assets permitted by Section 7.2;
(c use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
VI.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or
useful in its business in working order and condition, ordinary wear and
tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect. The Company and
each Subsidiary shall use the standard of care typical in the industry in
the operation and maintenance of its facilities.
VI.6 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain with financially sound and reputable independent insurers,
insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons.
VI.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable
all their respective obligations and liabilities, including:
(a all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Company
or such Subsidiary;
(b all lawful claims which, if unpaid, would by law become a Lien upon
its property; and
(c all indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
VI.8 Compliance with Laws. The Company shall, and shall cause each Subsidiary
to, comply in all material respects with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
VI.9 Compliance with ERISA. The Company shall, and shall cause each of its
ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make
all required contributions to any Plan subject to Section 412 of the
Code.
VI.10 Inspection of Property and Books and Records. The Company shall, and
shall cause each Subsidiary to, maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such
Subsidiary. The Company shall, and shall cause each Subsidiary to, permit
representatives and independent contractors of the Agent or any Lender to
visit and inspect any of their respective properties, to examine their
respective company, corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective directors, officers,
and independent public accountants, all at the expense of the Company and
at such reasonable times during normal business hours and as often as may
be reasonably desired, upon reasonable advance notice to the Company not
more than once during any fiscal quarter; provided that prior to an Event
of Default the Agent or any Lender may do any of the foregoing only at
its own expense but when an Event of Default exists the Agent or any
Lender may do any of the foregoing at the expense of the Company at any
time during normal business hours without advance notice.
VI.11 Environmental Laws. The Company shall, and shall cause each Subsidiary
to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws.
VI.12 Use of Proceeds. The Company shall use the proceeds of the Loans for
working capital and other general company purposes (including Permitted
Acquisitions) not in contravention of any Requirement of Law or of any
Loan Document.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Required Lenders waive
compliance in writing:
VII.1 Limitation on Liens. The Company will not, and will not permit any
Subsidiary to, create, assume, incur or suffer to exist any Lien upon or
with respect to any property or assets, whether now owned or hereafter
acquired; except for:
(a Liens in respect of property of the Company or a Subsidiary existing
on the Effective Date and described in Schedule 7.1;
(b Liens in respect of property acquired or constructed by the Company
or a Subsidiary after the Effective Date, which are created at the
time of or within 180 days after acquisition or completion of
construction of such property to secure Indebtedness assumed or
incurred to finance all or any part of the purchase price or cost of
construction of such property, provided that in any such case;
(i no such Lien shall extend to or cover any other property of the
Company or such Subsidiary, as the case may be, and
(ii the aggregate principal amount of Indebtedness secured by all
such Liens in respect of any such property shall not exceed the
cost of such property and any improvements then being financed;
(c Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty or are
being contested in good faith (with adequate reserves therefor), or
to the extent that non-payment thereof is permitted by Section 6.7,
provided that no notice of lien has been filed or recorded under the
Code;
(d carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business which are not delinquent for a period of greater than 30
days or remain payable without penalty or which are being diligently
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside
on its books;
(e Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and
other social security legislation;
(f Liens on property of the Company or any Subsidiary securing (i) the
non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other
non-delinquent obligations of a like nature; in each case, incurred
in the ordinary course of business, provided that all such Liens in
the aggregate would not (even if enforced) cause a Material Adverse
Effect;
(g Liens arising in connection with court proceedings,
(i in the nature of attachments, remedies and judgments, provided
that the execution or other enforcement of such Liens is
effectingly stayed and the claims secured thereby are being
actively contested in good faith and by appropriate
proceedings, and
(ii securing appeal bonds, supersedeas bonds and other similar
Liens arising in connection with court proceedings (including,
without limitation, surety bonds and letter of credit) or any
other instrument serving a similar purpose,
provided that each judgment secured by a Lien described in this
clause (g) is, within 60 days after entry thereof, discharged or the
enforcement thereof is stayed pending appeal, or is discharged
within 60 days after the expiration of such stay and the judgments
so secured do not exceed $5,000,000 in the aggregate;
(h easements, right-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Company
and its Subsidiaries.
(i other Liens securing obligations not at any time exceeding 10% of
Consolidated Indebtedness at such time.
VII.2 Sale of Assets.
(a Transfers of Property. The Company shall not, and shall not permit
any Subsidiary to, sell (including, without limitation, any sale and
subsequent leasing as lessee of such Property), lease as lessor,
transfer, or otherwise dispose of a Substantial Part of the Property
of the Company and its Subsidiaries (individually, a "Transfer" and
collectively "Transfers"), except:
(i Transfers from a Subsidiary to the Company;
(ii any other Transfer (other than a Spin-Off) at any time of any
Property to a Person, other than an Affiliate (whether effected
in a single transaction or in a series of related transactions)
(for purposes of this clause (ii), a "current Transfer") if
each of the following conditions would be satisfied with
respect to such Transfer:
(A0 an Acceptable Consideration is received in respect of such
current Transfer;
(B0 immediately after giving effect to such current Transfer,
no Unmatured Event of Default or Event of Default would
exist; and
(C0 within the six month period immediately prior to and the
12 month period immediately following such current
Transfer, the Net Proceeds Amount of such current Transfer
is applied by the Company or such Subsidiary to the
purchase of operating assets of the Company or any
Subsidiary or to the prepayment Senior Debt (and to the
extent any such Senior Debt permits reborrowings, the
commitment with respect to such Senior Debt shall be
permanently reduced by the amount of the prepayment),
other than Senior Debt payable to the Company or any
Subsidiary; and
(iii any other Transfer at any time of the Property of a business
segment or a business group of the Company to a Person (a
"Spin-Off"), if each of the following conditions would be
satisfied with respect to such Transfer:
(A0 the only consideration in respect of such Spin-Off is
shares of the capital stock of such Person (or any of its
Affiliates), which shares are distributed to the
shareholders of the Company;
(B0 immediately after giving effect to such Spin-Off, no
Unmatured Event of Default or Event of Default would
exist; and
(C0 immediately after giving effect to such Spin-Off, the
Company shall be in compliance with Section 7.5 hereof,
calculated as if the Spin-Off (and any debt incurrence or
repayment) had occurred on the first day of the four
fiscal quarter period ending at the last fiscal quarter
end.
Within five days after any Spin-Off, the Company shall deliver
to the Agent a written notice describing, in reasonable detail,
the nature (including a description and value of the Property
Transferred) and the date of such Spin-Off.
(b Transfers of Subsidiary Stock. The Company will not, and will not
permit any Subsidiary to, Transfer any shares of the stock (or any
warrants, rights or options to purchase stock or other Securities
exchangeable for or convertible into stock) of a Subsidiary (such
stock, warrants, rights, options and other Securities herein called
"Subsidiary Stock"), nor will any Subsidiary issue, sell or
otherwise dispose of any of its own Subsidiary Stock; provided,
however, that the foregoing restrictions do not apply to:
(i) the issuance by a Subsidiary of any of its own Subsidiary
Stock to the Company or a Wholly-Owned Subsidiary;
(ii) Transfers by a Subsidiary of any Subsidiary Stock to the
Company or a Wholly-Owned Subsidiary;
(iii) the issuance by a Subsidiary of directors' qualifying shares;
and
(iv) the Transfer of all of the Subsidiary Stock of a Subsidiary
if:
(A) such Transfer satisfies the requirements of Section
7.2(a)(ii);
(B) in connection with such Transfer, the entire investment
(whether represented by stock, Indebtedness, claims or
otherwise) of the Company and its Subsidiaries in such
Subsidiary is Transferred to a Person other than the
Company or a Subsidiary not simultaneously being disposed
of;
(C) the Subsidiary being disposed of has no continuing
investment in the Company or any Subsidiary not
simultaneously being disposed of; and
(D) immediately before and after the consummation of such
Transfer, and after giving effect thereto, no Unmatured
Event of Default, Default or Event of Default would
exist.
