Exhibit 10.1
________________________________________________________________________________
Published CUSIP Number: 00000XXX0
CREDIT AGREEMENT
DATED AS OF JULY 13, 2004
AMONG
CLEAR CHANNEL COMMUNICATIONS, INC.
AS THE COMPANY,
CLEAR CHANNEL INTERNATIONAL LIMITED
CLEAR CHANNEL INTERNATIONAL BV
CLEAR CHANNEL NETHERLANDS BV
CLEAR CHANNEL INTERNATIONAL HOLDINGS BV, AND
CCW INTERNATIONAL BV
AS THE OFFSHORE BORROWERS,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, OFFSHORE SUB-ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER
JPMORGAN CHASE BANK,
AS SYNDICATION AGENT,
AND
BARCLAYS BANK PLC
CITIBANK, N.A.
CREDIT SUISSE FIRST BOSTON
DEUTSCHE BANK SECURITIES INC.,
AS CO-DOCUMENTATION AGENTS,
THE OTHER LENDERS PARTY HERETO
WITH
BANC OF AMERICA SECURITIES LLC,
AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
AND
X.X. XXXXXX SECURITIES INC.,
AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
TABLE OF CONTENTS
Section Page
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ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS........................................................................................... 1
1.01 Defined Terms...................................................................................... 1
1.02 Other Interpretive Provisions...................................................................... 33
1.03 Accounting Terms................................................................................... 33
1.04 Exchange Rates; Currency Equivalents............................................................... 34
1.05 Additional Alternative Currencies.................................................................. 34
1.06 Change of Currency................................................................................. 36
1.07 Times of Day....................................................................................... 37
1.08 Letter of Credit Amounts........................................................................... 37
ARTICLE II.
THE DOMESTIC FACILITY...................................................................................................... 37
2.01 Domestic Committed Loans........................................................................... 37
2.02 Borrowings, Conversions and Continuations of Domestic Committed Loans.............................. 38
2.03 Domestic Bid Loans................................................................................. 40
2.04 Domestic Letters of Credit......................................................................... 44
2.05 Domestic Swing Line Loans.......................................................................... 55
2.06 Prepayments of Domestic Loans and Credit Extensions................................................ 59
2.07 Termination or Reduction of Domestic Commitments................................................... 60
2.08 Repayment of Domestic Loans and Credit Extensions.................................................. 61
2.09 Interest on Domestic Loans and Credit Extensions................................................... 61
2.10 Increase in Domestic Commitments................................................................... 62
2.11 Company Purchase of Domestic Loans................................................................. 63
ARTICLE III.
THE OFFSHORE FACILITY...................................................................................................... 65
3.01 Offshore Loans..................................................................................... 65
3.02 Prepayments of UK Offshore Loans................................................................... 67
3.03 Termination or Reduction of Offshore Commitments................................................... 68
3.04 Repayment of Offshore Loans........................................................................ 68
3.05 Interest on Offshore Loans......................................................................... 69
3.06 Hybrid Offshore Loans.............................................................................. 70
3.07 Additional Offshore Borrowers...................................................................... 74
ARTICLE IV.
THE DOMESTIC FACILITY AND OFFSHORE FACILITY, GENERALLY..................................................................... 75
4.01 Interest after Default............................................................................. 75
4.02 Fees............................................................................................... 76
4.03 Computation of Interest and Fees................................................................... 76
4.04 Excess of Commitments.............................................................................. 77
4.05 Evidence of Debt................................................................................... 77
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4.06 Payments Generally; Administrative Agent's Clawback................................................ 78
4.07 Sharing of Payments by Lenders..................................................................... 81
ARTICLE V.
TAXES, YIELD PROTECTION AND ILLEGALITY..................................................................................... 82
5.01 Taxes.............................................................................................. 82
5.02 Illegality......................................................................................... 85
5.03 Inability to Determine Rates....................................................................... 85
5.04 Increased Costs.................................................................................... 86
5.05 Compensation for Losses............................................................................ 88
5.06 Mitigation Obligations; Replacement of Lenders..................................................... 89
5.07 Survival........................................................................................... 89
ARTICLE VI.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................................................................................. 90
6.01 Conditions of Initial Credit Extension............................................................. 90
6.02 Conditions to all Credit Extensions................................................................ 92
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES............................................................................................. 93
7.01 Existence, Qualification and Power; Compliance with Laws........................................... 93
7.02 Authorization; No Contravention.................................................................... 93
7.03 Governmental Authorization; Other Consents......................................................... 93
7.04 Binding Effect..................................................................................... 93
7.05 Financial Statements; No Material Adverse Effect................................................... 94
7.06 Litigation......................................................................................... 94
7.07 Ownership of Property; Liens....................................................................... 94
7.08 Environmental Compliance........................................................................... 95
7.09 Insurance.......................................................................................... 95
7.10 Taxes.............................................................................................. 95
7.11 ERISA Compliance................................................................................... 95
7.12 Margin Regulations; Investment Company Act; Public Utility Holding Company Act..................... 96
7.13 Disclosure......................................................................................... 96
7.14 Compliance with Laws............................................................................... 97
7.15 Intellectual Property; Licenses, Etc............................................................... 97
7.16 Representations as to Foreign Obligors............................................................. 97
7.17 Solvent............................................................................................ 98
7.18 Blocked Persons List............................................................................... 98
ARTICLE VIII.
AFFIRMATIVE COVENANTS...................................................................................................... 99
8.01 Financial Statements............................................................................... 99
8.02 Certificates; Other Information.................................................................... 99
8.03 Notices............................................................................................ 101
8.04 Payment of Obligations............................................................................. 102
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8.05 Preservation of Existence, Etc..................................................................... 102
8.06 Maintenance of Properties.......................................................................... 103
8.07 Maintenance of Insurance........................................................................... 103
8.08 Compliance with Laws............................................................................... 103
8.09 Books and Records.................................................................................. 103
8.10 Inspection Rights.................................................................................. 103
8.11 Use of Proceeds.................................................................................... 103
8.12 Approvals and Authorizations....................................................................... 103
8.13 Primary Lines of Business.......................................................................... 104
ARTICLE IX.
NEGATIVE COVENANTS......................................................................................................... 104
9.01 Liens.............................................................................................. 104
9.02 Investments and Acquisitions....................................................................... 105
9.03 Indebtedness....................................................................................... 105
9.04 Sale and Leaseback Transactions.................................................................... 106
9.05 Fundamental Changes................................................................................ 106
9.06 Dispositions....................................................................................... 107
9.07 Restricted Payments................................................................................ 107
9.08 Transactions with Affiliates....................................................................... 108
9.09 Restrictive Agreements............................................................................. 108
9.10 Financial Covenants................................................................................ 108
ARTICLE X.
EVENTS OF DEFAULT AND REMEDIES............................................................................................. 108
10.01 Events of Default.................................................................................. 108
10.02 Remedies Upon Event of Default..................................................................... 111
10.03 Application of Funds............................................................................... 111
ARTICLE XI.
ADMINISTRATIVE AGENT AND OFFSHORE SUB-ADMINISTRATIVE AGENT................................................................. 113
11.01 Appointment and Authority.......................................................................... 113
11.02 Rights as a Lender................................................................................. 113
11.03 Exculpatory Provisions............................................................................. 113
11.04 Reliance by Administrative Agent and the Offshore Sub-Administrative Agent......................... 114
11.05 Delegation of Duties............................................................................... 115
11.06 Resignation of Administrative Agent and the Offshore Sub-Administrative Agent...................... 115
11.07 Non-Reliance on Administrative Agent and Other Lenders............................................. 116
11.08 No Other Duties, Etc............................................................................... 116
11.09 Administrative Agent and the Offshore Sub-Administrative Agent May File Proofs of Claim............ 116
ARTICLE XII.
MISCELLANEOUS.............................................................................................................. 117
12.01 Amendments, Etc.................................................................................... 117
12.02 Notices; Effectiveness; Electronic Communication................................................... 119
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12.03 No Waiver; Cumulative Remedies..................................................................... 121
12.04 Expenses; Indemnity; Damage Waiver................................................................. 121
12.05 Payments Set Aside................................................................................. 123
12.06 Successors and Assigns............................................................................. 124
12.07 Treatment of Certain Information; Confidentiality.................................................. 129
12.08 Right of Setoff.................................................................................... 129
12.09 Interest Rate Limitation........................................................................... 130
12.10 Counterparts; Integration; Effectiveness........................................................... 130
12.11 Survival of Representations and Warranties......................................................... 130
12.12 Severability....................................................................................... 131
12.13 Replacement of Lenders............................................................................. 131
12.14 Governing Law; Jurisdiction; Etc................................................................... 132
12.15 Waiver of Jury Trial............................................................................... 132
12.16 USA PATRIOT Act Notice............................................................................. 133
12.17 Know Your Customer Rules........................................................................... 133
12.18 Judgment Currency.................................................................................. 133
12.19 Designation as Senior Debt......................................................................... 134
12.20 Offshore Borrowers' Agent.......................................................................... 134
12.21 The Administrative Agent and the Offshore Sub-Administrative Agent................................. 134
12.22 Joint and Several Terms............................................................................ 135
12.23 Entire Agreement................................................................................... 135
12.24 Lender Certification............................................................................... 135
12.25 Professional Market Party.......................................................................... 135
SIGNATURES..................................................................................................... S-1
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SCHEDULES
1.01 Mandatory Cost Formulae
1.02 Existing Letters of Credit
2.01 Commitments and Applicable Percentages
7.05 Supplement to Interim Financial Statements
12.02 Administrative Agent's Office, Offshore Sub-Administrative Agent's
Office, Certain Addresses for Notices
EXHIBITS
Form of
A-1 Committed Loan Notice
A-2 Company Hybrid Offshore Loan Notice
B Swing Line Loan Notice
C UK Offshore Loan Notice
D-1 Domestic Note
D-2 Offshore Note
E Compliance Certificate
F Assignment and Assumption
G Company Guaranty
H-1 Bid Request
H-2 Competitive Bid
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CLEAR CHANNEL COMMUNICATIONS, INC.
$1,750,000,000
(WITH AN UNCOMMITTED INCREASE OPTION TO $2,500,000,000)
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of July 13, 2004,
among Clear Channel Communications, Inc., a Texas corporation (the "Company"),
Clear Channel International Limited and Clear Channel International BV, Clear
Channel Netherlands BV, Clear Channel International Holdings BV, and CCW
International BV (together with such other offshore borrowers selected by the
Company and added to this Agreement in accordance with the terms of Section
3.07, the "Offshore Borrowers" and such Offshore Borrowers, collectively
referred to together with the Company, the "Borrowers" and each, a "Borrower"),
each lender from time to time party hereto, BANK OF AMERICA, N.A., as
Administrative Agent, Offshore Sub-Administrative Agent, Swing Line Lender and
L/C Issuer, and JPMORGAN CHASE BANK, as Syndication Agent.
The Company has requested that the Domestic Lenders provide a revolving
credit Domestic Facility to the Company, and that the Offshore Lenders provide a
revolving credit Offshore Facility to the Borrowers.
The Domestic Lenders are willing to provide the Domestic Facility, and the
Offshore Lenders are willing to provide the Offshore Facility, in each case on
the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate.
"Acquisition" means (whether by purchase, exchange, issuance of stock or
other equity or debt securities, merger, reorganization or any other method) (i)
any acquisition by the Company or any of its Subsidiaries of any other Person,
which Person shall then become consolidated with the Company or any such
Subsidiary in accordance with GAAP, or (ii) any acquisition by the Company or
any of its Subsidiaries of all or any substantial amount of the assets of any
other
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Person. For purposes of the preceding sentence, an amount of assets shall be
deemed to be "substantial" if such assets have a fair market value in excess of
$1,000,000; provided, however, that the purchase of equipment and other goods
and services in the ordinary course of business shall not be deemed to be
"Acquisitions".
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 12.02 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to the Company and the Domestic Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any 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.
"Agents" means the Administrative Agent and the Offshore
Sub-Administrative Agent.
"Aggregate Domestic Commitments" means the Domestic Commitments of all the
Domestic Lenders, which shall not be in excess of $1,600,000,000, except to the
extent increased in accordance with the terms of Section 2.10.
"Aggregate Offshore Commitments" means the Offshore Commitments of all the
Offshore Lenders, which shall not be in excess of $150,000,000.
"Aggregate Total Commitments" means the sum of the Aggregate Domestic
Commitments and the Aggregate Offshore Commitments of all the Domestic Lenders
and Offshore Lenders, which shall not be in excess of $1,750,000,000, except to
the extent increased in accordance with the terms of Section 2.10.
"Agreement" means this Credit Agreement.
"Alternative Currency" means (a) with respect to Committed Loans, each of
Euro, Sterling, and the lawful currency of Switzerland and Australia, provided
that in the opinion of Administrative Agent, in its discretion, such currency is
at such time freely traded in the offshore interbank foreign exchange markets
and is freely transferable and freely convertible into Dollars, and each other
currency (other than Dollars) that is approved in accordance with Section 1.05,
(b) with respect to Letters of Credit, each of Euro, Sterling, and the lawful
currency of Switzerland, Australia, Canada, Mexico, Denmark, Norway, Sweden, New
Zealand, Singapore, Taiwan, Thailand and Hong Kong, provided that in the opinion
of the applicable L/C Issuer in its sole discretion, such currency is at such
time freely traded in the offshore interbank foreign exchange markets and is
freely transferable and freely convertible into Dollars, and each other
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currency (other than Dollars) that is approved in accordance with Section 1.05,
(c) with respect to Swing Line Loans, the lawful currency of Mexico, Denmark,
Norway, Sweden, New Zealand, Singapore, Taiwan, Thailand and Hong Kong, provided
that, in the opinion of the Swing Line Lender, in its sole discretion, such
currency is at such time freely traded in the offshore interbank foreign
exchange markets and is freely transferable and freely convertible into Dollars
and each other currency (other than Dollars) that is approved in accordance with
Section 1.05), and (d) with respect to Offshore Loans, each of Euro, Sterling,
Dollars, and the lawful currency of Switzerland, Australia, Norway, Sweden,
Denmark, Singapore and Canada, provided that (i) in the opinion of the
Administrative Agent and the Offshore Sub-Administrative Agent, in their sole
discretion, such currency is at such time freely traded in the offshore
interbank foreign exchange markets and is freely transferable and freely
convertible into Dollars and (ii) if any Offshore Lender is unable to fund in
any such currency it shall have the option to fund in Euro in accordance with
the terms of Section 1.05(a), and each other currency (other than Dollars) that
is approved in accordance with Section 1.05.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent, the Offshore
Sub-Administrative Agent, the Swing Line Lender or the applicable L/C Issuer, as
the case may be, at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of such
Alternative Currency with Dollars.
"Applicable Law" means (a) in respect of any Person, all provisions of
Laws applicable to such Person, and all orders and decrees of all courts and
determinations of arbitrators applicable to such Person including, without
limitation, the Communications Act and all FCC Regulations, and (b) in respect
of contracts made or performed in the State of Texas, "Applicable Law" shall
also mean the laws of the United States of America, including, without
limitation in addition to the foregoing, 12 USC Sections 85 and 86, as amended
to the date hereof and as the same may be amended at any time and from time to
time hereafter, and any other statute of the United States of America now or at
any time hereafter prescribing the maximum rates of interest on loans and
extensions of credit, and the laws of the State of Texas.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Rating as set forth below:
APPLICABLE RATE
PRICING EUROCURRENCY RATE AND LETTER OF
LEVEL DEBT RATING FACILITY FEE CREDIT FEE BASE RATE
------ ----------------- ------------ ------------------------------- ---------
I A/A3 OR BETTER 0.090% 0.200% 0.000%
II BBB+ / Baa1 0.100% 0.300% 0.000%
III BBB / Baa2 0.125% 0.375% 0.000%
IV BBB- / Baa3 0.175% 0.450% 0.000%
V BB+ / Ba1 0.225% 0.525% 0.000%
VI BB / Ba2 OR LOWER 0.300% 1.200% 0.000%
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x (collectively, the "Debt Ratings") of
the
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Company's non-credit-enhanced, senior unsecured long-term debt; provided
that if a different Debt Rating is issued by each of the foregoing rating
agencies, then the higher of such Debt Ratings shall apply (with the Debt
Rating for Pricing Level 1 being the highest and the Debt Rating for
Pricing Level 6 being the lowest), unless there is a split in Debt Ratings
of more than one level, in which case the Pricing Level that is one level
lower than the Pricing Level of the highest Debt Rating shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating
specified as of the Closing Date. Thereafter, each change in the Applicable Rate
resulting from a publicly announced change in the Debt Rating shall be effective
commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.
"Applicable Time" means, with respect to any borrowings and payments in
any Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the Administrative Agent, the
Offshore Sub-Administrative Agent, the Swing Line Lender or the applicable L/C
Issuer, as the case may be, to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender, provided that, so long as there
exists no Default, no Approved Fund may be a Public Lender.
"Arrangers" means Banc of America Securities LLC and X.X. Xxxxxx
Securities Inc., in their capacity as lead arrangers and book managers.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 12.06(b)), and accepted by the Administrative
Agent (and the Offshore Sub-Administrative Agent, if Offshore Loans are being
assigned), in substantially the form of Exhibit F, or any other form approved by
the Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Company and its Subsidiaries for the fiscal year ended December 31,
2003, and the related consolidated statements of operations, changes in
shareholders' equity and cash flows for such fiscal year of the Company and its
Subsidiaries, including the notes thereto.
4
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Domestic Commitments and the Aggregate Offshore Commitments pursuant
to Section 2.07 and Section 3.03, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuers
to make L/C Credit Extensions pursuant to Section 10.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Hybrid Offshore Loan" means a Hybrid Offshore Loan that is a
Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"BAS Fee Letter" means the letter agreement, dated May 17, 2004, among the
Company, the Administrative Agent and Banc of America Securities LLC.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid Loans of
the same Type from each of the Domestic Lenders whose offer to make one or more
Bid Loans as part of such borrowing has been accepted under the auction bidding
procedures described in Section 2.03.
"Bid Loan" has the meaning specified in Section 2.03(a).
"Bid Loan Lender" means, in respect of any Bid Loan, the Domestic Lender
making such Bid Loan to the Company.
"Bid Loan Sublimit" means an amount equal to the lesser of (a)
$300,000,000 and (b) the Aggregate Domestic Commitments. The Bid Loan Sublimit
is part of, and not in addition to, the Aggregate Domestic Commitments.
"Bid Request" means a written request for one or more Bid Loans
substantially in the form of Exhibit H-1, or in such other form acceptable to
the Administrative Agent.
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"Borrower" and "Borrowers" each has the meaning specified in the
introductory paragraph hereto.
"Borrower Materials" has the meaning ascribed thereto in Section 8.02.
"Borrowing" means a Committed Borrowing, a Bid Borrowing, a Hybrid
Offshore Borrowing, a UK Offshore Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means (a) with respect to Domestic Loans and Hybrid
Offshore Loans, any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state of Texas and where the Administrative Agent's Office with
respect to Obligations denominated in Dollars is located (and in the case of
Hybrid Offshore Loans, which satisfies clause (b) as well), and (b) with respect
to UK Offshore Loans, any day other than a Saturday or Sunday on which banks are
open for general business in London, and, in each case of (a) and (b) preceding:
(1) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar market;
(2) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;
(3) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(4) if such day relates to any fundings, disbursements,
settlements and payments in a currency other than Dollars or Euro in
respect of a Eurocurrency Rate Loan denominated in a currency other than
Dollars or Euro, or any other dealings in any currency other than Dollars
or Euro to be carried out pursuant to this Agreement in respect of any
such Eurocurrency Rate Loan (other than any interest rate settings), means
any such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
"Cash Collateral" has the meaning specified in Section 2.04(g).
"Cash Collateralize" has the meaning specified in Section 2.04(g).
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"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, other than
Permitted Holders, of 50% or more of the equity securities of the Company,
normally entitled (without regard to the occurrence of any contingency) to
vote for members of the board of directors or equivalent governing body of
the Company on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to
any option right); or
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Company cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or by Permitted
Holders.
