Exhibit 10.1
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$1,000,000,000
CREDIT AGREEMENT
among
MEDIA GENERAL, INC.,
as the Borrower
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
SUNTRUST BANK
as the Documentation Agent
FLEET SECURITIES, INC.
WACHOVIA BANK, N.A.
THE BANK OF NOVA SCOTIA
MIZUHO FINANCIAL GROUP
as the Co-Syndication Agents
and
BANK OF AMERICA, N.A.,
as the Administrative Agent
Dated as of June 29, 2001
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with
BANC OF AMERICA SECURITIES LLC
as Lead Arranger and Book Running Manager
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS.............................................................................. 1
1.1 Defined Terms............................................................................ 1
1.2 Other Definitional Provisions............................................................ 21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS................................................ 22
2.1 Committed Loans.......................................................................... 22
2.2 Notes for Committed Loans................................................................ 22
2.3 Procedure for Borrowing of Committed Loans............................................... 22
2.4 Swing Line Commitments................................................................... 23
2.5 Repayment of Loans....................................................................... 25
2.6 Competitive Loans........................................................................ 26
2.7 Uncommitted Increase..................................................................... 28
SECTION 3. LETTERS OF CREDIT........................................................................ 30
3.1 Letter of Credit Commitment.............................................................. 30
3.2 Procedure for Issuance or Renewal of Letters of Credit................................... 31
3.3 Fees, Commissions and Other Charges...................................................... 31
3.4 L/C Participations....................................................................... 32
3.5 Reimbursement Obligation of the Borrower................................................. 33
3.6 Obligations Absolute..................................................................... 34
3.7 Letter of Credit Payments................................................................ 34
3.8 Application.............................................................................. 34
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT............................. 35
4.1 Interest Rates and Payment Dates......................................................... 35
4.2 Optional and Mandatory Commitment Reductions and Prepayments............................. 35
4.3 Fees..................................................................................... 38
4.4 Computation of Interest and Fees......................................................... 38
4.5 Conversion and Continuation Options...................................................... 39
4.6 Minimum Amounts of Tranches.............................................................. 39
4.7 Inability to Determine Interest Rate..................................................... 39
4.8 Pro Rata Treatment and Payments.......................................................... 40
4.9 Requirements of Law...................................................................... 41
4.10 Taxes.................................................................................... 42
4.11 Indemnity................................................................................ 44
4.12 Change of Lending Office................................................................. 45
4.13 Replacement of Lenders under Certain Circumstances....................................... 45
4.14 Illegality............................................................................... 45
SECTION 5. REPRESENTATIONS AND WARRANTIES........................................................... 46
5.1 Financial Condition...................................................................... 46
5.2 No Change................................................................................ 47
5.3 Existence; Compliance with Law........................................................... 47
5.4 Power; Authorization; Enforceable Obligations............................................ 47
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5.5 No Legal Bar............................................................................. 47
5.6 No Material Litigation................................................................... 48
5.7 No Default............................................................................... 48
5.8 Ownership of Property; Intellectual Property............................................. 48
5.9 No Burdensome Restrictions............................................................... 48
5.10 Taxes.................................................................................... 48
5.11 Federal Regulations...................................................................... 49
5.12 ERISA.................................................................................... 49
5.13 Investment Company Act; Other Regulations................................................ 49
5.14 Capital Stock and Subsidiaries........................................................... 50
5.15 Insurance................................................................................ 50
5.16 Authorizations........................................................................... 50
5.17 Environmental Matters.................................................................... 51
5.18 Accuracy of Projections.................................................................. 52
5.19 Solvency................................................................................. 52
5.20 Indebtedness............................................................................. 52
5.21 Labor Matters............................................................................ 52
5.22 Full Disclosure.......................................................................... 53
SECTION 6. CONDITIONS PRECEDENT..................................................................... 53
6.1 Conditions to Initial Extensions of Credit............................................... 53
6.2 Conditions to Each Extension of Credit................................................... 55
SECTION 7. AFFIRMATIVE COVENANTS.................................................................... 55
7.1 Financial Statements..................................................................... 56
7.2 Certificates; Other Information.......................................................... 56
7.3 Payment of Obligations................................................................... 57
7.4 Conduct of Business and Maintenance of Existence, etc.................................... 57
7.5 Maintenance of Property; Insurance....................................................... 57
7.6 Inspection of Property; Books and Records; Discussions................................... 57
7.7 Notices.................................................................................. 58
7.8 Environmental Laws....................................................................... 58
7.9 Use of Proceeds.......................................................................... 58
7.10 Subsidiary Guarantee..................................................................... 59
7.11 Payment of Taxes and Claims.............................................................. 59
SECTION 8. NEGATIVE COVENANTS....................................................................... 59
8.1 Financial Condition Covenants............................................................ 59
8.2 Limitation on Indebtedness............................................................... 60
8.3 Limitation on Liens...................................................................... 61
8.4 Limitation on Fundamental Changes........................................................ 62
8.5 Limitation on Sale of Assets............................................................. 63
8.6 Limitation on Restricted Payments; Other Payment Limitations............................. 64
8.7 Limitation on Acquisitions............................................................... 64
8.8 Investments, Loans, Etc.................................................................. 65
8.9 Limitation on Transactions with Affiliates............................................... 65
8.10 Limitation on Restrictive Agreements..................................................... 65
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8.11 Limitation on Lines of Business......................................................... 66
8.12 Limitation on Issuance of Capital Stock................................................. 66
8.13 Sale and Leaseback...................................................................... 66
8.14 Compliance with ERISA................................................................... 66
SECTION 9. EVENTS OF DEFAULT....................................................................... 67
SECTION 10. THE ADMINISTRATIVE AGENT................................................................ 69
10.1 Appointment............................................................................. 69
10.2 Delegation of Duties.................................................................... 70
10.3 Exculpatory Provisions.................................................................. 70
10.4 Reliance by the Administrative Agent.................................................... 70
10.5 Notice of Default....................................................................... 71
10.6 Non-Reliance on the Administrative Agent and the Other Lenders.......................... 71
10.7 Indemnification......................................................................... 71
10.8 The Administrative Agent in Its Individual Capacity..................................... 72
10.9 Successor Administrative Agent.......................................................... 72
10.10 Other Agents............................................................................ 72
SECTION 11. MISCELLANEOUS........................................................................... 73
11.1 Amendments and Waivers.................................................................. 73
11.2 Notices................................................................................. 74
11.3 No Waiver; Cumulative Remedies.......................................................... 74
11.4 Survival of Representations and Warranties.............................................. 74
11.5 Payment of Expenses and Taxes........................................................... 75
11.6 Successors and Assigns; Participations and Assignments.................................. 75
11.7 Adjustments; Set-off.................................................................... 78
11.8 Counterparts; When Effective............................................................ 79
11.9 Severability............................................................................ 79
11.10 Integration............................................................................. 79
11.11 GOVERNING LAW........................................................................... 79
11.12 SUBMISSION TO JURISDICTION; WAIVERS..................................................... 79
11.13 Acknowledgements........................................................................ 80
11.14 WAIVERS OF JURY TRIAL................................................................... 81
11.15 Confidentiality......................................................................... 81
11.16 CONSEQUENTIAL DAMAGES................................................................... 81
11.17 Release of Conditional Early Release Guarantee.......................................... 81
11.18 Entire Agreement........................................................................ 81
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TABLE OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1.1 Commitments and Addresses of the Lenders
Schedule 1.2 Existing Letters of Credit on the Effective Date
Schedule 4.2 Borrower's Non-Strategic Real Estate on the Closing Date
Schedule 5.1 Financial Disclosure
Schedule 5.14 Subsidiaries
Schedule 8.3(k) Existing Liens
Schedule 8.8(b) Existing Investments
EXHIBITS
A Form of Assignment and Acceptance
B-1 Form of Competitive Bid
B-2 Form of Competitive Bid Acceptance
B-3 Form of Competitive Bid Rejection
B-4 Form of Competitive Bid Request
B-5 Form of Competitive Loan Confirmation
B-6 Form of Invitation to Bid
C Form of Compliance Certificate
D Form of Conditional Early Release Guarantee
E Form of Swing Line Loan Participation Certificate
F-1 Form of Committed Loan Note
F-2 Form of Swing Line Note
F-3 Form of Competitive Loan Note
G-1 Form of Notice of Borrowing
G-2 Form of Notice of Conversion/Continuation
H Form of Closing Certificate (Initial Extension of Credit)
I Form of Legal Opinion of Counsel to the Borrower and its Subsidiaries
J Form of Alternative Note
K Form of Notice of Change of Senior Unsecured Debt Rating
$1,000,000,000
CREDIT AGREEMENT
MEDIA GENERAL, INC.
THIS CREDIT AGREEMENT is entered into as of June 29, 2001, among MEDIA
GENERAL, INC., a Virginia corporation (the "Borrower"), the several lenders from
time to time parties hereto (the "Lenders"), BANK OF AMERICA, N.A., as the
Administrative Agent for the Lenders hereunder, FLEET SECURITIES, INC., WACHOVIA
BANK, N.A., THE BANK OF NOVA SCOTIA, MIZUHO FINANCIAL GROUP as the Co-
Syndication Agents (in such capacity, the "Co-Syndication Agents") and SUNTRUST
BANK, as the Documentation Agent (in such capacity, the "Documentation Agent"),
with BANC OF AMERICA SECURITIES LLC as Lead Arranger and Book Running Manager.
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to furnish the extensions
of credit provided for herein, which shall be used by the Borrower (a) to
refinance the existing debt of the Borrower evidenced by the Existing Credit
Agreement, (b) to finance permitted acquisitions of the Borrower and the
Subsidiaries, (c) to finance permitted capital expenditures of the Borrower and
the Subsidiaries and (d) for general corporate purposes;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such
day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans which bear or are to bear interest at a rate based upon
the ABR.
"Acquired EBITDA": as defined in the definition of Asset Sale EBITDA
Percentage.
"Acquisition Liens": as defined in Section 8.3(e).
"Administrative Agent": Bank of America, N.A., in its capacity as agent for
the Lenders under this Agreement and the other Loan Documents, and its
successors and permitted assigns in such capacity.
"Advance": an amount loaned to the Borrower by any Lender pursuant to this
Agreement.
"Affiliate": 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 such Person
(acting alone or with a group of Persons acting in concert) possesses, directly
or indirectly, the power to direct or cause the direction of the management or
policies of such other Person, whether through ownership of voting securities,
by contract or otherwise.
"Aggregate Available Commitment": on any date of determination, the Total
Commitment, minus the sum of the Aggregate Outstanding Extensions of Credit of
each Lender on such date.
"Aggregate Outstanding Extensions of Credit": as to any Lender at any time,
an amount equal to the sum of (a) the aggregate principal amount of all
Committed Loans made by such Lender then outstanding, (b) such Lender's
Specified Percentage of the L/C Obligations then outstanding, (c) the aggregate
principal amount of all Competitive Loans made by such Lender then outstanding
and (d) such Lender's Specified Percentage, if any, of the aggregate principal
amount of Swing Line Loans then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented, restated,
otherwise modified or replaced from time to time.
"Alternative Note": as defined in Section 11.6(d).
"Alternative Noteholder": as defined in Section 11.6(e).
"Applicable Margin": at the time of any determination thereof, for purposes
of all Loans (other than Competitive Loans), the margin of interest over the ABR
or the Eurodollar Rate, as the case may be, which is applicable at the time of
any determination of interest rates under this Agreement, which Applicable
Margin shall be subject to adjustment (upwards or downwards, as appropriate)
based on the Leverage Ratio as follows:
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Applicable Margin Applicable Margin
Leverage Ratio for ABR Loans for Eurodollar Loans
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Greater than or equal to
4.25 to 1.00 0.500% 1.500%
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Greater than or equal to 3.75 but less
than 4.25 to 1.00 0.325% 1.325%
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Greater than or equal to 3.25 but less
than 3.75 to 1.00 0.100% 1.100%
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Greater than or equal to 2.75 but less
than 3.25 to 1.00 0.000% 0.925%
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Greater than or equal to 2.25 but less
than 2.75 to 1.00 0.000% 0.850%
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Less than 2.25 to 1.00 0.000% 0.750%
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For the purposes of this definition, the Applicable Margin shall be
determined as at the end of each of the first three quarterly periods of each
fiscal year of the Borrower and as at the end of each fiscal year of the
Borrower, based on the relevant financial statements delivered pursuant to
Sections 7.1(a) and (b), respectively, and the Compliance Certificate delivered
pursuant to Section 7.2(b); changes in the Applicable Margin shall become
effective on the date which is the earlier of (i) two Business Days after the
date the Administrative Agent receives such financial statements and the
corresponding Compliance Certificate and (ii) the last date on which such
financial statements and corresponding Compliance Certificate should have been
delivered pursuant to Sections 7.1(a) and (b) and Section 7.2(b), and shall
remain in effect until the next change to be effected pursuant to this
definition; provided, that (A) until the first such financial statements and
Compliance Certificate are delivered after the date hereof, the Applicable
Margin shall be determined by reference to the Leverage Ratio set forth in the
Closing Certificate delivered to the Administrative Agent pursuant to Section
6.1(b) and (B) if any financial statements or the Compliance Certificate
referred to above are not delivered within the time periods specified above,
then, for the period from and including the date on which such financial
statements and Compliance Certificate are required to be delivered to, but not
including, the date on which such financial statements and Compliance
Certificate are delivered, the Applicable Margin as at the end of the fiscal
period that would have been covered thereby shall be deemed to be the Applicable
Margin which would be applicable when the Leverage Ratio is greater than 4.25 to
1.00.
Notwithstanding the foregoing, if the Borrower at any time during the term
of this Agreement receives a senior unsecured debt rating from both S&P and
Xxxxx'x, then, at any time during the two week period beginning the day after
the Borrower has received the latest of such two ratings, the Borrower shall
have the one-time option to cause both the Applicable Margin and the Facility
Fee Margin (but not just one of them) to be determined by the Senior Unsecured
Debt Rating of the Borrower, and with respect to the Applicable Margin, by the
pricing grid set forth below, by delivering written notice to the Borrower
specifying 1) the Senior Unsecured Debt Ratings the Borrower received from both
Xxxxx'x and S&P, 2) the date each such rating was received and 3) the Borrower's
election to have both the Applicable Margin and the Facility Fee Margin (but not
just one of them) determined by the Senior Unsecured Debt Rating. Such election
by the Borrower shall be effective three Business Days after receipt by the
Administrative Agent of such written notice, and thereafter, for purposes of all
Loans (other than Competitive Loans), the margin of interest over the ABR or the
Eurodollar Rate, as the case may be, which is applicable at the time of any
determination of interest rates under this Agreement, shall be the Applicable
Margin set forth below, which Applicable Margin shall be subject to adjustment
(upwards or downwards, as appropriate) based on the Senior Unsecured Debt Rating
as follows:
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Senior Unsecured Applicable Margin Applicable Margin
Debt Rating** for ABR Loans for Eurodollar Loans
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BB/Ba2 or lower 0.625% 1.625%
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BB+/Ba1 0.450% 1.450%
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BBB-/Baa3 0.050% 1.050%
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BBB/Baa2 0.000% 0.725%
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BBB+/Baa1 or higher 0.000% 0.625%
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**In the event that the Senior Unsecured Debt Rating of the Borrower has
ratings differing (a) by up to one level, the lowest Applicable Margin will
apply and (b) by more than one level, the Applicable Margin for the level
immediately below the highest Senior Unsecured Debt Rating will apply.
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For the purposes of this definition with respect to a determination of the
Applicable Margin based on the Senior Unsecured Debt Rating of the Borrower, the
Applicable Margin shall be determined from time to time after the Administrative
Agent has received each Notice of Change of Senior Unsecured Debt Rating
delivered by the Borrower in accordance with the terms of Section 7.2(d).
Changes in the Applicable Margin shall become effective on the date which is the
earlier of (i) two Business Days after the date the Administrative Agent
receives such Notice of Change of Senior Unsecured Debt Rating and (ii) the last
date on which such notice should have been delivered pursuant to Section 7.2(d),
and shall remain in effect until the next change to be effected pursuant to this
definition; provided, that if any notice referred to above is not delivered
within the time periods specified above, then, for the period from and including
the date on which such notice is required to be delivered to, but not including,
the date on which such notice is delivered, the Applicable Margin as at the end
of the fiscal period that would have been covered thereby shall be deemed to be
the Applicable Margin which would be applicable when the Senior Unsecured Debt
Rating is BB/Ba2 or lower.
"Application": an application, in form and substance consistent with this
Agreement and mutually satisfactory to the Borrower and the Issuing Lender,
requesting the Issuing Lender to open a Letter of Credit, and each amendment,
modification, supplement, and replacement thereof.
"Arranging Agents": the Administrative Agent, the Co-Syndication Agents and
the Documentation Agent.
"Asset Sale EBITDA Percentage": the percentage that the portion of EBITDA
(for the most recent four fiscal quarters) attributed to the assets sold by the
Borrower or its Subsidiaries in a Disposition occurring during the term of this
Agreement is of total EBITDA (for such fiscal quarters), calculated as of the
date of the Disposition; provided that if the Disposition would be an Asset Swap
except that the EBITDA (for the most recent four fiscal quarters as of the date
of the acquisition assuming the assets had been owned by the Borrower during
such fiscal quarters) attributable to the assets being acquired (the "Acquired
EBITDA") is less than the EBITDA (for the most recent four fiscal quarters as of
the date of the Disposition) attributable to the assets being sold in the
related Disposition (the "Sold EBITDA"), then, as to such Disposition, the
percentage that the portion represented by the Sold EBITDA minus the Acquired
EBITDA, is of total EBITDA (for the fiscal quarters used to calculate such Sold
EBITDA) shall be the Asset Sale EBITDA Percentage.
"Asset Swap": a Disposition by the Borrower or its Subsidiaries during the
term of this Agreement of assets and properties together with a corresponding
acquisition by the Borrower of like assets and properties consummated
concurrently or within ten Business Days after such Disposition, in each case
only to the extent that the Acquired EBITDA is greater than or equal to the Sold
EBITDA.
"Asset Swap EBITDA Percentage": the percentage that the Sold EBITDA is of
total EBITDA (for the fiscal quarters used to calculate such Sold EBITDA) in a
Disposition that is part of an Asset Swap.
"Assignee": as defined in Section 11.6(c).
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"Assignment and Acceptance": an Assignment and Acceptance substantially in
the form of Exhibit A.
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"Authorizations": all filings, recordings and registrations with, and all
validations or exemptions, approvals, orders, authorizations, consents,
Licenses, certificates and permits from, the FCC, applicable public utilities
and other Governmental Authorities.
"Available Commitment": at any time, as to any Lender, an amount equal to
the excess, if any, of (a) the amount of such Lender's Commitment at such time,
minus (b) the sum of (i) the aggregate principal amount of all Committed Loans
made by such Lender then outstanding, (ii) such Lender's Specified Percentage of
the L/C Obligations then outstanding and (iii) such Lender's Specified
Percentage, if any, of the aggregate principal amount of Swing Line Loans then
outstanding.
"Bank of America": Bank of America, N.A.
"Bank of America Fee Letter": the letter agreement, dated May 9, 2001 from
Bank of America to the Borrower.
"Bid Rate": as defined in Section 2.6(b).
"Board": the Board of Governors of the Federal Reserve System or any
successor.
"Borrower": as defined in the preamble hereto.
"Borrower Senior Note Agreement": the Senior Fixed Rate Notes Master Shelf
Agreement dated as of December 20, 1991 among the Borrower, The Prudential
Insurance Company of America and Prudential Asset Sales & Syndications, Inc., as
amended by the letter amendment dated as of March 3, 1992, the Amendment dated
as of October 20, 1995 and the Amendment of 1991 Master Shelf Agreement dated as
of December 4, 1996, as otherwise amended through the date hereof.
"Borrower Senior Note Debt": the indebtedness of the Borrower outstanding
as of the date hereof and evidenced by the Borrower Senior Note Documents.
"Borrower Senior Note Documents": the Borrower Senior Notes and the
Borrower Senior Note Agreement, together with all related instruments,
agreements and other documents executed and delivered in connection therewith,
each as in effect on the date hereof.
"Borrower Senior Notes": the $65,000,000 aggregate principal amount of
8.62% Series 1992A Senior Notes due March 1, 2002, issued March 3, 1992 by the
Borrower pursuant to the Borrower Senior Note Agreement, as amended through the
date hereof.
"Borrowing Date": any Business Day specified in a notice pursuant to
Sections 2.3, 2.4 or 2.6, as a date on which the Borrower requests the Lenders
to make Loans hereunder.
"Business": as defined in Section 5.17(b).