For purposes of determining the book value of Property
constituting Subsidiary Stock being Transferred as provided in
clause (iv) above, such book value shall be deemed to be the
aggregate book value of all assets of the Subsidiary that
shall have issued such Subsidiary Stock.
(c) Subsidiary Mergers, etc. Any merger or consolidation of any
Subsidiary with or into any person that results in a Person other
than the Company or a Wholly-Owned Subsidiary owning Subsidiary
Stock of such Subsidiary shall be deemed to be a Transfer of the
Subsidiary Stock of such Subsidiary.
VII.3 Consolidations and Mergers. The Company shall not, and shall not permit
any Subsidiary to, consolidate with or merge with any other corporation
or other entity or convey, transfer or lease all or substantially all of
its assets in a single transaction or series of transactions to any
Person or make any Acquisition except (as long as no Event of Default has
occurred or will occur as a result) (i) a Subsidiary may consolidate with
or merge with any other corporation or other entity or convey or transfer
all or substantially all of its assets to the Company (provided that the
Company shall be the continuing or surviving entity) or a then-existing
Wholly-Owned Subsidiary,(ii) to consummate a Permitted Acquisition and
(iii) as permitted under Section 7.2.
VII.4 Limitation on Subsidiary Debt. The Company shall not permit any
Subsidiary to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness owing to the Company or a Wholly-owned Subsidiary, and
(b) additional unsecured Indebtedness if, on the date such Indebtedness
is incurred and after giving effect thereto and to the concurrent
retirement of any other Indebtedness, the aggregate amount of
Indebtedness of all Subsidiaries outstanding on such date (other
than, in the case of each corporation (i) any stock of which is
acquired by the Company and/or one or more of its Subsidiaries and
(ii) which as of the date of such acquisition becomes a Subsidiary,
Indebtedness of such corporation existing at the time when it
becomes a Subsidiary, provided that such Indebtedness is not
incurred in anticipation thereof) does not exceed 15% of
Consolidated Indebtedness; and
The Company shall not incur any Indebtedness owing to any Subsidiary
unless the same shall be for cash advances from such Subsidiary and shall
be subordinated and subject in right to the prior payment in full in cash
of all Obligations hereunder.
VII.5 Cash Flow Leverage. The Company shall not permit the ratio of (i)
Consolidated Funded Indebtedness, to (ii) EBITDA for any Computation
Period ending prior to a Spin-Off to exceed 3.5 to 1.0, and for any
Computation Period ending after a Spin-Off, 3.0 to 1.0.
VII.6 Transactions with Affiliates. The Company shall not, and shall not permit
any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than a Subsidiary), except upon fair and reasonable terms
no less favorable to the Company or such Subsidiary than would obtain in
a comparable arm's-length transaction with a Person not an Affiliate of
the Company.
VII.7 Use of Proceeds. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock, or (iv) to acquire any security
in any transaction that is subject to Section 13 or 14 of the Exchange
Act.
VII.8 Loans; Advances; and Contingent Obligations. The Company shall not, and
shall not permit any Subsidiary to, make any loan or advance or create,
incur, assume or suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Contingent Obligations which constitute Indebtedness, to the extent
permitted hereunder, provided that all Contingent Obligations in
respect of Swaps shall arise under contracts entered into in the
ordinary course of business as bona fide hedging transactions;
(c) Contingent Obligations of the Company and its Subsidiaries existing
as of the Effective Date and listed in Schedule 7.8; and
(d) Guaranty Obligations of the Company or any Subsidiary in respect of
the obligations of (i) in the case of the Company, any Subsidiary,
and (ii) in the case of any Subsidiary, any Subsidiary of such
Subsidiary or any other Subsidiary.
VII.9 Restricted Payments. During the continuance of any Event of Default or
Unmatured Event of Default (or if an Event of Default or Unmatured Event
of Default would result after giving effect to any of the Restricted
Payments described in this Section 7.9), the Company shall not, and shall
not permit any Subsidiary to, declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital
stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding.
VII.10 ERISA. The Company shall not, and shall not permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has
resulted or could reasonably be expected to result in liability of the
Company in an aggregate amount in excess of $500,000; or (b) engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
VII.11 Change in Business. The Company shall not, and shall not permit any
Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
VII.12 Accounting Changes. The Company shall not, and shall not permit any
Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal
year of the Company or of any Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
VIII.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to pay, (i) when and as required to
be paid herein, any amount of principal of any Loan, or (ii) within
five days after the same becomes due, any interest, fee or any other
amount payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or warranty by the
Company made or deemed made herein, in any other Loan Document, or
which is contained in any certificate, document or financial or
other statement by the Company, any Subsidiary, or any Responsible
Officer, furnished at any time under this Agreement, or in or under
any other Loan Document, is incorrect in any material respect on or
as of the date made or deemed made.
(c) Specific Defaults. The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 6.3(a), 7.1, 7.2,
7.3, 7.5, or 7.7.
(d) Other Defaults. The Company fails to perform or observe any other
term or covenant contained in this Agreement or any other Loan
Document, and such default shall continue unremedied for a period of
30 days after the earlier of (i) the date upon which a Responsible
Officer knew or reasonably should have known of such failure or (ii)
the date upon which written notice thereof is given to the Company
by the Agent or any Lender.
(e) Cross-Default. The Company (A) fails to make any payment in respect
of any Indebtedness or Contingent Obligation having an aggregate
principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $10,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the relevant
document on the date of such failure; or (B) fails to perform or
observe any other material condition or covenant, or any other event
shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, and such
failure continues after the applicable grace or notice period, if
any, specified in the relevant document on the date of such failure
if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause
such Indebtedness to be declared to be due and payable prior to its
stated maturity, or such Contingent Obligation to become payable or
cash collateral in respect thereof to be demanded.
(f) Insolvency; Voluntary Proceedings. The Company (i) ceases or fails
to be solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or
authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Company, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or
levied against a substantial part of the Company's properties, and
any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process
shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company admits the material
allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial
portion of its property or business.
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan
or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Company under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $1,000,000; (ii) a contribution
failure shall have occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA;
(iii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans at any time exceeds $1,000,000; or (iv) the Company or
any ERISA Affiliate shall fail to pay when due, after the expiration
of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $1,000,000.
(i) Monetary Judgments or Settlements. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards
is entered against the Company involving in the aggregate a
liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), as to
any single or related series of transactions, incidents or
conditions, of $5,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of
90 days after the entry thereof, or the Company shall enter into any
agreement to settle or compromise any pending or threatened
litigation, as to any single or related series of claims, involving
payment by the Company of $5,000,000 or more.