"Closing Date" means the first date all the conditions precedent in
Section 6.01 are satisfied or waived in accordance with Section 12.01.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its Domestic Commitment and its
Offshore Commitment, in an aggregate principal amount at any one time
outstanding not to exceed the aggregate Dollar amount set forth opposite such
Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
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"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same currency and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of the
Domestic Lenders pursuant to Section 2.01.
"Committed Loan" means a Domestic Loan that has the meaning specified in
Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurocurrency Rate Loans that are Committed Loans pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A-1, or in
such other form acceptable to the Administrative Agent.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Company" has the meaning specified in the introductory paragraph hereto.
"Company Guaranty" means the Company Guaranty made by the Company in favor
of the Offshore Sub-Administrative Agent, the Administrative Agent and the
Offshore Lenders, substantially in the form of Exhibit G, guaranteeing the
obligations of the Offshore Borrowers under the Offshore Loan.
"Company Hybrid Offshore Loan Notice" means a notice of (a) a Hybrid
Offshore Borrowing to be made by the Company in the United States through the
Administrative Agent, in accordance with the provisions of Section 3.06, or (b)
a conversion to, or continuation of a Hybrid Offshore Loan requested by the
Company in the United States through the Administrative Agent in accordance with
the provisions of Section 3.06, which, if in writing, shall be substantially in
the form of Exhibit A-2, or in such other form acceptable to the Administrative
Agent.
"Competitive Bid" means a written offer by a Domestic Lender to make one
or more Bid Loans, substantially in the form of Exhibit H-2, or in such other
form acceptable to the Administrative Agent, duly completed and signed by a
Domestic Lender.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit E, or in such other form acceptable to the Administrative Agent.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for any Person and its Subsidiaries on a consolidated basis, without
duplication, the sum of (a) the outstanding principal amount of all indebtedness
and other obligations, whether current or long-term, for borrowed money
(including, with respect to the Company, Obligations hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money indebtedness, (c) all direct or
contingent obligations arising under letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties
8
and similar instruments, excluding surety, bid, appeal or performance bonds, (d)
all obligations in respect of the deferred purchase price of property or
services, but only if such deferral is in excess of 120 days, (other than trade
accounts payable and other accrued liabilities arising in the ordinary course of
business), (e) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding indebtedness of the types specified in clauses (a)
through (e) above of Persons other than such Person or a Subsidiary of such
Person, and (g) all indebtedness of the types referred to in clauses (a) through
(f) above of any partnership or joint venture as to which creditors have
recourse to the holders of its equity interests, unless such indebtedness is
expressly made non-recourse to such Person or such Subsidiary.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Operating Cash Flow for the period of the four
prior fiscal quarters ending on such date to (b) Interest Expense for such
period.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness of the Company as of such date to
(b) Operating Cash Flow for the period of the four prior fiscal quarters ending
on such date. For purposes of calculating the Consolidated Leverage Ratio as of
any date of determination, Consolidated Funded Indebtedness shall (i) be reduced
by the amount of cash on hand of the Company as of such date in excess of
$150,000,000 up to a maximum amount of $750,000,000, and (ii) exclude 80% of the
principal amount of any issued and outstanding Mandatory Convertible Securities
as of such date.
"Contractual Obligation" means, as to any Person, any provision of any
security 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.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debt Rating" has the meaning specified in the definition of "Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
9
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate
equal to the Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent, the Offshore Sub-Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent, the Offshore
Sub-Administrative Agent, the Swing Line Lender or the applicable L/C Issuer, as
the case may be, at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of Dollars with
such Alternative Currency.
"Domestic Applicable Percentage" means with respect to any Domestic Lender
at any time, the percentage (carried out to the ninth decimal place) of the
Aggregate Domestic Commitments represented by such Domestic Lender's Domestic
Commitment at such time. If the commitment of each Domestic Lender to make
Committed Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 10.02 or if the Aggregate
Domestic Commitments have expired, then the Domestic Applicable Percentage of
each Domestic Lender shall be determined based on the Domestic Applicable
Percentage of such Domestic Lender most recently in effect, giving effect to any
subsequent assignments. The initial Domestic Applicable Percentage of each
Domestic Lender is set forth opposite the name of such Domestic Lender on
Schedule 2.01 or in any Assignment and Assumption or amendment pursuant to which
such Domestic Lender becomes a party hereto, as applicable.
"Domestic Commitment" means, as to each Domestic Lender, its obligation to
(a) make Committed Loans to the Company pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the Dollar amount set forth opposite such
10
Domestic Lender's name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Domestic Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement.
"Domestic Facility" means the Domestic Loans and the L/C Credit Extensions
extended to the Company by the Domestic Lenders in accordance with Article II
and the other terms and provisions of this Agreement and the Loan Documents, in
a maximum amount not to exceed $1,600,000,000, unless increased in accordance
with the terms of Section 2.10.
"Domestic Lender" means on any date of determination in respect of
Domestic Loans, the Lenders making such Domestic Loans on such date, including
the Swing Line Lender and each Bid Loan Lender on such date.
"Domestic Loan" means an extension of credit by a Domestic Lender to the
Company under Article II in the form of a Committed Loan, a Bid Loan, or a Swing
Line Loan.
"Domestic Note" means a promissory note made by the Company in favor of a
Domestic Lender evidencing Domestic Loans and Credit Extensions made by such
Domestic Lender to the Company, substantially in the form of Exhibit D-1.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Domestic Total Outstandings" means the aggregate Outstanding Amount of
all Domestic Loans and all L/C Obligations.
"Domestic Uncommitted Increase Amount" has the meaning ascribed thereto in
Section 2.10.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, each of the L/C Issuers and the Swing
Line Lender with respect to Domestic Loans, and the Offshore Sub-Administrative
Agent with respect to Offshore Loans, and (ii) unless an Event of Default has
occurred and is continuing, the Company (each such approval not to be
unreasonably withheld or delayed, provided that the Company may withhold
approval with respect to any Person because they are a Public Lender); provided
that notwithstanding the foregoing, "Eligible Assignee" shall not include the
Company, any other Borrower or any of the Company's or other Borrower's
Affiliates or Subsidiaries; and provided further, however, that an Eligible
Assignee shall include only a Lender, an Affiliate of a Lender or another
Person, which, through its Lending Offices, is capable of lending the applicable
Alternative Currencies to the relevant Borrowers without the imposition of any
Taxes or additional Taxes, as the case may be.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
11
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Environmental Laws" means any and all applicable Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any Hazardous
Materials into the environment.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company, any other Borrower or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination,
provided that, "Equity Interests" when used with respect to the Company shall
specifically exclude the Mandatory Convertible Securities and debt securities
convertible into any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
12
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
"EURIBOR" means, in relation to any UK Offshore Loan in Euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that UK Offshore Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Offshore Sub-Administrative
Agent at its request quoted by the Reference Banks to leading banks in the
European interbank market,
as of 11:00 am (Brussels time) on the Quotation Day for the offering of deposits
in Euro for a period comparable to the Interest Period of the relevant UK
Offshore Loan.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Euro Equivalent" means, at any time, (a) with respect to any amount
denominated in Euro, such amount, and (b) with respect to any amount denominated
in Dollars or any Alternative Currency other than Euro, the equivalent amount
thereof in Euro, as determined by the Administrative Agent or the Offshore
Sub-Administrative Agent, as the case may be, at such time on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of Euro with Dollars or such Alternative Currency.
"Eurocurrency Bid Margin" means the margin above or below the Eurocurrency
Rate determined for Dollars to be added to or subtracted from the Eurocurrency
Rate determined for Dollars, which margin shall be expressed in multiples of
1/100th of one basis point.
"Eurocurrency Margin Bid Loan" means a Bid Loan that bears interest at a
rate based upon the Eurocurrency Rate determined for Dollars.
"Eurocurrency Rate" means for any Interest Period with respect to a
Eurocurrency Rate Loan:
(a) with respect to Domestic Loans and Offshore Loans, the
applicable Screen Rate for such Interest Period; or
(b) with respect to Domestic Loans and Hybrid Offshore Loans only,
if the applicable Screen Rate shall not be available, the rate per annum
determined by the Administrative Agent as the rate of interest at which
deposits in the relevant currency for delivery on the first day of such
Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted by the
Administrative Agent and with a term equivalent to such Interest Period
would be offered by the Administrative Agent or the Offshore
Sub-Administrative Agent to major banks in the London or other offshore
interbank market for such currency at their request at
13
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.
"Eurocurrency Rate Loan" means (a) a Committed Loan that bears interest at
a rate based on the Eurocurrency Rate, (b) a Eurocurrency Margin Bid Loan, (c) a
Swing Line Alternative Currency Loan, (d) a UK Offshore Loan, or (e) a Hybrid
Offshore Loan that bears interest at a rate based on the Eurocurrency Rate, in
each case as applicable in the context used, and "Eurocurrency Rate Loans" means
all such Loans. Eurocurrency Rate Loans that are Committed Loans or Hybrid
Offshore Loans may be denominated in Dollars or in an Alternative Currency, but
all Committed Loans and Hybrid Offshore Loans denominated in an Alternative
Currency must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section 10.01.
"Excluded Taxes" means, with respect to any Agent, any Lender, the L/C
Issuers or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which
such Borrower is located and (c) except as provided in the following sentence,
in the case of a Foreign Lender (other than an assignee pursuant to a request by
the Company under Section 12.13), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new Lending Office) or is attributable to such Foreign
Lender's failure or inability (other than as a result of a Change in Law) to
comply with Section 5.01(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new Lending
Office (or assignment), to receive additional amounts from the applicable
Borrower with respect to such withholding tax pursuant to Section 5.01(a).
"Existing $2 Billion Credit Agreement" means that certain Fourth Amended
and Restated Credit Agreement, among the Company, Bank of America, N.A. as
administrative agent, Fleet National Bank, as documentation agent, Bank of
Montreal, as co-syndication agent and Toronto Dominion (Texas), Inc., as
co-syndication agent and certain lenders, dated as of June 15, 2000, as amended
through the date hereof.
"Existing $3 Billion Credit Agreement" means that certain Credit
Agreement, among the Company, Bank of America, N.A. as administrative agent,
Chase Securities Inc., as syndication agent and certain lenders, dated as of
August 30, 2000, as amended through the date hereof.
"Existing Letters of Credit" means those Letters of Credit listed on
Schedule 1.02 hereto.
"Facility Fee Letter" means the letter agreement, dated May 17, 2004,
among the Company, the Administrative Agent, the Syndication Agent and the
Arrangers.
14
"FCC" shall mean the Federal Communications Commission and any successor
or substitute governmental commission, agency, department, board or authority
performing functions similar to those performed by the Federal Communications
Commission on the date hereof.
"FCC Regulations" shall mean all rules, regulations, written policies,
orders and decisions of the FCC under the Communications Act.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letters" means the Facility Fee Letters and the BAS Fee Letter.
"Foreign Lender" means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
"Foreign Obligor" means a Borrower that is a Foreign Subsidiary.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States, a State thereof or the District
of Columbia.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
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 such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
15
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Granting Lender" has the meaning specified in Section 12.06(h).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Consolidated Funded Indebtedness payable by another Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Consolidated Funded
Indebtedness, (ii) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Consolidated Funded
Indebtedness of the payment of such Consolidated Funded Indebtedness, (iii) to
maintain working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the primary obligor so
as to enable the primary obligor to pay such Consolidated Funded Indebtedness,
or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Consolidated Funded Indebtedness of the payment or
performance thereof or to protect such obligee against loss in respect thereof
(in whole or in part), but in each case excluding the endorsement of checks,
drafts and other negotiable instruments and documents in the ordinary course of
business, or (b) any Lien on any assets of such Person securing any Consolidated
Funded Indebtedness of any other Person, whether or not such Consolidated Funded
Indebtedness is assumed by such Person (or any right, contingent or otherwise,
of any holder of such Consolidated Funded Indebtedness to obtain any such Lien).
The amount of any Guarantee shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under Applicable Law, any Lender is then permitted to
charge on the Obligations. If the maximum rate of interest which, under
Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to any
Borrower. For purposes of determining the Highest Lawful Rate under Applicable
Law, the indicated rate ceiling shall be
16
the lesser of (a)(i) the "weekly ceiling", as that expression is defined in
Section 303.003 of the Texas Finance Code, as amended, or (ii) if available in
accordance with the terms thereof and at the Administrative Agent's option after
notice to any Borrower and otherwise in accordance with the terms of Section
303.103 of the Texas Finance Code, as amended, the "annualized ceiling" and
(b)(i) if the amount outstanding under this Agreement is less than $250,000,
twenty-four percent (24%), or (ii) if the amount under this Agreement is equal
to or greater than $250,000, twenty-eight percent (28%) per annum.
"Hybrid Offshore Borrowing" means a borrowing consisting of simultaneous
Hybrid Offshore Loans in the same currency and if such Hybrid Offshore Loans are
not Base Rate Hybrid Offshore Loans, having the same Interest Period, made by
each of the Offshore Lenders pursuant to Article III.
"Hybrid Offshore Loans" has the meaning ascribed thereto in Section 3.06.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 12.04(b).
"Interest Expense" means, for any period, determined in accordance with
GAAP on a consolidated basis for the Company and its Subsidiaries, the gross
interest expense (after giving effect to interest rate swaps, caps, collars and
xxxxxx) for such period on Consolidated Funded Indebtedness of the Company,
minus the sum of (a) interest income for such period, plus (b) to the extent not
included in the determination of such gross interest expense, upfront costs or
fees expended during such period in connection with the execution and delivery
of documentation relating to the Loan Documents, provided that, if any upfront
costs and fees have been previously included in a prior period, such costs and
fees shall be deducted in determining Interest Expense for such period. If
during any period for which Interest Expense is being determined the Company or
any of its Subsidiaries shall have made an Acquisition or asset disposition,
then, for all purposes of this Agreement, Interest Expense shall be adjusted for
the relevant period on a pro forma basis as if the relevant Acquisition or asset
disposition had been made or consummated on the first day of such period and
assuming (i) in the case of an Acquisition, the principal amount of any
Consolidated Funded Indebtedness of the Company incurred in connection with such
Acquisition had been outstanding for the entire duration of such period at the
rate of interest applicable to such Consolidated Funded Indebtedness at the time
of incurrence of such Consolidated Funded Indebtedness or (ii) in the case of
any asset disposition, any Consolidated Funded Indebtedness of the Company which
on a pro forma basis has been repaid or which is no longer an obligation of the
Company or any of its Subsidiaries as a result of such asset disposition had
been repaid or was not an obligation of the Company or any of its Subsidiaries
as of the first day of such period.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be the
17
Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line
Loan), the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means (a) as to each Committed Loan that is a
Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate
Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and
ending on the date one, two, three, six and, subject to Lenders' availability,
nine or twelve months thereafter, as selected by the Company in its Committed
Loan Notice, (b) as to each Eurocurrency Margin Bid Loan, the period commencing
on the date such Eurocurrency Margin Bid Loan is disbursed or converted to or
continued as a Eurocurrency Margin Bid Loan and ending on the date one, two,
three, six and, subject to Lenders' availability, nine or twelve months
thereafter, as selected by the Company in its Bid Request, (c) as to each Swing
Line Alternative Currency Loan, the period commencing on the date such Swing
Line Alternative Currency Loan is disbursed and ending on the date one, two or
three months thereafter as selected by the Company, (d) as to each UK Offshore
Loan and each Hybrid Offshore Loan except Base Rate Hybrid Offshore Loans, the
period commencing on the date such Offshore Loan is disbursed or converted to or
continued as a Eurocurrency Rate Loan and ending on the date one, two, three,
six and, subject to Lenders' availability, nine or twelve months thereafter, as
selected by (i) the Offshore Borrowers' Agent in its Offshore Loan Notice, or,
for Offshore Loans made in Euro, Sterling and the lawful currency of Switzerland
only, any Interest Period between seven days and six months, in each case for
this subsection (i) for UK Offshore Loans, or (ii) the Company in its Company
Hybrid Offshore Loan Notice, subject to Lenders' availability, as applicable,
and (e) as to each Absolute Rate Loan, a period of not less than 14 days and not
more than 180 days as selected by the Company in its Bid Request; provided that:
(i) 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
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Consolidated Funded Indebtedness of such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person if such assets have a fair market value in
18
excess of $10,000,000, in each case in this subsection (c) that constitute a
business unit, but excluding purchases of equipment and goods and services in
the ordinary course of business.
"IP Rights" has the meaning specified in Section 7.15.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
Credit Application and any other document, agreement and instrument entered into
by any L/C Issuer and the Company (or any Subsidiary) or in favor of any L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, any Governmental Authority, in each case whether
or not having the force of law.
"L/C Advance" means, with respect to each Domestic Lender, such Domestic
Lender's funding of its participation in any L/C Borrowing in accordance with
its Domestic Applicable Percentage. All L/C Advances shall be denominated in
Dollars.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing. All L/C Borrowings shall be denominated
in Dollars.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means, as applicable in the context used, Bank of America or
such other Domestic Lender as selected by Company to be an L/C Issuer hereunder,
and consented to by the Administrative Agent (such consent not to be
unreasonably withheld), in each case in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder, and
"L/C Issuers" means collectively Bank of America and such other Domestic Lender
as selected by Company to be an L/C Issuer hereunder, and consented to by the
Administrative Agent (such consent not to be unreasonably withheld), and all
successor issuers of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be
19
drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.08. For all purposes of this Agreement,
if on any date of determination a Letter of Credit has expired by its terms but
any amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the
amount so remaining available to be drawn.
"Lender Certification" has the meaning ascribed thereto in Section 12.24.
"Lenders" means the Domestic Lenders and the Offshore Lenders that are
party to this Agreement from time to time.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Domestic Lender may from time to time notify the
Company and the Administrative Agent, or an Offshore Lender may from time to
time notify the Offshore Borrowers' Agent, the Administrative Agent and the
Offshore Sub-Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit. Letters of Credit may be issued in
Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by any of the L/C Issuers.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Dollar Equivalent of (a) $500,000,000 and (b) the Aggregate Domestic
Commitments. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Domestic Commitments.
"LIBOR" means, in relation to any UK Offshore Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that UK Offshore Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Offshore
Sub-Administrative Agent at its request quoted by the Reference Banks to
leading banks in the London interbank market,
as of 11:00 am on the Quotation Day for the offering of deposits in the currency
of that UK Offshore Loan and for a period comparable to the Interest Period for
that UK Offshore Loan.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or other security
interest or preferential
20
arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to real property, and
any financing lease having substantially the same economic effect as any of the
foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan, a Bid Loan or a Swing Line Loan, or
under Article III in the form of an Offshore Loan.
"Loan Documents" means this Agreement, each Domestic Note, each Offshore
Note, each Issuer Document, the Fee Letters, and each other agreement executed
by any of the Borrowers from time to time in connection with this Agreement.
"Mandatory Convertible Securities" means securities issued by the Company
that are payable by their terms solely in equity securities of the Company
within three years from their issuance date.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Market Disruption Event" has the meaning ascribed thereto in Section
3.05(d).
"Material Adverse Effect" means (a) any act or circumstance that otherwise
would reasonably be expected to be material and adverse to the business,
consolidated assets, liabilities, financial condition or results of operations
of the Company and its Subsidiaries, together taken as a whole, (b) a material
impairment of the ability of the Company to perform its obligations under this
Agreement; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability of this Agreement against the Company.
"Material Subsidiary" means the Borrowers (other than the Company), Clear
Channel Broadcasting, Inc., a Nevada corporation, Clear Channel Broadcasting
Licenses, Inc. (a Nevada corporation), Clear Channel Holdings, Inc. (a Nevada
corporation), Clear Channel Outdoor, Inc., (also known as Xxxxx Media Company),
Universal Outdoor, Inc., Jacor Communications Company, AMFM Inc, Xxxx Media
Group, Inc. and SFX Entertainment, Inc.
"Maturity Date" means July 12, 2009, or such earlier date as the
Obligations shall become due and payable in full, whether by prepayment,
commitment reduction, acceleration or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multicurrency Sublimit" means an amount equal to the lesser of the Dollar
Equivalent of (a) $1,000,000,000 and (b) the Aggregate Domestic Commitments. The
Multicurrency Sublimit is part of, and not in addition to, the Aggregate
Domestic Commitments.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes or is
21
obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions.