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"Business Day": a day, other than a Saturday, Sunday or other day on which
commercial banks in New York, New York or Dallas, Texas are authorized or
required by law to close and, with respect to Eurodollar Loans, a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures": expenditures for the purchase or construction of
fixed assets, plant and equipment which are capitalized in accordance with GAAP.
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": (a) any share, membership, partnership or other percentage
interest, unit of participation or other equivalent (however designated) of an
equity security or other equity interest in a Person and (b) any debt security
or other evidence of indebtedness which is convertible into or exchangeable for,
or any option, warrant or other right to acquire, any Capital Stock of any type
referred to in clause (a) of this definition.
"Cash Equivalents": (a) securities with maturities of one year or less from
the date of acquisition issued and fully guaranteed or insured by the United
States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1 by S&P
or P-1 by Xxxxx'x maturing not in excess of six months from the date of
acquisition, or (e) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (d) of
this definition.
"Change of Control": shall be deemed to have occurred at such time as any
of the following occur: (i) any person or two or more persons (other than the
descendants of D. Xxxxxxx Xxxxx and their respective estates, lineal
descendants, adoptive children, heirs, executors, personal representatives,
administrators and trusts for any of their benefit or the benefit of their
respective spouses, estates, lineal descendants, adoptive children or heirs)
acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Commission under the Securities Act) of (A) 60% or more of
the outstanding shares of the Class A voting stock of the Borrower, or (B) 34%
or more of the outstanding shares of the Class B voting stock of the Borrower;
or (ii) as of any date a majority of the Board of Directors of the Borrower
consists of individuals who were not either (A) directors of the Borrower as of
the corresponding date of the previous year, (B) selected or nominated to become
directors by the Board of Directors of the Borrower of which a majority
consisted of individuals described in clause (A), or (C) selected or nominated
to become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A) and individuals
described in clause (B).
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"Closing Certificate": as defined in Section 6.1(b).
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commission": the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Act.
"Commitment": as to any Lender, its obligation, if any, to make Advances
to, and/or issue or participate in Letters of Credit issued on behalf of, the
Borrower in an aggregate principal amount not to exceed at any one time
outstanding the amount set forth opposite such Lender's name in Schedule 1.1
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under the heading "Commitment" or, in the case of any Lender that is an
Assignee, the amount of the assigning Lender's Commitment assigned to such
Assignee pursuant to Section 11.6(c) and set forth in the applicable Assignment
and Acceptance (in each case, as the same may be increased in accordance with
the terms of Section 2.7, or reduced or otherwise adjusted from time to time as
provided herein).
"Committed Loan": any Advance made by any Lender under Section 2.1 and
pursuant to such Lender's Commitment and "Committed Loans" shall mean all of
such Loans.
"Committed Loan Note": as defined in Section 2.2.
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group which includes the Borrower and which is treated as
a single employer under Section 414(b) or (c) of the Code.
"Competitive Bid": an offer by a Lender in the form of Exhibit B-1 to make
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a Competitive Loan.
"Competitive Bid Acceptance": a notification in the form of Exhibit B-2
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made by the Borrower pursuant to Section 2.6(c) to accept a Competitive Bid
"Competitive Bid Rejection": a notification in the form of Exhibit B-3 made
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by the Borrower pursuant to Section 2.6(c) to reject a Competitive Bid.
"Competitive Bid Request": a request by the Borrower in the form of Exhibit
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B-4 for Competitive Bids.
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"Competitive Interest Period": for each Competitive Loan, the period (a)
commencing on the date such Competitive Loan is made and (b) ending on the date
requested by the Borrower in the Competitive Bid Request for such Competitive
Loan, which period shall be not less than seven days or more than 180 days;
provided that (i) Competitive Interest Periods commencing on the same date for
Competitive Loans comprising part of the same borrowing shall not have more than
three different durations; and (ii) whenever the last day of any Competitive
Interest Period would otherwise occur on a day other than a Business Day, the
last day of such Competitive Interest Period shall be extended to occur on the
next succeeding Business Day, provided further that if such extension would
cause the last day of such Competitive Interest Period to occur on or after the
Termination Date of any Lender making a Competitive Loan to which such
Competitive
7
Interest Period relates, such Competitive Interest Period for such Competitive
Loan shall end on the next preceding Business Day.
"Competitive Loan": a Loan made by a Lender to the Borrower pursuant to
Section 2.6.
"Competitive Loan Confirmation": a confirmation by the Administrative Agent
to a Lender of the acceptance by the Borrower of any Competitive Bid (or Portion
thereof) made by that Lender, in substantially the form of Exhibit B-5.
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"Competitive Loan Period": any period of time during which the Leverage
Ratio is less than 4.00 to 1.00, both before giving any Competitive Bid Request
and after giving effect to any Competitive Loan.
"Compliance Certificate": a certificate executed by a Responsible Officer
of the Borrower, substantially in the form of Exhibit C.
---------
"Conditional Early Release Guarantee": the Conditional Early Release
Guarantee Agreement in the form of Exhibit D to be executed and delivered by
---------
each of the Subsidiaries and all Supplements to Conditional Early Release
Guarantee Agreement executed and delivered by a Subsidiary, as the same may be
amended, supplemented or otherwise modified from time to time.
"Consolidated Subsidiary": at any date, any Subsidiary or other entity the
accounts of which, in accordance with GAAP, would be consolidated with those of
the Borrower in its consolidated financial statements as of such date.
"Contractual Obligation": as to any Person, any provision of any Capital
Stock issued by such Person or of any agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its property is bound.
"Controlled Group": as to any Person, all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) which
are under common control with such Person and which, together with such Person,
are treated as a single employer under Section 414(b), (c), (m) or (o) of the
Code; provided, however, that the Borrower and any other entities (whether
incorporated or not incorporated) which are under common control with the
Borrower and which, together with the Borrower, are treated as a single employer
under Section 414(b), (c), (m) or (o) of the Code, shall be deemed to be members
of the Borrower's Controlled Group on and after the Effective Date.
"Co-Syndication Agents": as defined in the preamble hereto.
"Default": any of the events specified in Section 9, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Depreciation": for any period, the sum of all depreciation expenses of the
Borrower and its Consolidated Subsidiaries for such period, as determined in
accordance with GAAP.
"Disposition": as defined in Section 8.5.
8
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"EBITDA": as of the end of each fiscal quarter for the fiscal quarter then
ending and the immediately preceding three fiscal quarters, as applied to the
Borrower and its Consolidated Subsidiaries without duplication, the sum of the
amounts for such period of (i) Net Income, (ii) Depreciation, (iii) amortization
expense, (iv) non operating non-cash charges, less any non operating non-cash
gains, (v) all interest expense reported for such period on Indebtedness, (vi)
all film amortization cash charges, less any cash film payments and (vii) all
federal and state taxes reported for such period, all as determined and computed
in accordance with GAAP; and, for the purposes of determination of the Leverage
Ratio and the Interest Coverage Ratio only, EBITDA shall be determined as if any
Consolidated Subsidiary that has become or ceased to be a Consolidated
Subsidiary during the fiscal quarter then ending or the immediately preceding
three fiscal quarters, was (or, in the case of a Consolidated Subsidiary that
has ceased to be a Consolidated Subsidiary, was not) a Consolidated Subsidiary
at all times during such period.
"Effective Date": as defined in Section 11.8.
"Environmental Laws": any and all Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirements of Law (including common
law) regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA Event": with respect to the Borrower and its Subsidiaries, (a) a
Reportable Event (other than a Reportable Event not subject to the provision for
30-day notice to the PBGC under regulations issued under Section 4043 of ERISA),
(b) the withdrawal of any such Person or any member of its Controlled Group from
a Plan during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate
under Section 4041 of ERISA, (d) the institution of proceedings to terminate a
Plan by the PBGC, (e) the failure to make required contributions which could
result in the imposition of a lien under Section 412 of the Code or Section 302
of ERISA, or (f) any other 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 Plan or the imposition of any
liability under Title IV of ERISA other than PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of such
9
Board) maintained by a member bank of the Federal Reserve System. The Eurodollar
Rate shall be adjusted automatically on and as of the effective date of any
change in the Eurocurrency Reserve Requirements.
"Eurodollar Base Rate": with respect to any Interest Period pertaining to a
Eurodollar Loan, the rate per annum determined on the basis of the offered rate
for deposits in Dollars of amounts equal or comparable to the principal amount
of such Eurodollar Loan offered for a term comparable to such Interest Period,
which rates appear on the Telerate Screen Page 3750 as of 11:00 a.m., London
time, two Business Days preceding the first day of the relevant Interest Period;
provided that if no such offered rate appears on such page, the Eurodollar Base
Rate for such Interest Period will be the arithmetic average (rounded, if
necessary, to the next higher 1/100th of 1%) of the rates per annum at which
deposits in Dollars in immediately available funds are offered to each of two
major United States banks, reasonably selected by the Administrative Agent, at
approximately 11:00 a.m., London time, two Business Days prior to the first day
of such Interest Period, by prime banks in the London interbank eurodollar
market for a period comparable to such Interest Period in an amount comparable
to the principal amount of such Eurodollar Loan.
"Eurodollar Loans": Loans which bear or are to bear interest based upon the
Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
-------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Existing Credit Agreement": the $1,200,000,000 Credit Agreement among
Media General, Inc., the several lenders from time to time party thereto, and
Bank of America, N.A. (formerly NationsBank of Texas, N.A.) as the
administrative agent, dated as of December 4, 1996, as amended, restated,
modified or replaced from time to time.
"Existing Letters of Credit": those letters of credit issued for the
account of the Borrower or its Subsidiaries by the Issuing Lender and in
existence on the Effective Date and described on Schedule 1.2 attached hereto.
------------
"Facility": the Commitments and the extensions of credit made hereunder.
"Facility Fee Margin": at the time of any determination thereof, the per
annum facility fee which is applicable at the time of any determination under
this Agreement, which Facility Fee Margin shall be subject to adjustment
(upwards or downwards, as appropriate) based on the Leverage Ratio as follows:
10
---------------------------------------------------------------------------------------------
Leverage Ratio Facility Fee Margin
---------------------------------------------------------------------------------------------
Greater than or equal to 4.25 to 1.00 0.375%
---------------------------------------------------------------------------------------------
Greater than or equal to 3.75 but less than 4.25 to 1.00 0.300%
---------------------------------------------------------------------------------------------
Greater than or equal to 3.25 but less than 3.75 to 1.00 0.275%
---------------------------------------------------------------------------------------------
Greater than or equal to 2.75 but less than 3.25 to 1.00 0.200%
---------------------------------------------------------------------------------------------
Greater than or equal to 2.25 but less than 2.75 to 1.00 0.150%
---------------------------------------------------------------------------------------------
Less than 2.25 to 1.00 0.125%
---------------------------------------------------------------------------------------------
For the purposes of this definition, the Facility Fee Margin shall be
determined as at the end of each of the first three quarterly periods of each
fiscal year of the Borrower and as at the end of each fiscal year of the
Borrower, based on the relevant financial statements delivered pursuant to
Sections 7.1(a) and (b), respectively, and the Compliance Certificate delivered
pursuant to Section 7.2(b); changes in the Facility Fee Margin shall become
effective on the date which is the earlier of (i) two Business Days after the
date the Administrative Agent receives such financial statements and the
corresponding Compliance Certificate and (ii) the last date on which such
financial statements and corresponding Compliance Certificate should have been
delivered pursuant to Sections 7.1(a) and (b) and Section 7.2(b), and shall
remain in effect until the next change to be effected pursuant to this
definition; provided, that (A) until the first such financial statements and
Compliance Certificate are delivered after the date hereof, the Facility Fee
Margin shall be determined by reference to the Leverage Ratio set forth in the
Closing Certificate delivered to the Administrative Agent pursuant to Section
6.1(b) and (B) if any financial statements or the Compliance Certificate
referred to above are not delivered within the time periods specified above,
then, for the period from and including the date on which such financial
statements and Compliance Certificate are required to be delivered to, but not
including, the date on which such financial statements and Compliance
Certificate are delivered, the Facility Fee Margin as at the end of the fiscal
period that would have been covered thereby shall be deemed to be the Facility
Fee Margin which would be applicable when the Leverage Ratio is greater than
4.25 to 1.00.
Notwithstanding the foregoing, if the Borrower at any time during the term
of this Agreement elects to have its Senior Unsecured Debt Rating determine the
Facility Fee Margin in accordance with the terms of the definition of Applicable
Margin, then three Business Days after receipt by the Administrative Agent of
written notice of such election in accordance with the terms of the definition
of Applicable Margin, and thereafter, for purposes of the determination of the
Facility Fee Margin which is applicable at the time of any determination under
this Agreement, such margin shall be the Facility Fee Margin set forth below,
which Facility Fee Margin shall be subject to adjustment (upwards or downwards,
as appropriate) based on the Senior Unsecured Debt Rating as follows.
-----------------------------------------------------------------------
Senior Unsecured Debt Rating** Facility Fee Margin
-----------------------------------------------------------------------
BB/Ba2 or lower 0.375%
-----------------------------------------------------------------------
BB+/Ba1 0.300%
-----------------------------------------------------------------------
BBB-/Baa3 0.200%
-----------------------------------------------------------------------
BBB/Baa2 0.150%
-----------------------------------------------------------------------
BBB+/Baa1 or higher 0.125%
-----------------------------------------------------------------------
**In the event that the Senior Unsecured Debt Rating of the Borrower has ratings
differing (a) by up to one level, the lowest Facility Fee Margin will apply and
(b) by more than one level, the Facility Fee Margin for the level immediately
below the highest Senior Unsecured Debt Rating will apply.
11
For the purposes of this definition with respect to a determination of the
Facility Fee Margin based on the Senior Unsecured Debt Rating of the Borrower,
the Facility Fee Margin shall be determined from time to time after the
Administrative Agent has received each Notice of Change of Senior Unsecured Debt
Rating delivered by the Borrower in accordance with the terms of Section 7.2(d).
Changes in the Facility Fee Margin shall become effective on the date which is
the earlier of (i) two Business Days after the date the Administrative Agent
receives such Notice of Change of Senior Unsecured Debt Rating and (ii) the last
date on which such notice should have been delivered pursuant to Section 7.2(d),
and shall remain in effect until the next change to be effected pursuant to this
definition; provided, that if any notice referred to above is not delivered
within the time periods specified above, then, for the period from and including
the date on which such notice is required to be delivered to, but not including,
the date on which such notice is delivered, the Facility Fee Margin as at the
end of the fiscal period that would have been covered thereby shall be deemed to
be the Facility Fee Margin which would be applicable when the Senior Unsecured
Debt Rating is BB/Ba2 or lower.
"FCC": the Federal Communications Commission and any successor thereto.
"Federal Funds Effective Rate": for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in any case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations whatsoever (the "primary
obligations") of any other third Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency 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 owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business.
12
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable
principal amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum principal amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum principal amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee
Obligation shall be the principal amount of such guaranteeing person's
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith. For the purposes of Section 8.2, Guarantee Obligations
by the Borrower or any of its Subsidiaries in respect of Indebtedness shall be
calculated without duplication of any other Indebtedness. It is understood that
obligations of the Borrower pursuant to guaranties or indemnities of obligations
of a Guarantor Subsidiary or a Wholly Owned Subsidiary which (a) are granted in
the ordinary course of business or in connection with asset Dispositions and (b)
do not cover Indebtedness of the types described in clauses (a) through (d) of
the definition thereof shall not constitute "Guarantee Obligations" for purposes
of this Agreement.
"Guarantor Subsidiary": each Subsidiary which executes and delivers to the
Administrative Agent the Conditional Early Release Guarantee or a Supplement to
Conditional Early Release Guarantee Agreement, for so long as such Subsidiary is
obligated under such Conditional Early Release Guarantee Agreement or Supplement
to Conditional Early Release Guarantee Agreement, and each Subsidiary who from
time to time is obligated under a guaranty of the Obligations executed and
delivered in accordance with the terms of Section 7.10(b) or otherwise.
"Indebtedness": for the Borrower and its Subsidiaries on a consolidated
basis at any date, but without duplication: (a) all indebtedness of the Borrower
and its Subsidiaries for borrowed money or which is evidenced by a note, bond,
debenture or similar instrument, (b) all indebtedness of the Borrower and its
Subsidiaries for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), (c) all Capital Lease
Obligations of the Borrower and its Subsidiaries, (d) all obligations of the
Borrower and its Subsidiaries in respect of acceptances or letters of credit or
similar instruments issued or created for the account of the Borrower or any of
its Subsidiaries, (e) all Guarantee Obligations of the Borrower and its
Subsidiaries, determined in accordance with GAAP, (f) all obligations of the
Borrower and its Subsidiaries in respect of Interest Rate Hedge Agreements, (g)
all Redeemable Preferred Stock of the Borrower and its Subsidiaries and (h) all
liabilities of the type described in clauses (a) through (e) above secured by
any Lien on any property owned by the Borrower or any of its Subsidiaries even
though the Borrower or such Subsidiary has not assumed or otherwise become
liable for the payment thereof; provided that the amount of any nonrecourse
Indebtedness of the Borrower or any of its Subsidiaries shall be not more than
an amount equal to the fair market value of the property subject to such Lien,
as determined by the Borrower in good faith. The Indebtedness of the Borrower
and its Subsidiaries shall include the Indebtedness of any partnership in which
the Borrower or such Person is a general partner, other than to the extent that
the instrument or agreement evidencing such Indebtedness expressly limits the
liability of the Borrower or any such Subsidiary in respect thereof.
13
"Information": written information, including, without limitation,
certificates, reports, statements (other than financial statements, budgets,
projections and similar financial data) and documents.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Coverage Ratio": as of the last day of the most recently ended
fiscal quarter, the ratio of (i) EBITDA to (ii) Interest Expense.
"Interest Expense": as of the end of each fiscal quarter for the fiscal
quarter then ending and the immediately preceding three fiscal quarters the
aggregate of all letter of credit fees, facility fees, commitment fees and
interest accrued or paid by the Borrower or any of its Consolidated
Subsidiaries, during such period in respect of Indebtedness, all as determined
on a consolidated basis in accordance with GAAP.
"Interest Payment Date": (a) as to any ABR Loan, (i) the last Business Day
of each March, June, September and December prior to the Termination Date and
(ii) the Termination Date, (b) as to any Eurodollar Loan or Competitive Loan (i)
having an Interest Period of three months or less, the last day of such Interest
Period or (ii) having an Interest Period longer than three months, each day
which is three months or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period, and in all cases, on
the Termination Date.
"Interest Period": with respect to (a) any Competitive Loan, the
Competitive Interest Period and (b) any Eurodollar Loan (i) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter (or, to the extent available from all Lenders, nine or twelve months
thereafter), as selected by the Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurodollar Loan and ending one, two, three or
six months thereafter (or, to the extent available from all Lenders, nine or
twelve months thereafter), as selected by the Borrower in its Notice of
Conversion/Continuation given with respect thereto; provided that all of the
foregoing provisions relating to Interest Periods for Eurodollar Loans are
subject to the following (x) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next
succeeding 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 immediately preceding Business Day, (y) any Interest
Period that would otherwise extend beyond the Termination Date shall end on the
Termination Date, and (z) 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 a calendar month.
14
"Interest Rate Hedge Agreement": any interest rate protection agreement,
interest rate futures contract, interest rate option, interest rate cap or other
interest rate hedge arrangement, to or under which the Borrower or any
Subsidiary is a party or a beneficiary, and any amendments, modifications,
supplements and replacements of each such agreement.
"Investments": as defined in Section 8.8.
"Invitation to Bid": an invitation by the Administrative Agent to a Lender
in the form of Exhibit B-6 to make a Competitive Bid.
-----------
"Issuing Lender": Bank of America, provided that, in the event that Bank of
America shall be replaced as the Administrative Agent pursuant to Section 10.9,
(i) no Letter of Credit shall be issued by Bank of America on or after the date
of such replacement and (ii) the replacement Administrative Agent shall be the
Issuing Lender from and after the date of such replacement.
"L/C Fee Payment Date": the last Business Day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate of the then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of all unpaid Reimbursement
Obligations.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Leverage Ratio": as of the last day of the most recently ended fiscal
quarter, the ratio of (i) Indebtedness as of such day to (ii) EBITDA.
"License": as to any Person, any license, permit, certificate of need,
authorization, certification, accreditation, franchise, approval, or grant of
rights by any Governmental Authority or other Person necessary or appropriate
for such Person to own, maintain, or operate its business or property, including
FCC Licenses.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any Advance made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Applications, each Letter of Credit,
each Conditional Early Release Guarantee, each Supplement to a Conditional Early
Release Guarantee, each Notice of Change in the Senior Unsecured Debt Rating
delivered to the Administrative Agent and signed by a Responsible Officer of the
Borrower, each Compliance
15
Certificate delivered to the Administrative Agent and signed by a Responsible
Officer of the Borrower and any Interest Rate Hedge Agreements with any of the
Lenders.