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree
is entered against the Company which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect.
(k) Change of Control. Any Change of Control occurs.
(l) Adverse Change. There occurs a Material Adverse Effect.
VIII.2 Remedies. If any Event of Default occurs, the Agent shall, at the request
of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately
due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the
Company; and
(c) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 8.1 (in the case of clause (i) of
subsection (g) upon the expiration of the 60-day period mentioned
therein), the obligation of each Lender to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Agent or any Lender.
VIII.3 Rights Not Exclusive. The rights provided for in this Agreement and the
other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE IX
THE AGENT
IX.1 Appointment and Authorization; "Agent". Each Lender hereby irrevocably
(subject to Section 9.9) appoints, designates and authorizes the Agent to
take such action on its behalf under the provisions of this Agreement and
each other Loan Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.
IX.2 Delegation of Duties. The Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
IX.3 Liability of Agent. None of the Agent-Related Persons shall (i) be liable
to any of the Lenders for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan
Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation
or warranty made by the Company or any Subsidiary or Affiliate of the
Company, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under
or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of the
Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
IX.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent accountants
and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all
of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.1, each Lender that has executed this Agreement shall
be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the
Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lender.
IX.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default or Unmatured Event of
Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Agent for the account of the
Lenders, unless the Agent shall have received written notice from a
Lender or the Company referring to this Agreement, describing such Event
of Default or Unmatured Event of Default and stating that such notice is
a "notice of default". The Agent will notify the Lenders of its receipt
of any such notice. The Agent shall take such action with respect to such
Event of Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with Article VIII; provided, however, that
unless and until the Agent has received any such request, the Agent may
(but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default or Unmatured Event of
Default as it shall deem advisable or in the best interest of the
Lenders.
IX.6 Credit Decision. Each Lender acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by
the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender.
Each Lender represents to the Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the Company
hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Company. Except
for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Agent, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which
may come into the possession of any of the Agent-Related Persons.
IX.7 Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of
the Company and without limiting the obligation of the Company to do so),
pro rata, from and against any and all Indemnified Liabilities; provided,
however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of the Indemnified Liabilities
resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the 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, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that
the Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
IX.8 Agent in Individual Capacity. BofA and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and
its Subsidiaries and Affiliates as though BofA were not the Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor
of the Company or such Subsidiary) and acknowledge that the Agent shall
be under no obligation to provide such information to them. With respect
to its Loans, BofA and any Affiliate thereof shall have the same rights
and powers under this Agreement as any other Lender and may exercise the
same as though BofA were not the Agent.
IX.9 Successor Agent. The Agent may, and at the request of the Required
Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If
the Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders. If no
successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with
the Lenders and the Company, a successor agent from among the Lenders.
Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and
the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article IX and Sections 10.4 and 10.5 shall inure
to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
IX.10 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Lender claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Agent,
to deliver to the Agent:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly
completed IRS Forms 1001 and W-8 before the payment of any
interest in the first calendar year and before the payment of
any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this Agreement
is exempt from United States withholding tax because it is
effectively connected with a United States trade or business
of such Lender, two properly completed and executed copies of
IRS Form 4224 before the payment of any interest is due in the
first taxable year of such Lender and in each succeeding
taxable year of such Lender during which interest may be paid
under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Agent of any change
in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and
such Lender sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such
Lender, such Lender agrees to notify the Agent of the percentage
amount in which it is no longer the beneficial owner of Obligations
of the Company to such Lender. To the extent of such percentage
amount, the Agent will treat such Lender's IRS Form 1001 as no
longer valid.
(c) If any Lender claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to
such Lender an amount equivalent to the applicable withholding tax
after taking into account such reduction. If the forms or other
documentation required by subsection (a) of this Section are not
delivered to the Agent, then the Agent may withhold from any
interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding
tax.
(e) If the IRS or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or was not
properly executed, or because such Lender failed to notify the Agent
of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section,
together with all costs and expenses (including Attorney Costs). The
obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the
Agent.
ARTICLE X
MISCELLANEOUS
X.1 Amendments and Waivers. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required
Lenders (or by the Agent at the written request of the Required Lenders)
and the Company and acknowledged by the Agent, and then any such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no such waiver,
amendment, or consent shall, unless in writing and signed by all the
Lenders and the Company and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.2);
(b) postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan, or (subject to clause (ii) below) reduce any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Lenders or
any of them to take any action hereunder; or
(e) amend this Section, or Section 2.11, or any provision herein
providing for consent or other action by all Lenders;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Agent under this Agreement or any other Loan Document, and
(ii) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed by the parties thereto.
X.2 Notices.
(a) All notices, requests and other communications shall be in writing
(including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by the
Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule
10.2, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on Schedule 10.2; or, as
directed to the Company or the Agent, to such other address as shall
be designated by such party in a written notice to the other
parties, and as directed to any other party, at such other address
as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the
date deposited into the U.S. mail; except that notices pursuant to
Article II or IX to the Agent shall not be effective until actually
received by the Agent.
(c) Any agreement of the Agent and the Lenders herein to receive certain
notices by telephone or facsimile is solely for the convenience and
at the request of the Company. The Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Agent
and the Lenders shall not have any liability to the Company or any
other Person on account of any action taken or not taken by the
Agent or the Lenders in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans shall not
be affected in any way or to any extent by any failure by the Agent
and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Agent and the Lenders to be contained in the telephonic or facsimile
notice.
X.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
X.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse the Agent and the Arranger within five Business
Days after demand (subject to subsection 4.1(e)) for all costs and
expenses incurred by the Agent and the Arranger in connection with
the development, preparation, delivery, administration and execution
of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated
hereby and thereby, including reasonable Attorney Costs incurred by
the Agent with respect thereto; and
(b) pay or reimburse the Agent and each Lender within five Business Days
after demand (subject to subsection 4.1(e)) for all costs and
expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan Document
during the existence of an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
X.5 Company Indemnification. The Company shall indemnify and hold the
Agent-Related Persons, the Arranger and each Lender and each of their
respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each an "Indemnified Person") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at
any time (including at any time following repayment of the Loans and the
termination, resignation or replacement of the Agent or replacement of
any Lender) be imposed on, incurred by or asserted against any such
Person relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated
hereby or thereby, or any action taken or omitted by any such Person
under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not
any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that (i) the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting from the gross negligence or
willful misconduct of such Indemnified Person and (ii) the Company shall
have no obligation hereunder to any Indemnified Person arising from a
breach of this Agreement by the Agent or such Indemnified Person, which
breach shall have been found to have resulted from the negligence or
misconduct of the Agent or such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations.
X.6 Payments Set Aside. To the extent that the Company makes a payment to the
Agent or the Lenders, or the Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Lender in its discretion) to be repaid
to a trustee receiver, or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such
recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred and (b)
each Lender severally agrees to pay to the Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Agent.
X.7 Successors and Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without
the prior written consent of the Agent and each Lender.
X.8 Assignments, Participation, etc.