"Necessary Authorization" means any license, permit, consent, approval or
authorization from, or any filing or registration with, any governmental or
other regulatory authority (including without limitation the FCC) necessary or
appropriate to enable the Company and its Subsidiaries to maintain and operate
their businesses and properties, in each case, the revocation or non-renewal of
which would reasonably be expected to have a Material Adverse Effect.
"Note" means a Domestic Note or an Offshore Note, as applicable in the
context used, and "Notes" means the Domestic Notes and the Offshore Notes.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Borrower arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"Offshore Applicable Percentage" means with respect to any Offshore Lender
at any time, the percentage (carried out to the ninth decimal place) of the
Aggregate Offshore Commitments represented by such Offshore Lender's Offshore
Commitment at such time. If the commitment of each Offshore Lender to make
Offshore Loans have been terminated pursuant to Section 10.02 or if the
Aggregate Offshore Commitments have expired, then the Offshore Applicable
Percentage of each Offshore Lender shall be determined based on the Offshore
Applicable Percentage of such Offshore Lender most recently in effect, giving
effect to any subsequent assignments. The initial Offshore Applicable Percentage
of each Offshore Lender is set forth opposite the name of such Offshore Lender
on Schedule 2.01 or in any Assignment and Assumption or amendment pursuant to
which such Offshore Lender becomes a party hereto, as applicable.
"Offshore Borrowers" has the meaning specified in the introductory
paragraph hereto.
"Offshore Borrowers' Agent" means Clear Channel International Limited, as
agent for the Offshore Borrowers and the Company in accordance with the terms
of, and pursuant to, Section 12.20.
"Offshore Commitment" means, as to each Offshore Lender, its obligation to
make Offshore Loans to the Offshore Borrowers and the Company pursuant to
Article III, in the form of both UK Offshore Loans and Hybrid Offshore Loans, in
an aggregate principal amount at any one time outstanding not to exceed the
Dollar amount set forth opposite such Offshore Lender's name on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Offshore Lender becomes
a party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.
22
"Offshore Facility" means the Offshore Loans extended to the Offshore
Borrowers and the Company by the Offshore Lenders in accordance with Article III
and the other terms and provisions of this Agreement and the Loan Documents, in
amounts the aggregate Dollar Equivalent of which may not exceed $150,000,000.
"Offshore Lenders" means, in respect of the Offshore Loans, the Lenders
making such Offshore Loans to the Offshore Borrowers and the Company.
"Offshore Loan" has the meaning specified in Section 3.01, which includes
UK Offshore Loans and Hybrid Offshore Loans.
"Offshore Note" means a promissory note made by the Borrowers in favor of
an Offshore Lender evidencing Offshore Loans made by such Offshore Lender to
such Borrowers, substantially in the form of Exhibit D-2.
"Offshore Obligations" means, on any date of determination, that portion
of the outstanding Obligations on such date of determination, ratably
attributable to the borrowing by the Offshore Borrowers and the Company of the
Offshore Loans, as determined by the Administrative Agent and the Offshore
Sub-Administrative Agent.
"Offshore Sub-Administrative Agent" means Bank of America, N.A., London,
or any successor Offshore Sub-Administrative Agent.
"Offshore Sub-Administrative Agent's Office" means, with respect to any
currency, the Offshore Sub-Administrative Agent's address and, as appropriate,
account as set forth on Schedule 12.02 with respect to such currency, or such
other address or account with respect to such currency as the Offshore
Sub-Administrative Agent may from time to time notify the Offshore Borrowers'
Agent, the Administrative Agent and the Offshore Lenders.
"Offshore Total Outstandings" means the aggregate Outstanding Amount of
all Offshore Loans.
"Operating Cash Flow" means, for any period, determined in accordance with
GAAP on a consolidated basis for the Company and its Subsidiaries, the sum of
(a) pre-tax net income (excluding therefrom (but only to the extent included in
pre-tax net income) (i) any items of extraordinary gain, including net gains on
the sale of assets other than asset sales in the ordinary course of business,
and (ii) any items of extraordinary loss, including net losses on the sale of
assets other than asset sales in the ordinary course of business), plus (b)
interest expense, depreciation and amortization (including amortization of film
contracts), deferred and other non-cash charges, and minus (c) cash payments
made or scheduled to be made with respect to film contracts. Operating Cash Flow
shall be adjusted to exclude (i) any extraordinary non-cash items deducted from
or included in the calculation of pre-tax net income and (ii) without
duplication, any accrued but not paid income or loss from Investments. For
purpose of calculation of Operating Cash Flow with respect to assets not owned
at all times during the four fiscal quarters preceding the date of determination
of Operating Cash Flow there shall be (i) included in Operating Cash Flow on a
pro forma basis, the Operating Cash Flow of any assets
23
acquired since the start of such four fiscal quarter period, and (ii) excluded
from Operating Cash Flow on a pro forma basis, the Operating Cash Flow of any
assets disposed of since the start of such four fiscal quarter period.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans on any
date, the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Committed Loans occurring on such date; (ii) with respect to Swing Line
Loans on any date, the Dollar Equivalent amount of the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of such Swing Line Loans occurring on such date; (iii) with
respect to the Offshore Loans, the Dollar Equivalent amount of the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Offshore Loans occurring on such date, (iv)
with respect to Bid Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of such Bid Loans occurring on such date; and (v) with respect to any
L/C Obligations on any date, the Dollar Equivalent amount of the aggregate
outstanding amount of such L/C Obligations on such date after giving effect to
any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements by the Company of Unreimbursed Amounts.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, any L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of the Administrative Agent in the applicable
offshore interbank market for such currency to major banks in such interbank
market.
24
"Participant" has the meaning specified in Section 12.06(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Company or
any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Holder" means X. Xxxxx Xxxx, Xxxx X. Xxxx, Xxxxxxx X. Xxxx and
any person related to any of them by kinship or marriage, trusts or similar
arrangements established for the benefit of one or more of them or any of their
estates, and partnerships and other entities that are controlled by them.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Company or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Principal Property" means any radio broadcasting, television or outdoor
advertising property located in the United States owned or leased by the Company
or any Subsidiary, excluding any such properties that, in the opinion of the
board of directors of the Company, are not in the aggregate of material
importance to the total business conducted by the Company and its Subsidiaries
as an entirety.
"Private Lender" means those Lenders who are not Public Lenders.
"Professional Market Party" means a professional market party
(professionele marktpartij) as defined from time to time under the Dutch
Exemption Regulation pursuant to the Act on the Supervision of the Credit System
1992 (Vrijstellingsregeling WTK 1992).
"Public Lender" has the meaning ascribed thereto in Section 8.02.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined with respect to a UK Offshore Loan:
(a) (if the currency is Sterling) the first day of that period; or
(b) (for any other currency) two Business Days before the first
day of that period,
25
unless (i) the Offshore Borrowers' Agent gives the Offshore Sub-Administrative
Agent less than three Business Days notice for a UK Offshore Loan, or
continuation of a UK Offshore Loan denominated in Euro or (ii) market practice
differs in the Relevant Interbank Market for a currency, in which case the
Quotation Day for that currency will be determined by the Offshore
Sub-Administrative Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading banks in
the Relevant Interbank Market on more than one day, the Quotation Day will be
the last of those days).
"Reference Banks" means with respect to UK Offshore Loans, the principal
London offices of Bank of America, N.A., JPMorgan Chase Bank and Citibank, N.A.,
or such other banks as may be appointed by the Offshore Sub-Administrative Agent
in consultation with the Offshore Borrowers' Agent and the Company.
"Relevant Interbank Market" means in relation to Euro, the European
interbank market, and, in relation to any other currency, the London interbank
market.
"Register" has the meaning specified in Section 12.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Committed
Borrowing, conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, (c) with respect to a Bid Borrowing, of a Bid Loan, a Bid Request,
(d) with respect to a UK Offshore Borrowing, or continuation of a UK Offshore
Loan, a UK Offshore Loan Notice, (e) with respect to a Hybrid Offshore
Borrowing, or continuation or conversion of a Hybrid Offshore Loan, a Company
Hybrid Offshore Loan Notice, and (f) with respect to Swing Line Borrowing of a
Swing Line Loan, a Swing Line Loan Notice.
"Required Domestic Lenders" means, as of any date of determination,
Domestic Lenders having more than 50% of the Aggregate Domestic Commitments or,
if the commitment of each Domestic Lender to make Committed Loans and the
obligation of the L/C Issuers to make L/C Credit Extensions have been terminated
pursuant to Section 10.02, Domestic Lenders holding in the aggregate more than
50% of the Domestic Total Outstandings (with the aggregate amount of each
Domestic Lender's risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed "held" by such Domestic Lender for purposes of
this definition); provided that the Domestic Commitment of, and the portion of
the Domestic Total Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Domestic
Lenders.
26
"Required Offshore Lenders" means, as of any date of determination,
Offshore Lenders having more than 50% of the Aggregate Offshore Commitments or,
if the commitment of each Offshore Lender to make Offshore Loans has been
terminated pursuant to Section 10.02, Offshore Lenders holding in the aggregate
more than 50% of the Offshore Total Outstandings; provided that the Offshore
Commitment of, and the portion of the Offshore Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Offshore Lenders.
"Required Total Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Total Commitments or, if the commitment of
each Lender to make Loans and the obligation of the L/C Issuers to make L/C
Credit Extensions have been terminated pursuant to Section 10.02, Lenders
holding in the aggregate more than 50% of the Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition); provided that the Commitment of, and the portion
of the Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Total Lenders.
"Responsible Officer" means the Chief Executive Officer, President, Chief
Financial Officer, Treasurer or Senior Vice President-Finance of a Borrower, and
with regard to Offshore Borrowers, the Director of Finance and Chief Executive
Officer, Europe. Any document delivered hereunder that is signed by a
Responsible Officer of a Borrower shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Borrower.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Company or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Company's stockholders, partners
or members (or the equivalent Person thereof).
"Revaluation Date" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated
in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to Section 2.02 and
Section 3.01, and (iii) such additional dates as the Administrative Agent, the
Offshore Sub-Administrative Agent or the Swing Line Lender shall reasonably
determine, or the Required Domestic Lenders or the Required Offshore Lenders
shall require, as applicable; and (b) with respect to any Letter of Credit, each
of the following: (i) each date of issuance of a Letter of Credit denominated in
an Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by any L/C Issuer under
any Letter of Credit denominated in an Alternative Currency, (iv) in the case of
the Existing Letters of Credit, July 1, 2004, and (v) such additional dates as
the Administrative
27
Agent, the Offshore Sub-Administrative Agent, the Swing Line Lender or any L/C
Issuer shall reasonably determine, or the Required Domestic Lenders or the
Required Offshore Lenders shall require, as applicable.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person, whereby the Company or any Subsidiary, as a seller
or transferor, shall sell or otherwise transfer any real or personal property
and then or thereafter lease, or repurchase under an extended purchase contract,
conditional sales or other title retention agreement, the same or similar
property, provided that, this provision shall not include any such Sale and
Leaseback Transaction that occurs within 120 days from the date of acquisition
of the relevant Principal Property or the date of the completion of construction
or commencement of full operations on such Principal Property, whichever is
later.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent, the Offshore Sub-Administrative Agent,
the Swing Line Lender or the applicable L/C Issuer, as the case may be, to be
customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.
"Screen Rate" means, for any Interest Period,
(a) with respect to Domestic Loans and Hybrid Offshore Loans,
(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page
of the Telerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period; or
(ii) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on
such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in the
relevant currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, and
28
(b) with respect to UK Offshore Loans,
(i) that are made in all currencies except Euro, LIBOR, the
British Bankers Association Interest Settlement Rate for the
relevant currency and period; and
(ii) that are made in Euro, EURIBOR, the percentage rate per
annum determined by the Banking Federation of the European Union for
the relevant period,
displayed on the appropriate page of the Telerate/Reuters screen. If the
agreed page is replaced or service ceases to be available, the Offshore
Sub-Administrative Agent may specify another page or service displaying
the appropriate rate after consultation with the Offshore Borrowers' Agent
and the Offshore Lenders.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Shareholder's Equity" means, as of any date of determination,
consolidated shareholder's equity of the Company and its Subsidiaries as of that
date determined in accordance with GAAP.
"Significant Subsidiary" means any Subsidiary of the Company whose TTM
Operating Cash Flow was greater than five percent of the TTM Operating Cash Flow
of the Company and its Subsidiaries, on a consolidated basis, for the period of
four fiscal quarters ended on the last day of the fiscal quarter most recently
ended, or whose assets comprised more than five percent of the total assets of
the Company and its Subsidiaries, on a consolidated basis, as of the last day of
the fiscal quarter most recently ended.
"Solvent" means, with respect to any Person, as of any date of
determination, that the fair value of the assets of such Person (at fair
valuation) is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person
as of such date, that the 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 probable liability of such Person on its debts as such debts become
absolute and matured, and that, as of such date, such Person will be able to pay
all liabilities of such Person as such liabilities mature and such Person does
not have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person acting in good faith.
"SPC" has the meaning specified in Section 12.06(h).
"Special Notice Currency" means at any time an Alternative Currency, other
than the currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.
29
"Spot Rate" for a currency means the rate determined by the Administrative
Agent, the Offshore Sub-Administrative Agent, the Swing Line Lender or the
applicable L/C Issuer, as applicable, to be the rate quoted by the Person acting
in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made with respect to
Domestic Loans and Hybrid Offshore Loans, and three Business Days prior to the
date as of which the foreign exchange computation is made with respect to UK
Offshore Loans; provided that, with respect to UK Offshore Loans made in
Sterling and Euro, "Spot Rate" will be determined by the Offshore
Sub-Administrative Agent approximately 11:00 a.m. on the date that is one
Business Day prior to the date as of which the foreign exchange computation is
made; provided further that the Administrative Agent, the Offshore
Sub-Administrative Agent, the Swing Line Lender or the applicable L/C Issuer may
obtain such spot rate from another financial institution designated by the
Administrative Agent, the Offshore Sub-Administrative Agent, the Swing Line
Lender or the applicable L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such
currency; and provided further that the applicable L/C Issuer may use such spot
rate quoted on the date as of which the foreign exchange computation is made in
the case of any Letter of Credit denominated in an Alternative Currency.
"Sterling", "GBP" and "(pound)" mean the lawful currency of the United
Kingdom.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Company.
"Swap Contract" means any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or
30
other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include a Lender or any Affiliate of a Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.
"Swing Line Alternative Currency Loan" means a Swing Line Loan made in an
Alternative Currency.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.05.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a), and
includes Swing Line Alternative Currency Loans.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.05(b), which, if in writing, shall be substantially in the form of
Exhibit B, or in such other form acceptable to the Administrative Agent.
"Swing Line Sublimit" means an amount equal to the lesser of the Dollar
Equivalent of (a) $150,000,000 and (b) the Aggregate Domestic Commitments. The
Swing Line Sublimit is part of, and not in addition to, the Aggregate Domestic
Commitments.
"Syndication Agent" means JPMorgan Chase Bank in its capacity as
syndication agent under any of the Loan Documents, or any successor syndication
agent.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) a lease agreement for the use of property creating liabilities that do not
appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as indebtedness of such Person
(without regard to accounting treatment), in each case excluding (i) any lease
that would be classified as an operating lease in accordance with GAAP and (ii)
contracts (non-cancelable or otherwise) that do not constitute leases of real or
personal property.
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
the Administrative Agent or the Offshore Sub-Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
31
"Threshold Amount" means $250,000,000.
"Total Applicable Percentage" means with respect to any Lender at any
time, the percentage (carried out to the ninth decimal place) of the Aggregate
Total Commitments represented by such Lender's Domestic Commitment and such
Lender's Offshore Commitment at such time. If the commitment of each Lender to
make Loans and/or the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 10.02, or if the Aggregate
Total Commitments have expired, then the Total Applicable Percentage of each
Lender shall be determined based on the Total Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments. The
initial Total Applicable Percentage of each Lender is set forth opposite the
name of such Lender on Schedule 2.01 or in any Assignment and Assumption or
amendment pursuant to which such Lender becomes a party hereto, as applicable.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"TTM Operating Cash Flow" means, at any date of determination, Operating
Cash Flow for the most recently completed twelve month period.
"Type" means (a) with respect to a Committed Loan, its character as a Base
Rate Loan or Eurocurrency Rate Loan, (b) with respect to a Bid Loan, its
character as an Absolute Rate Loan or a Eurocurrency Margin Bid Loan, and (c)
with respect to a Hybrid Offshore Loan, its character as a Base Rate Loan or
Eurocurrency Rate Loan.
"UK Offshore Borrowing" means a borrowing consisting of simultaneous UK
Offshore Loans in the same currency having the same Interest Period, made by
each of the Offshore Lenders to the Offshore Borrowers pursuant to Section
3.01(b).
"UK Offshore Loan Notice" means a notice of (a) a UK Offshore Borrowing
that is a Eurocurrency Rate Loan, or (b) a continuation of a UK Offshore
Borrowing that is a Eurocurrency Rate Loan pursuant to Section 3.01, which shall
be substantially in the form of Exhibit C, or in such other form acceptable to
the Offshore Sub-Administrative Agent.
"UK Offshore Loans" means Offshore Loans that are Eurocurrency Rate Loans
made by the Offshore Lenders to the Offshore Borrowers through the Offshore
Sub-Administrative Agent in accordance with the terms of Sections 3.01(a), (b),
(c) and 3.02.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.04(c)(i).
32
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified,
refer to such law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts
and contract rights.
(b) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial
data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from
time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically
prescribed herein, provided that Audited Financial Statements shall be
prepared in compliance with the standards of the Public Company Accounting
and Oversight Board Rule 3100.
33
(b) Changes in GAAP. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Company or the Required Total Lenders
shall so request, the Administrative Agent, the Lenders and the Company
shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Total Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Company shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or
as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
1.04 EXCHANGE RATES; CURRENCY EQUIVALENTS.
(a) The Administrative Agent, the Offshore Sub-Administrative
Agent, the Swing Line Lender or the applicable L/C Issuer, as applicable,
shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Credit Extensions and Outstanding
Amounts denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until
the next Revaluation Date to occur. Except for purposes of financial
statements delivered by the Company hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent, the Offshore Sub-Administrative Agent, the Swing
Line Lender or the applicable L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with a Committed
Borrowing, Swing Line Loan, Offshore Loan, conversion, continuation or
prepayment of a Eurocurrency Rate Loan or the issuance, amendment or
extension of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Committed Borrowing,
Swing Line Loan, Offshore Loan, Eurocurrency Rate Loan or Letter of Credit
is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to
the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent, the Offshore
Sub-Administrative Agent, Swing Line Lender or the applicable L/C Issuer,
as the case may be.
1.05 ADDITIONAL ALTERNATIVE CURRENCIES.
(a) The Company (or with respect to the UK Offshore Loans, the
Offshore Borrowers' Agent) may from time to time request that Eurocurrency
Rate Loans, Offshore Loans and Swing Line Loans be made and/or Letters of
Credit be issued in a currency other than those specifically listed in the
definition of "Alternative Currency;" provided that such requested
currency is a lawful currency (other than Dollars) that is
34
readily available and freely transferable and convertible into Dollars. In
the case of any such request with respect to the making of Eurocurrency
Rate Loans that are Domestic Loans or Hybrid Offshore Loans, such request
shall be subject to the approval of the Administrative Agent; in the case
of any such request with respect to the making of Eurocurrency Rate Loans
that are UK Offshore Loans, such request shall be subject to the approval
of the Offshore Sub-Administrative Agent; in the case of any such request
with respect to the making of Swing Line Loans, such request shall be
subject to the approval of the Administrative Agent and the Swing Line
Lender, and in the case of any such request with respect to the issuance
of Letters of Credit, such request shall be subject to the approval of the
Administrative Agent and the applicable L/C Issuer. If, with respect to
any UK Offshore Loan, any Offshore Lender is unable to fund such Offshore
Loan in the Alternative Currency selected by the Offshore Borrowers' Agent
(other than Sterling, Euro and Dollar Offshore Loans) in accordance with
the terms of this Agreement and has timely notified the Offshore
Sub-Administrative Agent to that effect, such Offshore Lender will be
required to participate in such Offshore Loan in Euro (in each case, in an
amount equal to such Offshore Lender's Offshore Applicable Percentage of
such Offshore Loan in the Euro Equivalent amount of such Offshore Loan).
