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Exhibit 10.9
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364-DAY
CREDIT AGREEMENT
dated as of
June 30, 2000
among
XXX RADIO, INC.,
THE BANKS REFERRED TO HEREIN,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndications Agent,
and
CITIBANK, N.A.,
as Documentation Agent
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[CSM Ref. 6700-510]
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XXX RADIO, INC.
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Definitions ........................................... 1
SECTION 1.02. Terms Generally ....................................... 18
ARTICLE II
The Loans
SECTION 2.01. The Revolving Loans ................................... 18
SECTION 2.02. Setoff, Counterclaims and Taxes ....................... 31
SECTION 2.03. Withholding Tax Exemption ............................. 32
SECTION 2.04. Obligations Several, Not Joint ........................ 32
SECTION 2.05. Evidence of Debt ...................................... 32
SECTION 2.06. Discretionary Loans ................................... 33
SECTION 2.07. Swingline Loans ....................................... 34
ARTICLE III
Optional and Required Prepayments; Interest
Payment Date; Other Payments
SECTION 3.01. Optional Prepayments ................................. 37
SECTION 3.02. Required Prepayments ................................. 38
SECTION 3.03. Interest Payment Date ................................ 41
SECTION 3.04. Place, Etc. of Payments and Prepayments .............. 41
ARTICLE IV
Fees; Reduction of Commitments
SECTION 4.01. Administration Fee ................................... 42
SECTION 4.02. Commitment Fees ...................................... 42
SECTION 4.03. Utilization Fees ..................................... 42
SECTION 4.04. Reduction or Termination of Commitments .............. 43
ARTICLE V
Application of Proceeds .............................. 43
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ARTICLE VI
Representations and Warranties
SECTION 6.01. Organization; Qualification;
Subsidiaries ........................................ 44
SECTION 6.02. Financial Statements .................................. 44
SECTION 6.03. Actions Pending ....................................... 44
SECTION 6.04. Default ............................................... 45
SECTION 6.05. Title to Assets; Licenses; Intellectual
Property ............................................ 45
SECTION 6.06. Payment of Taxes ...................................... 45
SECTION 6.07. Conflicting or Adverse Agreements or
Restrictions ........................................ 46
SECTION 6.08. Purpose of Loans ...................................... 46
SECTION 6.09. Authority; Validity ................................... 46
SECTION 6.10. Consents or Approvals ................................. 47
SECTION 6.11. Compliance with Law ................................... 47
SECTION 6.12. ERISA ................................................. 47
SECTION 6.13. Investment Company Act ................................ 47
SECTION 6.14. Disclosure ............................................ 48
SECTION 6.15. Insurance ............................................. 48
SECTION 6.16. Environmental and Safety Matters ...................... 48
ARTICLE VII
Conditions
SECTION 7.01. Conditions Precedent to Closing ....................... 49
SECTION 7.02. Conditions Precedent to Each Borrowing ................ 51
ARTICLE VIII
Affirmative Consents
SECTION 8.01. Certain Financial Covenants ........................... 52
SECTION 8.02. Financial Statements and Information .................. 53
SECTION 8.03. Existence; Laws; Obligations .......................... 55
SECTION 8.04. Notice of Litigation and Other Matters ................ 55
SECTION 8.05. Books and Records ..................................... 56
SECTION 8.06. Inspection of Property and Records .................... 56
SECTION 8.07. Maintenance of Property, Insurance .................... 56
SECTION 8.08. ERISA ................................................. 56
SECTION 8.09. Maintenance of Business Lines ......................... 57
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SECTION 8.10. Restricted/Unrestricted Designation of
Subsidiaries ........................................ 57
SECTION 8.11. Compliance with Material FCC Licenses ................. 58
ARTICLE IX
Negative Covenants
SECTION 9.01. Mortgages, Etc......................................... 58
SECTION 9.02. Merger; Consolidation; Disposition of
Assets .............................................. 60
SECTION 9.03. Restricted Payments ................................... 60