(a) Any Lender may, with the written consent of the Company at all times
other than during the existence of an Event of Default and the
Agent, which consent of the Company shall not be unreasonably
withheld, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company or the
Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate
of such Lender) (each an "Assignee") all, or any ratable part of
all, of the Loans, the Commitment and the other rights and
obligations of such Lender hereunder, in a minimum amount of
$5,000,000 (or, if less, all of such Lender's remaining rights and
obligations hereunder); provided, however, that the Company and the
Agent may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the Agent by such
Lender and the Assignee; (ii) such Lender and its Assignee shall
have delivered to the Company and the Agent an Assignment and
Acceptance in the form of Exhibit E ("Assignment and Acceptance")
together with any Note or Notes subject to such assignment and (iii)
the assignor Lender or Assignee has paid to the Agent a processing
fee in the amount of $500.
(b) From and after the date that the Agent notifies the assignor Lender
that it has received and provided its consent (and received, if
applicable, the consent of the Company) with respect to an executed
Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall
have the rights and obligations of a Lender under the Loan
Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loans, the Commitment of such Lender
and the other interests of such Lender (the "originating Lender")
hereunder and under the other Loan Documents; provided, however,
that (i) the originating Lender's obligations under this Agreement
shall remain unchanged, (ii) the originating Lender shall remain
solely responsible for the performance of such obligations, (iii)
the Company and the Agent shall continue to deal solely and directly
with the originating Lender in connection with the originating
Lender's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to
approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the
Lenders as described in the first proviso to Section 10.1. In the
case of any such participation, the Participant shall be entitled to
the benefit of Sections 3.1, 3.3 and 10.5 as though it were also a
Lender hereunder, and if amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect
of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any
Note held by it in favor of any Federal Reserve Bank in accordance
with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
ss.203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
X.9 Confidentiality. Each Lender agrees to take and to cause its Affiliates
to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as
"confidential" or "secret" by the Company and provided to it by the
Company or any Subsidiary, or by the Agent on the Company's or such
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other
business now or hereafter existing or contemplated with the Company or
any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by
such Lender, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not
bound by a confidentiality agreement with the Company or any Subsidiary
known to such Lender; provided, however, that any Lender may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Lender is subject or in connection
with an examination of such Lender by any such authority; (B) pursuant to
subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or
proceeding to which the Agent or any Lender or any of their respective
Affiliates may be party; (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other
Loan Document; (F) to such Lender's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual or
potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Lenders
hereunder; (H) as to any Lender or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is
deemed party with such Lender or such Affiliate; and (I) to its
Affiliates.
X.10 Set-off. In addition to any rights and remedies of the Lenders provided
by law, if an Event of Default exists, or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the
Company to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by,
such Lender to or for the credit or the account of the Company against
any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Agent or such Lender shall have made
demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured. Each Lender agrees promptly
to notify the Company and the Agent after any such set-off and
application made by such Lender; provided that the failure to give such
notice shall not affect the validity of such set-off and application.
X.11 Notification of Addresses, Lending Offices, Etc. Each Lender shall notify
the Agent in writing of any change in the address to which notices to
such Lender should be directed, of addresses of any Lending Office, of
payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Agent shall
reasonably request.
X.12 Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute
but one and the same instrument.
X.13 Severability. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or such instrument or agreement.
X.14 No Third Parties Benefited. This Agreement is made and entered into for
the sole protection and legal benefit of the Company, the Lenders, the
Agent and the Agent-Related Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim
in connection with, this Agreement or any other Loan Document.
X.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE
AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE COMPANY, THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH
COURTS. EACH OF THE COMPANY, THE AGENT AND THE LENDERS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE COMPANY, THE AGENT AND THE LENDERS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
X.16 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE AGENT EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
X.17 Entire Agreement. This Agreement, together with the other Loan Documents,
embodies the entire agreement and understanding among the Company, the
Lenders and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written,
relating to the subject matter hereof and thereof.
S-2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
XXX ENTERPRISES, INCORPORATED
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a
Lender
By:
Title:
NORWEST BANK MINNESOTA, N.A.
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
FIRSTAR BANK IOWA, N.A.
By:
Title:
SCHEDULE 1.1
PRICING SCHEDULE
The Applicable Margin and Commitment Fee Rate shall be determined based
on the applicable Cash Flow Leverage Ratio as set forth below.
Applicable Applicable Margin
Cash Flow Leverage Margin for for Base Rate Commitment
Ratio Offshore Rate Loans Loans Fee Rate
------------------------------------------- ------------------- ----------------- ----------
Less than 0.50 0.225% zero 0.08%
Equal to or greater than 0.50 but less than
1.00 0.30% zero 0.10%
Equal to or greater than 1.00 but less than 0.35% zero 0.125%
2.00
Equal to or greater than 2.00 to but less 0.45% zero 0.15%
than 3.00
Equal to or greater than 3 0.55% zero 0.175%
The applicable Margin for Offshore Rate Loans initially shall be 0.35%, the
Applicable Margin for Base Rate Loans initially shall be zero, and the
Commitment Fee Rate initially shall be 0.125%. Each of the foregoing shall be
adjusted, to the extent applicable, 60 days (or, in the case of the last fiscal
quarter of any fiscal year, 120 days) after the end of each fiscal quarter based
on the Cash Flow Leverage Ratio as of the last day of such fiscal quarter;
provided that if the Company fails to deliver the financial statements required
by Section 6.1 and the related Compliance Certificate by the 60th day (or, if
applicable, the 120th day) after any fiscal quarter, the Applicable Margin and
Commitment Fee Rate that would apply if the Cash Flow Leverage Ratio were equal
to or greater than 3.00 to 1 shall apply until such financial statements are
delivered.
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Lender Commitment Share
--------------------------------------------------------------------------------
Bank of America National Trust ............ $15,000,000 30%
and Savings Association
Norwest Bank Minnesota, N.A ............... $12,500,000 25%
The First National Bank ................... $12,500,000 25%
of Chicago
Firstar Bank Iowa, N.A .................... $10,000,000 20%
TOTAL ................. $50,000,000 100%
SCHEDULE 5.5
LITIGATION
None
SCHEDULE 5.7
ERISA
None
SCHEDULE 5.11
EXISTING INDEBTEDNESS
$58,000,000 6.14% Series A Senior Notes Due 2005
$25,000,000 6.23% Series B Senior Notes Due 2004
$62,000,000 6.47% Series C Senior Notes Due 2010
$40,000,000 6.64% Series D Senior Notes Due 2013
$25,000,000 9.96% Series E Senior Notes Due January 15, 1999
SCHEDULE 5.12
ENVIRONMENTAL MATTERS
None
SCHEDULE 5.16
LIST OF SUBSIDIARIES AND EQUITY INVESTMENTS
Voting Securities
Xxx Technical Systems, Inc. Iowa 100%
Xxx Consolidated Holdings, Inc. South Dakota 100%
KOIN-TV, Inc. Delaware 100%
New Mexico Broadcasting
Company, Inc. New Mexico 100%
Accudata, Inc. Iowa 100%
Target Marketing Systems, Inc. Iowa 100%
Journal-Star Printing Co. Nebraska 100%
SJL of Kansas Corp. Kansas 100%
(a) Wichita License Subsidiary Delaware
Corp. 100%
(b) Topeka Television
Corporation Missouri 100%
(i) Topeka License
Subsidiary Corp. Delaware 100%
Oregon News Media, Inc. Delaware 100%
Pacific Northwest Publishing
Group, Inc. Delaware 100%
Nevada Media, Inc. Delaware 100%
Inn Partners, L.C. Iowa 52%
IBS/XXX Partners LLC Delaware 50%*
Marketing Clarity Partners LLC Iowa 51%**
EXISTING INVESTMENTS
SEPTEMBER 30, 1998
Madison Newspapers Inc.,
2,500 of Class I Voting
Shares (50% of capitalization)................................13,587,783***
* The Company has the right to control the limited liability company
partnership on October 1, 2002 if certain conditions are met.