Unless Euro is unavailable as determined by the Offshore
Sub-Administrative Agent, failure by such Offshore Lender to participate
in such Offshore Loan in Euro in accordance with the preceding sentence
will result in such Offshore Lender being designated as a Defaulting
Lender.
(b) Any such request shall be made to the Administrative Agent or
the Offshore Sub-Administrative Agent, as applicable, not later than 11:00
a.m., seven Business Days prior to the date of the desired Credit
Extension (or such other time or date as may be agreed by the
Administrative Agent, or the Offshore Sub-Administrative Agent, as
applicable, the Swing Line Lender and, in the case of any such request
pertaining to Letters of Credit, the applicable L/C Issuer, in its or
their sole discretion). In the case of any such request pertaining to
Committed Loans, the Administrative Agent shall promptly notify each
Domestic Lender thereof; in the case of any such request pertaining to
Swing Line Loans, the Administrative Agent shall promptly notify the Swing
Line Lender thereof, in the case of any such request pertaining to
Offshore Loans, the Offshore Sub-Administrative Agent shall promptly
notify the Offshore Lenders thereof, and in the case of any such request
pertaining to Letters of Credit, the Administrative Agent shall promptly
notify the applicable L/C Issuer thereof. Each Domestic Lender (in the
case of any such request pertaining to Committed Loans) or each Offshore
Lender (in the case of any such request pertaining to Offshore Loans)
shall notify the Administrative Agent or the Offshore Sub-Administrative
Agent, as the case may be, not later than 11:00 a.m., three Business Days
after receipt of such request whether it will make available its Domestic
Applicable Percentage or Offshore Applicable Percentage, as appropriate,
of the Committed Loans or the Offshore Loans in such requested currency.
The applicable L/C Issuer (in the case of a request pertaining to Letters
of Credit) shall notify the Administrative Agent not later than 11:00
a.m., three Business Days after receipt of such request whether it
consents to the issuance of a Letter of Credit in such requested currency.
35
(c) Any failure by a Lender or the applicable L/C Issuer, as the
case may be, to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by such Lender
or the applicable L/C Issuer, as the case may be, to permit Loans to be
made or Letters of Credit to be issued in such requested currency. If the
Administrative Agent consents to making Committed Loans (or the Offshore
Sub-Administrative Agent consents to making Offshore Loans) in such
requested currency, the Administrative Agent or the Offshore
Sub-Administrative Agent, as the case may be, shall so notify the Company
or the Offshore Borrowers' Agent, as the case may be, and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder for purposes of any Committed Borrowings of Eurocurrency Rate
Loans or Hybrid Offshore Borrowings or UK Offshore Borrowings of Offshore
Loans; and if the Administrative Agent and the applicable L/C Issuer
consent to the issuance of Letters of Credit in such requested currency,
the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder for purposes of any Letter of Credit issuances. If the
Administrative Agent or the Offshore Sub-Administrative Agent shall fail
to obtain consent to any request for an additional currency under this
Section 1.05, the Administrative Agent or the Offshore Sub-Administrative
Agent, as the case may be, shall promptly so notify the Company or the
Offshore Borrowers' Agent, as the case may be. Any specified currency of
an Existing Letter of Credit that is neither Dollars nor one of the
Alternative Currencies specifically listed in the definition of
"Alternative Currency" shall be deemed an Alternative Currency with
respect to such Existing Letter of Credit only.
1.06 CHANGE OF CURRENCY.
(a) Each obligation of the Borrowers to make a payment denominated
in the national currency unit of any member state of the European Union
that adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of
interest in respect of the Euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member
state adopts the Euro as its lawful currency; provided that if any
Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to
such Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, may from time to time
specify to be appropriate to reflect the adoption of the Euro by any
member state of the European Union and any relevant market conventions or
practices relating to the Euro.
36
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent or the
Offshore Sub-Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in
currency.
1.07 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Dallas, Texas time, provided that all time
references with respect to the UK Offshore Loan, the Offshore Sub-Administrative
Agent and Offshore Borrowers' Agent shall be references to London time.
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
ARTICLE II.
THE DOMESTIC FACILITY
2.01 DOMESTIC COMMITTED LOANS. Subject to the terms and conditions set
forth herein, each Domestic Lender severally agrees to make loans (each such
loan, a "Committed Loan") to the Company in Dollars or in one or more
Alternative Currencies from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Domestic Lender's Domestic Commitment; provided,
however, that after giving effect to any Committed Borrowing,
(a) the Dollar Equivalent of the Total Outstandings shall not
exceed the Aggregate Total Commitments,
(b) the Dollar Equivalent of the Outstanding Amount of the
Committed Loans of any Domestic Lender, plus such Domestic Lender's
Domestic Applicable Percentage of the Dollar Equivalent of the Outstanding
Amount of all L/C Obligations, plus such Domestic Lender's Domestic
Applicable Percentage of the Dollar Equivalent of the Outstanding Amount
of all Swing Line Loans shall not exceed such Domestic Lender's Domestic
Commitment,
(c) the Dollar Equivalent of the aggregate Outstanding Amount of
all Committed Loans plus the Dollar Equivalent of the aggregate
Outstanding Amount of all L/C Obligations, plus the Dollar Equivalent of
the aggregate Outstanding Amount of all Swing Line Loans, plus the
aggregate Outstanding Amount of all Bid Loans shall not exceed the
Aggregate Domestic Commitment, and
37
(d) the Dollar Equivalent of the aggregate Outstanding Amount of
all Committed Loans denominated in Alternative Currencies shall not exceed
the Multicurrency Sublimit.
Within the limits of each Domestic Lender's Domestic Commitment, and subject to
the other terms and conditions hereof, the Company may borrow under this Section
2.01, prepay under Section 2.06, and reborrow under this Section 2.01. Committed
Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF DOMESTIC COMMITTED
LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans
from one Type to the other, and each continuation of Eurocurrency Rate
Loans shall be made upon the Company's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i)
three Business Days prior to the requested date of any Committed Borrowing
of, conversion to or continuation of Eurocurrency Rate Loans denominated
in Dollars or of any conversion of Eurocurrency Rate Loans denominated in
Dollars to Base Rate Committed Loans, (ii) four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the
requested date of any Committed Borrowing or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies, and (iii) on the
requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Company pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Each Committed Borrowing of, conversion to, or
continuation of, Eurocurrency Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections 2.04(c) and 2.05(c), each Committed Borrowing of, or
conversion to, Base Rate Committed Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Company is requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the Committed
Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto and
(vi) the currency of the Committed Loans to be borrowed. If the Company
fails to specify a currency in a Committed Loan Notice requesting a
Committed Borrowing, then the Committed Loans so requested shall be made
in Dollars. If the Company fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed
Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation of
Committed Loans denominated in an Alternative Currency, such Loans shall
be
38
continued as Eurocurrency Rate Loans in their original currency with an
Interest Period of one month. Any automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurocurrency Rate Loans. If the
Company requests a Committed Borrowing of, conversion to, or continuation
of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. No Committed Loan may be converted into or
continued as a Committed Loan denominated in a different currency, but
instead must be prepaid in the original currency of such Committed Loan
and reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Domestic Lender of the
amount (and currency) of its Domestic Applicable Percentage of the
applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Company, the Administrative Agent shall
notify each Domestic Lender of the details of any automatic conversion to
Base Rate Loans or continuation of Committed Loans denominated in a
currency other than Dollars, in each case as described in the preceding
subsection. In the case of a Committed Borrowing, each Domestic Lender
shall make the amount of its Committed Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent's
Office for the applicable currency not later than 1:00 p.m., in the case
of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any
Committed Loan in an Alternative Currency, in each case on the Business
Day specified in the applicable Committed Loan Notice. Upon satisfaction
of the applicable conditions set forth in Section 6.02 (and, if such
Committed Borrowing is the initial Credit Extension, Section 6.01), the
Administrative Agent shall make all funds so received available to the
Company in like funds as received by the Administrative Agent either by
(i) crediting the account of the Company on the books of Bank of America
with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Company; provided, however,
that if, on the date the Committed Loan Notice with respect to such
Committed Borrowing denominated in Dollars is given by the Company, there
are L/C Borrowings outstanding, then the proceeds of such Committed
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and, second, shall be made available to the Company as
provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan
may be continued or converted only on the last day of an Interest Period
for such Eurocurrency Rate Loan. During the existence of an Event of
Default, (i) no Domestic Loans may be requested as, converted to or
continued as Eurocurrency Rate Loans (whether in Dollars or any
Alternative Currency) without the consent of the Required Domestic
Lenders, and (ii) the Required Domestic Lenders may demand that any or all
of the then outstanding Domestic Loans denominated in an Alternative
Currency be redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest Period
with respect thereto.
39
(d) The Administrative Agent shall promptly notify the Company and
the Domestic Lenders of the interest rate applicable to any Interest
Period for Committed Loans that are Eurocurrency Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Company and the
Domestic Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public announcement of
such change.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all
continuations of Committed Loans as the same Type, there shall not be more
than 20 Interest Periods in effect with respect to Committed Loans.
2.03 DOMESTIC BID LOANS.
(a) General. Subject to the terms and conditions set forth herein,
each Lender agrees that the Company may from time to time request the
Domestic Lenders to submit offers to make loans (each such loan, a "Bid
Loan") to the Company prior to the Maturity Date pursuant to this Section
2.03; provided, however, that after giving effect to any Bid Borrowing,
(i) the Dollar Equivalent of the Total Outstandings shall
not exceed the Aggregate Total Commitments,
(ii) the Dollar Equivalent of the aggregate Outstanding
Amount of the Committed Loans of any Domestic Lender, plus such
Domestic Lender's Domestic Applicable Percentage of the Dollar
Equivalent of the Outstanding Amount of all L/C Obligations, plus
such Domestic Lender's Domestic Applicable Percentage of the Dollar
Equivalent of the Outstanding Amount of all Swing Line Loans shall
not exceed such Domestic Lender's Domestic Commitment,
(iii) the Dollar Equivalent of the aggregate Outstanding
Amount of all Committed Loans, plus the Dollar Equivalent of the
Outstanding Amount of all Swing Line Loans, plus the Outstanding
Amount of all Bid Loans, plus the Dollar Equivalent of the
Outstanding Amount of all L/C Obligations, shall not exceed the
Aggregate Domestic Commitment, and
(iv) the aggregate Outstanding Amount of all Bid Loans shall
not exceed the Bid Loan Sublimit,
notwithstanding the fact that such Bid Loans, when aggregated with the
Domestic Applicable Percentage of the Outstanding Amount of Committed
Loans, L/C Obligations and Swing Line Loans of the Domestic Lender acting
as a Bid Loan Lender, may exceed the amount of such Bid Loan Lender's
Domestic Commitment. There shall not be more than twenty different
Interest Periods in effect with respect to Bid Loans at any time.
40
(b) Requesting Competitive Bids. The Company may request the
submission of Competitive Bids by delivering a Bid Request to the
Administrative Agent not later than 12:00 noon (i) one Business Day prior
to the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, or (ii) four Business Days prior to the requested date of any
Bid Borrowing that is to consist of Eurocurrency Margin Bid Loans. Each
Bid Request shall specify (i) the requested date of the Bid Borrowing
(which shall be a Business Day), (ii) the aggregate principal amount of
Bid Loans requested (which must be $10,000,000 or a whole multiple of
$1,000,000 in excess thereof), (iii) the Type of Bid Loans requested, and
(iv) the duration of the Interest Period with respect thereto, and shall
be signed by a Responsible Officer of the Company. No Bid Request shall
contain a request for (i) more than one Type of Bid Loan or (ii) Bid Loans
having more than five different Interest Periods. Unless the
Administrative Agent otherwise agrees in its sole and absolute discretion,
the Company may not submit a Bid Request if it has submitted another Bid
Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each
Domestic Lender of each Bid Request received by it from the Company
and the contents of such Bid Request.
(ii) Each Domestic Lender may (but shall have no obligation
to) submit a Competitive Bid containing an offer to make one or more
Bid Loans in response to such Bid Request. Such Competitive Bid must
be delivered to the Administrative Agent not later than 10:30 a.m.
(A) on the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, and (B) three Business Days prior to the
requested date of any Bid Borrowing that is to consist of
Eurocurrency Margin Bid Loans; provided, however, that any
Competitive Bid submitted by Bank of America in its capacity as a
Domestic Lender in response to any Bid Request must be submitted to
the Administrative Agent not later than 10:15 a.m. on the date on
which Competitive Bids are required to be delivered by the other
Domestic Lenders in response to such Bid Request. Each Competitive
Bid shall specify (A) the proposed date of the Bid Borrowing; (B)
the principal amount of each Bid Loan for which such Competitive Bid
is being made, which principal amount (x) may be equal to, greater
than or less than the Domestic Commitment of the bidding Domestic
Lender, (y) must be $5,000,000 or a whole multiple of $1,000,000 in
excess thereof, and (z) may not exceed the principal amount of Bid
Loans for which Competitive Bids were requested; (C) if the proposed
Bid Borrowing is to consist of Absolute Rate Bid Loans, the Absolute
Rate offered for each such Bid Loan and the Interest Period
applicable thereto; (D) if the proposed Bid Borrowing is to consist
of Eurocurrency Margin Bid Loans, the Eurocurrency Bid Margin with
respect to each such Eurocurrency Margin Bid Loan and the Interest
Period applicable thereto; and (E) the identity of the bidding
Domestic Lender.
41
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above,
(B) is not substantially in the form of a Competitive Bid as
specified herein, (C) contains qualifying, conditional or similar
language, (D) proposes terms other than or in addition to those set
forth in the applicable Bid Request, or (E) is otherwise not
responsive to such Bid Request. Any Domestic Lender may correct a
Competitive Bid containing a manifest error by submitting a
corrected Competitive Bid (identified as such) not later than the
applicable time required for submission of Competitive Bids. Any
such submission of a corrected Competitive Bid shall constitute a
revocation of the Competitive Bid that contained the manifest error.
The Administrative Agent may, but shall not be required to, notify
any Domestic Lender of any manifest error it detects in such
Domestic Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 5.02, 5.03
and 6.02 and clause (iii) above, each Competitive Bid shall be
irrevocable.
(d) Notice to Company of Competitive Bids. Not later than 11:00
a.m. (i) on the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, or (ii) three Business Days prior to the requested
date of any Bid Borrowing that is to consist of Eurocurrency Margin Bid
Loans, the Administrative Agent shall notify the Company of the identity
of each Domestic Lender that has submitted a Competitive Bid that complies
with Section 2.03(c) and of the terms of the offers contained in each such
Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 12:00 noon (i)
on the requested date of any Bid Borrowing that is to consist of Absolute
Rate Loans, and (ii) three Business Days prior to the requested date of
any Bid Borrowing that is to consist of Eurocurrency Margin Bid Loans, the
Company shall notify the Administrative Agent of its acceptance or
rejection of the offers notified to it pursuant to Section 2.03(d). The
Company shall be under no obligation to accept any Competitive Bid and may
choose to reject all Competitive Bids. In the case of acceptance, such
notice shall specify the aggregate principal amount of Competitive Bids
for each Interest Period that is accepted. The Company may accept any
Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related Bid
Request;
(ii) the principal amount of each Bid Loan must be $5,000,000
or a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis
of ascending Absolute Rates or Eurocurrency Bid Margins within each
Interest Period; and
42
(iv) the Company may not accept any offer that is described
in Section 2.03(c)(iii) or that otherwise fails to comply with the
requirements hereof.
(f) Procedure for Identical Bids. If two or more Domestic Lenders
have submitted Competitive Bids at the same Absolute Rate or Eurocurrency
Bid Margin, as the case may be, for the same Interest Period, and the
result of accepting all of such Competitive Bids in whole (together with
any other Competitive Bids at lower Absolute Rates or Eurocurrency Bid
Margins, as the case may be, accepted for such Interest Period in
conformity with the requirements of Section 2.03(e)(iii)) would be to
cause the aggregate outstanding principal amount of the applicable Bid
Borrowing to exceed the amount specified therefor in the related Bid
Request, then, unless otherwise agreed by the Company, the Administrative
Agent and such Domestic Lenders, such Competitive Bids shall be accepted
as nearly as possible in proportion to the amount offered by each such
Domestic Lender in respect of such Interest Period, with such accepted
amounts being rounded to the nearest whole multiple of $1,000,000.
(g) Notice to Domestic Lenders of Acceptance or Rejection of Bids.
The Administrative Agent shall promptly notify each Domestic Lender having
submitted a Competitive Bid whether or not its offer has been accepted
and, if its offer has been accepted, of the amount of the Bid Loan or Bid
Loans to be made by it on the date of the applicable Bid Borrowing. Any
Competitive Bid or portion thereof that is not accepted by the Company by
the applicable time specified in Section 2.03(e) shall be deemed rejected.
(h) Notice of Eurocurrency Rate. If any Bid Borrowing is to
consist of Eurocurrency Margin Loans, the Administrative Agent shall
determine the Eurocurrency Rate for the relevant Interest Period, and
promptly after making such determination, shall notify the Company and the
Domestic Lenders that will be participating in such Bid Borrowing of such
Eurocurrency Rate.
(i) Funding of Bid Loans. Each Domestic Lender that has received
notice pursuant to Section 2.03(g) that all or a portion of its
Competitive Bid has been accepted by the Company shall make the amount of
its Bid Loan(s) available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00
p.m. on the date of the requested Bid Borrowing. Upon satisfaction of the
applicable conditions set forth in Section 6.02, the Administrative Agent
shall make all funds so received available to the Company in like funds as
received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction
pursuant to this Section 2.03, the Administrative Agent shall notify each
Domestic Lender that submitted a Competitive Bid in such auction of the
ranges of bids submitted (without the bidder's name) and accepted for each
Bid Loan and the aggregate amount of each Bid Borrowing.
43
2.04 DOMESTIC LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the L/C Issuers agree, in reliance upon the agreements of the
Domestic Lenders set forth in this Section 2.04, (1) from time to
time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of
Credit denominated in Dollars or in one or more Alternative
Currencies for the account of the Company, and to amend or extend
Letters of Credit previously issued by them, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Domestic Lenders severally agree to participate
in Letters of Credit issued for the account of the Company and any
drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit,
(w) the Dollar Equivalent of the Total Outstandings shall
not exceed the Aggregate Total Commitments,
(x) the Dollar Equivalent of the aggregate Outstanding
Amount of the Committed Loans of any Domestic Lender, plus such
Domestic Lender's Domestic Applicable Percentage of the Dollar
Equivalent of the Outstanding Amount of all L/C Obligations, plus
such Domestic Lender's Domestic Applicable Percentage of the
Outstanding Amount of the Dollar Equivalent of all Swing Line Loans
shall not exceed such Domestic Lender's Domestic Commitment,
(y) the Dollar Equivalent of the aggregate Outstanding
Amount of all Committed Loans, plus the Dollar Equivalent of the
Outstanding Amount of all Swing Line Loans, plus the Outstanding
Amount of all Bid Loans, plus the Dollar Equivalent of the
Outstanding Amount of all L/C Obligations, shall not exceed the
Aggregate Domestic Commitment, and
(z) the Dollar Equivalent of the Outstanding Amount of the
L/C Obligations shall not exceed the Letter of Credit Sublimit.
Each request by the Company for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Company that the L/C
Credit Extension so requested complies with the conditions set forth in
the provisos to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Company may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon
and reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.
44
(ii) The L/C Issuers shall not issue any Letter of Credit,
if:
(A) subject to Section 2.04(b)(iii), the expiry date
of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension,
unless the Required Domestic Lenders have approved such expiry
date; or
(B) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless
all the Domestic Lenders have approved such expiry date.