SECTION 9.04. Limitation on Margin Stock ............................ 60
SECTION 9.05. Transactions with Affiliates .......................... 61
SECTION 9.06. Loans and Advances to and Investments in
Unrestricted Subsidiaries ........................... 61
SECTION 9.07. Debt .................................................. 62
ARTICLE X
Events of Default
SECTION 10.01. Failure To Pay Principal or Interest ................. 63
SECTION 10.02. Failure To Pay Other Sums ............................ 63
SECTION 10.03. Failure To Pay Other Debt ............................ 63
SECTION 10.04. Misrepresentation or Breach of
Warranty ........................................... 64
SECTION 10.05. Violation of Certain Covenants ....................... 64
SECTION 10.06. Violation of Other Covenants, Etc..................... 64
SECTION 10.07. Undischarged Judgment ................................ 64
SECTION 10.08. ERISA ................................................ 64
SECTION 10.09. Change of Control .................................... 65
SECTION 10.10. Assignment for Benefit of Creditors
or Nonpayment of Debts ............................. 65
SECTION 10.11. Voluntary Bankruptcy ................................. 65
SECTION 10.12. Involuntary Bankruptcy ............................... 65
SECTION 10.13. Dissolution .......................................... 65
ARTICLE XI
Modifications, Amendments or Waivers ...................... 66
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ARTICLE XII
The Administrative Agent
SECTION 12.01. Appointment of Administrative Agent .................. 67
SECTION 12.02. Indemnification of Administrative
Agent .............................................. 67
SECTION 12.03. Limitation of Liability .............................. 68
SECTION 12.04. Independent Credit Decision .......................... 68
SECTION 12.05. Rights of Chase ...................................... 69
SECTION 12.06. Successor to the Administrative Agent ................ 69
ARTICLE XIII
Miscellaneous
SECTION 13.01. Payment of Expenses .................................. 70
SECTION 13.02. Notices .............................................. 71
SECTION 13.03. Setoff ............................................... 71
SECTION 13.04. Indemnity and Judgments .............................. 72
SECTION 13.05. Interest ............................................. 73
SECTION 13.06. Governing Law; Submission to
Jurisdiction; Venue ................................ 74
SECTION 13.07. Survival of Representations and
Warranties; Binding Effect;
Assignment ......................................... 75
SECTION 13.08. Counterparts ......................................... 79
SECTION 13.09. Severability ......................................... 79
SECTION 13.10. Descriptive Headings ................................. 80
SECTION 13.11. Representation of the Banks .......................... 80
SECTION 13.12. Final Agreement of the Parties ....................... 80
SECTION 13.13. Waiver of Jury Trial ................................. 80
LIST OF EXHIBITS
Exhibit 2.01(a) - Banks and Commitments
Exhibit 2.01(g)(iv) - Eurocurrency Liabilities
(Regulation D)
Exhibit 2.07 - Swingline Lenders and
Commitments
Exhibit 6.01 - List of Subsidiaries
Exhibit 6.03 - List of Actions Pending
Exhibit 7.01(b) - Opinion of the Company's
Counsel
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Exhibit 7.01(c) - Officer's Certificate
Exhibit 9.01(d) - List of Liens and Security
Interests
Exhibit 9.07(a) - Subsidiary Debt
Exhibit 13.02 - Addresses for Notices
Exhibit 13.07(c) - Assignment and Acceptance
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364-DAY CREDIT AGREEMENT dated as of
June 30, 2000 (this "Agreement"), among XXX RADIO,
INC., a Delaware corporation (the "Company"), the
BANKS referred to herein, THE CHASE MANHATTAN BANK
("Chase"), as administrative agent (the
"Administrative Agent"), BANK OF AMERICA, N.A., as
syndications agent, and CITIBANK, N.A., as
documentation agent.
WHEREAS the Company, an indirect majority-owned subsidiary of
Xxx Enterprises (such term and each other capitalized term used in this
Agreement having the meaning set forth in Article I hereof) has previously
entered into the Five-Year Credit Agreement dated as of March 7, 1997 (the
"Existing Facility"), among the Company, the banks party thereto, Texas Commerce
Bank National Association, as Administrative Agent, Nationsbank of Texas, N.A.,
as Syndications Agent, and Citibank, N.A., as Documentation Agent.
WHEREAS the Company desires, and the Banks, the Administrative
Agent and the Documentation Agent have agreed, to replace the Existing Facility
with this Agreement and the Facility B Credit Agreement (as defined below).