** The non-Company members of this limited liability company have the right to
reduce the Company's membership interest to 20% of the membership interests
outstanding if certain conditions are met over time.
*** Cost plus equity in undistributed income.
SCHEDULE 7.1
PERMITTED LIENS
None
SCHEDULE 7.8
CONTINGENT OBLIGATIONS
Guaranty Obligations.
Under the terms of the Stock Purchase Agreement between the Company and
Polyfibron Technologies, dated January 3, 1997, under which the Company sold to
Polyfibron all of the outstanding capital stock of NAAP Systems, Inc. ("NAAP")
(all of which was indirectly owned by the Company), the Company, under terms of
indemnity therein, is responsible for off-site environmental liabilities in
excess of $1,000,000, but only for the first $500,000 in excess of $1,000,000.
The $500,000 potential liability of the Company is inclusive of all claims,
liabilities, losses, damages, deficiencies, assessments, judgments, remediations
and costs or expenses (including reasonable attorneys' consultants' and experts'
fees and expenses but excluding consequential losses and damages). On October
14, 1998 the United States Environmental Protection Agency ("USEPA") notified
the Company that it is remediating the Casmalia Disposal Site, formerly known as
the Casmalia Resources Hazardous Waste Management Facility, in Santa Xxxxxxx
County, California. This Notice of Potential Liability ("Notice") states that
NAAP was named as a waste generator on one or more manifests for hazardous
wastes sent to the Casmalia Disposal Site. The Notice indicates that the USEPA
will be making de minimis settlement offers in the range from $75,000 to
$750,000, and it appears that the Company may have no liability in this matter.
SCHEDULE 10.2
OFFSHORE AND DOMESTIC LENDING OFFICES;
ADDRESSES FOR NOTICES
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
Bank of America National Trust and Savings Association
0000 Xxxxxxx Xxxx.
0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Lender
Domestic and Offshore Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Bank of America National Trust and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. R. Guy Xxxxxxxxx
XXX ENTERPRISES, INCORPORATED
Address for Notices
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Senior Vice President - Finance
and Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Other Lenders]
EXHIBIT A
FORM OF
NOTICE OF BORROWING
Date:
To: Bank of America National Trust and Savings Association, as Agent under the
Credit Agreement, dated as of _________________, 1998 (as extended,
renewed, amended or restated from time to time, the "Credit Agreement"),
among Xxx Enterprises, Incorporated, various financial institutions, and
Bank of America National Trust and Savings Association, as Agent.
Ladies and Gentlemen:
The undersigned, Xxx Enterprises, Incorporated (the "Company"), refers to the
Credit Agreement (terms defined therein being used herein as therein defined)
and hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the Borrowing of Loans specified below:
(a) The Business Day of the proposed Borrowing is ____________,__ .
(b) The Borrowing is to be comprised of [Base Rate] [Offshore Rate] Loans.
(c) The aggregate amount of the proposed Borrowing is $______________________ .
(d) The duration of the Interest Period for the Offshore Rate Loans included in
the Borrowing shall be _____ months.
The Company certifies that the following statements are true on the date hereof,
and will be true on the date of the proposed Borrowing, before and after giving
effect thereto and to the application of the proceeds therefrom:
(a) the representations and warranties contained in Article V of the Credit
Agreement are true and correct in all material respects as though made on
and as of such date (except to the extent such representations and
warranties expressly relate to an earlier date, in which case they are true
and correct as of such date); and
(b) no Event of Default or Unmatured Event of Default has occurred and is
continuing or will result from such proposed Borrowing.
XXX ENTERPRISES, INCORPORATED
By:
Title:
EXHIBIT B
FORM OF
NOTICE OF CONVERSION/CONTINUATION
Date:
To: Bank of America National Trust and Savings Association, as Agent under the
Credit Agreement, dated as of _____________, 1998 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement"), among Xxx
Enterprises, Incorporated, various financial institutions, and Bank of
America National Trust and Savings Association, as Agent.
Ladies and Gentlemen:
The undersigned, Xxx Enterprises, Incorporated (the "Company"), refers to the
Credit Agreement (terms defined therein being used herein as therein defined)
and hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit
Agreement, with respect to the [conversion] [continuation] of the Loans
specified herein, that:
1. The Conversion/Continuation Date is _________________, __.
2. The aggregate amount of the Loans to be [converted] [continued] is $______.
3. The Loans are to be [converted into] [continued as] [Offshore Rate] [Base
Rate] Loans.
4. The duration of the Interest Period for the Offshore Rate Loans included in
the [conversion] [continuation] shall be ___ months.
The Company certifies that on the date hereof, and on the proposed
Conversion/Continuation Date both before and after giving effect thereto, no
Event of Default or Unmatured Event of Default has occurred and is continuing,
or would result from such proposed [conversion] [continuation].
XXX ENTERPRISES, INCORPORATED
By:
Title:
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
To: Bank of America National Trust and Savings Association, as Agent, and the
Lenders which are parties to the Credit Agreement referred to below
Reference is made to the Credit Agreement dated as of _____________, 1998 (as
amended or otherwise modified from time to time, the "Credit Agreement") among
Xxx Enterprises, Incorporated (the "Company"), Bank of America National Trust
and Savings Association, as Agent, and the various financial institutions party
thereto as Lenders. Terms used but not otherwise defined herein are used herein
as defined in the Credit Agreement.
1. Report. Enclosed herewith is a copy of the [annual audit/quarterly] report
of the Company as at ____________, ____ (the "Computation Date"), which
report fairly presents the consolidated financial position of the Company
and its Subsidiaries, as of the Computation Date.
2. Financial Tests. The Company hereby certifies and warrants to you that the
attached is a true and correct computation as at the Computation Date of
the ratios and/or financial restrictions contained in the Credit Agreement.
3. Defaults. The Company hereby further certifies and warrants to you that no
Event of Default or Unmatured Event of Default has occurred and is
continuing.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed and
delivered by its duly authorized officer this _________________ day of
_______________________, ____.
XXX ENTERPRISES, INCORPORATED
By: _________________________
Title:_______________________
C-2
Attachment to Compliance Certificate
Computation of Financial Tests
7.5 Cash Flow Leverage Ratio
1. Consolidated Funded Indebtedness
2. Consolidated Net Income
3. Depreciation Expense
4. Amortization Expense
5. Income and Profits Taxes
6. Consolidated Interest Expense
7. EBITDA (Item 2 plus Items 3, 4, 5 and 6)
8. Ratio (Item 1 to Item 7) ________ to 1.0
Maximum Ratio 3.5 to 1.0
EXHIBIT D-1
FORM OF OPINION OF COMPANY'S COUNSEL
[Date of Delivery of Opinion]
To: The Agent and each Lender
party to the Credit Agreement
referred to below
Re: Xxx Enterprises, Incorporated
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4.1(d) of the Credit
Agreement dated as of __________________, 1998 (the "Credit Agreement") among
Xxx Enterprises, Incorporated, a Delaware corporation (the "Company"), the
financial institutions party thereto as Lenders, and Bank of America National
Trust and Savings Association, as Agent (the "Agent"). We have acted as special
counsel for the Company in the preparation, execution and delivery of the Credit
Agreement. Terms used herein are, unless otherwise defined herein, used as
defined in the Credit Agreement.