(iii) An L/C Issuer shall not be under any obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain such L/C Issuer from issuing such Letter of
Credit, or any Law applicable to such L/C Issuer or any
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over such
L/C Issuer shall prohibit, or request that such L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such
L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon such L/C
Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which such L/C Issuer in
good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would
violate one or more generally applicable policies of such L/C
Issuer not implemented in contemplation of such proposed
Letter of Credit;
(C) except as otherwise agreed by the Administrative
Agent and such L/C Issuer, such Letter of Credit is to be
denominated in a currency other than Dollars or an Alternative
Currency;
(D) such L/C Issuer does not as of the issuance date
of such requested Letter of Credit issue Letters of Credit in
the requested currency;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(F) a default of any Domestic Lender's obligations to
fund under Section 2.04(c) exists or any Domestic Lender is at
such time a Defaulting Lender hereunder, unless the L/C
Issuers have entered into
45
satisfactory arrangements with the Company or such Domestic
Lender to eliminate the L/C Issuers' risk with respect to such
Domestic Lender.
(iv) The L/C Issuers shall not amend any Letter of Credit if
there shall exist an Event of Default at the time of such amendment.
(v) The L/C Issuers shall be under no obligation to amend
any Letter of Credit if (A) the L/C Issuers would have no obligation
at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of
Credit.
(vi) The L/C Issuers shall act on behalf of the Domestic
Lenders with respect to any Letters of Credit issued by them and the
documents associated therewith, and the L/C Issuers shall have all
of the benefits and immunities (A) provided to the Administrative
Agent in Article XI with respect to any acts taken or omissions
suffered by the L/C Issuers in connection with Letters of Credit
issued by them or proposed to be issued by them and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article XI included the L/C
Issuers with respect to such acts or omissions, and (B) as
additionally provided herein with respect to each of the L/C
Issuers.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Company delivered to the L/C
Issuer selected by the Company (with a copy to the Administrative
Agent stating on such copy in writing the L/C Issuer selected by the
Company) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Company. Such Letter of Credit Application must be received by the
applicable L/C Issuer and the Administrative Agent (A) not later
than 11:00 a.m. at least two Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any
Letter of Credit denominated in Dollars, and (B) not later than
11:00 a.m. at least three Business Days prior to the proposed
issuance date or date of amendment, as the case may be, of any
Letter of Credit denominated in an Alternative Currency; or in each
case such later date and time as the Administrative Agent and the
applicable L/C Issuer may agree in a particular instance in their
reasonable discretion. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the applicable L/C
Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and currency
thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to
46
be presented by such beneficiary in case of any drawing thereunder;
and (G) such other matters as the applicable L/C Issuer may
reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the applicable L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature
of the proposed amendment; and (D) such other matters as the
applicable L/C Issuer may reasonably require. Additionally, the
Company shall furnish to the applicable L/C Issuer and the
Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the applicable L/C Issuer or the
Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit
Application, the applicable L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit
Application from the Company and, if not, the applicable L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless
the applicable L/C Issuer has received written notice from any
Domestic Lender, the Administrative Agent or the Company, at least
one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article VI shall not then be
satisfied, then, subject to the terms and conditions hereof, the
applicable L/C Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Company or enter into the
applicable amendment, as the case may be, in each case in accordance
with the applicable L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit,
each Domestic Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the applicable L/C Issuer a
risk participation in such Letter of Credit in an amount equal to
the product of such Domestic Lender's Domestic Applicable Percentage
times the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of
Credit Application, the applicable L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto-Extension Letter of Credit
must permit the applicable L/C Issuer to prevent any such extension
at least once in each twelve-month period (commencing with the date
of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued. Unless otherwise directed by
the applicable L/C Issuer, the Company shall not be required to make
a specific request to the applicable L/C Issuer for any such
extension. Once an Auto-Extension Letter of Credit has been issued,
the Domestic Lenders shall be deemed to have authorized (but may not
require) the applicable L/C Issuer to
47
permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date;
provided, however, that the applicable L/C Issuer shall not permit
any such extension if (A) the applicable L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Extension
Notice Date (1) from the Administrative Agent that the Required
Domestic Lenders have elected not to permit such extension or (2)
from the Administrative Agent, any Domestic Lender or the Company
that one or more of the applicable conditions specified in Section
6.02 is not then satisfied, and in each such case directing the
applicable L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the applicable L/C Issuer
will also deliver to the Company and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the
applicable L/C Issuer shall notify the Company and the
Administrative Agent thereof. In the case of a Letter of Credit
denominated in an Alternative Currency, the Company shall reimburse
the applicable L/C Issuer in Dollars, unless the Company shall have
notified the applicable L/C Issuer promptly following receipt of the
notice of drawing that the Company will reimburse the applicable L/C
Issuer in such Alternative Currency. In the absence of such prompt
notice from the Company that it will pay in Alternative Currency,
the Company will reimburse the applicable L/C Issuer in Dollars. In
the case of any such reimbursement in Dollars of a drawing under a
Letter of Credit denominated in an Alternative Currency, the
applicable L/C Issuer shall notify the Company of the Dollar
Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 11:00 a.m. on the date of any
payment by the applicable L/C Issuer under a Letter of Credit to be
reimbursed in Dollars, or the Applicable Time on the date of any
payment by the applicable L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency (each such date, an "Honor
Date"), the Company shall reimburse the applicable L/C Issuer
through the Administrative Agent in an amount equal to the amount of
such drawing and in the applicable currency. If the Company fails to
so reimburse the applicable L/C Issuer by such time, the
Administrative Agent shall promptly notify each Domestic Lender of
the Honor Date, the amount of the unreimbursed drawing (expressed in
Dollars in the amount of the Dollar Equivalent thereof in the case
of a Letter of Credit
48
denominated in an Alternative Currency) (the "Unreimbursed Amount"),
and the amount of such Domestic Lender's Domestic Applicable
Percentage thereof. In such event, the Company shall be deemed to
have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Aggregate
Domestic Commitments and the conditions set forth in Section 6.02
(other than the delivery of a Committed Loan Notice). Any notice
given by the applicable L/C Issuer or the Administrative Agent
pursuant to this Section 2.04(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Domestic Lender shall upon any notice pursuant to
Section 2.04(c)(i) make funds available to the Administrative Agent
for the account of the applicable L/C Issuer, in Dollars, at the
Administrative Agent's Office for Dollar-denominated payments in an
amount equal to its Domestic Applicable Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.04(c)(iii), each Domestic
Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Company in such amount, and such
Unreimbursed Amount shall be reduced by the amount of such funds
made available. The Administrative Agent shall remit the funds so
received to the applicable L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 6.02 cannot be satisfied or for
any other reason, the Company shall be deemed to have incurred from
the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and
shall bear interest at the Default Rate. In such event, each
Domestic Lender's payment to the Administrative Agent for the
account of the applicable L/C Issuer pursuant to Section 2.04(c)(ii)
shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Domestic
Lender in satisfaction of its participation obligation under this
Section 2.04.
(iv) Until each Domestic Lender funds its Committed Loan or
L/C Advance pursuant to this Section 2.04(c) to reimburse the
applicable L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Domestic Lender's Domestic
Applicable Percentage of such amount shall be solely for the account
of the applicable L/C Issuer.
49
(v) Each Domestic Lender's obligation to make Committed
Loans or L/C Advances to reimburse the applicable L/C Issuer for
amounts drawn under Letters of Credit, as contemplated by this
Section 2.04(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Domestic
Lender may have against the applicable L/C Issuer, the Company, any
Subsidiary or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default; or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Domestic Lender's obligation to make
Committed Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 6.02 (other than delivery by the
Company of a Committed Loan Notice in accordance with Section
6.02(c). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Company to reimburse the applicable L/C
Issuer for the amount of any payment made by the applicable L/C
Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Domestic Lender fails to make available to the
Administrative Agent for the account of the applicable L/C Issuer
any amount required to be paid by such Domestic Lender pursuant to
the foregoing provisions of this Section 2.04(c) by the time
specified in Section 2.04(c)(ii), the applicable L/C Issuer shall be
entitled to recover from such Domestic Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on
which such payment is immediately available to the applicable L/C
Issuer at a rate per annum equal to the applicable Overnight Rate
from time to time in effect. A certificate of the applicable L/C
Issuer submitted to any Domestic Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.
(vii) Each L/C Issuer will provide to the Administrative Agent
reports in detail acceptable to the Administrative Agent (including
draws, payments and reconciliation reports) with respect to
outstanding Letters of Credit issued by such L/C Issuer, in such
frequency as reasonably requested by the Administrative Agent. The
Administrative Agent will provide quarterly reports to each Lender
with respect to the outstanding Letters of Credit at such time
issued by each L/C Issuer, and such other information regarding
outstanding Letters of Credit or L/C Obligations reasonably
requested by any Lender from time to time.
(d) Repayment of Participations.
(i) At any time after an L/C Issuer has made a payment under
any Letter of Credit and has received from any Domestic Lender such
Domestic Lender's L/C Advance in respect of such payment in
accordance with Section 2.04(c), if the Administrative Agent
receives for the account of such L/C Issuer any payment in respect
of the related Unreimbursed Amount or interest
50
thereon (whether directly from the Company or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Domestic
Lender its Domestic Applicable Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Domestic Lender's L/C Advance was
outstanding) in Dollars and in the same funds as those received by
the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of an L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned under any of the circumstances described in
Section 12.05 (including pursuant to any settlement entered into by
the applicable L/C Issuer in its discretion), each Domestic Lender
shall pay to the Administrative Agent for the account of the
applicable L/C Issuer its Domestic Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such
Domestic Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the
Domestic Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Company to
reimburse the applicable L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms
of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff,
defense or other right that the Company or any Subsidiary may have
at any time against any beneficiary or any transferee of such Letter
of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), any L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under such Letter of Credit;
(iv) any payment by any L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit provided
that payment thereof shall not constitute gross
51
negligence or willful misconduct; or any payment made by any L/C
Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter
of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in
the availability of the relevant Alternative Currency to the Company
or any Subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Company or any Subsidiary; provided that,
such circumstance or event shall not have been the result of gross
negligence or willful misconduct of the applicable L/C Issuer.
The Company shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the Company
will immediately notify the applicable L/C Issuer. The Company shall be
conclusively deemed to have waived any such claim against the applicable L/C
Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuers. Each Domestic Lender and the Company
agree that, in paying any drawing under a Letter of Credit, the L/C
Issuers shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuers, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuers shall be liable to any Domestic
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Domestic Lenders or the Required
Domestic Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Company
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude
the Company's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the
L/C Issuers, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuers
shall be liable or responsible for any of the matters described in clauses
(i) through (v) of Section 2.04(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Company may have a claim
against the L/C Issuers, and the L/C Issuers may be liable to the Company,
to the extent, but only to the extent, of any
52
direct, as opposed to consequential or exemplary, damages suffered by the
Company which the Company proves were caused by the L/C Issuers' willful
misconduct or gross negligence or the L/C Issuers' willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of
the foregoing, the L/C Issuers may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C
Issuers shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason.
(g) Cash Collateral. (i) Upon the request of the Administrative
Agent, (A) if the L/C Issuers have honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing that is continuing, or (B) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding,
the Company shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations.
(ii) In addition, if the Administrative Agent notifies the
Company at any time that the Outstanding Amount of all L/C
Obligations at such time exceeds 110% of the Letter of Credit
Sublimit then in effect, then, within 30 days after receipt of such
notice, the Company shall Cash Collateralize the L/C Obligations in
an amount equal to the amount by which the Outstanding Amount of all
L/C Obligations exceeds the Letter of Credit Sublimit.
(iii) The Administrative Agent may, at any time and from time
to time after the initial deposit of Cash Collateral, request that
additional Cash Collateral be provided as reasonably necessary in
order to protect against the results of exchange rate fluctuations.
(iv) Sections 2.06 and 10.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of
this Section 2.04, Section 2.06 and Section 10.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the applicable L/C Issuers
and the Domestic Lenders, as collateral for the L/C Obligations,
cash or deposit account balances ("Cash Collateral") pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the applicable L/C Issuers (which documents
are hereby consented to by the Domestic Lenders). Derivatives of
such term have corresponding meanings. The Company hereby grants to
the Administrative Agent, for the benefit of the applicable L/C
Issuers and the Domestic Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in blocked,
interest bearing deposit accounts at Bank of America, and such Cash
Collateral shall be returned to the Company with such interest when
the requirements for
53
delivery of such Cash Collateral are no longer applicable (but Cash
Collateral may be required to be delivered again from time to time
in accordance with the terms of this Agreement).
(h) Applicability of ISP. Unless otherwise expressly agreed by the
L/C Issuers and the Company when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), the rules
of the ISP shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the
Administrative Agent for the account of each Domestic Lender in accordance
with its Domestic Applicable Percentage, in Dollars, a Letter of Credit
fee (the "Letter of Credit Fee") for each standby Letter of Credit in an
aggregate amount for all Domestic Lenders equal to the Applicable Rate
times the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, notwithstanding Section
1.08, the amount of such Letter of Credit shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such
time of calculation (such Letter of Credit amount shall not be determined
in accordance with Section 1.08 for purposes of this Section 2.04(i)).
Letter of Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the first Business Day after the end
of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. If there is any
change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each standby Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, while any Event
of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuers. The Company shall pay directly to each L/C Issuer for its own
account, in Dollars, a fronting fee with respect to each Letter of Credit,
as specified in the Facility Fee Letter. In addition, the Company shall
pay directly to each L/C Issuer for its own account, in Dollars, the
customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges of the L/C Issuers relating to letters of
credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.
Bank of America has delivered to the Company a letter listing as of the
date specified therein, the amounts of such customary fees and standard
costs and charges associated with the issuances of Letters of Credit.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms
hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of
any obligations of a Subsidiary,
54
the Company shall be obligated to reimburse the L/C Issuers hereunder for
any and all drawings under such Letter of Credit. The Company hereby
acknowledges that the issuance of Letters of Credit for the obligations of
Subsidiaries inures to the benefit of the Company, and that the Company's
business derives substantial benefits from the businesses of such
Subsidiaries.
2.05 DOMESTIC SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of
the other Domestic Lenders set forth in this Section 2.05, to make loans
in Dollars or in one or more Alternative Currencies (each such loan, a
"Swing Line Loan") to the Company from time to time on any Business Day
during the Availability Period in an aggregate Dollar Equivalent
outstanding amount not to exceed at any time the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with
the Domestic Applicable Percentage of the Outstanding Amount of Committed
Loans and L/C Obligations of the Domestic Lender acting as Swing Line
Lender, may exceed the amount of such Swing Line Lender's Domestic
Commitment; provided, however, that after giving effect to any Swing Line
Loan,
(i) the Dollar Equivalent of the Total Outstandings shall
not exceed the Aggregate Total Commitment,
(ii) the Dollar Equivalent of the aggregate Outstanding
Amount of the Committed Loans of any Domestic Lender, plus such
Domestic Lender's Domestic Applicable Percentage of the Dollar
Equivalent of the Outstanding Amount of all L/C Obligations, plus
such Domestic Lender's Domestic Applicable Percentage of the Dollar
Equivalent of the Outstanding Amount of all Swing Line Loans shall
not exceed such Domestic Lender's Domestic Commitment,
(iii) the Dollar Equivalent of the aggregate Outstanding
Amount of all Committed Loans, plus the Dollar Equivalent of the
Outstanding Amount of all Swing Line Loans, plus the Outstanding
Amount of all Bid Loans, plus the Dollar Equivalent of the
Outstanding Amount of all L/C Obligations, shall not exceed the
Aggregate Domestic Commitment, and
(iv) the aggregate Dollar Equivalent of the Outstanding
Amount of all Swing Line Loans of the Swing Line Lender shall not
exceed the Swing Line Sublimit.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.05, prepay under
Section 2.06, and reborrow under this Section 2.05. Each Swing Line Loan
made in Dollars shall be a Base Rate Loan. Each Swing Line Loan made in an
Alternative Currency shall be a Eurocurrency Rate Loan. Immediately upon
the making of a Swing Line Loan, each Domestic Lender
55
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to the product of such Domestic Lender's
Domestic Applicable Percentage times the amount of such Swing Line Loan.
Swing Line Alternative Currency Loans must be repaid in the currency
borrowed. During the existence of an Event of Default, the Swing Line
Lender may demand that any or all of the then outstanding Swing Line
Alternative Currency Loans be redenominated in Dollars in the amount of
the Dollar Equivalent thereof.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made
upon the Company's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than (i) 1:00 p.m. on the requested borrowing date for Swing Line
Loans that are Base Rate Loans, and (ii) four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the
requested date of any Swing Line Alternative Currency Loan, and shall
specify (x) the amount to be borrowed, which shall be a minimum of the
Dollar Equivalent of $100,000, (y) whether such Swing Line Loan will be a
Base Rate Loan or a Swing Line Alternative Currency Loan, and if a Swing
Line Alternative Currency Loan, the currency to be borrowed and the
duration of the Interest Period and (z) the requested borrowing date,
which shall be a Business Day. If the Company fails to specify either a
currency or an Interest Period duration, the Swing Line Loan shall be made
in Dollars as a Base Rate Loan. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the
request of any Domestic Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.05(a), or (B) that one or more
of the applicable conditions specified in Article VI is not then
satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Company at its office by crediting the account of the
Company on the books of the Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Company (which
hereby irrevocably authorizes the Swing Line Lender to so request on
its behalf), that each Domestic
56
Lender make a Base Rate Committed Loan in an amount equal to such
Domestic Lender's Domestic Applicable Percentage of the Dollar
Equivalent of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be
deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Domestic Commitments and the conditions set forth in
Section 6.02. The Swing Line Lender shall furnish the Company with a
copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Domestic
Lender shall make an amount equal to its Domestic Applicable
Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in Same Day Funds for the
account of the Swing Line Lender at the Administrative Agent's
Office for Dollar-denominated payments not later than 1:00 p.m. on
the day specified in such Committed Loan Notice, whereupon, subject
to Section 2.05(c)(ii), each Domestic Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to
the Company in such amount, and such Swing Line Loan shall be deemed
to have been repaid in such amount. The Administrative Agent shall
remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
2.05(c)(i), the request for Base Rate Committed Loans submitted by
the Swing Line Lender as set forth herein shall be deemed to be a
request by the Swing Line Lender that each of the Domestic Lenders
fund its risk participation in the relevant Swing Line Loan and each
Domestic Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Domestic Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Domestic Lender pursuant to the
foregoing provisions of this Section 2.05(c) by the time specified
in Section 2.05(c)(i), the Swing Line Lender shall be entitled to
recover from such Domestic Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate
per annum equal to the applicable Overnight Rate from time to time
in effect. A certificate of the Swing Line Lender submitted to any
Domestic Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Domestic Lender's obligation to make Committed
Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this
57
Section 2.05(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Domestic
Lender may have against the Swing Line Lender, the Company or any
other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Domestic Lender's obligation to make Committed
Loans pursuant to this Section 2.05(c) is subject to the conditions
set forth in Section 6.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Company to
repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Domestic Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line
Lender receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Domestic Lender its
Domestic Applicable Percentage of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Domestic Lender's risk participation was
funded) in the same funds as those received by the Swing Line
Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the
circumstances described in Section 12.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion),
each Domestic Lender shall pay to the Swing Line Lender its Domestic
Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the applicable
Overnight Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender. The obligations of the
Domestic Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line
Lender shall be responsible for invoicing the Company for interest on the
Swing Line Loans. Until each Domestic Lender funds its Base Rate Committed
Loan or risk participation pursuant to this Section 2.05 to refinance such
Domestic Lender's Domestic Applicable Percentage of any Swing Line Loan,
interest in respect of such Domestic Applicable Percentage shall be solely
for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Company shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
58
2.06 PREPAYMENTS OF DOMESTIC LOANS AND CREDIT EXTENSIONS.
(a) Committed Loans. Company may, upon notice from the Company to
the Administrative Agent, at any time or from time to time voluntarily
prepay Committed Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four
Business Days (or five, in the case of prepayment of Loans denominated in
Special Notice Currencies) prior to any date of prepayment of Eurocurrency
Rate Loans denominated in Alternative Currencies, and (C) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurocurrency Rate Loans denominated in Dollars shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof;
(iii) any prepayment of Eurocurrency Rate Loans denominated in Alternative
Currencies shall be in a minimum principal amount of the Dollar Equivalent
of $5,000,000 or a whole multiple of the Dollar Equivalent of $1,000,000
in excess thereof; and (iv) any prepayment of Base Rate Committed Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be prepaid
and, if Eurocurrency Loans are to be prepaid, the Interest Period(s) of
such Loans. The Administrative Agent will promptly notify each Domestic
Lender of its receipt of each such notice, and of the amount of such
Domestic Lender's Domestic Applicable Percentage of such prepayment. If
such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein. Any prepayment of a
Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 5.05. Each such prepayment shall be applied to the Committed Loans
of the Domestic Lenders in accordance with their respective Domestic
Applicable Percentages.