WHEREAS the proceeds of the borrowings hereunder will be used
for general corporate purposes (including acquisitions) and to repay any amounts
outstanding under the Existing Facility.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
Definitions
Section 1.01. Definitions. As used in this Agreement, the
following words and terms shall have the respective meanings indicated opposite
each of them and all accounting terms shall be construed in accordance with GAAP
consistent with those followed in the preparation of the
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financial statements referred to in Section 6.02, unless otherwise indicated:
"Administrative Agent" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
"Agent's Fee Letter" shall mean the fee letter dated as of
June 22, 2000, between Chase Securities Inc. ("CSI") and the Company.
"Aggregate Commitments" shall have the meaning set forth in
Section 4.03.
"Agreement" shall mean this 364-Day Credit Agreement.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
greater of (a) the Floating Rate in effect on such day; or (b) the Federal Funds
Borrowing Rate in effect for such day plus 1/2 of 1%. For purposes of this
Agreement, any change in the Alternate Base Rate due to a change in the Federal
Funds Borrowing Rate shall be effective on the effective date of such change in
the Federal Funds Borrowing Rate. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive, absent
demonstrable error) that it is unable to ascertain, after reasonable efforts,
the Federal Funds Borrowing Rate, the Alternate Base Rate shall be the Floating
Rate until the circumstances giving rise to such inability no longer exist.
"Alternate Base Rate Loans" shall mean the loans described in
Section 2.01(d)(i) which bear interest at a rate based on the Alternate Base
Rate and the Swingline Loans.
"Applicable Percentage" shall mean, with respect to any Bank
at any time, the percentage of the Total Commitment represented by such Bank's
Commitment at such time.
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"Assignment and Acceptance" shall have the meaning specified
in Section 13.07(c) hereof.
"Attributable Amount" shall mean, in connection with any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary or of an
Unrestricted Subsidiary as a Restricted Subsidiary pursuant to Section 8.10, the
amount of EBITDA for the most recent four consecutive fiscal quarter period for
which financial statements have been delivered in accordance with Section 8.02,
determined at the time of such designation, which was attributable to such
Subsidiary.
"Bank Affiliate" shall mean, (a) with respect to any Bank, (i)
an Affiliate of such Bank or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Bank or an
Affiliate of such Bank and (b) with respect to any Bank that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Bank or by an Affiliate of such investment
advisor.
"Banks" shall mean the Persons listed on Exhibit 2.01(a), each
such Bank's respective successors (which successors shall include any entity
resulting from a merger or consolidation) and any other Person that shall have
become a party hereto pursuant to an Assignment and Acceptance, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance. Unless the context otherwise requires, the term "Banks" includes the
Swingline Lenders.
"Borrowing Date" shall mean a date upon which a Borrowing is,
or is to be made, under Section 2.01(a).
"Borrowings" shall mean Borrowings by the Company under (a)
Section 2.01(a) consisting of simultaneous Revolving Loans from the Banks or (b)
Section 2.07 consisting of Swingline Loans.
"Business Day" shall mean a day when the Reference Banks and
the Administrative Agent are open for business; provided that in connection with
Eurodollar Loans, it shall mean a day when the Reference Banks and the
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Administrative Agent are open for business and banks are authorized to be open
for business in London and New York.
"Capital Stock" of any Person shall mean any and all shares,
interests, share capital, rights to subscribe for or purchase, warrants,
options, participations or other equivalents of or interests or membership
interests in (however designated) equity of such Person, including any Preferred
Stock, any limited or general partnership interest and any limited liability
company membership interest (but excluding any debt securities convertible into
such equity), and any rights to subscribe for or purchase any thereof.
"Cash Flow Producing Assets" shall mean (a) assets other than
(i) cash equivalents and other investments purchased in the ordinary course of
the Company's cash management activities, (ii) office buildings and office
equipment and supplies and (iii) other assets not comprising radio broadcast
stations or portions thereof or not directly employed in the cash flow-producing
activities of the Company and the Restricted Subsidiaries and (b) any Capital
Stock of a Restricted Subsidiary substantially all the assets of which
constitute assets described in clause (a) above.