In connection with this opinion, we have examined originals, or copies certified
or otherwise identified to our satisfaction as being true copies, of the
following, each dated this date unless otherwise indicated:
(i) The following (collectively the "Loan Documents"):
(a) the Credit Agreement; and
[(b) the Notes issued to ________________ on the date hereof;]
(ii) A certificate of the Secretary of the Company certifying as to (A) the
Amended and Restated Certificate of Incorporation and Restated By-laws of
the Company, and (B) Resolutions adopted on September 18, 1998, by the
Board of Directors of the Company; and
(iii) A certificate of the Secretary of State of Delaware, dated November 19,
1998, attesting to the continued existence and good standing of the
Company in that state.
We also have examined originals or copies of such other corporate documents and
records, and other certificates, opinions and instruments, as we have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, without independent investigation, relied
solely upon all of the foregoing and upon certificates of the officers of the
Company and of public officials.
For the purposes of this opinion, we have assumed that all items submitted to us
as originals are authentic and all signatures thereon are genuine, all items
submitted to us as copies conform to the originals, and each such item has been
duly executed and delivered by each party thereto (other than the Company)
pursuant to due authorization as such party's legal, valid and binding
obligation, enforceable against such party in accordance with its terms.
With respect to factual matters we have relied solely upon the foregoing, upon
certificates of the officers of the Company and of public officials and upon the
representations and warranties set forth in the Credit Agreement. We have
undertaken no independent review thereof and no other investigation or inquiry.
All factual matters underlying the opinions set forth herein are based upon, and
as used herein the phrase "to our knowledge" or "actual knowledge" means, the
actual knowledge of those attorneys of this firm who have represented the
Company in connection with the Loan Documents. Except as set forth above, no
inferences as to our knowledge of any factual matters may be drawn from the fact
of our representation of the Company.
Our opinions expressed herein are limited to the laws of the State of Iowa and
the federal laws of the United States, and we do not express any opinion herein
concerning any other law. As to all matters herein governed by the
Communications Act of 1934, as amended ("the Act"), and the rules and
regulations promulgated by the Federal Communications Commission (the "FCC")
thereunder (the "FCC Rules"), we have relied upon an opinion, dated as of the
date hereof, and addressed and delivered to you, of Messrs. Wiley, Rein and
Fielding, special regulatory counsel for the Company in connection with the
matters before the FCC and in respect to compliance by the Company's television
stations with the Act and the FCC Rules (the "Wiley, Rein Opinion"). In
rendering the opinions set forth in paragraph (4) below, we have assumed that
the internal laws of the State of Iowa would apply to the Loan Documents despite
selection of Illinois law as the governing law in the Loan Documents. In making
such assumption, we do not intend to imply that an Iowa state court would not
give effect to such selection of Illinois law.
Based upon and subject to the matters stated herein and upon such investigation
as we have deemed necessary, we are of the opinion that:
(1) The Company:
(a) except as noted in paragraph __ of the Wiley, Rein opinion, is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware; and
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to
carry on its business and (ii) to execute, deliver and perform its
obligations under the Loan Documents;
except, in each case referred to in clause (b)(i), to the extent that
the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
(2) The execution, delivery and performance by the Company of the Loan
Documents to which the Company is a party have been duly authorized by all
necessary corporate action, and the Loan Documents do not:
(a) contravene the terms of any of the Company's Organization Documents;
(b) except as noted in paragraph __ of the Wiley, Rein opinion, conflict
with or result in a breach or contravention of, or the creation of any
Lien under, any document evidencing any Contractual Obligation of
which we have knowledge to which the Company is a party or any order,
injunction, writ or decree of any Governmental Authority to which the
Company or its property is subject of which we have knowledge; or
(c) violate any U.S. Federal or Iowa state Requirement of Law.
(3) Except as noted in paragraph 2 of the Wiley, Rein opinion, no approval,
consent, exemption, authorization or other action by, or notice to, or
filing with, any U.S. Federal or Iowa state Governmental Authority is
necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company of any Loan Document.
Our opinion in this paragraph 3 is based solely upon a review of generally
applicable laws of the United States of America (except for the Act and the
FCC Rules, as to which we express no opinion) and the State of Iowa, and
not on any search with respect to, any orders, decrees, judgments or other
determinations specifically applicable to the Company.
(4) The Loan Documents are the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms.
The opinions set forth above are subject to the following qualifications:
(a) Our opinion in paragraph 4 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar law affecting creditors' rights
generally and to the effect of general principles of equity, including
(without limitation) concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law), and the discretion of a court in
granting equitable remedies (regardless of whether considered in a
proceeding in equity or at law).
(b) The availability of equitable remedies, including without limitation,
specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought.
(c) Rights to indemnification and contribution thereunder may be limited
by applicable law or public policy.
(d) We call your attention to the following matters as to which we express
no opinion:
(i) the Company's agreement in the Loan Documents to indemnify you
against costs or expenses or liability arising out of or
related to the entering into, performance or enforcement of the
transactions contemplated by the Loan Documents;
(ii) the Company's agreements in the Loan Documents to the
jurisdiction of a particular court or to the waiver of the
right to jury trial; or
(iii) certain other provisions contained in the Loan Documents which
may be limited or rendered ineffective by applicable laws of
the State of Iowa or judicial decisions governing such
provisions or holding their enforcement to be unreasonable
under the then existing circumstances.
This opinion may not be disclosed or delivered to, filed with, or relied upon
by, any other person, entity or agency, and may not be quoted in whole or in
part or otherwise referred to, without the prior written consent of the
undersigned. This letter is limited to the matters set forth herein, and no
opinion may be inferred or implied beyond the matters expressly stated herein.
This opinion is limited to matters as of the date hereof and we undertake no
obligation to advise you of matters that hereafter come to our attention or
otherwise arise that affect the opinions set forth herein.
This opinion is furnished to you solely in connection with the transactions
described above and (i) may not be relied upon by anyone other than the
addressees hereof and their respective successors, participants and assigns (and
by counsel to the foregoing) and (ii) may be relied upon by such persons only in
connection with the transactions described above.
Very truly yours,
EXHIBIT D-2
The Agent and each Lender party to the
Credit Agreement, referred to below
RE: Xxx Enterprises, Incorporated
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4.1(d) of the Credit
Agreement dated as of _________, 1998 (the "Credit Agreement") among Xxx
Enterprises, Incorporated, a Delaware corporation (the "Company"), the financial
institutions party thereto as Lenders, and Bank of America National Trust and
Savings Association, as Agent (the "Agent"). We have acted as special
communications counsel for the Company. Terms used herein are, unless otherwise
defined herein, used as defined in the Credit Agreement.
In connection with this opinion, we have examined originals, or copies certified
or otherwise identified to our satisfaction as being true copies, of the
following, each dated this date unless otherwise indicated:
The following (collectively the "Loan Documents"):
(a) the Credit Agreement; and
(b) the Notes issued to the Lenders on the date hereof.