(b) Bid Loans. No Bid Loan may be prepaid without the prior
consent of the applicable Bid Loan Lender.
(c) Swing Line Loans. The Company may, upon notice to the Swing
Line Lender (with a copy to the Administrative Agent), at any time or from
time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received
by the Swing Line Lender not later than 11:00 a.m. (A) four Business Days
(or five, in the case of prepayment of Swing Line Alternative Currency
Loans denominated in Special Notice Currencies) prior to any date of
prepayment of Swing Line Alternative Currency Loans, and (B) on the date
of the prepayment of Swing Line Loans that are Base Rate Loans, and (ii)
any partial prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment,
and, if Swing Line Alternative Currency Loans are to be prepaid, the
Interest Period(s) of such Loans. If such notice is given by the Company,
the Company shall make such prepayment and the payment
59
amount specified in such notice shall be due and payable on the date
specified therein. All Swing Line Alternative Currency Loans shall be
repaid in the currency borrowed. Any prepayment of a Swing Line
Alternative Currency Loan shall be accompanied by all accrued interest on
the amount prepaid, together with any additional amounts required pursuant
to Section 5.05.
(d) Excess of Aggregate Domestic Commitments. If the
Administrative Agent notifies the Company at any time that the Domestic
Total Outstandings at such time exceed the Aggregate Domestic Commitments
then in effect, then, within five Business Days after receipt of such
notice, the Company shall prepay Domestic Loans and/or the Company shall
Cash Collateralize the L/C Obligations in an aggregate amount sufficient
to reduce (or Cash Collateralize) such Domestic Total Outstandings as of
such date of payment to an amount not to exceed the Aggregate Domestic
Commitments then in effect; provided, however, that, subject to the
provisions of Section 2.04(g)(ii), the Company shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.06(d)
unless after the prepayment in full of the Domestic Loans the Domestic
Total Outstandings exceed the Aggregate Domestic Commitments then in
effect.
(e) Alternative Currencies. If the Administrative Agent notifies
the Company at any time that the Dollar Equivalent of the Outstanding
Amount of all Committed Loans denominated in Alternative Currencies at
such time exceeds an amount equal to 110% of the Multicurrency Sublimit
then in effect, then, within five Business Days after receipt of such
notice, the Company shall prepay Committed Loans in an aggregate amount
sufficient to reduce such Outstanding Amount of Committed Loans as of such
date of payment to an amount not to exceed 100% of the Multicurrency
Sublimit then in effect.
2.07 TERMINATION OR REDUCTION OF DOMESTIC COMMITMENTS. The Company may,
upon notice to the Administrative Agent, terminate the Aggregate Domestic
Commitments, or from time to time permanently reduce the Aggregate Domestic
Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. three Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of the Dollar Equivalent of $10,000,000 or any whole multiple
of the Dollar Equivalent of $1,000,000 in excess thereof, (iii) the Company
shall not terminate or reduce the Aggregate Domestic Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total
Domestic Outstandings would exceed the Aggregate Domestic Commitments, and (iv)
if, after giving effect to any reduction of the Aggregate Domestic Commitments
(whether pursuant to this Section 2.07 or Section 2.11), the Multicurrency
Sublimit, the Letter of Credit Sublimit, the Bid Loan Sublimit, or the Swing
Line Sublimit exceeds the amount of the Aggregate Domestic Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Domestic Lenders of any such
notice of termination or reduction of the Aggregate Domestic Commitments. The
amount of any such Aggregate Domestic Commitment reduction shall not be applied
to reduce the Multicurrency Sublimit, the Bid Loan Sublimit, the Swing Line
Sublimit or the Letter of Credit Sublimit unless such sublimit is in excess of
the Aggregate
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Domestic Commitment or as otherwise specifically directed in writing by the
Company. Except reductions in Domestic Commitments made in accordance with
Section 2.11 hereof, any reduction of the Aggregate Domestic Commitments shall
be applied to the Domestic Commitment of each Domestic Lender according to its
Domestic Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Domestic Commitments shall be paid on the effective
date of such termination.
2.08 REPAYMENT OF DOMESTIC LOANS AND CREDIT EXTENSIONS.
(a) The Company shall repay to the Domestic Lenders on the
Maturity Date the aggregate principal amount of Committed Loans made to
Company outstanding on such date, together with all other outstanding
Obligations.
(b) The Company shall repay each Bid Loan on the last day of the
Interest Period in respect thereof.
(c) The Company shall repay each Swing Line Loan that is a Base
Rate Loan on the earlier to occur of (i) the date ten Business Days after
such Loan is made and (ii) the Maturity Date, provided that, except with
respect to payments due on the Maturity Date, the Company may use proceeds
of Swing Line Loans to repay amounts due under this Section 2.08.
(d) The Company shall repay each Swing Line Alternative Currency
Loan on the earlier to occur of (i) last day of the Interest Period in
respect thereof and (ii) the Maturity Date, provided that, except with
respect to payments due on the Maturity Date, the Company may use proceeds
of Swing Line Loans to repay amounts due under this Section 2.08.
2.09 INTEREST ON DOMESTIC LOANS AND CREDIT EXTENSIONS. Subject to the
provisions of Section 4.01,
(a) each Domestic Loan that is a Eurocurrency Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the lesser of (i) the Highest Lawful
Rate and (ii) the sum of the Eurocurrency Rate for such Interest Period
plus the Applicable Rate plus (in the case of a Eurocurrency Rate Loan of
any Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State) the Mandatory Cost;
(b) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the lesser of (i) the Highest Lawful Rate and
(ii) the Base Rate plus the Applicable Rate;
(c) each Bid Loan shall bear interest on the outstanding principal
amount thereof for the Interest Period therefor at a rate per annum equal
to the lesser of (i) the Highest Lawful Rate and (ii) the Eurocurrency
Rate for such Interest Period plus (or
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minus) the Eurocurrency Bid Margin, or at the Absolute Rate for such
Interest Period, as the case may be; and
(d) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof (i) with respect to Swing Line Loans that are
Base Rate Loans, from the applicable borrowing date at a rate per annum
equal to the lesser of (A) the Highest Lawful Rate and (B) the Base Rate
plus the Applicable Rate, and (ii) with respect to Swing Line Alternative
Currency Loans, for each Interest Period at a rate per annum equal to the
lesser of (A) the Highest Lawful Rate and (B) the sum of the Eurocurrency
Rate for such Interest Period plus the Applicable Rate.
(e) Interest on each Domestic Loan shall be due and payable in
arrears on each Interest Payment Date applicable thereto and at such other
times as may be specified herein. Interest hereunder shall be due and
payable in accordance with the terms hereof before and after judgment, and
before and after the commencement of any proceeding under any Debtor
Relief Law.
2.10 INCREASE IN DOMESTIC COMMITMENTS.
(a) Request for Increase. Provided there exists no Default, upon
notice to the Administrative Agent (which shall promptly notify the
Domestic Lenders), the Company may from time to time, request an increase
in the Aggregate Domestic Commitments by an amount (for all such requests)
not exceeding $750,000,000 (as increased pursuant to Section 2.11, the
"Domestic Uncommitted Increase Amount") (except to the extent increased
pursuant to Section 2.11(h)); provided that (i) any such request for an
increase shall be in a minimum amount of $100,000,000, and (ii) the
Company may make a maximum of three such requests. At the time of sending
such notice, the Company (in consultation with the Administrative Agent)
shall specify the time period within which each Domestic Lender is
requested to respond (which shall in no event be less than ten Business
Days from the date of delivery of such notice to the Domestic Lenders).
(b) Domestic Lender Elections to Increase. Each Domestic Lender
shall notify the Administrative Agent within such time period whether or
not it agrees to increase its Domestic Commitment and, if so, whether by
an amount equal to, greater than, or less than its Domestic Applicable
Percentage of such requested increase. Any Domestic Lender not responding
within such time period shall be deemed to have declined to increase its
Domestic Commitment.
(c) Notification by Administrative Agent; Additional Domestic
Lenders. The Administrative Agent shall notify the Company and each
Domestic Lender of the Domestic Lenders' responses to each request made
hereunder. To achieve the full amount of a requested increase and subject
to the approval of the Administrative Agent and the L/C Issuers (which
approvals shall not be unreasonably withheld), the Company may also invite
additional Persons reasonably acceptable to the Company and the
Administrative Agent to become Domestic Lenders pursuant to a joinder
agreement in form and substance satisfactory to the Administrative Agent
and its counsel.
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(d) Effective Date and Allocations. If the Aggregate Domestic
Commitments are increased in accordance with this Section, the
Administrative Agent and the Company shall determine the effective date
(the "Increase Effective Date") and the final allocation of such increase.
The Administrative Agent shall promptly notify the Company and the
Domestic Lenders of the final allocation of such increase and the Increase
Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition
precedent to such increase, the Company shall deliver to the
Administrative Agent a certificate of the Company dated as of the Increase
Effective Date (in sufficient copies for each Domestic Lender) signed by a
Responsible Officer of the Company (i) certifying and attaching the
resolutions adopted by the Company approving or consenting to such
increase, and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article VII
and the other Loan Documents are true and correct in all material respects
on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they are true and correct as of such earlier date, and except
that for purposes of this Section 2.10, the representations and warranties
contained in subsections (a) and (b) of Section 7.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 8.01, and (B) no Default exists. The Company
shall prepay any Committed Loans outstanding on the Increase Effective
Date (and pay any additional amounts required pursuant to Section 5.05) to
the extent necessary to keep the outstanding Committed Loans ratable with
any revised Domestic Applicable Percentages arising from any nonratable
increase in the Aggregate Domestic Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any
provisions in Sections 4.07 or 12.01 to the contrary.
2.11 COMPANY PURCHASE OF DOMESTIC LOANS.
Notwithstanding anything herein or in any other Loan Document to the
contrary, with the prior consent of the Administrative Agent, the Company may,
in accordance with each of the following terms and conditions, purchase from the
Domestic Lenders, Domestic Loans in an amount in the aggregate over the term of
this Agreement not to exceed more than 10% of the Aggregate Total Commitments:
(a) The Domestic Loans shall have been trading below par (as
determined by the principal trading desk of the Administrative Agent);
(b) There shall exist no Default both before and after giving
effect to any such purchase;
(c) There shall exist no circumstance, event or condition which
could reasonably be expected to cause a Material Adverse Effect both
before and after giving effect to any such purchase;
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(d) All Domestic Loans purchased by the Company shall be
immediately retired, and in no event shall the Company be entitled to
sell, assign, participate, convey, encumber, pledge or otherwise transfer
any such purchased Domestic Loans;
(e) The Domestic Commitment of each such Domestic Lender that
sells any portion of its Domestic Loans pursuant to this Section 2.11
shall be automatically reduced by the amount of such sale immediately upon
consummation of such sale;
(f) The Company shall never be a Domestic Lender hereunder or
under any of the Loan Documents, and the Company shall never be entitled
to any of the rights or privileges of a Domestic Lender, including,
without limitation, the right to vote any portion of the Domestic Loans;
(g) In no event shall any purchase by the Company under this
Section be deemed to be a payment, prepayment or any other type of payment
of any kind on the Domestic Loans;
(h) The Domestic Uncommitted Increase Amount shall be increased by
any amount of Loans repurchased and retired by the Company in accordance
with this Section;
(i) The Company shall pay all costs incurred by each affected
Lender in connection with any such purchase of Loans in accordance with
the terms of Section 5.05 and all other out-of-pocket expenses of the
Administrative Agent and the Domestic Lenders incurred in connection with
any such purchase;
(j) The Company may only purchase Domestic Loans outstanding under
the Domestic Facility and may not in any event purchase any Domestic
Commitment of any Domestic Lender, and each offer to purchase by the
Company shall be made pro rata to all Domestic Lenders based on their
respective Domestic Applicable Percentages and pursuant to the same terms
and conditions;
(k) After giving notice to the Administrative Agent of its intent
to purchase, such notice by the Company shall be irrevocable;
(l) Company shall give not less than 10 Business Day's prior
written irrevocable notice to the Administrative Agent (which shall
promptly notify the Domestic Lenders); provided that (i) any such request
for a purchase shall be in a minimum purchase amount of $20,000,000 and
(ii) the Company may make a maximum of ten such requests over the term of
this Agreement. Such notice shall constitute Company's irrevocable and
unconditional obligation to purchase Domestic Loans on the terms and
conditions specified in such notice. At the time of sending such notice,
the Company (in consultation with the Administrative Agent) shall specify
the time period within which each Domestic Lender is requested to respond
(which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Domestic Lenders). Each Domestic Lender
shall notify the Administrative Agent within such time period whether
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or not it agrees to sell the specified portion or any other portion of its
Domestic Loan and, if so, whether by an amount equal to, greater than, or
less than its Domestic Applicable Percentage of such requested sale. Any
Domestic Lender not responding within such time period shall be deemed to
have declined to sell any portion of its Domestic Loans. The
Administrative Agent shall notify the Company and each Domestic Lender of
the Domestic Lenders' responses to each request made hereunder;
(m) The Company shall deliver to the Administrative Agent a
certificate of the Company dated as of the Company Purchase Effective Date
(as defined below) (in sufficient copies for each Domestic Lender) signed
by a Responsible Officer of the Company:
(i) certifying and attaching the resolutions adopted by the
Company approving or consenting to such purchase, and
(ii) certifying that, before and after giving effect to such
purchase,
(A) no Default exists,
(B) no circumstance, event or condition exists which
could reasonably be expected to cause a Material Adverse
Effect, and
(C) there is no material nonpublic information
regarding the Company at the time of the purchase which has
not been disclosed to the Administrative Agent and the
Domestic Lenders (unless a Domestic Lender does not expressly
agree to maintain the disclosed information confidential); and
(n) The Administrative Agent and the Company shall determine the
effective date (the "Company Purchase Effective Date") of the sale, and
the Administrative Agent will reallocate the Domestic Loans based on those
Domestic Lenders selling portions of their Domestic Loans. The
Administrative Agent shall promptly notify the Company and all Domestic
Lenders of the final allocation on the Company Purchase Effective Date.
Each Lender hereby authorizes the Administrative Agent to reallocate the
Domestic Applicable Percentages, L/C Obligations and other related
provisions to give effect to any non pro-rata purchase of Domestic Loans
by the Company under this Section.
ARTICLE III.
THE OFFSHORE FACILITY
3.01 OFFSHORE LOANS.
(a) Availability of Offshore Loans. Subject to the terms and
conditions set forth herein, each Offshore Lender severally agrees to make
loans (each such loan, including UK Offshore Loans and Hybrid Offshore
Loans, an "Offshore Loan") to the Borrowers, in Dollars or in one or more
Alternative Currencies from time to time, on any
65
Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Offshore Lender's
Offshore Commitment; provided, however, that after giving effect to any UK
Offshore Borrowing and Hybrid Offshore Borrowing and the use of proceeds
thereof,
(i) the Dollar Equivalent of the Total Outstandings shall
not exceed the Aggregate Total Commitments,
(ii) the Dollar Equivalent of the aggregate Outstanding
Amount of the Offshore Loans of any Offshore Lender shall not exceed
such Offshore Lender's Offshore Commitment; and
(iii) the Dollar Equivalent of the aggregate Outstanding
Amount of all Offshore Loans shall not exceed the Aggregate Offshore
Commitment.
Within the limits of each Offshore Lender's Offshore Commitment, and
subject to the other terms and conditions hereof, the Borrowers may borrow
under this Article III, prepay and reborrow under this Article III. UK
Offshore Loans may only be Eurocurrency Rate Loans and may only be
borrowed by Offshore Borrowers under Section 3.01.
(b) Borrowing of UK Offshore Loans by Offshore Borrowers.
(i) Each UK Offshore Borrowing and each continuation of UK
Offshore Loans shall be made upon the Offshore Borrowers' Agent's
irrevocable notice to the Offshore Sub-Administrative Agent in the
form of a UK Offshore Loan Notice. Each such notice must be received
by the Offshore Sub-Administrative Agent not later than 10:00 a.m.
(A) one Business Day prior to the requested date of any UK Offshore
Borrowing of, or continuation of, UK Offshore Loans denominated in
Sterling, or (B) three Business Days (or five Business Days in the
case of a Special Notice Currency) prior to the requested date of
any UK Offshore Borrowing of, or continuation of, UK Offshore Loans
denominated in other Alternative Currencies; provided that,
notwithstanding the foregoing, the Offshore Borrowers' Agent may
give one Business Day prior notice to the requested date of any UK
Offshore Borrowing of, or continuation of, UK Offshore Loans
denominated in Euro, but the Eurocurrency Rate of any such UK
Offshore Loan shall be determined by the Offshore Sub-Administrative
Agent using subsection (b) of the definition of EURIBOR in this
Agreement. The UK Offshore Loan Notice must be appropriately
completed and signed by a Responsible Officer of the Offshore
Borrowers' Agent. Each UK Offshore Borrowing of, or continuation of
UK Offshore Loans shall be in integral amounts of 1,000,000 with the
minimum at least the Dollar Equivalent of $5,000,000.
(ii) Each UK Offshore Loan Notice shall specify (A) the
Offshore Borrower on whose behalf the request is being made, (B)
whether such Offshore Borrower is requesting a UK Offshore Borrowing
or a continuation of UK
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Offshore Loans, (C) the requested date of the UK Offshore Borrowing,
or continuation, as the case may be (which shall be a Business Day),
(D) the principal amount of UK Offshore Loans to be borrowed or
continued, (E) the duration of the Interest Period with respect
thereto and (F) the currency of the UK Offshore Loans to be
borrowed. If the Offshore Borrowers' Agent fails to specify a
currency in a UK Offshore Loan Notice requesting a UK Offshore
Borrowing, then the UK Offshore Loans so requested shall be made in
Sterling.
(iii) If the Offshore Borrowers' Agent fails to give a timely
notice requesting a continuation, then the applicable UK Offshore
Loans shall be due and payable at the end of their respective
Interest Periods and be repaid by the applicable Borrowers. If the
Offshore Borrowers' Agent requests a UK Offshore Borrowing of or
continuation of UK Offshore Loans in any such UK Offshore Loan
Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month. No UK Offshore
Loan may be converted into or continued as a UK Offshore Loan
denominated in a different currency, but instead must be prepaid in
the original currency of such UK Offshore Loan and reborrowed in the
other currency.
(iv) Following receipt of a UK Offshore Loan Notice, the
Offshore Sub-Administrative Agent shall promptly notify each
Offshore Lender of the amount (and currency) of its Offshore
Applicable Percentage of the applicable UK Offshore Loans. Each
Offshore Lender shall make the amount of its UK Offshore Loan
available to the Offshore Sub-Administrative Agent in Same Day Funds
at the Offshore Sub-Administrative Agent's Office for the applicable
currency. Upon satisfaction of the applicable conditions set forth
in Section 6.02 (and, if such UK Offshore Borrowing is the initial
Credit Extension, Section 6.01), the Offshore Sub-Administrative
Agent shall make all funds so received available to the applicable
Offshore Borrower in like funds as received by the Offshore
Sub-Administrative Agent either by (A) crediting the account of the
applicable Offshore Borrower on the books of Bank of America, London
with the amount of such funds or (B) wire transfer of such funds, in
each case in accordance with instructions provided to (and
reasonably acceptable to) the Offshore Sub-Administrative Agent by
the Offshore Borrowers' Agent.
(v) The Offshore Sub-Administrative Agent shall promptly
notify the Administrative Agent, the Offshore Borrowers' Agent and
the Offshore Lenders of the interest rate applicable to any Interest
Period for UK Offshore Loans upon determination of such interest
rate.
(c) After giving effect to all UK Offshore Borrowings and all
continuations of UK Offshore Loans, there shall not be more than 15
Interest Periods in effect with respect to all Offshore Loans.