"Loan Parties": the collective reference to the Borrower and each Guarantor
Subsidiary, for so long as each Guarantor Subsidiary is obligated under a
Conditional Early Release Guarantee or Supplement to a Conditional Early Release
Guarantee, and thereafter, the Borrower and only such Subsidiaries that from
time to time enter into an Application for a Letter of Credit or execute a
guaranty of the Obligations in accordance with the provisions of Section 7.10(b)
or otherwise; and "Loan Party" means any of them, as applicable in the context
in which it is used.
"Majority Lenders": as of any date, (a) at any time Lenders are committed
to lend hereunder, Lenders having Commitments equal to 51% or more of the Total
Commitment or (b) at any time after the Commitments shall have expired or
terminated, (i) at any time that Committed Loans or L/C Obligations are
outstanding, the Lenders with outstanding Committed Loans and participations in
L/C Obligations having an unpaid principal balance and stated amount,
respectively, equal to or more than 51% of all Committed Loans and L/C
Obligations outstanding, excluding from such calculation the Lenders which have
failed or refused to fund a Committed Loan or their respective portion of an
unreimbursed disbursement under a Letter of Credit or other Reimbursement
Obligations which the Borrower has failed to pay and (ii) at any time that no
Committed Loans or L/C Obligations are outstanding, Lenders with outstanding
Competitive Loans equal to 51% or more of all Competitive Loans.
"Material Adverse Effect": a material adverse effect on (a) the business,
assets, operations or condition (financial or otherwise) of the Borrower or of
the Borrower and of the Consolidated Subsidiaries, taken as a whole, (b) the
ability of the Borrower or the Borrower and the other Loan Parties, taken as a
whole, to perform its or their obligations under the Loan Documents or (c) the
rights or remedies of the Administrative Agent or the Lenders under this
Agreement or any of the other Loan Documents.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under
any Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Maximum Offer": as defined in Section 2.6(b).
"Maximum Request": as defined in Section 2.6(a).
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Income": as applied to any Person for any period, the aggregate amount
of net income of such Person, after taxes (but before extraordinary items), for
such period, as determined in accordance with GAAP.
"Non-Excluded Taxes": as defined in Section 4.10(a).
16
"Non-U.S. Lender": as defined in Section 4.10(b).
"Notice of Borrowing": (a) with respect to Loans, other than Competitive
Loans, as defined in Section 2.3 and (b) a Competitive Bid Request and the
related Competitive Bid Acceptance, in the case of any Competitive Loan.
"Notice of Change of Senior Unsecured Debt Rating": the Notice of Change in
the Senior Unsecured Debt Rating in the form of Exhibit K hereto, duly completed
---------
and signed by a Responsible Officer of the Borrower.
"Notice of Conversion/Continuation": as defined in Section 4.5.
"Obligations": the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Loan Party, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Loans and
Reimbursement Obligations and all other obligations and liabilities of any Loan
Party to the Administrative Agent or to any Lender (or, in the case of any
Interest Rate Hedge Agreement, any Affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Interest Rate
Hedge Agreement entered into with any Lender (or any Affiliate of any Lender) or
any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all reasonable
fees, charges and disbursements of counsel to the Administrative Agent or to any
Lender that are required to be paid by any Loan Party pursuant hereto) or
otherwise.
"Participant": as defined in Section 11.6(b).
"Participating Lender": as defined in Section 2.7.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Permitted Line of Business": as defined in Section 8.11.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) a "contributing sponsor" as defined in Section
4001(a)(13) of ERISA or a member of such contributing sponsor's "control group"
as defined in Section 4001(a)(14) of ERISA.
"Portion": as defined in Section 2.6(b).
17
"Prime Rate": the rate of interest per annum publicly announced from time
to time by Bank of America as its prime rate in effect at its office in Dallas,
Texas (the Prime Rate not being intended to be the lowest rate of interest
charged by Bank of America in connection with extensions of credit to debtors)
"Properties": as defined in Section 5.17(a).
"Redeemable Preferred Stock": any preferred stock issued by any Person
which is at any time prior to the Termination Date either (i) mandatorily
redeemable (by sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
"Refunded Swing Line Loans": as defined in Section 2.4(c).
"Register": as defined in Section 11.6(g).
"Reimbursement Obligations": the sum of (a) amounts drawn under Letters of
Credit plus (b) all taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment, with respect to which the
Borrower is obligated to reimburse the Issuing Lender, all as determined in
accordance with Section 3.5.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority (including any Authorization), in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president, the
chief financial officer or the treasurer of the relevant Loan Party.
"Restricted Payments": as defined in Section 8.6.
"Securities Act": means the Securities Exchange Act of 1934, as amended.
"Senior Unsecured Debt Rating": the Borrower's senior unsecured debt rating
as announced by both S&P and Moody's.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Sold EBITDA": as defined in the definition of Asset Sale EBITDA
Percentage.
18
"Solvent": when used with respect to any Person, means that, as of any date
of determination, (a) the amount of the "fair value" or "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the fair value
or present fair saleable value of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the liability of
such Person on its debts as such debts become absolute and matured, (c) such
Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) such Person will be able to pay its
debts as they mature. For purposes of this definition, (i) "debt" means
liability on a "claim", (ii) "claim" means any (x) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured and (iii) unliquidated,
contingent, disputed and unmatured claims shall be valued at the amount that can
be reasonably expected to be actual and matured.
"S&P": Standard and Poor's Ratings Group.
"Specified Percentage": at any time, as to any Lender, the percentage of
the Total Commitment then constituted by such Lender's Commitment.
"Submission Deadline": as defined in Section 2.6(b).
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors (or Persons holding equivalent positions) of such corporation,
partnership or other entity are at the time owned, or the management and
policies of which are otherwise ultimately controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
Notwithstanding anything to the contrary contained herein, Denver Newspapers,
Inc., Flat Earth Group, L.L.C., Tampa Tower General Partnership and Southeast
Paper Manufacturing Co. shall not be considered Subsidiaries for purposes of
this Agreement, unless and until either (i) the Borrower owns, directly or
indirectly, more than 50% of any such entity or (ii) such entity otherwise
becomes a Consolidated Subsidiary.
"Supplement to Conditional Early Release Guarantee Agreement": the
Supplement to Guarantee Agreement in the form of Exhibit A attached to the
---------
Conditional Early Release Guarantee, to be executed and delivered by each
Subsidiary acquired or created after the date hereof, if required by Section
7.10.
"Swing Line Commitment": the Swing Line Lender's obligation to make Swing
Line Loans pursuant to Section 2.4.
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"Swing Line Lender": Bank of America, in its capacity as provider of the
Swing Line Loans, provided that, in the event that Bank of America shall be
replaced as Administrative Agent pursuant to Section 10.9, (a) no Swing Line
Loans shall be made by Bank of America on or after the date of such replacement
and (b) the replacement Administrative Agent shall be the Swing Line Lender from
and after the date of such replacement.
"Swing Line Loan Participation Certificate": a certificate in substantially
the form of Exhibit E.
---------
"Swing Line Loans": as defined in Section 2.4(a).
"Swing Line Termination Date": the earlier of (i) the date which is 364
days after the Effective Date, unless the Swing Line Lender, in its sole
discretion, elects to extend such 364 day period as notified to the Borrower and
the Lenders, (ii) the date the Lenders' Commitments are otherwise cancelled or
terminated and (iii) the date any Committed Loan is accelerated.
"Termination Date": the earlier of (i) June 28, 2006, (ii) the date the
Lenders' Commitments are otherwise cancelled or terminated and (iii) the date
any Committed Loan is accelerated.
"Total Commitment": the sum of all of the Commitments (in each case, as the
same may be increased in accordance with the terms of Section 2.7, reduced or
otherwise adjusted from time to time as provided herein) not to exceed
$1,000,000,000 (as such amount may be increased in accordance with the terms of
Section 2.7 to an amount not greater than $1,400,000,000).
"Total Extensions of Credit": at any time, the sum of all of the Aggregate
Outstanding Extensions of Credit of all of the Lenders at such time.
"Tranche": the collective reference to Eurodollar Loans made by the
Lenders, the then current Interest Periods of which begin on the same date and
end on the same later date (whether or not such Eurodollar Loans shall
originally have been made on the same day).
"Transferee": as defined in Section 11.6(i).
"TROLs": means that certain Lease Agreement dated as of May 15, 1997
between First Security Bank, National Association, not individually, but solely
as the owner trustee under the MGI Real Estate Trust 1997-1, as lessor and Media
General, Inc. as lessee, as amended, and that certain Lease Agreement dated as
of July 10, 1998 between First Security Bank, National Association, not
individually, but solely as the owner trustee under the MGI Real Estate Trust
1998-1, as lessor and Media General, Inc. as lessee, as amended, and all related
documentation and agreements executed in connection therewith, as each has been
amended through the date hereof.
"Type": as to any Loan, its nature as an ABR Loan, a Eurodollar Loan or a
Competitive Loan.
20
"Uniform Customs": the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500, as the
same may be amended from time to time.
"Unrefunded Swing Line Loans": as defined in Section 2.4(d).
"Wholly Owned Subsidiary": as to any Person, any other Person 100% of the
Capital Stock of which (other than directors' qualifying shares required by law)
is owned by such Person directly or indirectly through one or more other Wholly
Owned Subsidiaries.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any other Loan Document
or any certificate or other document made or delivered pursuant hereto or
thereto.
(b) Unless otherwise specified herein, all accounting terms used herein
(and in any other Loan Document and any certificate or other document made or
delivered pursuant hereto or thereto) shall be interpreted, all accounting
determinations shall be made, and all financial statements required to be
delivered hereunder shall be prepared, in accordance with GAAP as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Section 8
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Majority Lenders
wish to amend Section 8 for such purpose), then 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 Borrower and the
Majority Lenders. Additionally, wherever the Borrower is required to calculate
and/or provide information to the Lenders for an immediately preceding fiscal
quarter or quarters of the Borrower, such phrase shall mean an immediately
preceding fiscal quarter or quarter(s) for which financial statements have been
or should have been prepared and/or delivered to the Lenders pursuant to Section
7.1 of this Agreement.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(e) References in this Agreement or any other Loan Document to knowledge
by the Borrower or any Subsidiary of events or circumstances shall be deemed to
refer to events or circumstances of which any Responsible Officer of any Loan
Party has actual knowledge or reasonably should have knowledge.
(f) References in this Agreement or any other Loan Document to financial
statements shall be deemed to include all related schedules and notes thereto.
21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Committed Loans.
(a) Subject to and in reliance upon the terms, conditions, representations
and warranties contained in the Loan Documents, each Lender severally agrees to
make Advances in Dollars (which are Committed Loans) to the Borrower from time
to time until the Termination Date so long as the sum of the aggregate principal
amount of such Committed Loans from such Lender outstanding plus such Lender's
Specified Percentage of L/C Obligations and outstanding Swing Line Loans never
exceeds such Lender's Commitment; provided that the Aggregate Outstanding
Extensions of Credit from all Lenders shall not exceed the Total Commitment.
Notwithstanding anything to the contrary set forth herein, any Lender may make
and have outstanding one or more Competitive Loans which, when aggregated with
the outstanding principal amount of all Committed Loans from such Lender, would
exceed such Lender's Commitment. Each Lender's Commitment shall continue in full
force and effect until and expire on the Termination Date, and no Lender shall
have any obligation to make any Advance thereafter. Until the Termination Date,
the Borrower may borrow, repay and reborrow Committed Loans and Competitive
Loans hereunder, subject with respect to Competitive Loans, to Section 2.6. The
Administrative Agent shall maintain a record of each Lender's Commitment,
Specified Percentage, Committed Loans, Specified Percentage of L/C Obligations,
Specified Percentage of Swing Line Loans and Competitive Loans.
(b) Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans,
(iii) Competitive Loans or (iv) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.3, 2.6 and 4.5, provided that, no Loan shall be made as a Eurodollar Loan or a
Competitive Loan (A) after the day that is one month prior to the Termination
Date or (B) during the continuance of a Default or Event of Default.
2.2 Notes for Committed Loans. The Borrower agrees that, upon request to
the Administrative Agent by any Lender, in order to evidence the Committed
Loans, the Borrower will execute and deliver to such Lender a promissory note
substantially in the form of Exhibit F-1, with appropriate insertions as to
-----------
payee, date and principal amount (each, as amended, supplemented, replaced or
otherwise modified from time to time, a "Committed Loan Note"), payable to the
order of each such Lender and in a principal amount equal to each such Lender's
Commitment. Each Committed Loan Note shall (x) be dated the Effective Date or
the date of any reissuance of such Committed Loan Note, (y) be stated to mature
on the Termination Date and (z) provide for the payment of interest in
accordance with Section 4.1.
2.3 Procedure for Borrowing of Committed Loans. Subject to the terms,
conditions, representations and warranties contained in the Loan Documents, each
Committed Loan shall be made following the Borrower's delivery to the
Administrative Agent of an irrevocable notice substantially in the form of
Exhibit G-1 (a "Notice of Borrowing") requesting a Committed Loan on a certain
-----------
Borrowing Date; provided, that, if the Borrower makes a Competitive Bid Request
and does not accept Competitive Loans in an aggregate amount equal to the
Maximum Request included in that Competitive Bid Request, the Borrower, by
giving such notice not later than 11:00 A.M., Dallas, Texas time on the date of
borrowing specified in that Competitive Bid
22
Request, may make a borrowing of ABR Loans on that date in an aggregate
principal amount equal to (i) that Maximum Request, minus (ii) the aggregate
principal amount of Competitive Loans, if any, the Borrower does so accept. A
Notice of Borrowing must be received by the Administrative Agent prior to 11:00
A.M., Dallas, Texas time (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Committed Loans are to be
initially Eurodollar Loans or (b) one Business Day prior to the requested
Borrowing Date otherwise. A Notice of Borrowing shall specify (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each Tranche and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Commitments shall be in an amount
equal to (a) in the case of ABR Loans (except any ABR Loans to be used solely to
pay a like amount of outstanding Reimbursement Obligations or Swing Line Loans),
$10,000,000 or a whole multiple of $1,000,000 in excess thereof (or if the then
aggregate Available Commitments of all Lenders are less than $10,000,000, such
lesser amount) and (b) in the case of Eurodollar Loans, $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such Notice of
Borrowing from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its Specified Percentage of
each requested Committed Loan available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in
Section 11.2 prior to 11:00 A.M., Dallas, Texas time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower, as so directed by
the Borrower in a Notice of Borrowing, with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.4 Swing Line Commitments.
(a) Subject to the terms, conditions, representations and warranties
contained in the Loan Documents, the Swing Line Lender agrees to make swing line
loans (individually, a "Swing Line Loan"; collectively, the "Swing Line Loans")
to the Borrower from time to time until the Swing Line Termination Date;
provided that, the Swing Line Lender may not make any Swing Line Loan if, after
giving effect to such Swing Line Loan, either (i) the amount of all Swing Line
Loans outstanding would exceed the lesser of (x) $10,000,000 or (y) the
Aggregate Available Commitments or (ii) the Aggregate Outstanding Extensions of
Credit of all Lenders would exceed the Total Commitment. Amounts borrowed by
the Borrower under this Section 2.4 may be repaid and, through but excluding the
Swing Line Termination Date, reborrowed. All Swing Line Loans shall be made as
ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The
Borrower shall give the Swing Line Lender a Notice of Borrowing (which Notice of
Borrowing must be received by the Swing Line Lender prior to 1:00 P.M., Dallas,
Texas time) on the requested Borrowing Date specifying the amount of the
requested Swing Line Loan, which shall be in a minimum amount of $500,000 or
whole multiples of $100,000 in excess thereof. The proceeds of each Swing Line
Loan will be made available by the Swing Line Lender to the Borrower at the
office of the Swing Line Lender by crediting the account of the Borrower, as so
directed by the Borrower in a Notice of Borrowing, with such proceeds in
Dollars.
23
(b) The Borrower agrees that, upon the request of the Swing Line Lender,
in order to evidence the Swing Line Loans, the Borrower will execute and deliver
to the Swing Line Lender a promissory note substantially in the form of Exhibit
-------
F-2, with appropriate insertions (as the same may be amended, supplemented,
---
replaced or otherwise modified from time to time, the "Swing Line Note"),
payable to the order of the Swing Line Lender and in a principal amount equal to
$10,000,000 with interest thereon as prescribed in Section 4.1. The Swing Line
Note shall (i) be dated the Effective Date or the date of any reissuance of such
Swing Line Note, (ii) be stated to mature on the Swing Line Termination Date and
(iii) provide for the payment of interest in accordance with Section 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion
may, on behalf of the Borrower (which hereby irrevocably directs and authorizes
the Swing Line Lender to act on its behalf), request each Lender, including the
Swing Line Lender, to make a Committed Loan as an ABR Loan in an amount equal to
such Lender's Specified Percentage of the principal amount of the Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is
given. Each Lender will make the proceeds of its Committed Loan available to
the Administrative Agent for the account of the Swing Line Lender at the office
of the Administrative Agent prior to 12:00 Noon, Dallas, Texas time, in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Committed Loans shall be immediately applied to
repay the Refunded Swing Line Loans.
(d) If, for any reason, Committed Loans may not be (as determined by the
Administrative Agent in its sole discretion), or are not, made pursuant to
Section 2.4(c) to repay Swing Line Loans as required by such Section, then,
effective on the date such Committed Loans would otherwise have been made, each
Lender severally, unconditionally and irrevocably agrees that it shall purchase
an undivided participating interest in such Swing Line Loans ("Unrefunded Swing
Line Loans"), in an amount equal to such Lender's Specified Percentage of the
amount of Unrefunded Swing Line Loans (which amount, if the Commitments shall
have terminated, shall be determined on the basis of such Lender's Specified
Percentage (determined on the date of, and immediately prior to, termination of
the Commitments). In the event that the Lenders purchase undivided participating
interests pursuant to the first sentence of this paragraph (d), each Lender
shall immediately transfer to the Swing Line Lender, in immediately available
funds, the amount of its participation and upon receipt thereof the Swing Line
Lender will deliver to such Lender a Swing Line Loan Participation Certificate
dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from
any Lender such Lender's participating interest in a Swing Line Loan, the Swing
Line Lender receives any payment on account thereof, the Swing Line Lender will
distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); provided, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Lender will return to the Swing
Line Lender any portion thereof previously distributed by the Swing Line Lender
to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Committed Loans referred to in Section 2.4(c)
and to purchase and fund
24
participating interests pursuant to Section 2.4(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right
which such Lender or the Borrower may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of
the other conditions specified in Section 6; (iii) any adverse change in the
condition (financial or otherwise) of any Loan Party; (iv) any breach of this
Agreement or any other Loan Document by any Loan Party or any Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.5 Repayment of Loans.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of (i) each Lender, the then unpaid
principal amount of each Committed Loan of such Lender, on the Termination Date
(or such earlier date on which the Committed Loans become due and payable
pursuant to Section 4.2(d) or Section 9); (ii) the Swing Line Lender, the then
unpaid principal amount of the Swing Line Loans, on the Swing Line Termination
Date (or such earlier date on which the Swing Line Loans become due and payable
pursuant to Section 4.2(f) or Section 9); (iii) each Lender with a Competitive
Loan outstanding, the then unpaid principal amount of each Competitive Loan on
the date specified in Section 2.6(g); and (iv) the amounts specified in Section
4.2, on the dates specified in Section 4.2. The Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 4.1.
(b) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 11.6(g), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of each Letter of
Credit issued hereunder, (iii) each Lender's Specified Percentage of L/C
Obligations and/or Swing Line Loans, (iv) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (v) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Sections 2.5(b) and (c) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) to such Lender
the Loans to, and L/C Obligations of, the Borrower made in accordance with the
terms of this Agreement.