We also have examined originals or copies of such other corporate documents and
records, and other certificates, opinions and instruments, as we have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, without independent investigation, relied
solely upon all of the foregoing, representations and warranties set forth in
the Credit Agreement and information publicly available for inspection at the
Federal Communications Commission ("FCC"). Except as set forth above, no
inferences as to our knowledge of any factual matters may be drawn from the fact
of our representation of the Company.
For the purposes of this opinion, we have assumed that all items submitted to us
as originals are authentic and all signatures thereon are genuine, all items
submitted to us as copies conform to the originals, and each such item has been
duly executed and delivered by each party thereto (other than the Company)
pursuant to due authorization, execution and delivery as such party's legal,
valid and binding obligation, enforceable against such party in accordance with
Our opinions expressed herein are limited to the Communications Act of 1934, as
amended ("the Act"), and the rules and regulations promulgated by the FCC
thereunder (the "Rules"). We express no opinion concerning any other laws.
Based solely and in reliance upon the foregoing and subject to the
qualifications and limitations set forth below, it is our opinion that:
1. The Company or its subsidiaries hold the FCC authorizations and licenses
described on the Attachment to this letter.
2. The execution, delivery and performance by the Company of the Loan
Documents to which the Company is a party do not require prior consent,
approval or authorization of the FCC, and do not constitute a violation by
the Company of the Act or Rules, provided it is understood that (i) the FCC
prohibits the grant of a security interest in or lien upon any FCC license,
permit or authorization, (ii) prior FCC consent is required before the
assignment or transfer of control of an FCC license, permit or
authorization (including without limitation prior to the exercise of
certain rights or remedies under the Loan Documents which constitute or
cause such an assignment or transfer of control under the Act and Rules),
and (iii) certain of the Loan Documents will need to be filed with the FCC
for informational purposes.
This opinion is furnished to you solely in connection with the transactions
described above and (i) may not be relied upon by anyone other than the
addressees hereof and their respective successors, participants and assigns (and
by counsel to the foregoing) and (ii) may be relied upon by such persons only in
connection with the transactions described above.
This opinion may not be disclosed or delivered to, filed with, or relied upon
by, any other person, entity or agency, and may not be quoted in whole or in
part or otherwise referred to, without the prior written consent of the
undersigned. This letter is limited to the matters set forth herein, and no
opinion may be inferred or implied beyond the matters expressly stated herein.
This opinion is limited to matters as of the date hereof an we undertake no
obligation to advise you of matters that hereafter come to our attention or
otherwise arise that affect the opinions set forth herein.
Very truly yours,
ATTACHMENT 1
FCC LICENSES
Licensee Station Expiration Date
-------------------------------------------------------------------------------------------------------
Xxx Enterprises, Incorporated KGMB(TV), Honolulu, HI 2/1/99 (Renewal pending)
Xxx Enterprises, Incorporated KGMV(TV), Wailuku, HI 2/1/99 (Renewal pending)
Xxx Enterprises, Incorporated KGMD-TV, Hilo, HI 2/1/99 (Renewal pending)
Xxx Enterprises, Incorporated WSAZ-TV, Huntington, WV 10/1/04
Xxx Enterprises, Incorporated KGUN(TV), Tucson, AZ 00/0/00
Xxx Xxxxxxxxxxx, Xxxxxxxxxxxx XXXX(XX), Xxxxx, XX 6/1/06
Xxx Enterprises, Incorporated KMAZ(TV), Las Cruces, NM 10/1/06
KOIN-TV, Inc. KOIN(TV), Portland, OR 2/1/99 (Renewal pending)
New Mexico Broadcasting Co., Inc. KBIM-TV, Roswell, NM 10/1/06
New Mexico Broadcasting Co., Inc. KRQE(TV), Albuquerque, NM 00/0/00 (Xxxxxxx xxxxxxx)
Xxx Xxxxxx Broadcasting Co., Inc. KREZ-TV, Durango, CO 4/1/06
Topeka License Subsidiary Corporation KSNT(TV), Topeka, KS 6/1/06
Wichita License Subsidiary Corporation KSNW(TV), Wichita, KS 6/1/06
Wichita License Subsidiary Corporation KSNC(TV), Great Bend, KS 6/1/06
Wichita License Subsidiary Corporation KSNG(TV), Garden City, KS 6/1/06
Wichita License Subsidiary Corporation KSNK(TV), XxXxxx, NE 6/1/06
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and Acceptance")
dated as of __________, ____ is made between ______________________________ (the
"Assignor") and __________________________ (the "Assignee").
RECITALS
The Assignor is party to the Credit Agreement dated as of ___________________,
1998 (as amended, modified, supplemented or renewed, the "Credit Agreement")
among Xxx Enterprises, Incorporated (the "Company"), Bank of America National
Trust and Savings Association as Agent (the "Agent"), and the several financial
institutions from time to time party thereto (including the Assignor, the
"Lenders"). Terms defined in the Credit Agreement and not defined in this
Assignment and Acceptance are used herein as defined in the Credit Agreement.
The Assignor wishes to assign to the Assignee [part of the] [all] rights and
obligations of the Assignor under the Credit Agreement in respect of the Loans,
the Assignor's Commitment and the other rights and obligations of the Assignor
thereunder, and the Assignee wishes to accept assignment of such rights and to
assume such obligations from the Assignor, in each case on the terms and subject
to the conditions of this Assignment and Acceptance.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and Acceptance,
(i) the Assignor hereby sells, transfers and assigns to the Assignee,
and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty
(except as provided in this Assignment and Acceptance),
(i) ___% of the Assignor's Commitment, together with a corresponding
portion of the Assignor's outstanding Loans as set forth on Annex
I; and
(ii) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the
Credit Agreement and the other Loan Documents
(all of the foregoing being herein called the "Assigned Rights
and Obligations").
(b) With effect on and after the Effective Date (as defined in Section 5
hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the
obligations of a Lender under the Credit Agreement, including the
requirements concerning confidentiality and the payment of
indemnification, with a Pro Rata Share equal to _______%. The Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender. It is the intent of the parties hereto
that (i) as of the Effective Date, the Pro Rata Share of the Assignor
shall be reduced to _______%, and (ii) the Assignor shall relinquish
its rights and be released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, that the Assignor shall not relinquish
its rights under Article III or Sections 10.4 or 10.5 of the Credit
Agreement in respect of the Assigned Rights and Obligations to the
extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth herein,
on the Effective Date the Assignee's Commitment and the Assignor's
Commitment will be as set forth on Annex I.
(d) After giving effect to the assignment and assumption set forth herein,
on the Effective Date the Assignee's outstanding Loans will be
$__________ and the Assignor's outstanding Loans will be $__________.