3.02 PREPAYMENTS OF UK OFFSHORE LOANS. Borrowers may, upon notice from
the Offshore Borrowers' Agent to the Offshore Sub-Administrative Agent, at any
time or from time
67
to time voluntarily prepay UK Offshore Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Offshore
Sub-Administrative Agent not later than 11:00 a.m. (A) four Business Days prior
to any date of prepayment of UK Offshore Loans denominated in Sterling, Dollars
or Euro and (B) five Business Days (or ten, in the case of prepayment of Loans
denominated in Special Notice Currencies) prior to any date of prepayment of UK
Offshore Loans denominated in other Alternative Currencies; (ii) any prepayment
of UK Offshore Loans denominated in Dollars, Euro or Sterling shall be in a
principal amount of the Dollar Equivalent of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of UK Offshore Loans
denominated in other Alternative Currencies shall be in a minimum principal
amount of the Dollar Equivalent of $5,000,000 or a whole multiple of the Dollar
Equivalent of $1,000,000 in excess thereof; or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment and the Interest Period(s) of such UK
Offshore Loans. The Offshore Sub-Administrative Agent will promptly notify each
Offshore Lender of its receipt of each such notice, and of the amount of such
Offshore Lender's Offshore Applicable Percentage of such prepayment. If such
notice is given by the Offshore Borrowers' Agent, the Borrowers shall make such
prepayment, and the payment amount specified in such notice shall be due and
payable, on the date specified therein. Any prepayment of a UK Offshore Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 5.05. Each such
prepayment shall be applied to the UK Offshore Loans of the Offshore Lenders in
accordance with their respective Offshore Applicable Percentages.
3.03 TERMINATION OR REDUCTION OF OFFSHORE COMMITMENTS. The Company may,
upon notice to both the Administrative Agent and the Offshore Sub-Administrative
Agent, terminate the Aggregate Offshore Commitments, or from time to time
permanently reduce the Aggregate Offshore Commitments; provided that (i) any
such notice shall be received by the Administrative Agent and the Offshore
Sub-Administrative Agent not later than 11:00 a.m. ten Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be
in an aggregate amount of the Dollar Equivalent of $10,000,000 or any whole
multiple of the Dollar Equivalent of $1,000,000 in excess thereof and (iii) the
Company shall not terminate or reduce the Aggregate Offshore Commitments if,
after giving effect thereto and to any concurrent prepayments hereunder, the
Offshore Total Outstandings would exceed the Aggregate Offshore Commitments. The
Offshore Sub-Administrative Agent will promptly notify the Offshore Lenders of
any such notice of termination or reduction of the Aggregate Offshore
Commitments. Any reduction of the Aggregate Offshore Commitments shall be
applied to the Offshore Commitment of each Offshore Lender according to its
Offshore Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Offshore Commitments shall be paid on the effective
date of such termination.
3.04 REPAYMENT OF OFFSHORE LOANS.
(a) The Borrowers shall repay each UK Offshore Loan on the last
day of the Interest Period in respect thereof, but any such repayment may
be made with the proceeds of any continuation of such UK Offshore Loan
borrowed by such Offshore Borrower in accordance with the terms of Section
3.01(b).
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(b) The Borrowers shall repay the Offshore Lenders on the Maturity
Date the aggregate principal amount of the Offshore Loans made to all of
the Borrowers outstanding on such date, together with all other
outstanding Obligations.
3.05 INTEREST ON OFFSHORE LOANS.
(a) Subject to the provisions of subsection (d) below and Section
4.01, each UK Offshore Loan and each Hybrid Offshore Loan that is a
Eurocurrency Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
lesser of (i) the Highest Lawful Rate and (ii) the sum of the Eurocurrency
Rate for such Interest Period plus the Applicable Rate plus (in the case
of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the
Mandatory Cost.
(b) Each Base Rate Hybrid Offshore Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the lesser of (i) the Highest Lawful Rate and
(ii) the Base Rate plus the Applicable Rate.
(c) Interest on each Offshore Loan shall be due and payable in
arrears on each Interest Payment Date applicable thereto and at such other
times as may be specified herein. Interest hereunder shall be due and
payable in accordance with the terms hereof before and after judgment, and
before and after the commencement of any proceeding under any Debtor
Relief Law.
(d) In addition to the foregoing and the other provisions of this
Agreement, if a Market Disruption Event occurs in relation to a UK
Offshore Loan for any Interest Period, then the rate of interest on each
Offshore Lender's share of that UK Offshore Loan for the Interest Period
shall be the rate per annum which is the lesser of the Highest Lawful Rate
and the sum of:
(i) the Applicable Rate;
(ii) the rate notified to the Offshore Sub-Administrative
Agent by that Offshore Lender as soon as practicable and in any
event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum
the cost to that Offshore Lender of funding its participation in
that UK Offshore Loan from whatever source it may reasonably select;
and
(iii) the Mandatory Cost, if any, applicable to that Offshore
Lender's participation in the UK Offshore Loan.
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(e) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or only
one of the Reference Banks supplies a rate to the Offshore
Sub-Administrative Agent to determine LIBOR or, if applicable,
EURIBOR, for the relevant currency and Interest Period; or
(ii) before close of business in London on the Quotation Day
for the relevant Interest Period, the Offshore Sub-Administrative
Agent receives notifications from an Offshore Lender or Offshore
Lenders (whose participations in a UK Offshore Loan exceed 50% of
that UK Offshore Loan) that the cost to it of obtaining matching
deposits in the Relevant Interbank Market would be in excess of
LIBOR;
provided that, if there exists a Market Disruption Event, the applicable
Offshore Borrower may withdraw its UK Offshore Loan Notice after payment
of all costs and expenses incurred by the UK Offshore Lenders through such
date of withdrawal in accordance with the terms of Section 5.05.
3.06 HYBRID OFFSHORE LOANS. At any time that the Domestic Total
Outstandings are equal to the Aggregate Domestic Commitment, and only if, and so
long as, the Offshore Borrowers are entitled to borrow under Section 3.01(a) and
the other terms and provisions of this Agreement, the Company may borrow
Offshore Loans under the Offshore Facility in the United States from Offshore
Lenders lending from their United States offices, and may request conversions
to, and continuations of, Offshore Loans under the Offshore Facility in the
United States from Offshore Lenders lending from their United States offices, in
each case through the Administrative Agent (the "Hybrid Offshore Loans"), upon
the Company's irrevocable notice to the Administrative Agent in the form of a
Company Hybrid Offshore Loan Notice. Hybrid Offshore Loans may be Base Rate
Loans or Eurocurrency Rate Loans, as further provided herein.
(a) BORROWING OF HYBRID OFFSHORE LOANS BY THE COMPANY IN THE
UNITED STATES. Each Hybrid Offshore Borrowing, each conversion of Hybrid
Offshore Loans from one Type to the other, and each continuation of Hybrid
Offshore Loans shall be made upon the Company's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each telephonic
notice by the Company pursuant to this Section 3.06(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Company
Hybrid Offshore Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company.
(i) Each such Company Hybrid Offshore Loan Notice must be
received by the Administrative Agent not later than 9:00 a.m. (A) on
the requested Business Day of any Hybrid Offshore Borrowing of, or
continuation of, Hybrid Offshore Loans denominated in Dollars but
requested by the Company to be a Base Rate Hybrid Offshore Loan, (B)
three Business Days prior to the
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requested date of any Hybrid Offshore Borrowing of, or continuation
of Hybrid Offshore Loans denominated in Dollars but requested by the
Company to be made as, or continued as, a Eurocurrency Rate Loan or
(C) four Business Days (or five Business Days in the case of a
Special Notice Currency) prior to the requested date of any Hybrid
Offshore Borrowing of, or continuation of, Hybrid Offshore Loans
denominated in Alternative Currencies; provided that,
notwithstanding anything in this Agreement to the contrary, for
purposes of this Section 3.06 with respect to the use of the term
"Business Day", the requirements of both subsections (a) and (b) of
the definition of "Business Days" in this Agreement must be
satisfied. Each Hybrid Offshore Borrowing of, conversion to, or
continuation of, Hybrid Offshore Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Hybrid Offshore Borrowing of, or conversion to, Base
Rate Hybrid Offshore Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof.
(ii) Each Company Hybrid Offshore Loan Notice (whether
telephonic or written) shall specify (A) whether the Company is
requesting a Borrowing, a conversion of Hybrid Offshore Loans from
one Type to the other, or a continuation of Hybrid Offshore Loans
that are Eurocurrency Rate Loans, (B) the requested date of the
Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (C) the principal amount of Hybrid
Offshore Loans to be borrowed, converted or continued, (D) the Type
of Hybrid Offshore Loans to be borrowed or to which existing Hybrid
Offshore Loans are to be converted, (E) if applicable, the duration
of the Interest Period with respect thereto and (F) the currency of
the Hybrid Offshore Loans to be borrowed. If the Company fails to
specify a currency in a Company Hybrid Offshore Loan Notice
requesting a Borrowing, then the Hybrid Offshore Loans so requested
shall be made in Dollars. If the Company fails to specify a Type of
Hybrid Offshore Loan in a Company Hybrid Offshore Loan Notice or if
the Company fails to give a timely notice requesting a conversion or
continuation, then the applicable Hybrid Offshore Loans shall be
made as, or converted to, Base Rate Hybrid Offshore Loans; provided,
however, that in the case of a failure to timely request a
continuation of Hybrid Offshore Loans denominated in an Alternative
Currency, such Hybrid Offshore Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest
Period of one month. Any automatic conversion to Base Rate Hybrid
Offshore Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurocurrency
Rate Loans. If the Company requests a Hybrid Offshore Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any
such Company Hybrid Offshore Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest
Period of one month.
(iii) No Hybrid Offshore Loan may be converted into or
continued as a Hybrid Offshore Loan denominated in a different
currency, but instead must be
71
prepaid in the original currency of such Hybrid Offshore Loan and
reborrowed in the other currency. After giving effect to all
Borrowings under the Hybrid Offshore Loans, all conversions of
Hybrid Offshore Loans from one Type to the other, and all
continuations of Hybrid Offshore Loans as the same Type, there shall
not be more than 15 Interest Periods in effect with respect to
Offshore Loans, including Hybrid Offshore Loans.
(iv) Following receipt of a Company Hybrid Offshore Loan
Notice, the Administrative Agent shall promptly notify the Offshore
Sub-Administrative Agent, and shall promptly notify each Offshore
Lender of the amount (and currency) of its Offshore Applicable
Percentage of the applicable Hybrid Offshore Loans, and if no timely
notice of a conversion or continuation is provided by the Company,
the Administrative Agent shall notify the Offshore
Sub-Administrative Agent and each Offshore Lender of the details of
any automatic conversion to Base Rate Hybrid Offshore Loans or
continuation of Hybrid Offshore Loans denominated in a currency
other than Dollars, in each case as described in the preceding
subsection. In the case of a Hybrid Offshore Borrowing, each
Offshore Lender shall make the amount of its Hybrid Offshore Loan
available to the Administrative Agent in Same Day Funds at the
Administrative Agent's Office for the applicable currency not later
than 1:00 p.m., in the case of any Hybrid Offshore Loan denominated
in Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Hybrid Offshore Loan in an
Alternative Currency, in each case on the Business Day specified in
the applicable Company Hybrid Offshore Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 6.02
(and, if such Hybrid Offshore Borrowing is the initial Credit
Extension, Section 6.01), the Administrative Agent shall make all
funds so received available to the Company in like funds as received
by the Administrative Agent either by (A) crediting the account of
the Company on the books of Bank of America with the amount of such
funds or (B) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Company.
(v) Except as otherwise provided herein, any Hybrid Offshore
Loan that is a Eurocurrency Rate Loan may be continued or converted
only on the last day of an Interest Period for such Hybrid Offshore
Loan. During the existence of an Event of Default, no Hybrid
Offshore Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans (whether in Dollars or any Alternative
Currency) without the consent of the Required Offshore Lenders, and
the Required Offshore Lenders may demand that any or all of the then
outstanding Hybrid Offshore Loans denominated in an Alternative
Currency be redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest
Period with respect thereto. The Administrative Agent shall promptly
notify the Company and the Offshore Lenders of the interest rate
applicable to any Interest Period for Hybrid Offshore
72
Loans that are Eurocurrency Rate Loans upon determination of such
interest rate. At any time that Base Rate Hybrid Offshore Loans are
outstanding, the Administrative Agent shall notify the Company and
the Offshore Lenders of any change in Bank of America's prime rate
used in determining the Base Rate promptly following the public
announcement of such change.
(b) PREPAYMENT OF HYBRID OFFSHORE LOANS. The Company may, upon
notice from the Company to the Administrative Agent, at any time or from
time to time voluntarily prepay Hybrid Offshore Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received
by the Administrative Agent not later than 9:00 a.m. (A) three Business
Days prior to any date of prepayment of Hybrid Offshore Loans that are
Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or
five, in the case of prepayment of Hybrid Offshore Loans denominated in
Special Notice Currencies) prior to any date of prepayment of Hybrid
Offshore Loans that are Eurocurrency Rate Loans denominated in Alternative
Currencies, and (C) on the date of prepayment of Base Rate Hybrid Offshore
Loans; (ii) any prepayment of Hybrid Offshore Loans that are Eurocurrency
Rate Loans denominated in Dollars shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any
prepayment of Hybrid Offshore Loans that are Eurocurrency Rate Loans
denominated in Alternative Currencies shall be in a minimum principal
amount of the Dollar Equivalent of $5,000,000 or a whole multiple of the
Dollar Equivalent of $1,000,000 in excess thereof; and (iv) any prepayment
of Base Rate Hybrid Offshore Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each
case, if less, the entire principal amount thereof then outstanding. Each
such notice shall specify the date and amount of such prepayment and the
Type(s) of Hybrid Offshore Loans to be prepaid and, if Eurocurrency Loans
are to be prepaid, the Interest Period(s) of such Hybrid Offshore Loans.
The Administrative Agent will promptly notify each Offshore Lender and the
Offshore Sub-Administrative Agent of its receipt of each such notice, and
of the amount of such Offshore Lender's Offshore Applicable Percentage of
such prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a
Hybrid Offshore Loan that is a Eurocurrency Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 5.05. Each such prepayment
shall be applied to the Hybrid Offshore Loans of the Offshore Lenders in
accordance with their respective Offshore Applicable Percentages.
(c) OFFSHORE LENDERS' AGREEMENT WITH RESPECT TO HYBRID OFFSHORE
LOANS. Each Offshore Lender agrees that it will fund its Hybrid Offshore
Loans to the Company under this Section 3.06 from an office in the United
States in the applicable requested currency under the terms of this
Section 3.06.
(d) EXCESS OF AGGREGATE OFFSHORE COMMITMENTS. If the
Administrative Agent or the Offshore Sub-Administrative Agent notifies the
Company or the Offshore Borrowers' Agent at any time that the Offshore
Total Outstandings at such time exceed
73
the Aggregate Offshore Commitments then in effect, then, within five
Business Days after receipt of such notice, the Borrowers shall prepay
Offshore Loans in an aggregate amount sufficient to reduce such Offshore
Total Outstandings as of such date of payment to an amount not to exceed
the Aggregate Offshore Commitments then in effect.
3.07 ADDITIONAL OFFSHORE BORROWERS. The Company may, upon satisfaction of
each of the following terms and conditions, designate additional wholly-owned
Subsidiaries of the Company as Offshore Borrowers under the Offshore Facility:
(a) The Company shall have given the Administrative Agent and the
Offshore Sub-Administrative Agent not less than 10 Business Days prior
written notice of its intention to designate a wholly-owned Subsidiary of
the Company as an Offshore Borrower (a "New Offshore Borrower"), and the
Administrative Agent and the Offshore Sub-Administrative Agent shall have
given their prior written consent thereto (such consent not to be
unreasonably withheld).
(b) There shall exist no Default both before such designation and
immediately after giving effect to any such New Offshore Borrower.
(c) The New Offshore Borrower shall have executed a joinder
agreement in form and substance reasonably satisfactory to the
Administrative Agent and its counsel, assuming the obligations of the
Borrowers under this Agreement and the other Loan Documents and agreeing
to be bound by the terms of this Agreement and the other Loan Documents.
(d) The New Offshore Borrower shall have executed Notes for each
Offshore Lender requesting a Note from such New Offshore Borrower.
(e) The New Offshore Borrower shall have provided:
(i) resolutions, certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of such New Offshore Borrower evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement
(ii) documents and certifications evidencing that such New
Offshore Borrower is duly organized or formed, and that such New
Offshore Borrower is validly existing, in good standing and
qualified to engage in business in each jurisdiction where it is
organized, and in each other jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect;
(iii) a favorable opinion of counsel to such New Offshore
Borrower, addressed to the Administrative Agent, the Offshore
Sub-Administrative Agent
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and each Lender, in each case substantially similar in form and
substance as those opinions delivered on the Closing Date, and to
such other matters concerning the Borrowers and the Loan Documents
as the Administrative Agent, the Offshore Sub-Administrative Agent
or the Required Totals Lenders may reasonably request, and
(iv) a certificate of a Responsible Officer of such New
Offshore Borrower either (A) attaching copies of all consents,
licenses and approvals required in connection with the execution,
delivery and performance by such New Offshore Borrower and the
validity against such New Offshore Borrower of the Loan Documents to
which it is a party, and such consents, licenses and approvals shall
be in full force and effect, or (B) stating that no such consents,
licenses or approvals are so required.
(f) The Company shall have provided an acknowledgment and consent
with respect to its Company Guaranty, acknowledging that the New Offshore
Borrower is an Offshore Borrower under the Offshore Facility and that the
Company Guaranty effectively guarantees the obligations of the New
Offshore Borrower under this Agreement and the Loan Documents, such
acknowledgment and consent to be in form and substance acceptable to the
Administrative Agent, the Offshore Sub-Administrative Agent, their counsel
and the Required Total Lenders.
(g) The Company, the Offshore Borrowers' Agent and the New
Offshore Borrower shall have provided such other documents and instruments
as reasonably requested by the Administrative Agent and the Offshore
Sub-Administrative Agent to effectuate the intent of this Section 3.07.
ARTICLE IV.
THE DOMESTIC FACILITY AND OFFSHORE FACILITY, GENERALLY
4.01 INTEREST AFTER DEFAULT.
(a) If any amount of principal of any Loan is not paid when due,
whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the lesser of (x) the Highest Lawful Rate and (y) the
Default Rate, to the fullest extent permitted by Applicable Laws.
(b) If any amount (other than principal of any Loan) payable by
any Borrower under any Loan Document is not paid when due, whether at
stated maturity, by acceleration or otherwise, then upon the request of
the Required Total Lenders, such amount shall thereafter bear interest at
a fluctuating interest rate per annum at all times equal to the lesser of
(x) the Highest Lawful Rate and (y) the Default Rate, to the fullest
extent permitted by Applicable Laws.
(c) Upon the request of the Required Total Lenders, while any
Event of Default exists, the Borrowers shall pay interest on the principal
amount of all outstanding
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Obligations hereunder at a fluctuating interest rate per annum at all
times equal to the lesser of (x) the Highest Lawful Rate and (y) the
Default Rate, to the fullest extent permitted by Applicable Laws.
(d) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
4.02 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.04:
(a) Facility Fee. Subject to Applicable Laws, the Company shall
pay to the Administrative Agent for the account of each Lender in
accordance with its Total Applicable Percentage, a facility fee in Dollars
in an aggregate amount for all Lenders equal to the Applicable Rate times
the actual daily amount of the Aggregate Total Commitments (or, if the
Aggregate Total Commitments have terminated, on the Total Outstandings),
regardless of usage. The facility fee shall accrue at all times during the
Availability Period (and thereafter so long as any Committed Loans, Swing
Line Loans, Bid Loans, Offshore Loans or L/C Obligations remain
outstanding), including at any time during which one or more of the
conditions in Article VI is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after
the Closing Date, and on the Maturity Date (and, if applicable, thereafter
on demand). The facility fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such Applicable
Rate was in effect.
(b) Other Fees.
(i) Subject to Applicable Laws, the Company shall pay to the
Arrangers and the Administrative Agent for their own respective
accounts, in Dollars, fees in the amounts and at the times specified
in the Fee Letters. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
(ii) Subject to Applicable Laws, the Company shall pay to the
Lenders, in Dollars, such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified. Such
fees shall be fully earned when paid and shall not be refundable for
any reason whatsoever.