25
2.6 Competitive Loans.
(a) At any time during the Competitive Loan Period, the Borrower may make
Competitive Bid Requests by 10:00 A.M., Dallas, Texas time at least three
Business Days prior to the proposed date of borrowing for one or more
Competitive Loans. The Borrower shall deliver each Competitive Bid Request to
the Administrative Agent (which on the same day of its receipt thereof shall
give notice thereof to each Lender by facsimile of an Invitation To Bid if the
Administrative Agent does not reject the Competitive Bid Request pursuant to
this Section 2.6) in a written Competitive Bid Request signed by the Borrower
and by telephone during regular business hours at the Administrative Agent's
office on the same Business Day. Each Competitive Bid Request shall specify (A)
the proposed date of the borrowing for the requested Competitive Loans, (B) the
aggregate amount of the requested Competitive Loans (the "Maximum Request"),
which shall (1) not exceed the Aggregate Available Commitment of all Lenders as
of the proposed date of the borrowing specified in the Competitive Bid Request
and (2) be in an aggregate amount not less than $10,000,000 or $1,000,000
increments in excess thereof, (C) the Interest Period or Interest Periods (up to
a maximum of three in any Competitive Bid Request) therefor and the last day of
each such Interest Period and (D) if more than one Interest Period is so
specified, the principal amount allocable to each such Interest Period (which
amount in each case shall not be less than $10,000,000 or an integral multiple
of $1,000,000 increments in excess thereof). The Administrative Agent shall
reject each Competitive Bid Request the Administrative Agent determines (which
determination shall be conclusive absent manifest error) does not conform to the
requirements of this Section 2.6 and shall notify the Borrower of any such
rejection promptly upon the Administrative Agent's receipt of the facsimile
notice of such Competitive Bid Request.
(b) Each Lender in its sole discretion may (but is not obligated to)
submit one or more Competitive Bids to the Administrative Agent in response to
any Competitive Bid Request not later than 9:30 A.M., Dallas, Texas time on the
proposed date of borrowing specified in such Competitive Bid Request (the
"Submission Deadline"), by facsimile or in writing, and thereby irrevocably
offer to make all or any part (any such part being a "Portion") of any
Competitive Loan described in the Competitive Bid Request (i) at the rate of
interest per annum (each a "Bid Rate") specified in such offer and (ii) in the
aggregate amount specified in such offer which shall be not less than $1,000,000
or an integral multiple of $100,000 in excess thereof, provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole discretion,
elect to make any Competitive Bid in response to any Competitive Bid Request, it
shall notify the Borrower of such offer not later than 30 minutes prior to the
Submission Deadline for other Lenders respecting such Competitive Bid Request.
Multiple Competitive Bids may be delivered to and by the Administrative Agent.
The aggregate Portions of Competitive Loans for any or all Interest Periods
offered by each Lender in its Competitive Bid may exceed the Maximum Request
contained in the relevant Competitive Bid Request, provided that each
Competitive Bid shall set forth the maximum aggregate amount of the Competitive
Loans offered thereby which the Borrower may accept (the "Maximum Offer"), which
Maximum Offer shall not exceed the Maximum Request. If any Lender shall elect
not to make a Competitive Bid, such Lender shall so notify the Administrative
Agent by facsimile not later than 30 minutes prior to the Submission Deadline
for such Competitive Bid; provided, that, the failure by any Lender to give any
such notice shall not obligate such Lender to make any Competitive Loan or
subject such Lender to any liability.
26
(c) In the case of each Competitive Bid Request, the Administrative Agent
shall promptly give notice by telephone (promptly confirmed in writing) to the
Borrower of all Competitive Bids received by the Administrative Agent by the
Submission Deadline applicable to such Competitive Bid Request which comply in
all material respects with Section 2.6(b). The Borrower shall, in its sole
discretion, but subject to Section 2.6(d), irrevocably accept or reject each
such Competitive Bid (or any Portion thereof) not later than 11:00 A.M., Dallas,
Texas time on the day of the Submission Deadline by notice to the Administrative
Agent by telephone (confirmed in writing in the form of a Competitive Bid
Acceptance or Competitive Bid Rejection, as applicable, promptly the same day.
Promptly on the same day, the Administrative Agent, following its receipt from
the Borrower of such telephonic notice and Competitive Bid Acceptance or
Competitive Bid Rejection, as applicable, will give notice to each Lender that
submitted a Competitive Bid as to the extent, if any, that such Lender's
Competitive Bid shall have been accepted. If the Administrative Agent fails to
receive a Competitive Bid Acceptance or Competitive Bid Rejection notice from
the Borrower of any Competitive Bids at or prior to 11:00 A.M., Dallas, Texas
time on such day, all such Competitive Bids shall be deemed to have been
rejected by the Borrower, and the Administrative Agent will give to each Lender
that submitted a Competitive Bid notice of such rejection by telephone on such
day. In due course following the acceptance of any Competitive Bid, the
Administrative Agent shall notify each Lender that submitted a Competitive Bid,
in the form of a Competitive Loan Confirmation, of the amount, maturity date and
Bid Rate for each Competitive Loan.
(d) If the Borrower accepts a Portion of a proposed Competitive Loan for a
single Interest Period at the Bid Rate provided therefor in a Lender's
Competitive Bid, such Portion shall be in a principal amount of $1,000,000
(subject to such lesser allocation as may be made pursuant to the provisions of
this Section 2.6(d)) or $100,000 increments in excess thereof. The aggregate
principal amount of Competitive Loans accepted by the Borrower following
Competitive Bids responding to a Competitive Bid Request may be less than but
shall not exceed the Maximum Request. The aggregate principal amount of
Competitive Loans accepted by the Borrower pursuant to a Lender's Competitive
Bid shall not exceed the Maximum Offer therein contained. If the Borrower
accepts any Competitive Loans or Portion offered in any Competitive Bid, the
Borrower must accept Competitive Bids (and Competitive Loans and Portions
thereby offered) based exclusively on the successively lowest Bid Rates within
each Interest Period and no other criteria. If two or more Lenders submit
Competitive Bids with identical Bid Rates for the same Interest Period and the
Borrower accepts any thereof, the Borrower shall, subject to the first three
sentences of this Section 2.6(d), accept all such Competitive Bids as nearly as
possible in proportion to the amounts of such Lenders' respective Competitive
Bids with identical Bid Rates for such Interest Period, provided, that if the
amount of Competitive Loans to be so allocated is not sufficient to enable each
such Lender to make such Competitive Loan (or Portions thereof) in an aggregate
principal amount of $1,000,000 or $100,000 increments in excess thereof, the
Borrower shall round the Competitive Loans (or Portions thereof) allocated to
such Lender or Lenders as the Borrower shall select as necessary to a minimum of
$200,000 and, if greater than $200,000, the nearest multiple of $100,000.
(e) Not later than 3:00 P.M., Dallas, Texas time on the relevant date of
borrowing, each Lender whose Competitive Bid was accepted by the Borrower shall
make available to the Administrative Agent at the office of the Administrative
Agent specified in Section 11.2, in immediately available funds, the proceeds of
such Lender's Competitive Loan(s). After the
27
Administrative Agent's receipt of such funds and, upon fulfillment of the
conditions precedent set forth in Section 6, the Administrative Agent shall make
such funds available to the Borrower by the Administrative Agent crediting the
account of the Borrower as so directed by the Borrower in the related
Competitive Bid Request, provided that the Administrative Agent will not in any
event be required to make such funds so available until 4:00 P.M., Dallas, Texas
time on the relevant date of borrowing. In the case of any Lender whose
Competitive Bid is accepted by the Borrower, unless the Administrative Agent has
received notice from such Lender prior to 1:00 P.M., Dallas, Texas time, on the
date of the borrowing of such Lender's Competitive Loan(s), that such Lender
will not make available to the Administrative Agent the proceeds of such
Competitive Loan(s), the Administrative Agent may assume such Lender has made
such proceeds so available and, if the Administrative Agent makes that
assumption, the provisions of Section 4.8(b) shall apply.
(f) All written notices required by this Section 2.6 shall be given in
accordance with Section 11.2.
(g) At the request of any Lender making a Competitive Loan, the Borrower
shall execute and deliver to each such Lender, as evidence of such Competitive
Loan, a promissory note of the Borrower, substantially in the form of Exhibit
-------
F-3 (each as endorsed or modified from time to time, a "Competitive Loan Note"),
---
payable to the order of such Lender, and dated the date of the making of each
applicable Competitive Loan. Each Competitive Loan made by each Lender shall be
due and payable in full on the earlier to occur of (A) the last day of the
Interest Period applicable thereto and (B) the Termination Date.
2.7 Uncommitted Increase. Subject to the terms set forth below, at any
time and from time to time, upon request by the Borrower to Administrative Agent
and any other existing Lender or new lender selected by the Borrower and the
Administrative Agent, any Commitment may be increased or any new commitment of
any new lender may be added, provided that the Total Commitment shall never
increase in the aggregate more than $400,000,000 (to a maximum of
$1,400,000,000) in the manner set forth in (a) below, so long as the conditions
set forth in (b) and (c) below have been satisfied:
(a) The Total Commitment and Loans may only be increased in accordance
with the following:
(i) Each increase in the Total Commitment shall be effected by an
increase in any one or more of Lenders' Commitments, or by the addition of
any new lender or lenders, as agreed by the Borrower, the Administrative
Agent and the Lenders and other creditors agreeing to participate in such
increase (the "Participating Lenders"), provided that, the Borrower shall
not be entitled to increase the Total Commitment at any one time in
increments of less than $50,000,000. All such increases effected in
accordance with the terms of this Section 2.7 in the aggregate shall not
exceed $400,000,000,
(ii) Each potential Participating Lender specified by the Borrower
shall have received not less than ten Business Days' prior written notice
from the Borrower requesting such increase in its Commitment or a new
commitment (or such lesser Business Day's notice to which such
Participating Lenders and the Borrower shall agree).
28
Each Participating Lender shall commit to an amount not less than
$5,000,000, but shall accept any allocation amount designated by the
Borrower and the Administrative Agent that is equal to or less than its
proposed portion of the increase in its Commitment,
(iii) The Administrative Agent shall have received from the Borrower
(A) a certificate from the Borrower certifying to the Administrative Agent
and the Participating Lenders that (I) no other approvals or consents from
any Person are required by any such Person except to the extent they have
been received, including without limitation, any necessary approvals under
the Borrower Senior Notes and any other Indebtedness permitted to exist in
accordance with the terms of Section 8.2 or otherwise and (II) the matters
set forth in Section 2.7(b) below are true and correct both before and
after giving effect to any proposed increase in each Lender's Commitment
and the Total Commitment, and (B) financial projections in form and
substance reasonably acceptable to the Participating Lenders and
demonstrating compliance with the financial covenants set forth in Section
8.1 hereof throughout the term of this Agreement,
(iv) Each Participating Lender (including any new Lenders party
hereto) shall have received a promissory note reflecting such Participating
Lender's new Commitment, and the Borrower and each existing and new
Participating Lender agree to execute any and all such documents reasonably
deemed necessary by the Administrative Agent in order to effectuate this
Section 2.7,
(v) On or prior to the date of increase, each new creditor being
added to the credit facility as a Lender shall deliver to the Borrower and
the Administrative Agent documentation evidencing such new Lender's
acceptance of this Agreement and all the other Loan Documents in form and
substance reasonably acceptable to the Administrative Agent and the
Borrower (and making such Lender a party to this Agreement and the other
Loan Documents), and
(vi) On or after the date of increase, the Administrative Agent
shall deliver to each Lender notice of the new Specified Percentages
adjusted to give effect to the increase in the Commitment of each
Participating Lender.
(b) Each increase of any Commitment, the Total Commitment and the Loans
shall be subject to the following conditions:
(i) On any date of proposed increase, all of the representations
and warranties of the Borrower and the Subsidiaries under this Agreement
shall be true and correct, both before and after giving effect to the
increase of any Commitment and the Total Commitment,
(ii) No event shall have occurred that has had, or would reasonably
be expected to have, a Material Adverse Effect since December 31, 2000,
(iii) There shall not exist a Default or an Event of Default
hereunder and none shall exist as a result of (A) any such increase in any
Commitment or the Loans or (B) the making of any Advance under such
increase on the effective date of such increase, and
29
(iv) Promptly upon notice thereof, payment by the Borrower of any
costs, expenses or other amounts owed under Section 4.11 that are incurred
by any Lender in connection with any such increase in the Commitment or
Loans and the necessary reallocation among the existing Lenders and/or new
creditors.
(c) Notwithstanding anything herein or in any other Loan Document to the
contrary,
(i) the Borrower is not obligated to request participation from, or
allocate to, any existing Lender any portion of the proposed increase in
the Loans. Each existing Lender agrees and acknowledges that new creditors
may be allocated all or any portion of the proposed increase upon the
determination of the Borrower and the Administrative Agent,
(ii) creditors participating in any increase to the Commitment will
become "Lenders" and be entitled to the same rights as each existing
Lender, including without limitation, comparable terms regarding pro rata
prepayment, repayment and commitment reduction, and the benefit of the
Conditional Early Release Guarantee, executed by the Guarantor Subsidiaries
(if in effect), and any other guaranty of the Obligations granted in
accordance with the terms of Section 7.10, and be subject to the same
obligations as each Lender hereunder, including, without limitation,
obligations of the Lenders in accordance with the terms of Section 3.4 and
Section 10.7, and
(iii) No Lender shall be obligated to increase its Commitment or the
dollar amount of its Specified Percentage of the Total Commitment without
its written consent in its sole discretion. In connection with any
increase to the Total Commitment and Loans in accordance with the terms of
this Section 2.7, each existing Lender (regardless of whether such Lender
is participating in such increase), each new creditor and the Borrower
agree to execute any and all amendments and/or agreement s reasonably
requested by the Administrative Agent and the Borrower to effectuate the
intent of this Section 2.7.
SECTION 3. LETTERS OF CREDIT
3.1 Letter of Credit Commitment.
(a) Subject to the terms and conditions hereof, Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue or renew letters of credit (such newly issued or renewed letters
of credit together with the Existing Letters of Credit referred to collectively
herein as the "Letters of Credit") for the account of the Borrower and/or its
Guarantor Subsidiaries or Wholly Owned Subsidiaries on any Business Day prior to
the Termination Date in such form as may be approved from time to time by such
Issuing Lender; provided that Issuing Lender shall not issue or renew any Letter
of Credit if, after giving effect to such issuance or renewal, either (i) the
L/C Obligations would exceed the lesser of (x) $50,000,000 and (y) the Aggregate
Available Commitment or (ii) the Aggregate Outstanding Extensions of Credit of
all the Lenders would exceed the Total Commitment. Each Letter of Credit shall
(i) be denominated in Dollars and shall be either (x) a standby letter of credit
issued
30
for the account of the Borrower and/or its Guarantor Subsidiaries or Wholly
Owned Subsidiaries, which finances the working capital and business needs of the
Borrower and/or its Guarantor Subsidiaries or Wholly Owned Subsidiaries, or (y)
a commercial letter of credit issued for the account of the Borrower and/or its
Guarantor Subsidiaries or Wholly Owned Subsidiaries in respect of the purchase
of goods or services by the Borrower and/or any of its Guarantor Subsidiaries or
Wholly Owned Subsidiaries and (ii) expire no later than the earlier of (x) the
Termination Date and (y) the date which is 12 months after its date of issuance
or renewal, as applicable.
(b) Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of New York.
(c) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any other Lender to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance or Renewal of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue or renew a Letter of
Credit by delivering to the Issuing Lender, at its address for notices specified
herein, an Application therefor, completed to the reasonable satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
Information as the Issuing Lender may reasonably request. Upon receipt of any
Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and Information delivered to it in
connection therewith in accordance with its customary procedures and, subject to
the terms of this Agreement, shall promptly issue or renew the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
or renew any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and Information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or amending such Letter of Credit, as
applicable, or as otherwise may be agreed by the Issuing Lender and the
Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit or
any amendment to any Letter of Credit to the Borrower promptly following the
issuance thereof.
3.3 Fees, Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the account of
each Lender, a letter of credit fee with respect to each Letter of Credit
(whether issued or renewed), for the period from and including the date of
issuance of such Letter of Credit to the date such Letter of Credit is no longer
outstanding, computed at a percentage rate per annum equal to the Applicable
Margin from time to time applicable to Eurodollar Loans, calculated on the basis
of a 360-day year, on the stated amount of each Letter of Credit issued, payable
on each L/C Fee Payment Date to occur while such Letter of Credit remains
outstanding and on the date such Letter of Credit expires, is cancelled or is
drawn upon. Such fee shall be payable quarterly in arrears and shall be
nonrefundable.
(b) In addition to the foregoing letter of credit fees, the Borrower shall
pay to the Issuing Lender for the account of the Issuing Lender (i) a fee with
respect to the issuance and/or
31
renewal of each Letter of Credit, for the period from and including the date of
issuance or renewal of each Letter of Credit to the date such Letter of Credit
is no longer outstanding computed at a rate of 1/8 of 1% per annum, calculated
on the basis of a 360-day year, on the stated amount of each Letter of Credit
issued, payable on each L/C Fee Payment Date to occur while such Letter of
Credit remains outstanding and on the date such Letter of Credit expires, is
cancelled or is drawn upon (such fee shall be payable quarterly in advance and
shall be non-refundable) and (ii) with respect to each Letter of Credit, whether
issued or renewed, the standard charges assessed by the Issuing Lender in
connection with the administration (including any drawings) and amendment of
Letters of Credit, such fee to be paid upon notice from Issuing Lender and shall
be non-refundable.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to each Lender all fees received by the Administrative Agent
for each such Lender's account pursuant to Section 3.3(a).
3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each Lender, and, to induce the Issuing Lender to issue Letters of Credit
hereunder, each Lender irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Issuing Lender, on the terms and conditions
hereinafter stated, for such Lender's own account and risk an undivided interest
equal to such Lender's Specified Percentage (determined on the date of issuance
of the relevant Letter of Credit) in the Issuing Lender's obligations and rights
under each Letter of Credit issued and/or renewed by the Issuing Lender and the
amount of each draft paid by the Issuing Lender thereunder. Each Lender
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit issued or renewed by the Issuing Lender for
which the Issuing Lender is not reimbursed in full by the Borrower in accordance
with Section 3.5(a), such Lender shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such Lender's Specified Percentage of the amount of such draft, or any part
thereof, which is not so reimbursed.
(b) In addition to any amount required to be paid by any Lender to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit, such
Lender shall pay to the Issuing Lender on demand an amount equal to the product
of (i) such amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required(which due
date, for the purposes of this paragraph (b), shall be deemed to be the date on
which such Lender shall have received notice from the Issuing Lender of the
amount required to be paid) to the date on which such payment is immediately
available to the Issuing Lender, times (iii) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of
which is 360. A certificate of the Issuing Lender submitted to any Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any Lender its pro rata share of such
payment in accordance with Section 3.4(a), the Issuing Lender receives any
payment related to such Letter
32
of Credit (whether directly from the Borrower or otherwise), or any payment of
interest on account thereof, the Issuing Lender will, if such payment is
received prior to 12:00 P.M., Dallas, Texas time, on a Business Day, distribute
to such Lender its pro rata share thereof on the same Business Day or if
received later than 12:00 P.M. on the next succeeding Business Day; provided
that, in the event that any such payment received by the Issuing Lender shall be
required to be returned by the Issuing Lender, such Lender shall return to the
Issuing Lender the portion thereof previously distributed by the Issuing Lender
to it.
(d) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Committed Loans referred to in Section 3.5(b)
and to purchase and fund participating interests pursuant to Section 3.4(a)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or the Borrower may have
against the Issuing Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 6; (iii) any adverse change in the condition (financial or otherwise) of
any Loan Party; (iv) any breach of this Agreement or any other Loan Document by
any Loan Party or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
3.5 Reimbursement Obligation of the Borrower.
(a) The Borrower agrees to reimburse the Issuing Lender (it being
understood that such reimbursement shall be effected by means of a borrowing of
Committed Loans unless the Administrative Agent shall determine in its
discretion that such Committed Loans may not be made for such purpose as a
result of a Default or Event of Default pursuant to Section 9(f)), upon receipt
of notice from the Issuing Lender of the date and amount of a draft presented
under any Letter of Credit and paid by the Issuing Lender, for the amount of (i)
such draft so paid and (ii) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender, at its address for notices
specified herein in Dollars and in immediately available funds, on the date on
which the Borrower receives such notice, if received prior to 11:00 A.M.,
Dallas, Texas time, on a Business Day and otherwise on the next succeeding
Business Day.
(b) Interest shall be payable on any and all amounts remaining unpaid by
the Borrower under this Section 3.5, (i) from the date the draft presented under
the affected Letter of Credit is paid to the date on which the Borrower is
required to pay such amounts pursuant to paragraph (a) above at a rate per annum
equal to the ABR plus the Applicable Margin and (ii) thereafter until payment in
full at the rate specified in Section 4.1(e). Except as otherwise specified in
Section 3.5(a), each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing of Committed
Loans that are ABR Loans pursuant to Section 2.3 in the amount of such drawing.