2. Payments.
(a) As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to
$__________, representing the principal amount of all outstanding and
funded Loans included within the Assigned Rights and Obligations.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 10.8(a) of the
Credit Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date with
respect to the Assigned Rights and Obligations shall be for the account of
the Assignor. Any interest, fees and other payments accrued on and after
the Effective Date with respect to the Assigned Rights and Obligations
shall be for the account of the Assignee. Each of the Assignor and the
Assignee agrees that it will hold in trust for the other party any
interest, fees and other amounts which it may receive to which the other
party is entitled pursuant to the preceding two sentences and pay to the
other party any such amounts which it may receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of
the most recent financial statements referred to in Section 6.1 of the
Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter
into this Assignment and Acceptance; and (b) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date for this
Assignment and Acceptance shall be ______________ (the "Effective
Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and delivered by
the Assignor and the Assignee;
(ii) the consent of the Company and the Agent, if required for an
effective assignment of the Assigned Rights and Obligations by
the Assignor to the Assignee under Section 10.8(a) of the Credit
Agreement, shall have been duly obtained and shall be in full
force and effect as of the Effective Date;
(iii)the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Assignment and Acceptance; and (iv) the
processing fee referred to in Section 2(b) hereof shall have been
paid to the Agent.
(b) Promptly following the execution of this Assignment and Acceptance,
the Assignor shall deliver to the Company and the Agent, for
acknowledgment by the Agent, a Notice of Assignment substantially in
the form attached hereto as Schedule 1.
6. Agent. INCLUDE ONLY IF ASSIGNOR IS THE AGENT
(a) The Assignee hereby appoints and authorizes the Assignor to take such
action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the Lenders pursuant
to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.
7. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse
claim; (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to
execute and deliver this Assignment and Acceptance and any other
documents required or permitted to be executed or delivered by it in
connection with this Assignment and Acceptance and to fulfill its
obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Assignment and Acceptance, and apart from any
agreements or undertakings or filings required by the Credit
Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance;
and (iv) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding
obligation of the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument
or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company or the performance or observance by the
Company of any of its obligations under the Credit Agreement or any
other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken,
all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be
executed or delivered by it in connection with this Assignment and
Acceptance, and to fulfill its obligations hereunder; (ii) no notices
to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due
execution, delivery and performance of this Assignment and Acceptance;
and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing
with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly
executed and delivered by it and constitutes the legal, valid and
binding obligation of the Assignee, enforceable against the Assignee
in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is an Eligible Assignee.
8. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver such
other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Company or the Agent which may be required
in connection with the assignment and assumption contemplated hereby.
9. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No
failure or delay by either party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof and any
waiver of any breach of the provisions of this Assignment and
Acceptance shall be without prejudice to any rights with respect to
any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of
any State or Federal court sitting in the State of Illinois over any
suit, action or proceeding arising out of or relating to this
Assignment and Acceptance and irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in
such Illinois State or Federal court. Each party to this Assignment
and Acceptance hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT
AGREEMENT, ANY RELATED DOCUMENT OR AGREEMENT OR ANY COURSE OF CONDUCT,
COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By: _____________________________
Title: __________________________
Address:
[ASSIGNEE]
By: _____________________________
Title: __________________________
Address:
ANNEX I
Immediately Before
Effective Date: Commitment Pro Rata Share
Assignor: U.S.$ %
Assignee: U.S.$ %
On and after
Effective Date:
Assignor: U.S.$ %
Assignee: U.S.$ %
The Assigned Rights and Obligations include:
Amount Loan
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, ____
Bank of America National Trust and Savings Association, as Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: ___________________
Xxx Enterprises, Incorporated
0000 Xxxx Xxxxx Xxxxxx
Xxxx, Xxxx 00000
Attn:
Ladies and Gentlemen:
We refer to the Credit Agreement, dated as of _________________, 1998 (as
amended, modified, supplemented or renewed from time to time, the "Credit
Agreement"), among Xxx Enterprises, Incorporated (the "Company"), Bank of
America National Trust and Savings Association, as Agent, and the Lenders
referred to therein. Terms defined in the Credit Agreement are used herein as
therein defined.
1. We hereby give you notice of, and request your consent to, the assignment
by __________________ (the "Assignor") to _______________ (the "Assignee")
pursuant to the Assignment and Acceptance Agreement attached hereto (the
"Assignment and Acceptance") of:
(i) ___% of the Assignor's Commitment, together with a corresponding
portion of the Assignor's outstanding Loans, and
(ii) all related rights, benefits, obligations, liabilities and indemnities
of the Assignor under and in connection with the Credit Agreement and
the other Loan Documents.
After giving effect to such assignment, the Assignee shall have a Pro Rata
Share equal to _______%, and the Pro Rata Share of the Assignor shall be
reduced to _______%.
After giving effect to such assignment, the Assignee's outstanding Loans
will be $__________ and the Assignor's outstanding Loans will be
$__________.
2. The Assignee agrees that, upon receiving the consent, if applicable, of the
Agent and the Company to such assignment, the Assignee will be bound by the
terms of the Credit Agreement as fully and to the same extent as if the
Assignee were the Lender originally holding such interest in the Credit
Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: __________________________
Address: _______________________________
_______________________________
_______________________________
Attention: _____________________________
Telephone: (___) _______________________
Telecopier: (___) ______________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations, warranties and covenants
of each of the Assignor and the Assignee contained in the Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice of
Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By: _______________________________
Title: ____________________________
[NAME OF ASSIGNEE]
By: ______________________________
Title: ____________________________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
XXX ENTERPRISES, INCORPORATED
By: _________________________
Its: _________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: ______________________________
Its: _____________________________
EXHIBIT F
FORM OF
PROMISSORY NOTE
$
___________________ , 1998
FOR VALUE RECEIVED, the undersigned, Xxx ENTERPRISES, INCORPORATED, a Delaware
corporation (the "Company"), hereby promises to pay to the order of
______________ (the "Lender") the principal sum of ___________________ Dollars
($___________ ) or, if less the aggregate unpaid principal amount of all Loans
made by the Lender to the Company pursuant to the Credit Agreement dated as of
________________, 1998 (as amended or otherwise modified from time to time, the
"Credit Agreement") among the Company, various financial institutions (including
the Lender), and Bank of America National Trust and Savings Association, as
Agent for the Lenders, on the dates and in the amounts provided in the Credit
Agreement. The Company further promises to pay interest on the unpaid principal
amount of the Loans evidenced hereby from time to time at the rates, on the
dates, and otherwise as provided in the Credit Agreement.
The Lender is authorized to endorse the amount of each loan and the date on
which such Loan is made and each payment of principal with respect thereto on
the schedules annexed hereto and made a part hereof, or on continuations thereof
which shall be attached hereto and made a part hereof; provided that any failure
to endorse such information on such schedule or continuation thereof shall not
in any manner affect any obligation of the Company under the Credit Agreement
and this Promissory Note (this "Note").
This Note is one of the Notes referred to in, and is entitled to the benefits
of, the Credit Agreement, which Credit Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
Terms defined in the Credit Agreement are used herein with their defined
meanings therein unless otherwise defined herein. This Note shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
Illinois applicable to contracts made and to be performed entirely within such
State.
XXX ENTERPRISES, INCORPORATED
By:
Title:
Schedule A to Note
BASE RATE LOANS AND REPAYMENTS OF
BASE RATE LOANS
(2) (3)
Amount of Amount of (4)
(1) Base Rate Base Rate Notation
Date Loan Loan Repaid Made By
OFFSHORE RATE LOANS AND REPAYMENTS
OF OFFSHORE RATE LOANS
(3)
(2) Interest (4)
Amount of Period for Amount of
Offshore Offshore Offshore (5)
(1) Rate Rate Rate Notation
Date Loan Loan Loan Repaid Made By
-----------------------------------------------------------------