"CD Rate" for any Interest Period shall mean, for each CD Rate
Loan comprising all or part of the relevant Borrowing, an interest rate per
annum determined by the Administrative Agent to be equal to the sum of:
(a) the rate per annum obtained by dividing (i) the per annum
rate of interest determined by the Administrative Agent to be the
average (rounded upward to the nearest whole multiple of 0.01%, if such
average is not such a multiple) of the bid rate determined
independently by each Reference Bank at 9:00 a.m. (New York, New York
time), or as soon thereafter as is practicable, on the first day of
such Interest Period, of a certificate of deposit dealer of recognized
standing selected by each Reference Bank for the purchase at face value
of its certificates of deposit in an amount approximately equal or
comparable to the aggregate principal amount of such CD Rate Loans,
with a maturity equal to such Interest Period, by (ii) the result
obtained by subtracting from 100% all reserve (including any imposed by
the Board of Governors of the Federal Reserve System), special deposit
or similar requirements (expressed as a rate
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per annum) applicable (or scheduled at the time of determination to
become applicable during such Interest Period) to such certificates of
deposit, plus
(b) the weighted average of annual assessment rates,
determined by the Administrative Agent to be in effect on the first day
of such Interest Period, used to determine the then current annual
assessment payable by the Reference Banks to the Federal Deposit
Insurance Corporation for such Corporation's insuring Dollar deposits
of such Reference Banks in the United States.
The Administrative Agent shall deliver to the Company a
certificate setting forth in reasonable detail the calculation of the CD Rate
with each determination of the CD Rate.
"CD Rate Loans" shall mean the loans described in Section
2.01(d)(iii) which bear interest at a rate based on the CD Rate.
A "Change of Control" shall be deemed to have occurred if (a)
the Cox Family and Xxx Enterprises shall cease at any time to own directly or
indirectly Capital Stock of the Company carrying at least 50.1% of the voting
power of all the outstanding voting stock of the Company, (b) any Person or
group of Persons other than the Cox Family, Xxx Enterprises and Persons
Controlled by them shall have the right or ability, directly or indirectly, to
cause the election of a majority of the directors of the Company, (c) the Xxx
Family shall cease at any time to own directly or indirectly at least 50.1% of
the outstanding voting stock of Xxx Enterprises, or (d) any Person or group of
Persons other than the Cox Family shall have the right or ability, directly or
indirectly, to cause the election of a majority of the directors of Xxx
Enterprises.
"Chase" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Closing Date" shall mean the date of this Agreement.
"Commitment" shall mean as to any Bank the aggregate amount of
such Bank's commitment to make Loans as set forth beside such Bank's name on
Exhibit 2.01(a) attached hereto or in any Assignment and Acceptance executed
pursuant to Section 13.07(c), as such amount
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(a) may be reduced from time to time pursuant to the terms of this Agreement or
pursuant to an Assignment and Acceptance or (b) may be increased from time to
time pursuant to an Assignment and Acceptance.
"Commitment Fees" shall have the meaning set forth in Section
4.02.
"Commitment Fee Rate" shall have the meaning set forth under
the definition of "Margin Percentage".
"Commitment Letter" shall have the meaning assigned to such
term in Section 13.04.
"Company" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Counsel for the Company" shall mean Dow, Xxxxxx & Xxxxxxxxx,
PLLC.
"Xxx Enterprises" shall mean Xxx Enterprises, Inc., a Delaware
corporation.
"Cox Family" shall mean those certain trusts commonly referred
to as the Xxxxxx-Xxx Trust A, the Xxxxxxx Xxx Xxxxxxx Atlanta Trust, the Xxxx
Xxx Xxxxxxxx Atlanta Trust, the Estate of Xxxxx X. Xxx, Xx., Xxxxxxx Xxx
Xxxxxxx, Xxxxxx Xxxxxxx, Xxxx Xxx Xxxxxxxx, and the estates, executors and
administrators, and children of the above-named individuals, and any
corporation, partnership, limited liability company, trust or other entity in
which the above-named trusts or individuals in the aggregate have a beneficial
interest of greater than 50%.
"CSI" shall have the meaning set forth in the definition of
"Agent's Fee Letter" under this Agreement.