The Borrowing Date with respect to such borrowing shall be the date of payment
of such drawing and the proceeds of such Committed Loans shall be applied by the
Administrative Agent to reimburse the Issuing Lender for the amounts paid under
such Letter of Credit. In the event that any Committed Loan cannot for any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code with respect to the
33
Borrower), then each Lender shall forthwith purchase (as of the date such
borrowing would otherwise have occurred) from the Issuing Lender a participation
interest in the unreimbursed disbursements and related costs and expenses in an
amount equal to such Lender's Specified Percentage of the unreimbursed
disbursements and other costs and expenses included in Reimbursement
Obligations.
3.6 Obligations Absolute. Subject to the last two sentences of this
Section 3.6, the Borrower's obligations under this Section 3 shall be absolute
and unconditional under any and all circumstances and irrespective of any set-
off, counterclaim or defense to payment which the Borrower may have or have had
against the Issuing Lender, any Lender or any beneficiary of a Letter of Credit.
The Borrower also agrees with the Issuing Lender that the Issuing Lender and the
Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other things,
(i) the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or (ii) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
and the Lenders shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by such Person's gross negligence or willful misconduct. The
Borrower agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards of care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Borrower and shall not result in any
liability of either the Issuing Lender or any other Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Lenders of the date and amount thereof. Subject to Section 3.6,
the responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment appear on their face to be
in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Agreement, the provisions of this Agreement shall apply.
34
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such day plus the Applicable Margin for Eurodollar Loans in
effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is outstanding
at a rate per annum equal to the ABR for such day plus the Applicable Margin for
ABR Loans in effect for such day.
(c) Each Swing Line Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin for ABR Loans in effect for such day.
(d) Each Competitive Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Bid Rate
determined for such Interest Period in accordance with Section 2.6.
(e) (i) After the occurrence and during the continuance of an Event of
Default, all Loans and Reimbursement Obligations shall bear interest at a rate
per annum which is equal to (x) in the case of Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 4.1 (it being understood that in the case of Eurodollar Loans, the rate
applicable thereto shall be the Eurodollar Rate then in effect until the end of
the applicable Interest Period and thereafter the rate applicable thereto shall
be the ABR plus the Applicable Margin), plus 2% or (y) in the case of
Reimbursement Obligations, at a rate per annum equal to the ABR plus the
Applicable Margin for ABR Loans plus 2% and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any facility fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the ABR plus the Applicable Margin plus 2%, in each
case, with respect to clauses (i) and (ii) above, from the date of such non-
payment until such amount is paid in full (as well after as before judgment).
(f) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (e) of this Section shall
be payable from time to time on demand.
4.2 Optional and Mandatory Commitment Reductions and Prepayments.
(a) Optional Prepayment. The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty (it being
understood that amounts payable pursuant to Section 4.11 do not constitute
premium or penalty), upon at least three Business Days' irrevocable notice to
the Administrative Agent (in the case of Eurodollar Loans or Competitive Loans)
or at least one Business Day's irrevocable notice to the Administrative Agent
(in the case of ABR Loans other than Swing Line Loans) or same-day
35
irrevocable notice to the Administrative Agent (in the case of Swing Line
Loans), specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, Competitive Loans, ABR Loans or Swing Line Loans or a
combination thereof, and, in each case if a combination thereof, the principal
amount allocable to each. Upon the receipt of any such notice, the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with (if a Eurodollar Loan or Competitive
Loan is prepaid other than at the end of the Interest Period applicable thereto)
any amounts payable pursuant to Section 4.11. Partial prepayments of Loans shall
be in an aggregate principal amount of $10,000,000 or $1,000,000 increments in
excess thereof. Partial prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or $100,000 increments in excess thereof.
(b) Optional Commitment Reduction. The Borrower shall have the right,
upon not less than three Business Days' notice to the Administrative Agent
(which will promptly notify the Lenders thereof), to terminate the Total
Commitment or, from time to time, to reduce the amount of the Total Commitment;
provided that no such termination or reduction of the Total Commitment shall be
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the Total Extensions of Credit then in
effect would exceed the Total Commitment as reduced. Any such reduction shall be
in a minimum amount of $10,000,000 or increments of $1,000,000 in excess thereof
and shall reduce permanently the Total Commitment then in effect.
(c) Mandatory Commitment Reduction on the Termination Date.
Notwithstanding anything contained in this Agreement to the contrary, on the
Termination Date the Total Commitment shall automatically reduce to zero.
(d) Mandatory Prepayments and Cash Collateralizations if Total Extensions
of Credit Exceed Total Commitment and Non Pro Rata Commitment Reductions.
(i) If at any time the Total Extensions of Credit exceed the Total
Commitment of all Lenders then in effect, the Borrower shall, without
notice or demand, immediately repay the Loans in an aggregate principal
amount equal to such excess, together with interest accrued to the date of
such payment or repayment and any amounts payable under Section 4.11. To
the extent that, after giving effect to any prepayment of the Loans
required by the preceding sentence, the Total Extensions of Credit still
exceeds the Total Commitment then in effect, the Borrower shall, without
notice or demand, immediately cash collateralize the then outstanding L/C
Obligations in an amount equal to such excess upon terms reasonably
satisfactory to the Administrative Agent.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, so long as no Default or Event of Default has occurred and is
continuing, the Borrower shall have the right to make permanent reductions
of the Commitment of any Lender at any time or from time to time (subject
to clause (E) below) without making a permanent reduction of the Commitment
of any other Lender at such time, provided that (A) such reduction shall be
made on terms and conditions agreed upon in writing by the Borrower and
such Lender, (B) the Borrower and such Lender shall have notified the
Administrative Agent in writing of such reduction at least two Business
Days prior
36
thereto, (C) the aggregate amount of all reductions of the Commitment of
any Lenders made pursuant to this clause (ii) shall not exceed $50,000,000,
(D) after giving effect to each such reduction, the aggregate amount of the
Commitments then outstanding may not be less than the aggregate principal
amount of the Loans, Reimbursement Obligations and Letters of Credit then
outstanding, and (E) no such reduction may be made pursuant to this clause
(ii) after October 1, 2001 (or such later date as is agreed in writing by
the Majority Lenders).
(e) Prepayments and Reduction of Total Commitment, Generally. In the case
of any reduction of the Total Commitment, voluntary or otherwise, the Borrower
shall, if applicable, comply with the requirements of Section 4.2(d). Each
repayment of the Loans under this Section 4.2 shall be accompanied by accrued
interest to the date of such repayment on the amount repaid and any amounts
payable under Section 4.11. Any amounts deposited in any cash collateral account
established pursuant to this Section 4.2 shall be invested in Cash Equivalents
having a one-day maturity or such other Cash Equivalents as shall be acceptable
to the Administrative Agent and the Borrower.
(f) Mandatory Repayment of Swing Line Loans. The Borrower shall prepay
all Swing Line Loans then outstanding simultaneously with each borrowing of
Committed Loans pursuant to Section 2.3.
(g) Mandatory Prepayment and Commitment Reduction due to Asset
Dispositions. If the Borrower or any Subsidiary shall receive net proceeds from
any Disposition, then the net proceeds from such Disposition shall, without
notice or demand, immediately repay the Loans in an aggregate principal amount
equal to 100% of such net proceeds, together with interest accrued to the date
of such repayment, any amounts payable under Section 4.11 and all other
outstanding Obligations to the extent of the net proceeds received, and the
Commitment of each Lender in its Specified Percentage of such net proceeds and
the Total Commitment shall be immediately and automatically reduced by a like
amount, provided that, so long as there exists no Material Adverse Effect,
Default or Event of Default both before and after giving effect to any such
Disposition, the Borrower shall not be required to repay the Loans hereunder and
the Commitments of each Lender and the Total Commitment shall not be reduced:
(i) with respect to all or any portion of the net proceeds of such
Disposition (the "Reinvestment Portion") to the extent the Borrower
reinvests the Reinvestment Portion during a 365 day reinvestment period
after the date of Disposition, so long as either (A) the Borrower or such
Subsidiary in good faith enters into a binding letter of intent to acquire
assets in a Permitted Line of Business within the first 180 days after such
Disposition and consummates such acquisition prior to the 365th day after
the date of such Disposition, or (B) the Borrower in good faith enters into
any other reinvestment related to such Disposition such that the purchase
and Disposition qualify as a Section 1031 exchange under the IRS Code,
provided that, with respect to this subSection (B), any acquired property
in connection with such 1031 exchange must be acquired within a 180 day
period before or after the date of Disposition, but in no event earlier
than the Effective Date, or
37
(ii) if and to the extent such Disposition is made in the ordinary
course of business of the Borrower or a Subsidiary, or
(iii) if, and to the extent the property subject to the Disposition is
any of the Kansas and Iowa operations of the Borrower and its Subsidiaries,
or
(iv) if the Borrower's Leverage Ratio is less than 4.00 to 1.00 both
before and after giving effect to any such Disposition, or
(v) if the Borrower shall have received a Senior Unsecured Debt
Rating that is both (A) not lower than BBB- from S&P and (B) not lower than
Baa3 from Xxxxx'x both before and after giving effect to such Disposition,
or
(vi) if, and to the extent the property subject to the Disposition is
any of the real estate owned by the Borrower described on Schedule 4.2
hereto.
4.3 Fees.
(a) Facility Fees. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender, a facility fee on the Commitment of each such
Lender (determined without deduction for any outstanding Swing Line Loans),
computed at a rate per annum equal to the Facility Fee Margin in effect from
time to time for the fiscal quarter preceding the payment date. Such facility
fees shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December and on the date on which all of the
Commitments shall have terminated.
(b) Other Fees. The Borrower shall pay (without duplication of any fee
payable under Section 4.3(a) above) to the Administrative Agent, for its own
account, the fees in the amounts and on the dates agreed to in the Bank of
America Fee Letter.
4.4 Computation of Interest and Fees.
(a) Interest based on the Eurodollar Rate or on any Bid Rate and fees
shall be calculated on the basis of a 360-day year for the actual days elapsed;
and interest based on the ABR shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error.
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4.5 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert Eurodollar Loans
to ABR Loans by giving the Administrative Agent an irrevocable notice
substantially in the form of Exhibit G-2 (a "Notice of
-----------
Conversion/Continuation"), at least one Business Day prior to such election,
provided that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from
time to time to convert ABR Loans to Eurodollar Loans or to continue Eurodollar
Loans as Eurodollar Loans by giving the Administrative Agent a Notice of
Conversion/Continuation at least three Business Days' prior to such election.
Any such Notice of Conversion/Continuation to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such Notice of Conversion/Continuation the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and (ii) no Loan may be converted into a Eurodollar
Loan if the Interest Period selected therefor would expire after the Termination
Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent three Business Days prior to the
expiration of the then current Interest Period, of the length of the next
Interest Period to be applicable to such Eurodollar Loans, determined in
accordance with the applicable provisions of the term "Interest Period" for
Eurodollar Loans set forth in Section 1.1, provided that no Eurodollar Loan may
be continued as such (i) when any Event of Default has occurred and is
continuing or (ii) after the date that is one month prior to the Termination
Date, and provided, further, that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice of continuation pursuant to
this Section 4.5(b), the Administrative Agent shall promptly notify each Lender
thereof.
4.6 Minimum Amounts of Tranches. All borrowings, conversions,
continuations and payments of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Tranche shall be equal to $10,000,000 or
$1,000,000 increments in excess thereof. In no event shall there be more than
seven Tranches outstanding at any time.
4.7 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period; or
39
(b) the Administrative Agent shall have received notice from the Majority
Lenders that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period; or
(c) the Administrative Agent shall have received notice from the Majority
Lenders that such Lenders are unable to acquire funding in a reasonable manner
so as to make available Eurodollar Loans in the amount and for the Interest
Period requested, the Administrative Agent shall give facsimile notice thereof
to the Borrower and the Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall
be converted, on the first day of such Interest Period, to ABR Loans. Until such
notice has been withdrawn by the Administrative Agent or the Majority Lenders,
as the case may be, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Loans to Eurodollar
Loans.
4.8 Pro Rata Treatment and Payments.
(a) Each borrowing of Loans (other than Swing Line Loans and Competitive
Loans) hereunder shall be made, each payment by the Borrower on account of any
facility fee hereunder shall be allocated by the Administrative Agent, and any
reduction of the Total Commitment shall be allocated by the Administrative
Agent, pro rata according to the respective Specified Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account of
(i) principal of and interest on Loans (other than Swing Line Loans which shall
be paid to the Swing Line Lender only) or Reimbursement Obligations or (ii)
facility fees, shall be allocated ratably by the Administrative Agent according
to the amount of interest, principal and fees which are then due and payable to
the Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under any Notes, whether on account of principal, interest, fees,
Reimbursement Obligations or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 P.M., Dallas, Texas time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in Section 11.2, in Dollars and in
immediately available funds. Payments received by the Administrative Agent after
such time shall be deemed to have been received on the next Business Day. If
any payment hereunder becomes due and payable on a day other than a Business
Day, the maturity of such payment shall be extended to the next succeeding
Business Day, (and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension) unless, with
respect to payments of Eurodollar Loans only, the result of such extension would
be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in writing by
any Lender by the required time prior to a borrowing that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the
40
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section 4.8 shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall notify the Borrower of the failure of such
Lender to make such amount available to the Administrative Agent and the
Administrative Agent shall also be entitled to recover, on demand from the
Borrower, such amount with interest thereon at a rate per annum equal to the ABR
plus the Applicable Margin for ABR Loans in effect on the Borrowing Date.
4.9 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 4.10, net income taxes
and franchise taxes (imposed in lieu of net income taxes));
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost or reduce the
amount receivable to such Lender, by an amount which such Lender deems to be
material, of making, converting into, continuing or maintaining Eurodollar Loans
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable.
(b) If any Lender shall have reasonably determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
41
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 4.9, it shall promptly deliver a certificate to the
Borrower (with a copy to the Administrative Agent), setting forth in reasonable
detail an explanation of the basis for requesting such compensation. Such
certificate as to any additional amounts payable pursuant to this Section 4.9
submitted by such Lender to the Borrower (with a copy to the Administrative
Agent) must be delivered to the Borrower prior to the termination of this
Agreement and shall be conclusive in the absence of manifest error. The
Borrower shall pay each Lender the amount shown as due on any such certificate
delivered by it within 15 days after the Borrower's receipt thereof. The
agreements in this Section 4.9 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
4.10 Taxes.
(a) All payments made by the Borrower under this Agreement and any Notes
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
(i) net income taxes; (ii) franchise and doing business taxes imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
Note); (iii) any taxes, levies, imposts, deductions, charges or withholdings
that are in effect and that would apply to a payment to such Lender as of the
Effective Date; and (iv) if any Person acquires any interest in this Agreement
or any Note pursuant to the provisions hereof, including without limitation a
participation (whether or not by operation of law), or a foreign Lender changes
the office in which the Loan is made, accounted for or booked (any such Person
or such foreign Lender in that event being referred to as a "Tax Transferee"),
any taxes, levies, imposts, deductions, charges or withholdings to the extent
that they are in effect and would apply to a payment to such Tax Transferee as
of the date of the acquisition of such interest or change in office, as the case
may be. If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Note, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Non-U.S. Lender if
42
such Lender fails to comply with the requirements of paragraph (b) of this
Section. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If, when the Borrower is required by this Section
4.10(a) to pay any Non-Excluded Taxes, the Borrower fails to pay such Non-
Excluded Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(b) Each Lender (or Transferee) that is not a citizen or resident of the
United States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America, or any estate or
trust that is subject to federal income taxation regardless of the source of its
income (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-
U.S. Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a
Form W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, an annual certificate representing that
such Non-U.S. Lender (i) is not a "bank" for purposes of Section 881(c) of the
Code (and is not subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank in any filing with or
submission made to any Governmental Authority or rating agency), (ii) is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and (iii) is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents, along with such other additional forms
as the Borrower, the Administrative Agent (or, in the case of a Participant, the
Lender from which the related participation shall have been purchased) may
reasonably request to establish the availability of such exemption. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of any Participant, on or before the
date such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-
U.S. Lender shall promptly notify the Borrower at any time it determines that it
is no longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of Section
4.10, a Non-U.S. Lender shall not be required to deliver any form pursuant to
this Section 4.10(b) that such Non-U.S. Lender is not legally able to deliver,
it being understood and agreed that, in the event that a Non-U.S. Lender fails
to deliver any forms otherwise required to be delivered pursuant to this Section
4.10(b), or notifies the Borrower that any previously delivered certificate is
no longer in force, the Borrower shall withhold such amounts as the Borrower
shall reasonably determine are required by la w and shall not be required to
make any additional payment with respect thereto to the Non-U.S. Lender, unless
such failure to deliver or notify is a result of change in law subsequent to the
date hereof.
43
(c) If a Lender (or Transferee) or the Administrative Agent shall become
aware that it is entitled to receive a refund in respect of Non-Excluded Taxes
paid by the Borrower, or as to which it has been indemnified by the Borrower,
which refund in the good faith judgment of such Lender (or Transferee) is
allocable to such payment made pursuant to this Section 4.10, it shall promptly
notify the Borrower of the availability of such refund and shall, within 30 days
after receipt of a request by the Borrower, apply for such refund. If any Lender
(or Transferee) or the Administrative Agent receives a refund in respect of any
Non-Excluded Taxes paid by the Borrower, or as to which it has been indemnified
by the Borrower, which refund in the good faith judgment of such Lender (or
Transferee) is allocable to such payment made pursuant to this Section 4.10, it
shall promptly notify the Borrower of such refund and shall, within 15 days
after receipt, repay such refund to the Borrower. The agreements in this Section
4.10 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
4.11 Indemnity.
(a) The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (i) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (ii)
default by the Borrower in making any prepayment of Eurodollar Loans after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (iii) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to, but not
including, the last day of such Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the London interbank eurodollar market.
(b) If (i) any payment of principal of any Competitive Loan is made other
than on the last day of the Interest Period relating to such Competitive Loan
for any reason or (ii) the Borrower fails to (A) fulfill on the date of any
proposed borrowing of Competitive Loans the applicable conditions set forth in
Section 2.6 or the conditions precedent set forth in Section 6 or (B) make a
borrowing of Competitive Loans after it shall have accepted any Competitive Bid
with respect thereto in accordance with Section 2.6, the Borrower shall
indemnify each Lender against, and shall pay directly to such Lender on such
Lender's demand the amount (calculated by such Lender using any method chosen by
such Lender which customarily is used by such Lender for such purpose) equal to,
any losses or reasonable expenses such Lender actually incurs as a result of
such payment or failure, including (A) the costs and expenses incurred by such
Lender in connection with, or by reason of, such event (including those
attributable to the liquidation, employment or reemployment of deposits or other
funds) and (B) the net amount of operating margin actually lost by such Lender.
44
(c) The provisions of this Section 4.11 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
4.12 Change of Lending Office. Each Lender agrees that if it makes any
demand for payment under Section 4.9 or 4.10(a), it will use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, as determined in its
sole discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under Section 4.9 or 4.10(a) or would eliminate or reduce the effect of any
adoption or change described in Section 4.9.
4.13 Replacement of Lenders under Certain Circumstances. The Borrower shall
be permitted to replace any Lender that requests reimbursement for amounts owing
pursuant to Section 4.9 or 4.10 (either for its own account or for the account
of any of its participants), with a replacement financial institution; provided
that (i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken
no action under Section 4.12 so as to eliminate the continued need for payment
of amounts owing pursuant to Section 4.9 or 4.10, (iv) the Borrower shall repay
(or the replacement financial institution shall purchase, at par) all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 4.11 if any Eurodollar Loan owing to such replaced Lender shall be
prepaid (or purchased) other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 11.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (viii) until such
time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 4.9 or 4.10, as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights which the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.
4.14 Illegality. If, after the date of this Agreement, the adoption of any
Requirement of Law or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
request or directive of any such authority, central bank or comparable agency,
shall make it unlawful or impossible for any Lender to make, maintain or fund
its Eurodollar Loans, and such Lender shall so notify the Administrative Agent,
then until such Lender notifies the Administrative Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Lender to
make Eurodollar Loans or to convert ABR Loans to Eurodollar Loans, shall be
suspended. If such Lender shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Eurodollar Loans to maturity and shall
so specify in such notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each such Loan together with accrued
interest thereon without premium or penalty (subject, however, to the Borrower's
other obligations hereunder in respect of funding losses and other matters);
provided that concurrently with prepaying each Committed Loan the affected
Borrower may borrow a ABR Loan in an equal principal amount from such
45
Lender. Any Lender that has given a notice of unlawfulness pursuant to this
Section 4.14 shall rescind such notice promptly upon the cessation of such
unlawfulness by giving notice to the Administrative Agent.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and to issue Letters of Credit, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender that:
5.1 Financial Condition.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at December 31, 2000 and the related consolidated statements of
income and of cash flows for the fiscal year ended on such date, reported on by
Ernst & Young, L.L.P., copies of which have heretofore been furnished to each
Lender, present fairly in all material respects the consolidated financial
condition of the Borrower and its Consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal year then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein). Neither the Borrower nor any of its
Consolidated Subsidiaries had, as of December 31, 2000, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the schedules or notes thereto.
Except as set forth on Schedule 5.1, during the period from December 31, 2000 to
------------
and including the date hereof there has been no sale, transfer or other
disposition by the Borrower or any of its Consolidated Subsidiaries of any
material part of its or their business, assets or property and no purchase or
other acquisition of any business, assets or property (including any Capital
Stock of any other Person) material in relation to the consolidated financial
condition of the Borrower and its Consolidated Subsidiaries at December 31,
2000.
(b) The financial statements of the Borrower and its Consolidated
Subsidiaries and other information most recently delivered under Sections 7.1(a)
and (b) were prepared in accordance with GAAP (except in the case of interim
statements which shall be without footnotes) and present fairly the consolidated
financial condition, results of operations, and cash flows of the Borrower and
its Consolidated Subsidiaries as of, and for the portion of the fiscal year
ending on the date or dates thereof (subject in the case of interim statements
only to normal year-end audit adjustments). There were no liabilities, direct or
indirect, fixed or contingent, of the Borrower or its Consolidated Subsidiaries
as of the date or dates of such financial statements which are material to the
Borrower and the Subsidiaries, taken as a whole, and which are not reflected
therein, or in the case of the annual statements, in the notes thereto. Except
for transactions directly related to, or specifically contemplated by, the Loan
Documents, there have been no changes in the consolidated financial condition of
the Borrower and/or its Consolidated Subsidiaries from that shown in such
financial statements after such date which could reasonably be expected to have
a Material Adverse Effect, nor has the Borrower or any Consolidated
46
Subsidiary incurred any liability (including, without limitation, any liability
under any Environmental Law), direct or indirect, fixed or contingent, after
such date which could reasonably be expected to have a Material Adverse Effect.
5.2 No Change. Since December 31, 2000 there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect.
5.3 Existence; Compliance with Law. The Borrower and each of its
Subsidiaries (a) is duly organized, validly existing and, where applicable, in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate, limited liability company or partnership power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified and, where applicable, 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, except where the failure to
be so qualified could not reasonably be expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. Each Loan Party has
the power and authority, and the legal right, to make, deliver and perform each
of the Loan Documents to which it is a party and, in the case of the Borrower,
to borrow hereunder, and has taken all necessary corporate or partnership action
to authorize the execution, delivery and performance of each of the Loan
Documents to which it is a party and, in the case of the Borrower, to authorize
the borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person (including any partner or shareholder
of any Loan Party or any Affiliate of any Loan Party) is required to be obtained
or made by any Loan Party or any Subsidiary of any Loan Party in connection with
the borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents, other than such as have been obtained
or made and are in full force and effect. Each Loan Document to which each Loan
Party is a party has been duly executed and delivered on behalf of each such
Loan Party and the Borrower, respectively. Each Loan Document constitutes a
legal, valid and binding obligation of each Loan Party thereto, and the
Borrower, respectively, enforceable against each such Loan Party in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally.
5.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents by the Loan Parties thereto, the borrowings hereunder and the use of
the proceeds thereof will not (i) violate, result in a default under or conflict
with any Requirement of Law, any material Contractual Obligation of, or any
judgment, injunction, order or decree binding upon, the Borrower or of any of
its Subsidiaries, including but not limited to the Borrower Senior Note
Documents and (ii) will not result in a default under, or result in or require
the creation or imposition of any Lien on any of their respective properties or
revenues pursuant to, any such Requirement of Law or Contractual Obligation.
47
5.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect. No attachment, prejudgment or judgment Lien
encumbers any asset of the Borrower or any of its Subsidiaries other than in
respect of (i) claims as to which payment in full above any applicable customary
deductible is covered by insurance or a bond or (ii) other claims aggregating
not more than $10,000,000.
5.7 No Default. The Borrower is not in default (and no condition exists
which would constitute a default with the giving of notice or the passage of
time) under or with respect to the Borrower Senior Note Debt. Neither the
Borrower nor any of its Subsidiaries is in default (and no condition exists
which would constitute a default with the giving of notice or the passage of
time) under or with respect to any of its Contractual Obligations in any respect
which could reasonably be expected to have a Material Adverse Effect or under or
with respect to any agreements relating to Capital Stock of the Borrower or any
of its Subsidiaries. No Default or Event of Default has occurred and is
continuing.
5.8 Ownership of Property; Intellectual Property.
(a) Each of the Borrower and its Subsidiaries has good record and
indefeasible title in fee simple to, or a valid leasehold interest in, in all
material respects, in all its real property, and good title to, or a valid
leasehold interest in, in all material respects, in all its other material
property, and none of the property of the Borrower or of its Subsidiaries is
subject to any Lien except as permitted by Section 8.3.
(b) The Borrower and its Subsidiaries have the right to use all
trademarks, tradenames, copyrights, technology, know-how or processes
("Intellectual Property") that are necessary for the conduct of its business as
currently conducted except for those which the failure to own or license could
not reasonably be expected to have a Material Adverse Effect. No material claim
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does the Borrower know of any valid basis for
any such claim. To the knowledge of the Borrower, the use of such Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
5.9 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
5.10 Taxes.
(a) (i) Each of the Borrower and its Subsidiaries has filed or caused to
be filed all tax returns which are required to be filed and has paid all taxes
shown to be due and payable by it on such returns and all other material taxes,
fees or other charges (collectively, the "Specified
48
Taxes") imposed on it or any of its property by any Governmental Authority due
and payable by it and (ii) to the knowledge of the Borrower, no material claim
is being asserted with respect to any Specified Tax, other than, in each case
with respect to this clause (a), Specified Taxes the amount or validity of which
are currently being contested in good faith by appropriate proceedings
diligently pursued and with respect to which reserves in conformity with GAAP
have been provided on the books of the Borrower or the relevant Subsidiary, as
the case may be, and
(b) no tax Lien has been filed with respect to any Specified Tax other
than as permitted pursuant to Section 8.3(a).
5.11 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board as now and
from time to time hereafter in effect. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. The execution,
delivery and performance of this Agreement and the other Loan Documents and the
borrowings and extensions of credit under this Agreement and the use of proceeds
hereof will not violate Regulation T, U or X promulgated by the Board.
5.12 ERISA. Except as, in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect: (a) neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five- year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code; (b) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five- year period; (c) the present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits; (d) neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made; and (e) no such Multiemployer Plan is in
Reorganization or Insolvent.
5.13 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. Neither
the Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended. No Loan
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of
49
the Board) which limits its ability to incur Indebtedness under this Agreement
or the other Loan Documents.
5.14 Capital Stock and Subsidiaries.
(a) All Capital Stock, debentures, bonds, notes and all other securities
of the Borrower and its Subsidiaries presently issued and outstanding are
validly issued in accordance with all applicable laws including, but not limited
to, the "Blue Sky" laws of all applicable states and the federal securities
laws.
(b) Schedule 5.14 (as supplemented by the Borrower from time to time as
-------------
required in Section 7.10) sets forth a true and complete list of (i) each of the
Subsidiaries of the Borrower and their jurisdictions of incorporation and (ii)
the authorized Capital Stock of each of the Loan Parties (identifying the direct
owner thereof other than with respect to the Borrower) and the percentage
ownership (direct and indirect) of the Borrower in each class of Capital Stock
of each of its Subsidiaries.
(c) The Capital Stock of each of the Loan Parties (other than the Capital
Stock of the Borrower) is owned by the stockholders and in the amounts set forth
on Schedule 5.14 (as supplemented by the Borrower from time to time as required
-------------
in Section 7.10). No shares of the Capital Stock of any Loan Party, other than
those described above, are issued and outstanding. There are no preemptive or
other outstanding rights, options, warrants, conversion rights or similar
agreements or understandings for the purchase or acquisition from any Loan Party
(other than the Borrower) of any shares of Capital Stock or other securities of
any such entity.
(d) With respect to the Borrower, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements
or understandings with respect to the Capital Stock of the Borrower which if
exercised could cause a Default or an Event of Default hereunder.
5.15 Insurance. Each Loan Party maintains with financially sound,
responsible, and reputable insurance companies or associations (or, as to
workers' compensation or similar insurance, with an insurance fund or by self-
insurance authorized by the jurisdictions in which it operates) insurance
covering its properties and businesses against such casualties and contingencies
and of such types and in such amounts (and with co-insurance and deductibles) as
is customary in the case of same or similar businesses.
5.16 Authorizations. Except as could not reasonably be expected to result
in a Material Adverse Effect:
(a) the Borrower and its Subsidiaries possess all Authorizations
necessary for the operations of their businesses and are not in violation
thereof. All such Authorizations are in full force and effect and no event has
occurred that permits, or after notice or lapse of time could permit, the
revocation, termination (other than an expiration by its terms) or material and
adverse modification of any such Authorization;
50
(b) neither the Borrower nor any of its Subsidiaries is in violation of
any duty or obligation required by the Communications Act of 1934, as amended,
or any FCC rule or regulation applicable to it;
(c) there is not pending or, to the best knowledge of the Borrower,
threatened, any action by the FCC to revoke, cancel, suspend or refuse to renew
any FCC License held by the Borrower or any of its Subsidiaries, provided that
the ownership of any FCC licensed radio station or television station following
public notice of an initial decision by the FCC (as opposed to a FCC final
order) to grant all or part of an application or request (i) to consent to the
transfer of control or assignment of any FCC license, (ii) to grant a temporary
waiver of any applicable FCC rule or regulation, and/or (iii) otherwise to
permit such ownership by valid temporary action, shall not be a breach of this
representation;
(d) There is not pending or, to the best knowledge of the Borrower,
threatened, any action by the FCC to modify adversely, revoke, cancel, suspend
or refuse to renew any other Authorization; and
(e) there is not issued or outstanding or, to the best knowledge of the
Borrower, threatened, any notice of any hearing, violation or complaint against
the Borrower or any of its Subsidiaries with respect to the operation of their
businesses.
5.17 Environmental Matters. Except as could not reasonably be expected to
result in a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and, to
the knowledge of the Borrower to the extent not owned, leased or operated during
the past five years, have not contained during the past five years, any
Materials of Environmental Concern in amounts or concentrations which constitute
or constituted a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law;
(b) the Properties and all operations at the Properties are in
compliance, and, to the knowledge of the Borrower to the extent not owned,
leased or operated during the past five years, have in the last five years been
in compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by the
Borrower or any of its Subsidiaries (the "Business") which could interfere with
the continued operation of the Properties or impair the fair saleable value
thereof;
(c) neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does the Borrower have
any knowledge that any such notice will be received or is being threatened;
(d) the Borrower has not transported or disposed of Materials of
Environmental Concern nor, to the Borrower's knowledge, have Materials of
Environmental Concern been transported or disposed of from the Properties in
violation of, or in a manner or to a location
51
which could reasonably be expected to give rise to liability to the Borrower or
any Subsidiary under, any Environmental Law, nor has the Borrower generated any
Materials of Environmental Concern nor, to the Borrower's knowledge, have
Materials of Environmental Concerns been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could reasonably be expected to give rise to liability to the Borrower or any
Subsidiary under, any applicable Environmental Law;
(e) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
applicable Environmental Law with respect to the Properties or the Business; and
(f) the Borrower has not released, nor, to the Borrower's knowledge, has
there been any release or threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations
of the Borrower or any Subsidiary in connection with the Properties or otherwise
in connection with the Business, in violation of or in amounts or in a manner
that could reasonably be expected to give rise to liability under Environmental
Laws.
5.18 Accuracy of Projections. All pro forma financial information and
projections made available to the Administrative Agent or any Lender by the
Borrower pursuant to this Agreement or any other Loan Document have been
prepared and furnished to the Administrative Agent or such Lender in good faith
and were based on estimates and assumptions that were believed by the management
of the Borrower to be reasonable in light of the then current and foreseeable
business conditions of the Borrower and its Subsidiaries. The Administrative
Agent and the Lenders recognize that such pro forma financial information and
projections and the estimates and assumptions on which they are based may or may
not prove to be correct.
5.19 Solvency. As of the date on which this representation and warranty is
made or deemed made, each Loan Party is Solvent, both before and after giving
effect to the transactions contemplated hereby consummated on such date and to
the incurrence of all Indebtedness and other obligations incurred on such date
in connection herewith and therewith.
5.20 Indebtedness.
(a) Neither the Borrower, nor any of its Subsidiaries is an obligor on any
Indebtedness except as permitted under Section 8.2.
(b) The Borrower Senior Note Documents do not conflict with, or contain
any terms or conditions any more restrictive than, the terms and conditions of
this Agreement and the other Loan Documents.
5.21 Labor Matters. There are no actual or overtly threatened strikes,
labor disputes, slow downs, walkouts, or other concerted interruptions of
operations by the employees of any Loan Party which could reasonably be expected
to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Loan Parties have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters, other than
any
52
such violations, individually or collectively, which could not reasonably be
expected to have a Material Adverse Effect. All payments due from any Loan Party
on account of employee health and welfare insurance have been paid or accrued as
a liability on its books, other than any such nonpayments which could not,
individually or collectively, reasonably be expected to have a Material Adverse
Effect.
5.22 Full Disclosure. There is no material fact or condition relating to
the Loan Documents or the financial condition, business, or property of any Loan
Party which could reasonably be expected to have a Material Adverse Effect and
which has not been disclosed, in writing, to the Arranging Agents and the
Lenders.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extensions of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it
hereunder is subject to the satisfaction, immediately prior to or concurrently
with the making of such extension of credit, of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have received (i) this
Agreement, duly executed and delivered by the Borrower, (ii) any and all Notes
requested by the Lenders, duly executed and delivered by the Borrower, payable
to each such requesting Lender and (iii) the Conditional Early Release Guarantee
of each Subsidiary, duly executed and delivered by each such Subsidiary.
(b) Closing Certificate. The Administrative Agent shall have received a
certificate (a "Closing Certificate") of each Loan Party, dated the date of the
initial extension of credit hereunder, substantially in the form of Exhibit H,
---------
with appropriate insertions and attachments, in each case reasonably
satisfactory in form and substance to the Administrative Agent, executed by a
Responsible Officer and the Secretary or any Assistant Secretary of the
appropriate Loan Party.
(c) Fees. The Administrative Agent shall have received (i) all fees and
expenses required to be paid on or before the date hereof referred to in Section
4.3(b) and (ii) reimbursement for all legal fees and expenses incurred by it and
the Arranging Agents through the date hereof.
(d) Legal Opinions. The Administrative Agent shall have received, with a
counterpart for each Lender, the executed legal opinion of Christian & Xxxxxx,
counsel to the Borrower and the Loan Parties, substantially in the form of
Exhibit I and covering such additional matters relating to the transactions
---------
contemplated hereby as the Administrative Agent or any Lender may reasonably
request, and such other opinions from special FCC counsel, local counsel or
other counsel as deemed advisable by the Arranging Agents.
(e) Financial Statements and Information. The Lenders shall have received
(i) audited consolidated financial statements of the Borrower for the 2000
fiscal year, which financial statements shall have been prepared in accordance
with GAAP and shall be accompanied by an unqualified report thereon prepared by
Ernst & Young, L.L.P., (ii) financial
53
projections of the Borrower for period from 2001 through the Termination Date,
satisfactory in form, detail and substance to the Arranging Agents and (iii) a
business plan of the Borrower, satisfactory in form, detail and substance to the
Arranging Agents.
(f) Satisfactory Organizational and Capital Structure; Due Diligence. The
stock ownership of each of the Subsidiaries shall be consistent with the
structure described in Schedule 5.14. The Arranging Agents shall have completed
-------------
satisfactory legal, financial and business due diligence, including, but not
limited to, corporate structure, customer contract terms and audited financial
statements.
(g) Termination of the Existing Credit Agreement . The Borrower shall
provide evidence to the Administrative Agent that (i) the Existing Credit
Agreement shall be terminated, (ii) all liens created in connection therewith,
if any, shall be terminated and (iii) all Indebtedness outstanding thereunder
has been paid in full, in each case concurrently with the making of the initial
extensions of credit hereunder.
(h) Governmental and Third Party Approvals. All final and unappealable
governmental, regulatory and contractual approvals and consents, and material
third party approvals and consents, necessary for the execution, delivery and
performance of the financing contemplated hereby shall have been obtained and be
in full force and effect.
(i) Borrower Senior Note Debt. The Borrower shall either (i) provide
evidence to the Administrative Agent that the Borrower Senior Note Debt shall
have been paid in full and the Borrower Senior Note Documents and all liens
relating thereto shall have been terminated, in each case concurrently with the
making of the initial extensions of credit hereunder, or (ii) provide the
Administrative Agent with fully executed amendments to the Borrower Senior Note
Documents, in form and substance reasonably satisfactory to the Administrative
Agent.
(j) Borrower TROLs. The Borrower shall either (i) provide evidence to the
Administrative Agent that the TROLs shall have been paid in full and terminated
and all related documents and instruments and all liens relating thereto shall
have been terminated, in each case concurrently with the making of the initial
extensions of credit hereunder, or (ii) provide the Administrative Agent with
fully executed amendments to the TROLs, in form and substance reasonably
satisfactory to the Administrative Agent.
(k) No Material Adverse Change in Capital Markets. No material adverse
change in, or material disruption of, conditions in the financial, banking or
capital markets which any Arranging Agent, in its sole discretion, deems
material in connection with the syndication of the Facility shall have occurred
and be continuing.
(l) Additional Documentation. All other documentation, including, without
limitation, any tax sharing agreement, employment agreement, management
compensation arrangement or other financing arrangement, of the Borrower or any
of its Subsidiaries shall be reasonably satisfactory in form and substance to
the Lenders.
(m) Compliance Certificate. The Administrative Agent shall have received a
Compliance Certificate, executed by the Borrower, demonstrating in a manner
reasonably satisfactory to the Administrative Agent, pro forma compliance with
the financial covenants
54
(based on the last day of the most recently ended fiscal quarter) set forth in
Section 8.1 as of the date of the initial extension of credit hereunder.
6.2 Conditions to Each Extension of Credit. The obligation or agreement
of each Lender to make any Loan or to issue or renew any Letter of Credit
requested to be made, issued or renewed by it on any date (including, without
limitation, its initial extension of credit) is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loans or the
issuing or renewing of such Letters of Credit, of the following conditions
precedent:
(a) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened in writing which could
reasonably be expected to have a Material Adverse Effect.
(b) No Material Adverse Effect. There shall not have occurred any change,
development or event which could reasonably be expected to have a Material
Adverse Effect.
(c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents to which
it is a party shall be true and correct in all material respects on and as of
such date as if made on and as of such date, after giving effect to the Loans
requested to be made or the Letters of Credit to be issued on such date and the
proposed use of the proceeds thereof.
(d) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or will occur after giving effect to the extension of
credit requested to be made on such date and the proposed use of the proceeds
thereof.
(e) Notice of Borrowing; Application. The Borrower shall have submitted
(i) a Notice of Borrowing in accordance with Section 2.3 and/or 2.6 or (ii) an
Application in accordance with Section 3.2, in each case a certifying as to the
matters set forth in Section 6.2(a) through and including (d).
(f) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be reasonably satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and legal
opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by or issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the applicable conditions contained in
this Section 6 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitment remains in
effect, any Loan or Letter of Credit shall be outstanding or any other
Obligation is due and payable to any
55
Lender or the Administrative Agent hereunder or under any other Loan Document,
the Borrower shall and shall cause each Subsidiary of the Borrower to:
7.1 Financial Statements. Furnish to the Administrative Agent for
subsequent distribution to each Lender:
(a) as soon as available, but in any event within 120 days after the end
of each fiscal year of the Borrower, a copy of the annual reports, on Form 10-K,
which the Borrower is required to file with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Securities Act; and
(b) as soon as available, but in any event not later than 45 days after
the end of each of the first three fiscal quarterly periods of each fiscal year
of the Borrower, a copy of the quarterly reports, on Form 10-Q, which the
Borrower is required to file with the Commission pursuant to Section 13(a),
13(c) or 15(d) of the Securities Act.