"Debt" shall mean with respect to any Person and without
duplication (a) indebtedness for borrowed money or for the deferred purchase
price of Property or services in respect of which such Person is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or in
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respect of which such Person directly or indirectly assures a creditor against
loss, (b) the capitalized portions of obligations under leases which shall have
been or should have been, in accordance with GAAP, recorded as capital leases,
(c) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments and (d) all guarantees by such Person of the Debt of others.
"Default Rate" shall mean a rate per annum (for the actual
number of days elapsed, based on a year of 365 or 366 days, as the case may be)
which shall be equal to the lesser of (a) the Alternate Base Rate plus 1% or (b)
the Highest Lawful Rate.
"Depositary" shall have the meaning assigned to such term in
Section 13.03.
"Discretionary Borrowings" shall mean borrowings by the
Company under Section 2.06 consisting of Discretionary Loans.
"Discretionary Loans" shall mean loans made by a Bank pursuant
to Section 2.06.
"Dollars" and "$" shall mean lawful currency of the United
States of America.
"EBITDA" shall mean, with respect to any period, the net
income of the Company and its Subsidiaries on a consolidated basis for such
period plus, to the extent deducted in computing such consolidated net income,
without duplication, the sum of (a) income tax expense, (b) interest expense,
(c) depreciation and amortization expense, (d) any extraordinary or
non-recurring losses, (e) management fees paid to Xxx Enterprises, (f) closing
costs and other non-recurring costs incurred in connection with this Agreement,
the Facility B Credit Agreement and any other acquisition, disposition or
financing, and (g) other noncash items reducing such consolidated net income,
minus, to the extent added in computing such consolidated net income, without
duplication, the sum of (i) interest income, (ii) any extraordinary or
non-recurring gains and (iii) other noncash items increasing such consolidated
net income, determined on a consolidated basis in accordance with GAAP.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974.
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"Eurodollar Event" shall have the meaning assigned to such
term in Section 2.01(e).
"Eurodollar Loans" shall mean the Loans described in Section
2.01(d)(ii) which bear interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate" for any Interest Period shall mean, for each
Eurodollar Loan comprising part of the relevant Borrowing, an interest rate per
annum equal to the per annum rate of interest determined by the Administrative
Agent to be the arithmetical average (rounded upward to the nearest whole
multiple of 0.01%, if such average is not such a multiple) of the rate per annum
at which deposits in Dollars are offered by the Lending Office of each Reference
Bank to a prime bank in the interbank domestic eurodollar market at 10:00 a.m.
(New York, New York time) two Business Days before the first day of such
Interest Period for a period equal to such Interest Period and in an amount
substantially equal to the amount of the relevant Eurodollar Loan of such
Reference Bank during such Interest Period.
"Event of Default" shall have the meaning assigned to such
term in Article 10; provided that there has been satisfied any requirement in
connection with such event for the giving of notice, or the lapse of time, or
the happening of any further condition, event or act, and "Default" shall mean
any of such events, whether or not any such requirement has been satisfied.
"Existing Facility" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Facility B Credit Agreement" shall mean the Five-Year Credit
Agreement dated as of June 30, 2000, among the Company, certain lenders, Chase,
as administrative agent for such lenders, Bank of America, N.A., as syndication
agent for such lenders, and Citibank, N.A., as documentation agent for such
lenders.
"FCC" shall mean the Federal Communications Commission or any
successor governmental agency thereto.
"Federal Funds Borrowing Rate" shall mean, for any day, a
fluctuating interest rate per annum equal to the weighted average (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the
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Federal Reserve System for such day quoted by the Reference Banks to the
Administrative Agent at 12:00 noon (New York, New York time) on such day.
"Floating Rate" shall mean, as of a particular date, the prime
rate most recently determined by the Administrative Agent. Without notice to the
Company or any other Person, the Floating Rate shall change automatically from
time to time as and in the amount by which said prime rate shall fluctuate, with
each such change to be effective as of the date of each change in such prime
rate. The Floating Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. The Administrative
Agent may make commercial loans or other loans at rates of interest at, above or
below the Floating Rate.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession, which are applicable to the circumstances as of
the date of determination; provided that, if the Company notifies the
Administrative Agent that the Company requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Majority Banks request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
"Granting Bank" shall have the meaning assigned to such term
in Section 13.07(d).