All such reports shall be complete and correct in all material respects and
shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by the Borrower's accountants or a Responsible Officer of
the Borrower, as the case may be, and disclosed therein). If the Borrower is not
required to file with the Commission such reports and other information referred
to in Sections 7.1(a) and (b) above, the Borrower shall furnish (i) within 120
days after the end of each fiscal year, annual reports containing the
information required to be contained in Form 10-K promulgated under the
Securities Act, or substantially the same information required to be contained
in comparable items of any successor form, (ii) within 45 days after the end of
each of the first three fiscal quarters of each fiscal year, quarterly reports
containing the information required to be contained in Form 10-Q promulgated
under the Securities Act, or substantially the same information required to be
contained in any successor form and (iii) promptly from the time after the
occurrence of an event required to be therein reported, such other reports
containing information required to be contained in Form 8-K promulgated under
the Securities Act, or substantially the same information required to be
contained in any successor form.
7.2 Certificates; Other Information. Furnish to the Administrative Agent
for subsequent distribution to each Lender:
(a) concurrently with the delivery of the financial statements referred to
in Section 7.1(a), an opinion of independent certified public accountants
acceptable to Lenders reporting on such financial statements, which shall be in
scope and substance in accordance with GAAP (without a "going concern" or like
qualification or exception, and without any qualification or exception as to the
scope of such audit) and shall state that in making the examination necessary
therefore no knowledge was obtained of any Default or Event of Default;
(b) concurrently with the delivery of the financial statements referred to
in Sections 7.1(a) and (b), a Compliance Certificate executed by a Responsible
Officer of the Borrower and each of its Consolidated Subsidiaries;
56
(c) without duplication of the financial statements delivered pursuant to
Section 7.1, within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to the holders of any class of
its debt securities, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or file
with, the Commission or any successor or analogous Governmental Authority;
(d) as soon as available, but in any event within three Business Days
following any Responsible Officer of the Borrower having actual notice of any
change in any component of the Senior Unsecured Debt Rating, a Notice of Change
of Senior Unsecured Debt Rating; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or the relevant Subsidiary, as the case may be.
7.4 Conduct of Business and Maintenance of Existence, etc.
(a) Continue to engage in businesses of the same general type as now being
conducted by it and related businesses and preserve, renew and keep in full
force and effect its organizational existence and take all reasonable action to
maintain all material rights, privileges and franchises necessary in the normal
conduct of its business except as otherwise permitted pursuant to Section 8.4.
(b) Comply with all Contractual Obligations and applicable Requirements of
Law, except to the extent that failure to comply therewith could not reasonably
be expected to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all material property
useful and necessary in its business in good working order and condition
(ordinary wear and tear excepted) consistent with customary practices in the
applicable industry; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business.
7.6 Inspection of Property; Books and Records; Discussions. Keep and
maintain a system of accounting established and administered in accordance with
sound business practices and keep and maintain proper books of record and
accounts; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
during normal business hours and as often as may reasonably be requested and
upon reasonable notice and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
and employees of the Borrower and its Subsidiaries and with their independent
certified public accountants; provided that representatives of the Borrower
designated by a Responsible Officer of the Borrower may be present at any such
meeting with such accountants.
57
7.7 Notices. Promptly after the Borrower obtains knowledge thereof, give
notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation
of the Borrower or any of its Subsidiaries or (ii) litigation, investigation or
proceeding which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority, which in either case could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries (i) which could reasonably be expected to result in an adverse
judgment of $10,000,000 or more and not covered by insurance or (ii) in which
injunctive or similar relief is sought which in the case of this clause (ii)
could reasonably be expected to materially interfere with the ordinary conduct
of business of the Borrower or its Subsidiaries;
(d) the following events, as soon as possible and in any event within 30
days after the Borrower knows thereof: (i) the occurrence of any material
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan; and
(e) any development or event which could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action is proposed to be taken with respect
thereto.
7.8 Environmental Laws.
(a) Comply with, and use reasonable efforts to require compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and use reasonable efforts to require that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except, in each case, to the extent that failure
to do so could not be reasonably expected to have a Material Adverse Effect.
(b) Comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings diligently pursued.
7.9 Use of Proceeds. The Borrower shall use the proceeds of the Loans
and the Letters of Credit only (a) to pay in full all obligations and terminate
all agreements relating to the Existing Credit Agreement, (b) to finance current
and future acquisitions permitted under the
58
terms of Section 8.7, (c) to finance Capital Expenditures, (d) for working
capital and (e) for general corporate purposes.
7.10 Subsidiary Guarantee.
(a) After the creation or acquisition of a Subsidiary, (i) promptly notify
the Administrative Agent of the existence thereof, (ii) deliver to the
Administrative Agent, a revised Schedule 5.14 updating the information reflected
-------------
therein within ten days after the end of each fiscal quarter of the Borrower and
(iii) promptly, cause each such new Subsidiary to execute and deliver to the
Administrative Agent, a Supplement to Conditional Early Release Guarantee
Agreement, pursuant to which, inter alia, each such new Subsidiary shall
guarantee the Obligations, provided that if the Conditional Early Release
Guarantee has been released and terminated in accordance with Section 11.17 then
no such requirement for such new Subsidiary to enter into a Conditional Early
Release Guarantee shall exist under this subSection (a), and
(b) Notwithstanding the provisions of Section 11.17 and the preceding
subSection (a), if at any time any Subsidiary grants any Person a guarantee (or
permits any such guarantee to exist) of Indebtedness permitted to exist under
the terms of either Section 8.2(c) or Section 8.2(d), then each Subsidiary shall
concurrently guarantee the Obligations on a pari passu basis and shall execute a
guaranty agreement for the benefit of the Administrative Agent and the Lenders
on substantially identical terms as the guaranty agreement of the Indebtedness
permitted under Section 8.2(c) and Section 8.2(d).
7.11 Payment of Taxes and Claims. The Borrower shall, and shall cause each
Subsidiary of the Borrower to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or its income or Properties prior
to the date on which penalties attach thereto, and all lawful material claims
for labor, materials and supplies which, if unpaid, might become a Lien upon any
of their Properties, except those taxes, assessments and charges contested by
the Borrower diligently in good faith, and for which adequate reserves have been
established in accordance with GAAP. The Borrower shall, and shall cause each
Subsidiary of the Borrower to, timely file all information returns required by
federal, state or local tax authorities.
SECTION 8. NEGATIVE COVENANTS
The Borrower agrees hereby that, so long as any Commitment remains in
effect, any Loan or Letter of Credit is outstanding, or any other Obligation is
due and payable to any Lender or the Administrative Agent hereunder or under any
other Loan Document, the Borrower shall not, and the Borrower shall not permit
any of its Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Leverage Ratio. Permit the Leverage Ratio, at the end of any fiscal
quarter occurring during any period set forth below, to be greater than the
ratio set forth opposite such period below:
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Period Ratio
------ -----
Effective Date through and including December 30, 2002 4.50 to 1.00
December 31, 2002 through and including June 29, 2004 4.00 to 1.00
June 30, 2004 and thereafter 3.75 to 1.00
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio, at the
end of any fiscal quarter, to be less than 3.00 to 1.00.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness of the Borrower or any Subsidiary of the Borrower, except:
(a) Indebtedness arising under this Agreement;
(b) Indebtedness (i) among the Borrower and its Wholly Owned Subsidiaries
that are also Guarantor Subsidiaries (while required to be so in accordance with
the terms of Section 7.10 and Section 11.17) and (ii) constituting any Guarantee
Obligation of the Borrower of an obligation of any Guarantor Subsidiary or
Wholly Owned Subsidiary if such obligation would not constitute Indebtedness if
the Borrower had entered into such obligation directly;
(c) existing indebtedness of the Borrower in the principal amount of not
more than $13,000,000 in the form of Borrower Senior Notes, which such
indebtedness may, so long as there exists no Material Adverse Effect, Default or
Event of Default both before and after giving effect to each such action, be
guaranteed by any of the Subsidiaries on a pari passu basis with guaranties of
the Obligations, so long as in each case, each such Subsidiary is in compliance
with Section 7.10(b);
(d) so long as there exists no Material Adverse Effect, Default or Event
of Default both before and after giving effect to each and every incurrence of
such indebtedness, up to $600,000,000 of indebtedness of the Borrower, which
such indebtedness must be unsecured and pari passu with the Obligations
hereunder and have (a) a longer life and maturity, (b) no principal amortization
prior to the Termination Date of this Agreement and (c) covenants no less
favorable or more restrictive in the judgment of the Arranging Agents to the
interests of the Lenders than the terms and conditions of this Agreement and the
other Loan Documents. Such indebtedness may, so long as there exists no Material
Adverse Effect, Default or Event of Default both before and after giving effect
to each such action, be guaranteed by any of the Subsidiaries on a pari passu
basis with guaranties of the Obligations, so long as in each case, each such
Subsidiary is in compliance with Section 7.10(b);
(e) so long as there exists no Material Adverse Effect, Default or Event
of Default both before and after giving effect to each and every incurrence of
such indebtedness, up to $50,000,000 of indebtedness of the Borrower outstanding
at any one time in the aggregate, which such indebtedness shall be in the form
of Capital Lease Obligations, purchase money indebtedness, acquisition
indebtedness and sale and leasebacks permitted by Section 8.13 (without
duplication), and secured only to the extent permitted by Sections 8.3(c), (d)
and (e);
60
(f) so long as there exists no Material Adverse Effect, Default or Event
of Default both before and after giving effect to each and every incurrence of
such indebtedness, Interest Rate Hedge Agreements of the Borrower entered into
with any Arranging Agent or Lender or any of them for the purpose of hedging
against interest rate fluctuations with respect to variable rate indebtedness of
the Borrower or any of its Subsidiaries;
(g) so long as there exists no Material Adverse Effect, Default or Event
of Default both before and after giving effect to each and every incurrence of
such indebtedness, unsecured revolving credit indebtedness of the Borrower used
by the Borrower for cash management, in an aggregate amount outstanding at any
one time not to exceed $25,000,000; and
(h) existing indebtedness of the Borrower and its Subsidiaries in effect
on the date hereof in the maximum aggregate principal amount of $1,432,172.00.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments or governmental charges arising in the
ordinary course of business which are not yet due and payable or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower or the
applicable Subsidiary, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, laborers,
repairmen's or other like Liens arising in the ordinary course of business which
are not yet due and payable;
(c) Liens securing indebtedness permitted under Section 8.2(e) for Capital
Lease Obligations incurred after the Effective Date and created
contemporaneously with such Capital Lease Obligations to secure same, provided
that such Liens shall only attach to the property so leased and provided that
such Liens, when combined with the amount of sale and leasebacks (without
duplication) permitted to exist under Section 8.13 plus indebtedness secured by
purchase money Liens and Acquisition Liens outstanding under Sections 8.3(d) and
(e), shall not exceed $50,000,000 in the aggregate at any time outstanding;
(d) Liens securing indebtedness permitted under Section 8.2(e) for
purchase money indebtedness on property acquired after the Effective Date and
created contemporaneously with the acquisition of such property to secure or
provide for the payment or financing of the purchase price thereof, provided
that such Liens shall only attach to the property so acquired and provided that
such Liens, when combined with the amount of sale and leasebacks permitted to
exist under Section 8.13 plus Capital Lease Obligations (without duplication)
and indebtedness secured by Acquisition Liens outstanding under Sections 8.3(c)
and (e), shall not exceed $50,000,000 in the aggregate at any time outstanding;
(e) Liens securing indebtedness permitted under Section 8.2(e) that are
(i) existing on any asset of any Person at the time such Person becomes a
Consolidated Subsidiary and not created in contemplation of such event, (ii) on
any asset of any Person existing at the time such Person is merged or
consolidated with or into the Borrower or a Consolidated Subsidiary and not
created in contemplation of such event, or (iii) existing on any asset prior to
the acquisition
61
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition (collectively, "Acquisition Liens"), provided
that such Liens, when combined with the amount of sale and leasebacks permitted
to exist under Section 8.13 plus Capital Lease Obligations (without duplication)
and indebtedness secured by purchase money Liens outstanding under Sections
8.3(c) and (d), shall not exceed $50,000,000 in the aggregate at any time
outstanding;
(f) judgment liens and similar liens arising in connection with court
proceedings securing amounts aggregating in excess of $5,000,000, so long as the
execution and other enforcement of such liens is effectively stayed and the
judgment or claim secured thereby is being contested in good faith, and judgment
liens and similar liens arising in connection with court proceedings securing
amounts aggregating to an amount equal to or less than $5,000,000;
(g) Liens incurred or pledges or deposits made in the ordinary course of
business, including those in connection with workers' compensation, unemployment
insurance and other types of social security benefits and contractual, common
law or statutory rights of set off against deposits or other amounts owing any
depository institution; provided that such Liens incurred or pledges or deposits
made were not incurred or made in connection with the borrowing of money or the
obtaining of advances or credit and do not, in the aggregate, materially detract
from the value of the property or assets or impair the use thereof in the
operation of the business of the Borrower or its Subsidiaries;
(h) (i) Liens on real estate for real estate taxes not yet delinquent or
claims being diligently contested in good faith, (ii) Liens created by lease
agreements, licenses or similar interests, or by statute or common law to secure
the payments of rental, license amounts or similar amounts and other sums not
yet due thereunder, (iii) Liens on leasehold interests, licenses or similar
interests created by the lessor, licensee or grantor thereunder in favor of any
mortgagee of the leased premises;
(i) Easements, right-of-way, zoning restrictions, servitudes, matters of
public record, restrictions and other similar encumbrances on the use of real
property which do not materially interfere with the ordinary conduct of the
business of such Person as being conducted;
(j) Liens, deposits, or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases,
public or statutory obligations, surety, stay appeal, indemnity, performance or
other similar bonds, or other similar obligations arising in the ordinary course
of business; and
(k) Liens described on Schedule 8.3(k) securing Indebtedness permitted
---------------
under the Section 8.2(h), provided that such Liens shall only be on the property
securing such Indebtedness on the Effective Date (and no other properties or
assets of the Borrower and its Subsidiaries), and such Liens shall not be
extended to secure any additional Indebtedness.
8.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation with any Person, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially
62
all of its property, business or assets to any Person, or make any material
change in its present method of conducting business, except:
(a) a Subsidiary may merge into or be acquired by the Borrower if the
Borrower is the survivor thereof;
(b) a Subsidiary may merge into or be acquired by another Subsidiary,
provided that a Wholly Owned Subsidiary shall be the surviving entity;
(c) the Borrower may merge with another Person, provided that (i) such
Person is organized under the laws of the United States of America or one of its
states, (ii) the Borrower is the corporation surviving such merger, (iii) both
immediately before and after giving effect to such merger, no Material Adverse
Effect, Default or Event of Default shall have occurred or result therefrom and
(iv) 60 days before such merger, the Borrower shall provide the Administrative
Agent evidence of pro forma compliance with all of the terms and conditions of
this Agreement; and
(d) Dispositions permitted under Section 8.5.
8.5 Limitation on Sale of Assets. Convey, sell, lease, assign, exchange,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and material leasehold interests),
whether now owned or hereafter acquired to any Person (a "Disposition"), except,
so long as no Material Adverse Effect, Default or Event of Default shall have
occurred or would result therefrom both immediately before and after giving
effect to such Disposition and the Borrower gives the Administrative Agent prior
written notice for each such sale, the Borrower and its Subsidiaries may dispose
of their Kansas and Iowa operations, and the Borrower or a Subsidiary may make
additional Dispositions if in each case each such Disposition is less than
substantially all of its assets, in the case of the Borrower, and in any case,
all of the following conditions are satisfied:
(a) no Material Adverse Effect, Default or Event of Default shall have
occurred or would result therefrom both immediately before and after giving
effect to such Disposition,
(b) the Borrower shall have complied with all terms and provisions of
Section 4.2(g),
(c) prior to any such Disposition which involves assets that generated
more than 10% of EBITDA of the immediately preceding four fiscal quarters, the
Borrower provides evidence of pro forma compliance with all of the terms and
conditions of this Agreement,
(d) to the extent such Disposition consists of the sale of Capital Stock
of a Subsidiary, such Disposition may only be made so long as (i) the
Disposition is for 100% of the Capital Stock of such Subsidiary or (ii) the
Disposition is for an amount of Capital Stock sufficient to cause such entity to
no longer be a "Subsidiary" as such term is defined in this Agreement and
provided that the ownership interest in such entity retained by the Borrower or
a Subsidiary does not cause a violation of Section 8.8, and
(e) either (i) (A) on any date of determination the sum of the Asset Sale
EBITDA Percentages for all Dispositions occurring during any fiscal year of the
Borrower shall not
63
exceed in the aggregate 25%, and (B) on any date of determination, the sum of
all preceding Asset Sale EBITDA Percentages shall never exceed 40% in the
aggregate; provided that, notwithstanding the foregoing, an Asset Swap EBITDA
Percentage may, at the choice of the Borrower, be excluded from the calculations
set forth in subSections (e)(i)(A) and (e)(i)(B) preceding if such Asset Swap
EBITDA Percentage is included in the calculation in (e)(ii) next; or (ii) on any
date of determination, the sum of all preceding Asset Swap EBITDA Percentages,
excluding only the Asset Swap EBITDA Percentages Borrower has elected to include
in the (e)(i) calculations preceding, shall never exceed 20% in the aggregate.
The Borrower shall give prompt notice to the Administrative Agent of any
election regarding allocation of an Asset Swap EBITDA Percentage between the (e)
(i) and (ii) calculations above.
Upon any Disposition of a Guarantor Subsidiary in compliance with this Section
8.5, the Administrative Agent will terminate, and release such Guarantor
Subsidiary from, the Conditional Early Release Guarantee.
8.6 Limitation on Restricted Payments; Other Payment Limitations. Declare
or pay any dividend or distribution in respect of, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for the
purchase, redemption, defeasance, retirement or other acquisition of, any shares
of or interests in any class of Capital Stock of the Borrower or make any
payment on account of, or set apart assets for a sinking or other analagous fund
for the purchase, redemption, defeasance or retirement of any principal on
account of any Indebtedness, whether now or hereafter outstanding, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower or any of its Subsidiaries (collectively, "Restricted Payments");
provided that, if both immediately before and after giving effect thereto no
Material Adverse Effect, Default or Event of Default shall have occurred or
would result therefrom (i) the Borrower and each such Subsidiary may make
Restricted Payments, not to exceed in the aggregate for any fiscal year, an
amount equal to $25,000,000, (ii) the Borrower and its Subsidiaries may make
Restricted Payments constituting any payment/prepayment/defeasance or other
payment on the principal amount of permitted Indebtedness outstanding, except
for Indebtedness permitted to be outstanding under Section 8.2(d) and (iii) if
the Leverage Ratio is less than 4.00 to 1.00 both before and after giving effect
to any such Restricted Payment, then the Borrower may make any such Restricted
Payment except for any payment, prepayment, defeasance or other payment with
respect to the principal amount of Indebtedness permitted to be outstanding
under Section 8.2(d). Notwithstanding the foregoing or any other provision in
this Agreement or in any Loan Document to the contrary, in no event may the
Borrower or any Subsidiary make any payment on account of, or set apart assets
for a sinking or other analogous fund for the purchase, redemption, defeasance,
retirement or other acquisition of, any of the Indebtedness permitted to exist
under Section 8.2(d) hereof prior to the Termination Date.
8.7 Limitation on Acquisitions. Purchase any stock, bonds, notes,
debentures or other securities of or any assets constituting all or any
significant part of a business unit of any Person (collectively,
"Acquisitions"), except acquisitions through the purchase of stock or assets in
any Permitted Line of Business; provided that (i) no such acquisition may be
made if a Material Adverse Effect, Default or an Event of Default shall have
occurred and be continuing or would result therefrom; (ii) prior to any
Acquisition in excess of $25,000,000, the Borrower provides evidence of pro
forma compliance with all of the terms and conditions of this
64
Agreement; and (iii) if such acquisition is of Capital Stock of any Person, such
acquisition must also comply with the provisions of Section 8.8(c) or (e).
8.8 Investments, Loans, Etc. Purchase or otherwise acquire or invest in
the Capital Stock of, or any other equity interest in, any Person (including,
without limitation, the Capital Stock of the Borrower), or make any loan to, or
enter into any arrangement for the purpose of providing funds or credit to, or,
guarantee or become contingently obligated in respect of the obligations of or
make any other investment, whether by way of capital contribution or otherwise,
in, to or with any Person, or permit any Subsidiary so to do (all of which are
sometimes referred to herein as "Investments"), except:
(a) Investments in Cash Equivalents;
(b) Investments in existence on the date hereof and listed on Schedule
--------
8.8(b);
------
(c) Investments by the Borrower or its Subsidiaries in (x) existing
Guarantor Subsidiaries (so long as the Subsidiaries are required to be Guarantor
Subsidiaries in accordance with the terms of Section 7.10 and Section 11.17),
(y) Wholly Owned Subsidiaries or (z) any other Person, provided that
contemporaneously with any such Investment such Person becomes a Guarantor
Subsidiary or a Wholly Owned Subsidiary;
(d) Investments by the Borrower or any Subsidiary in any Person to the
extent that such investments are deemed to be investments under GAAP due to the
reinvestment by such Person of existing funds or earnings in such Person (and
not new value contributed by the Borrower or its Subsidiaries), provided that,
if the Borrower or any Subsidiary of the Borrower makes any cash or other
investment of value in such Person, such cash or other investment of value shall
not be permitted by this subSection (d);
(e) in addition to Investments permitted under Section 8.8(b) and (d),
provided no Material Adverse Effect, Default or Event of Default exists or would
result therefrom, Investments made after the Effective Date in a Permitted Line
of Business not to exceed $100,000,000 in the aggregate at any time outstanding;
and
(f) the Borrower or any Subsidiary may acquire and own stock, obligations
or securities received in settlement of debts (created in the ordinary course of
business) owing to the Borrower or any such Subsidiary.
8.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than a Guarantor Subsidiary or Wholly Owned Subsidiary as specifically permitted
herein) other than transactions (a) otherwise permitted under this Agreement and
(b) entered into in the ordinary course of the Borrower's or such Subsidiary's
business, the terms of which are fair and reasonable and in the best interests
of the Loan Party which is party to the transaction and which transaction is
approved by the Board of Directors of the Borrower.
8.10 Limitation on Restrictive Agreements. (a) Enter into or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary of the
65
Borrower to (i) pay dividends or make any other distributions in respect of any
Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the
Borrower or any other Subsidiary of the Borrower, (ii) make loans or advances to
the Borrower or any other Subsidiary of the Borrower or (iii) transfer any of
its assets to the Borrower or any other Subsidiary, or (b) enter into or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of the Borrower or any Subsidiary of the Borrower to (i) except in
connection with Indebtedness permitted to be incurred by the Borrower in
accordance with the terms of Sections 8.2(c) and (d), grant Liens generally on
any of its or its Subsidiaries' assets and properties or (ii) enter into an
amendment of, or accept a waiver or consent with respect to, any term or
provision of this Agreement or any of the Loan Documents.
8.11 Limitation on Lines of Business. Enter into any new business, either
directly or through any Subsidiary other than businesses related to those
currently conducted by the Borrower and its Subsidiaries or businesses related
to the communication business (a "Permitted Line of Business").
8.12 Limitation on Issuance of Capital Stock. In the case of a Subsidiary,
issue, sell, assign, exchange, transfer, pledge or otherwise dispose of or
encumber any shares of Capital Stock of such Subsidiary, except to the Borrower
or a Wholly Owned Subsidiary.
8.13 Sale and Leaseback. Enter into any arrangement whereby it sells or
transfers any of its assets, and thereafter rents or leases such assets,
provided that, notwithstanding the foregoing, the Borrower and its Subsidiaries
may enter into sale and leasebacks in an amount not to exceed $10,000,000 in
purchase price in the aggregate during the term of this Agreement, and only so
long such sale and leasebacks, when combined with the amount of Capital Lease
Obligations (without duplication) and Indebtedness secured by purchase money
Liens and Acquisition Liens outstanding under Sections 8.3(c), (d) and (e),
shall not exceed $50,000,000 in the aggregate at any time outstanding.
8.14 Compliance with ERISA. Directly or indirectly, or permit any member
of its Controlled Group to directly or indirectly, (a) terminate any Plan, (b)
permit to exist any ERISA Event, or any other event or condition which presents
the risk of liability of the Borrower or any member of its Controlled Group, (c)
make a complete or partial withdrawal (within the meaning of Section 4201 of
ERISA) from any Multiemployer Plan so as to result in any liability to the
Borrower or any member of its Controlled Group, (d) enter into any new Plan or
modify any existing Plan so as to increase its obligations thereunder which
could result in any liability to the Borrower or any member of its Controlled
Group, or (e) permit the present value of all benefit liabilities, as defined in
Title IV of ERISA, under each Plan of the Borrower or any member of its
Controlled Group (using the actuarial assumptions utilized by the PBGC upon
termination of a Plan) to exceed the fair market value of the Plan assets
allocable to such benefits, all determined as of the most recent valuation date
for each such Plan.
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SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder, on or prior to the date which is five
days (or, if later, five Business Days) after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the Borrower or
any other Loan Party herein or in any other Loan Document or which is contained
in any Information furnished at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the observance
or performance of any agreement contained in Section 7.7(a), Section 7.10(b),
Section 7.11 or Section 8 of this Agreement; or
(d) The Borrower or any other Loan Party shall default in the observance
or performance of any other agreement contained in this Agreement or any other
Loan Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30 days
after the earlier of (i) actual knowledge thereof by a Responsible Officer of
the Borrower and (ii) the date that Administrative Agent shall have given the
Borrower notice thereof; or
(e) (i) The Borrower or any of its Subsidiaries shall default in making
any payment of any principal of any Indebtedness (including, without limitation,
any Guarantee Obligation, but excluding the Loans and Reimbursement Obligations)
beyond the period of grace or cure, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (ii) the Borrower or any
of its Subsidiaries shall default in making any payment of any interest on any
such Indebtedness beyond the period of grace or cure, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii) the
Borrower or any of its Subsidiaries shall default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due or to be purchased or repurchased prior to its
stated maturity (or, in the case of any such Indebtedness constituting a
Guarantee Obligation, to become payable prior to the stated maturity of the
primary obligation covered by such Guarantee Obligation); provided that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not constitute an Event of Default under this Agreement
unless, at the time of such default, event or condition one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall have occurred with
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respect to Indebtedness the outstanding principal amount of which exceeds in the
aggregate $10,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving in the aggregate a liability (not paid or
fully covered by insurance) of $10,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days after the entry thereof; or
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(i) Any material provision of the Loan Documents shall cease, for any
reason, to be in full force and effect, or the Borrower or any other Loan Party
shall so assert; or
(j) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) of this Section 9 with respect to the Borrower, automatically
the Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon such Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. With respect to all Letters
of Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
Obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied, all Loans shall have been
paid in full and no other Obligations shall be due and payable, the balance, if
any, in such cash collateral account shall be returned to the Borrower (or such
other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents,
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together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or 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
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not 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 Borrower.
10.4 Reliance by the Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, facsimile,
statement, order 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, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative 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 Majority Lenders as it deems appropriate or 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 Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
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10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender
(except in the case of a Default under Section 9(a)) or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Majority
Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
10.6 Non-Reliance on the Administrative Agent and the Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative 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 analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Specified Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Loans shall have been paid in full, ratably in accordance with their
Specified Percentages immediately prior to such date but after giving effect to
any assignments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or
71
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder.
10.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent in its individual capacity and its Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Loan Documents. With respect to the Loans
made by it, the Administrative Agent in its individual capacity shall have the
same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the Administrative Agent in
its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may, and,
at the request of Lenders' holding 66 2/3rds% of the Total Commitment shall,
resign as the Administrative Agent upon 30 days' notice to the Lenders, and upon
any such resignation, the Administrative Agent's rights, powers and duties as
the Administrative Agent shall be terminated, without any other or further act
or deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. If the Administrative Agent shall
resign as the Administrative Agent under this Agreement and the other Loan
Documents, then, unless an Event of Default shall have occurred and be
continuing (in which case, the Majority Lenders shall appoint a successor), the
Borrower shall appoint from among the Lenders a successor Administrative Agent
for the Lenders, which successor Administrative Agent shall be approved by the
Majority Lenders (which approval shall not be unreasonably withheld or delayed).
If no successor Administrative Agent shall have been so appointed by the
Borrower (or in the case of an Event of Default, by the Majority Lenders) and
such successor Administrative Agent has not accepted such appointment within 30
days after such resignation, then the resigning Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent hereunder shall be either a Lender or, if none of the
Lenders is willing to serve as successor Administrative Agent, a major
international bank having combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor Administrative Agent
effective upon such appointment and approval. After any retiring Administrative
Agent's resignation as the Administrative Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was the Administrative Agent under this Agreement and the other Loan
Documents. If at any time there shall not be a duly appointed and acting
Administrative Agent, the Borrower agrees to make each payment due hereunder and
under the Notes directly to the Lenders entitled thereto during such time.
10.10 Other Agents. Neither the Documentation Agent, the Co-Syndication
Agents nor any Arranging Agent, in each case in its capacity as such, shall have
any duties or
72
responsibilities hereunder, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any
such Agent in its capacity as such.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
Majority Lenders and each relevant Loan Party may, or, with the written consent
of the Majority Lenders, the Administrative Agent and each relevant Loan Party
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder
or (b) waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan, any installment thereof or of
any Reimbursement Obligations, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Commitment of any
Lender, or make any change in the method of application of any payment of the
Loans and Reimbursement Obligations specified in Section 4.2 or Section 4.8
without the consent of each Lender directly affected thereby, (ii) waive, extend
or reduce any mandatory Commitment reduction pursuant to Section 4.2, (iii)
amend, modify or waive any provision of Section 2.7(c) (except to make
conforming changes and correct technical errors), this Section 11.1 or reduce
any percentage specified in the definition of Majority Lenders, or consent to
the assignment or transfer by any Loan Party of any of its rights and
obligations under this Agreement and the other Loan Documents or except as
provided in Section 8.5 and Section 11.17, release any Guarantor Subsidiary from
its obligations under the Conditional Early Release Guarantee, (iv) amend,
modify or waive any condition precedent to any extension of credit set forth in
Section 6.2, in each case of (i), (ii), (iii) and (iv) above, without the
written consent of all of the Lenders, (v) amend, modify or waive any provision
of Section 10 without the written consent of the then Administrative Agent or
(vi) amend, modify or waive any provision of Section 3 without the written
consent of the Issuing Lender. Notwithstanding the foregoing provision or any
provision of this Agreement or any Loan Document to the contrary, (i) each
provision of Section 2.7(b) will require the written consent or written
agreement of the Administrative Agent and the Majority Lenders to amend, waive
or consent to departure from compliance therewith and (ii) Section 2.7(a) may be
amended, waived or any departure therefrom consented to in writing from time to
time by (A) the Borrower, the Administrative Agent and the Participating Lenders
on the date of the amendment, consent or waiver collectively constituting 51% or
more of the amount of such increase in the Total Commitment and Loans, and (B)
the Borrower, the Administrative Agent and any Participating Lender, to the
extent any such Participating Lender is taking such action with respect to any
provision individually affecting such Participating Lender.
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Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Administrative Agent and all future holders of the Notes. In
the case of any waiver, the Loan Parties, the Lenders and the Administrative
Agent shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three Business Days after
being deposited in the mails, certified mail, return receipt requested, postage
prepaid, or (c) in the case of delivery by facsimile transmission, when sent and
receipt has been confirmed, addressed as follows in the case of the Borrower,
the Subsidiaries and the Administrative Agent, and as set forth in Schedule 1.1
------------
(or, with respect to any Lender that is an Assignee, in the applicable
Assignment and Acceptance) in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower Media General, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000.000.0000
The Administrative Agent: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx
Fax: 000.000.0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2 or Section 3 shall not be effective until
received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
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11.5 Payment of Expenses and Taxes.
(a) The Borrower agrees (i) to pay or reimburse the Administrative Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (ii) to pay or reimburse each Lender and
the Administrative Agent for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel to each
Lender and of counsel to the Administrative Agent, (iii) without duplication of
amounts payable pursuant to Sections 4.9 and 4.10, to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (iv) without duplication of amounts payable
pursuant to Sections 4.9 and 4.10, to pay, indemnify, and hold each Lender, each
Issuing Lender and the Administrative Agent, and their respective officers,
directors, employees, Affiliates, advisors, agents and controlling persons
(each, an "indemnitee"), harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents or the use of
the proceeds of the Loans (all the foregoing in this clause (iv), collectively,
the "indemnified liabilities"), provided, that the Borrower shall have no
obligation hereunder to any indemnitee with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of such indemnitee. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
(b) If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which it may be entitled.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that neither the Borrower nor the Subsidiaries may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or
75
any other interest of such Lender hereunder and under the other Loan Documents.
In the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Loans or
any fees payable hereunder, or postpone the date of the final scheduled maturity
of the Loans, in each case to the extent subject to such participation. The
Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff 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, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 11.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it were a Lender; provided that, in the case of Section
4.10, such Participant shall have complied with the requirements of such Section
and provided, further, that no Participant shall be entitled to receive any
greater amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Person (an "Assignee") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit A, executed by such Assignee and such
---------
assigning Lender and delivered to the Administrative Agent for its acceptance
and recording in the Register (with a copy to the Borrower); provided that, (i)
no such assignment (other than to any Lender or any Affiliate thereof) shall be
in an aggregate principal amount of less than $1,000,000 and in $1,000,000
increments in excess thereof and (ii) each assignment (other than to any Lender
or any Affiliate thereof) (A) requires the consent of the Administrative Agent,
the Issuing Lender and the Swing Line Lender and (B) made when no Default or
Event of Default has occurred and is continuing shall be subject to the prior
written consent of the Borrower (which consent shall not be unreasonably
withheld or delayed). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this
Agreement.
76
(d) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States or any taxing authority thereof ("U.S. Taxes") in
respect of payment of any Obligations due to such Non-U.S. Lender under this
Agreement if the Obligations were in registered form for U.S. federal income tax
purposes may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, to exchange any promissory note(s) evidencing such
Obligations for promissory note(s) registered as provided in paragraph (f) below
and substantially in the form of Exhibit J (an "Alternative Note"). Alternative
---------
Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that could become completely exempt from
withholding of U.S. Taxes in respect of payment of any Obligations due to such
Non-U.S. Lender if the Obligations were in registered form for U.S. Federal
income tax purposes and that holds Alternative Note(s) (an "Alternative
Noteholder") (or, if such Alternative Noteholder is not the beneficial owner
thereof, such beneficial owner) shall deliver to the Borrower prior to or at the
time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8
(Certificate of Foreign Status of the U.S. Department of Treasury) (or any
successor or related form adopted by the U.S. taxing authorities), together with
an annual certificate stating that (i) such Alternative Noteholder or beneficial
owner, as the case may be, is not a "bank" within the meaning of Section 881(c)
of the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Company (within the meaning of Section 864(d)(4) of
the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case
may be, shall promptly notify the Borrower if at any time such Alternative
Noteholder or beneficial owner, as the case may be, determines that it is no
longer in a position to provide such certification to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for such purposes).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Alternative Note and the Obligation(s)
evidenced thereby on the Register (and each Alternative Note shall expressly so
provide). Any assignment or transfer of all or part of such Obligation(s) and
the Alternative Note(s) evidencing the same shall be registered on the Register
only upon surrender for registration of assignment or transfer of the
Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed by)
the Alternative Noteholder thereof, and thereupon one or more new Alternative
Note(s) in the same aggregate principal amount shall be issued to the designated
Assignee(s). No assignment of an Alternative Note and the Obligation(s)
evidenced thereby shall be effective unless it has been recorded in the Register
as provided in this Section 11.6(f).
(g) The Administrative Agent, on behalf of the Borrower, shall maintain
at the address of the Administrative Agent referred to in Section 11.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of the names and addresses of the Lenders (including
Alternative Noteholders) and the Commitments of, and principal amounts of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation
77
hereunder not evidenced by a Note, shall) treat each Person whose name is
recorded in the Register as the owner of a Loan or other obligation hereunder as
the owner thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any assignment of any
Loan or other obligation hereunder not evidenced by a Note shall be effective
only upon appropriate entries with respect thereto being made in the Register.
The Register shall be available for inspection by the Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee together with payment to the Administrative
Agent of a registration and processing fee of $3,500, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower.
(i) Subject to Section 11.15, the Borrower authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee, subject to the Transferee agreeing in writing to be
bound by the provisions of Section 11.15, any and all financial information in
such Lender's possession concerning the Borrower and the Subsidiaries which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Subsidiaries prior to becoming a party to this Agreement.
(j) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
11.7 Adjustments; Set-off
(a) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest, unless
the Lender from which such payment is recovered is required to pay interest
thereon, in which case each Lender returning funds to such Lender shall pay its
pro rata share of such interest.
78
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount, to the extent permitted by
applicable law, any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that, to the extent permitted by applicable law, the failure to give
such notice shall not affect the validity of such set-off and application.
11.8 Counterparts; When Effective. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of the counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent. This Agreement shall become effective
when the Administrative Agent has received counterparts hereof executed by the
Borrower, the Administrative Agent and each Lender (such date herein referred to
as the "Effective Date").
11.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents represent
the agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAWS PRINCIPLES.
11.12 SUBMISSION TO JURISDICTION; WAIVERS.
(a) EACH PARTY HERETO, IN EACH CASE FOR ITSELF AND ITS SUCCESSORS AND
ASSIGNS, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH
IT IS A PARTY, OR FOR RECOGNITION AND
79
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE
COUNTY OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SECTION 11.2 OR SCHEDULE 1.1, AS
------------
APPLICABLE, OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT
SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 11.2; AND
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
(b) THE BORROWER AND EACH SUBSIDIARY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION
OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
11.13 Acknowledgements. The Borrower and each Subsidiary hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any Subsidiary arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agent and the Lenders, on one hand, and
the Borrower or any Subsidiary, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower, the Subsidiaries and the Lenders.
80
11.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE SUBSIDIARIES, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential all non-
public information provided to it by or on behalf of the Borrower or any of the
Subsidiaries pursuant to this Agreement or any other Loan Document; provided
that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Assignee or Participant who agrees in writing to this confidentiality provision,
(iii) to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon request or demand of any Governmental Authority
having jurisdiction over such Lender, (v) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
11.16 CONSEQUENTIAL DAMAGES. NO LENDER SHALL BE RESPONSIBLE OR LIABLE TO
THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
11.17 Release of Conditional Early Release Guarantee. At such time as (a)
there exists no Material Adverse Effect, Default or Event of Default, (b) the
Borrower has received Senior Unsecured Debt Ratings that are both (i) not lower
than BBB- from S&P and (ii) not lower than Baa3 from Xxxxx'x and (c) there exist
no Subsidiary guarantees of any Indebtedness of the Borrower permitted to exist
in accordance with the terms of Section 8.2(c) and Section 8.2(d) (and no
contractual obligation to guarantee any such Indebtedness), then all Conditional
Early Release Guarantees shall be released and the Administrative Agent shall
take all such action as is necessary or advisable to accomplish such release,
and each Lender hereby authorizes and directs the Administrative Agent to do so.
If all Conditional Early Re lease Guarantees shall have once been released by
this Section 11.17, and new guarantees of the Obligations have been entered into
by any or all of the Subsidiaries at any time thereafter in accordance with the
provisions of Section 7.10(b) or otherwise, this Section shall not operate to
release any such new guarantees.
11.18 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN AGREEMENTS AMONG THE PARTIES, AND EACH OF THE BORROWER,
ITS SUBSIDIARIES, THE ADMINISTRATIVE AGENT, THE ARRANGING AGENTS AND EACH LENDER
SPECIFICALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT ANY
OF THEM MAY HAVE TO CLAIM THAT THERE EXISTS AN ORAL AGREEMENT AMONG ANY OF THE
PARTIES HERETO.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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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.
MEDIA GENERAL, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
BANK OF AMERICA, N.A.
as the Administrative Agent and as a Lender
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Principal
83
SUNTRUST BANK, as Documentation Agent and
a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
84
WACHOVIA BANK, N.A., as Co-Syndication
Agent and a Lender
By: /s/ J. Xxxxxxx Xxxxx
------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Senior Vice President
00
XXX XXXX XX XXXX XXXXXX, as
Co-Syndication Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
86
MIZUHO FINANCIAL GROUP, as
Co-Syndication Agent
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
as a Lender
By: /s/ Perzemek T. Blaziak
---------------------------
Name: Perzemek T. Blaziak
Title: Account Officer
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
87
FLEET NATIONAL BANK, as Co-Syndication
Agent and a Lender
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
88
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Associate
89
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
90
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ Xxxxx XxXxxx
----------------------------
Name: Xxxxx XxXxxx
Title: Senior Vice President
00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXX XXXX BRANCH, as
a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
By: /s/ Pascal Kabemba
-------------------------
Name: Pascal Kabemba
Title: Associate Director
92
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ Xxx X. Xxxxxxxxx
---------------------------
Name: Xxx X. Xxxxxxxxx
Title: Vice President
KBC BANK N.V., as a Lender
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
94
THE MITSUBISHI TRUST AND BANKING
CORPORATION as a Lender
BY: /s/ Toshibiro Hayashi
--------------------------
Name: Toshibiro Hayashi
Title: Senior Vice President
95