"Highest Lawful Rate" shall mean the maximum nonusurious
interest rate, if any, that at any applicable time may be contracted for, taken,
reserved, charged or received on any Loan or on the other amounts which may be
owing to any Bank pursuant to this Agreement under the laws applicable to such
Bank and this transaction.
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"Indemnified Liabilities" shall have the meaning assigned to
such term in Section 13.04.
"Index Debt" shall mean senior, unsecured long-term Debt of
the Company that is not guaranteed by any other Person or subject to any other
credit enhancement.
"Interest Coverage Ratio" shall mean, at any time, the ratio
of (a) Pro Forma EBITDA plus, to the extent subtracted in computing EBITDA,
interest income to (b) Interest Expense, in each case for any four consecutive
fiscal quarter period.
"Interest Expense" shall mean, with respect to any period,
cash interest expense of the Company and its Restricted Subsidiaries on a
consolidated basis for such period determined in accordance with GAAP.
"Interest Payment Date" shall mean, with respect to Alternate
Base Rate Loans, each Quarterly Date, with respect to Eurodollar Loans or CD
Rate Loans, the last day of each Interest Period, or with respect to any
Swingline Loan, the day that such Swingline Loan is required to be repaid.
"Interest Period" shall mean, with respect to each Eurodollar
Loan and CD Rate Loan made hereunder, the period commencing on the Borrowing
Date of such Loan and
(a) in the case of Eurodollar Loans, ending one, two, three or
six months thereafter; and
(b) in the case of CD Rate Loans, ending 30, 60, 90 or 180
days thereafter;
in each case as the Company may select in the Notice of Borrowing; provided,
however, that (i) no Interest Period for a Loan may be chosen that would extend
beyond the Maturity Date, (ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
provided that with respect to Eurodollar Loans, any Interest Period that would
otherwise end on a day that is not a Business Day shall be extended to the next
succeeding Business Day only if such Business Day does not fall in another
month, and in the event the next succeeding Business Day falls in another month,
the Interest Period for such Eurodollar Loan shall be accelerated so that such
Interest Period shall end on
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the next preceding Business Day and (iii) any Interest Period that begins on a
day for which there is no numerically corresponding day in the last month of
such Interest Period shall end on the last Business Day of the last month of
such Interest Period. In no event shall there be more than ten Interest Periods
in effect at any one time.
"Lending Office" shall mean, with respect to any Bank, its
principal office in the city identified with such Bank in Exhibit 13.02 hereto,
or such other office or branch of such Bank, or Affiliate of such Bank located
in the United States (acting on behalf of such Bank as its "Lending Office"
hereunder), as it shall designate in writing from time to time to the Company,
as the case may be.
"Leverage Ratio" shall mean, at any time, the ratio of (a)
Total Debt, as of the last day of the fiscal quarter most recently ended, to (b)
Pro Forma EBITDA, for the four consecutive fiscal quarter period then most
recently ended.
"Loans" shall mean Revolving Loans, Discretionary Loans and
Swingline Loans.
"Majority Banks" shall mean Banks holding at least 51% of the
aggregate Commitments hereunder.
"Mandatory Prepayment Ratio" shall have the meaning set forth
in Section 3.02(b)(i).
"Margin Percentage" shall mean at any date that percentage (a)
to be added to the CD Rate or the Eurodollar Rate pursuant to Section
2.01(d)(iii) or Section 2.01(d)(ii) for purposes of determining the per annum
rate of interest applicable from time to time to CD Rate Loans or Eurodollar
Loans and (b) to be used in computing the Commitment Fee Rate pursuant to
Section 4.02, set forth under the appropriate column below opposite the
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Category corresponding to the credit ratings by Xxxxx'x or S&P, respectively,
applicable to the Index Debt on such date:
Category Ratings Commitment Applicable
Fee Rate (%) Margin (%)
Category 1 >A-/A3 0.09 0.40
=
Category 2 BBB+/Baa1 0.10 0.50
Category 3 BBB/Baa2 0.125 0.625
Category 4 BBB-/Baa3 0.15 0.75
Category 5