4.03 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All computations of interest for UK Offshore Loans
denominated in Sterling shall be made on the basis of a year of 365 days and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees
76
or interest, as applicable, being paid than if computed on the basis of a
365-day year), or, in the case of interest in respect of Loans denominated in
Alternative Currencies as to which market practice differs from the foregoing,
in accordance with such market practice. Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 4.06(a), bear interest for one day. Each determination by the
Administrative Agent or Offshore Sub-Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.
4.04 EXCESS OF COMMITMENTS. If the Administrative Agent notifies the
Company at any time that the Total Outstandings at such time exceed the
Aggregate Total Commitments then in effect, then, within (a) five Business Days
after receipt of such notice, if such excess is due to a fluctuation in an
Alternative Currency, or (b) two Business Days after receipt of such notice, if
such excess is due to a borrowing, commitment reduction or other circumstance
other than as set forth in subsection (a) preceding, the Borrowers shall prepay
Loans and/or the Company shall Cash Collateralize the L/C Obligations in an
aggregate amount sufficient to reduce (or Cash Collateralize) such Total
Outstandings as of such date of payment to an amount not to exceed the Aggregate
Total Commitments then in effect; provided, however, that, subject to the
provisions of Section 2.04(g)(ii), the Company shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 4.04 unless after the
prepayment in full of the Loans the Total Outstandings exceed the Aggregate
Total Commitments then in effect.
4.05 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent or the Offshore Sub-Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent, the Offshore Sub-Administrative Agent and each
Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrowers and the interest
and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the
Administrative Agent or the Offshore Sub-Administrative Agent in respect
of such matters, the accounts and records of the Administrative Agent
and/or the Offshore Sub-Administrative Agent shall control in the absence
of manifest error. Upon the request of any Lender to a Borrower made
through the Administrative Agent or the Offshore Sub-Administrative Agent,
such Borrower shall execute and deliver to such Lender (through the
Administrative Agent or the Offshore Sub-Administrative Agent) the
applicable Note, which shall evidence such Lender's Loans to such Borrower
in addition to such accounts or records. Each Lender may attach schedules
to a Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.
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(b) In addition to the accounts and records referred to in
subsection (a), each Domestic Lender and the Administrative Agent shall
maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Domestic Lender of
participations in Letters of Credit and Swing Line Loans. In the event of
any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Domestic Lender
in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error.
4.06 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrowers shall be
made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein and
except with respect to principal of and interest on Loans denominated in
an Alternative Currency, all payments by the Borrowers hereunder shall be
made to the Administrative Agent or the Offshore Sub-Administrative Agent,
as applicable, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent's Office or
Offshore Sub-Administrative Agent's Office, as appropriate, in Dollars and
in Same Day Funds (not later than 2:00 p.m., with respect to Domestic
Loans and Hybrid Offshore Loans) on the date specified herein. Except as
otherwise expressly provided herein, all payments by the Borrowers
hereunder with respect to principal and interest on Loans denominated in
an Alternative Currency shall be made to the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office or the Offshore Sub-Administrative Agent's
Office, as appropriate, in such Alternative Currency and in Same Day Funds
not later than the Applicable Time specified by the Administrative Agent
or the Offshore Sub-Administrative Agent on the dates specified herein.
Without limiting the generality of the foregoing, the Administrative Agent
may require that any payments due under this Agreement be made in the
United States. If, for any reason, any Borrower is prohibited by any Law
from making any required payment hereunder in an Alternative Currency,
such Borrower shall make such payment in Dollars in the Dollar Equivalent
of the Alternative Currency payment amount. The Administrative Agent and
the Offshore Sub-Administrative Agent will promptly distribute to each
Lender, as appropriate, its Domestic Applicable Percentage, Offshore
Applicable Percentage or Total Applicable Percentage, as applicable (or
other applicable share as provided herein), of such payment in like funds
as received by wire transfer to such Lender's Lending Office. With respect
to Domestic Loans and Hybrid Offshore Loans, all payments received by the
Administrative Agent 's Office (i) after 2:00 p.m., in the case of
payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent 's Office in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding
Business Day for interest and fee computation purposes and any applicable
interest or fee shall continue to accrue. With respect to UK Offshore
Loans, all payments received by the Offshore Sub-Administrative Agent's
Office (i) after 2:00 p.m., in the case of payments in Sterling, Dollars
and Euro, or (ii) after the Applicable Time specified by the Offshore
Sub-Administrative Agent's Office in the case
78
of payments in another Alternative Currency, shall in each case be deemed
received on the next succeeding Business Day for interest and fee
computation purposes and any applicable interest or fee shall continue to
accrue. If any payment to be made by any Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent
and the Offshore Sub-Administrative Agent. Unless the Administrative
Agent shall have received notice from a Domestic Lender prior to the
proposed (A) time, with respect to Base Rate Loans and (B) date,
with respect to Eurocurrency Rate Loans, of any Committed Borrowing
that such Domestic Lender will not make available to the
Administrative Agent such Domestic Lender's share of such Committed
Borrowing, the Administrative Agent may assume that such Domestic
Lender has made such share available on such date in accordance with
Section 2.02 and may, in reliance upon such assumption, make
available to the Company a corresponding amount. Unless the Offshore
Sub-Administrative Agent shall have received sufficient notice from
an Offshore Lender prior to the proposed date of any UK Offshore
Borrowing that such Offshore Lender will not make available to the
Offshore Sub-Administrative Agent such Offshore Lender's share of
such UK Offshore Borrowing, the Offshore Sub-Administrative Agent
may assume that such Offshore Lender has made such share available
on such date in accordance with Section 3.01 and may, in reliance
upon such assumption, make available to the applicable Borrower a
corresponding amount. Unless the Administrative Agent shall have
received sufficient notice from an Offshore Lender prior to the
proposed date of any Hybrid Offshore Borrowing that such Offshore
Lender will not make available to the Administrative Agent such
Offshore Lender's share of such Hybrid Offshore Borrowing, the
Administrative Agent may assume that such Offshore Lender has made
such share available on such date in accordance with Section 3.06
and may, in reliance upon such assumption, make available to the
Company a corresponding amount. In any of such events, if a Lender
has not in fact made its share of the applicable Borrowing available
to the applicable Agent, then the applicable Lender and the Company
severally agree to pay to the Administrative Agent (on behalf of the
Offshore Sub-Administrative Agent, if applicable) forthwith on
demand such corresponding amount in Same Day Funds with interest
thereon, for each day from and including the date such amount is
made available to such Borrower to but excluding the date of payment
to the applicable Agent, at (A) in the case of a payment to be made
by such Lender, the Overnight Rate and (B) in the case of a payment
to be made by the Company, the interest rate applicable to Base Rate
Loans. If the Company and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Company the amount
of such interest paid by the Company for such period. If such Lender
pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute
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such Lender's Loan included in such Borrowing. Any payment by the
Company shall be without prejudice to any claim the Company may have
against a Lender that shall have failed to make such payment to the
Administrative Agent or the Offshore Sub-Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative
Agent or the Offshore Sub-Administrative Agent. Unless the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, shall have received sufficient notice from a Borrower
prior to the date on which any payment is due to the Administrative
Agent or the Offshore Sub-Administrative Agent, as applicable, for
the account of the Lenders or the L/C Issuers hereunder that such
Borrower will not make such payment, the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, may assume that
such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to
the applicable Lenders or the L/C Issuers, as the case may be, the
amount due. In such event, if such Borrower has not in fact made
such payment, then each of the applicable Lenders or the L/C
Issuers, as the case may be, severally agrees to repay to the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, forthwith on demand the amount so distributed to such
Lender or the L/C Issuers, in Same Day Funds with interest thereon,
for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative
Agent or the Offshore Sub-Administrative Agent, as applicable, at
the Overnight Rate.
A notice of the Administrative Agent or the Offshore
Sub-Administrative Agent, as applicable, to any Lender or Borrower
with respect to any amount owing under this subsection (b) shall be
conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes
available to the Administrative Agent or the Offshore Sub-Administrative
Agent, as applicable, funds for any Loan to be made by such Lender to any
Borrower as provided in the foregoing provisions of this Article II, and
such funds are not made available to such Borrower by the Administrative
Agent or the Offshore Sub-Administrative Agent, as applicable, because the
conditions to the applicable Credit Extension set forth in Article VI are
not satisfied or waived in accordance with the terms hereof, the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, shall promptly return such funds (in like funds as received
from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and
Swing Line Loans and to make payments pursuant to Section 12.04(c) are
several and not joint. The failure of any Lender to make any Loan, to fund
any such participation or to make any payment under Section 12.04(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 12.04(c).
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(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner
or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
4.07 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Committed Loans or Offshore Loans
made by it, or the participations in L/C Obligations or in Swing Line Loans held
by it resulting in such Lender's receiving payment of a proportion of the
aggregate amount of such Committed Loans, Offshore Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent or the Offshore Sub-Administrative Agent, as applicable, of
such fact, and (b)(i) if such Lender is a Domestic Lender, purchase (for cash at
face value) participations in the Committed Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Domestic Lenders, or make such
other adjustments as shall be equitable, and (ii) if such Lender is an Offshore
Lender, purchase (for cash at face value) participations in the Offshore Loans
of the other Offshore Lenders, or make such other adjustments as shall be
equitable, so that in each case of (i) and (ii) preceding, the benefit of all
such payments shall be shared by such Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:
(a) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(b) the provisions of this Section shall not be construed to apply
to (x) any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement, (y) any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in any
of its Loans or subparticipations in L/C Obligations or Swing Line Loans
to any assignee or participant, other than to the Company or any
Subsidiary thereof (as to which the provisions of this Section shall
apply) or (z) any payment obtained by a Domestic Lender as consideration
for the sale of all or any portion its Domestic Loans in accordance with
the terms of Section 2.11.
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under Applicable Law, that any Lender acquiring a
participation in an Obligation of such Borrower pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
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ARTICLE V.
TAXES, YIELD PROTECTION AND ILLEGALITY
5.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account
of any obligation of the respective Borrowers hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if the
applicable Borrower shall be required by Applicable Law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, the Offshore
Sub-Administrative Agent, any Lender or L/C Issuers, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with Applicable Law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, each Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with
Applicable Law.
(c) INDEMNIFICATION BY THE BORROWERS. THE RELEVANT BORROWER AND
THE COMPANY SHALL EACH INDEMNIFY THE ADMINISTRATIVE AGENT, THE OFFSHORE
SUB-ADMINISTRATIVE AGENT, EACH LENDER AND EACH OF THE L/C ISSUERS, WITHIN
30 DAYS AFTER DEMAND THEREFOR, FOR THE FULL AMOUNT OF ANY INDEMNIFIED
TAXES OR OTHER TAXES (INCLUDING INDEMNIFIED TAXES OR OTHER TAXES IMPOSED
OR ASSERTED ON OR ATTRIBUTABLE TO AMOUNTS PAYABLE UNDER THIS SECTION) PAID
BY THE ADMINISTRATIVE AGENT, THE OFFSHORE SUB-ADMINISTRATIVE AGENT, SUCH
LENDER OR ANY OF THE L/C ISSUERS, AS THE CASE MAY BE, AND ANY PENALTIES,
INTEREST AND REASONABLE EXPENSES ARISING THEREFROM OR WITH RESPECT
THERETO, WHETHER OR NOT SUCH INDEMNIFIED TAXES OR OTHER TAXES WERE
CORRECTLY OR LEGALLY IMPOSED OR ASSERTED BY THE RELEVANT GOVERNMENTAL
AUTHORITY. A CERTIFICATE AS TO THE AMOUNT OF SUCH PAYMENT OR LIABILITY
DELIVERED TO A BORROWER BY A LENDER OR ANY L/C ISSUER (WITH A COPY TO THE
ADMINISTRATIVE AGENT OR THE OFFSHORE SUB-ADMINISTRATIVE AGENT, AS
APPLICABLE), OR BY THE ADMINISTRATIVE AGENT OR THE OFFSHORE
SUB-ADMINISTRATIVE AGENT ON ITS OWN BEHALF OR ON BEHALF OF A LENDER OR ANY
L/C ISSUER, SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by any Borrower to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the
Offshore Sub-Administrative Agent, as applicable, the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable.
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(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which a Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Company or
the Offshore Borrowers' Agent, as applicable (with a copy to the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable), at the time or times prescribed by Applicable Law or
reasonably requested by the Company, the Offshore Borrowers' Agent or the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, such properly completed and executed documentation prescribed
by Applicable Law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender,
if requested by the Company, or the Offshore Borrowers' Agent, as
applicable, or the Administrative Agent or the Offshore Sub-Administrative
Agent, as applicable, shall deliver such other documentation prescribed by
Applicable Law or reasonably requested by the Company or the Offshore
Borrowers' Agent, as applicable or the Administrative Agent (or the
Offshore Sub-Administrative Agent), as will enable the Company or the
Offshore Borrowers' Agent, as applicable, or the Administrative Agent (or
the Offshore Sub-Administrative Agent) to determine whether or not such
Lender is subject to backup withholding or information reporting
requirements.
Without limiting the generality of the foregoing, in the event that a
Borrower is resident for tax purposes in the United States, any Foreign
Lender shall deliver to Company or the Offshore Borrowers' Agent, as
applicable, and the Administrative Agent (or the Offshore
Sub-Administrative Agent) (in such number of copies as shall be requested
by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Company or the Offshore Borrowers' Agent, as
applicable, or the Administrative Agent (or the Offshore
Sub-Administrative Agent), but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the
Code, (x) a certificate to the effect that such Foreign Lender is
not (A) a "bank" within the meaning of section 881(c)(3)(A) of the
Code, (B) a "10 percent shareholder" of the applicable Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in section 881(c)(3)(C)
of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by Applicable Law as a basis
for claiming exemption from or a reduction in United States Federal
withholding tax
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duly completed together with such supplementary documentation as may
be prescribed by Applicable Law to permit the Company or the
Offshore Borrowers' Agent, as applicable, to determine the
withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status
for U.S. withholding tax purposes, each Lender agrees promptly to deliver
to the Administrative Agent (or the Offshore Sub-Administrative Agent) or
the Company or the Offshore Borrowers' Agent, as applicable, as the
Administrative Agent (or the Offshore Sub-Administrative Agent) or the
Company, or the Offshore Borrowers' Agent, as applicable, shall reasonably
request, on or prior to the Closing Date, and in a timely fashion
thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such
Lender's entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrowers pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes
in such other jurisdiction. Each Lender shall promptly (i) notify the
Administrative Agent (or the Offshore Sub-Administrative Agent) of any
change in circumstances which would modify or render invalid any such
claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation
of its Lending Office) to avoid any requirement of Applicable Laws of any
such jurisdiction that any Borrower make any deduction or withholding for
taxes from amounts payable to such Lender. Additionally, each of the
Borrowers shall promptly deliver to the Administrative Agent (or the
Offshore Sub-Administrative Agent) or any Lender, as the Administrative
Agent (or the Offshore Sub-Administrative Agent) or such Lender shall
reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by such Borrower, as are required to be furnished by such Lender
or the Administrative Agent (or the Offshore Sub-Administrative Agent)
under such Laws in connection with any payment by the Administrative Agent
(or the Offshore Sub-Administrative Agent) or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect to
such jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, the
Offshore Sub-Administrative Agent, any Lender or any L/C Issuer
determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant
to this Section, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, the Offshore Sub-Administrative
Agent, such Lender or any L/C Issuer, as the
84
case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided
that each Borrower, upon the request of the Administrative Agent, the
Offshore Sub-Administrative Agent, such Lender or any L/C Issuer, agrees
to repay the amount paid over to such Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority)
to the Administrative Agent, the Offshore Sub-Administrative Agent, such
Lender or any L/C Issuer in the event the Administrative Agent, the
Offshore Sub-Administrative Agent, such Lender or any L/C Issuer is
required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, the
Offshore Sub-Administrative Agent, any Lender or any L/C Issuer to make
available its tax returns (or any other information relating to its taxes
that it deems confidential) to any Borrower or any other Person.
5.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or
any Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to the Company or the Offshore Borrowers' Agent, as
applicable, through the Administrative Agent or the Offshore Sub-Administrative
Agent, as applicable, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case
of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
Administrative Agent or the Offshore Sub-Administrative Agent, as applicable,
and the Company or the Offshore Borrowers' Agent, as applicable, that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the Borrowers shall, upon demand from such Lender (with a copy to
the Administrative Agent or the Offshore Sub-Administrative Agent), prepay or,
if applicable and such Loans are denominated in Dollars, convert all such
Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon
any such prepayment or conversion, the Borrowers shall also pay accrued interest
on the amount so prepaid or converted.
5.03 INABILITY TO DETERMINE RATES. If the Required Total Lenders
determine or Swing Line Lender determines that for any reason in connection with
any request for a Eurocurrency Rate Loan or a conversion to or continuation
thereof that (a) deposits (whether in Dollars or an Alternative Currency) are
not being offered to banks in the applicable offshore interbank market for such
currency for the applicable amount and Interest Period of such Eurocurrency Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative
Currency), or (c) the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately
85
and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate
Loan, the Administrative Agent will promptly so notify the Company and each
Domestic Lender, and the Offshore Sub-Administrative Agent will promptly notify
the Offshore Borrowers' Agent and each Offshore Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrative
Agent and the Offshore Sub-Administrative Agent (upon the instruction of the
Required Total Lenders or the Swing Line Lender, as applicable) revoke such
notice. Upon receipt of such notice, the Company or the Offshore Borrowers'
Agent, as applicable, may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in the affected
currency or currencies or, with respect to a Domestic Loan or Hybrid Offshore
Loan only, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans or a Base Rate Hybrid
Offshore Loan, respectively, in the amount specified therein.
5.04 INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except (A) any reserve
requirement contemplated by Section 5.04(e) and (B) the requirements
of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as
set forth below) or any L/C Issuer;
(ii) subject any Lender or any L/C Issuer to any tax of any
kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurocurrency
Loan made by it, or change the basis of taxation of payments to such
Lender or any L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 5.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such
Lender or any L/C Issuer);
(iii) result in the Mandatory Cost, as calculated hereunder,
not representing the cost to any Lender of complying with the
requirements of the Bank of England and/or the Financial Services
Authority or the European Central Bank in relation to its making,
funding or maintaining Eurocurrency Rate Loans; or
(iv) impose on any Lender or any L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurocurrency Loans made by such Lender or any Letter of
Credit or participation therein;
86
and the result of any of the foregoing shall be to increase the cost
to such Lender of making or maintaining any Eurocurrency Loan (or of
maintaining its obligation to make any such Loan), or to increase
the cost to such Lender or any L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or
to reduce the amount of any sum received or receivable by such
Lender or any L/C Issuer hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender or any L/C
Issuer, the Company or the applicable Borrower will pay to such
Lender or any L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or such L/C Issuer, as the
case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer
determines that any Change in Law affecting such Lender or such L/C
Issuer or any Lending Office of such Lender or such Lender's or such
L/C Issuer's holding company, if any, regarding capital requirements
has or would have the effect of reducing the rate of return on such
Lender's or such L/C Issuer's capital or on the capital of such
Lender's or such L/C Issuer's holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the
Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by any L/C Issuer, to a
level below that which such Lender or such L/C Issuer or such
Lender's or such L/C Issuer's holding company could have achieved
but for such Change in Law (taking into consideration such Lender's
or such L/C Issuer's policies and the policies of such Lender's or
such L/C Issuer's holding company with respect to capital adequacy),
then from time to time the applicable Borrower will pay to such
Lender or such L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or such L/C Issuer
or such Lender's or such L/C Issuer's holding company for any such
reduction suffered, but only to the extent such Lender is seeking
such reimbursement from all similarly situated Borrowers (if any).
(c) Certificates for Reimbursement. A certificate of a
Lender or of an L/C Issuer setting forth the amount or amounts
necessary to compensate such Lender or such L/C Issuer or its
holding company, as the case may be, as specified in subsection (a)
or (b) of this Section and delivered to the Company or the Offshore
Borrowers' Agent, as applicable, shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender or such L/C
Issuer, as the case may be, the amount shown as due on any such
certificate within 30 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or any L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver
of such Lender's or such L/C Issuer's right to demand such
compensation, provided that no Borrower shall be required to
compensate a Lender or an L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such
Lender or such L/C Issuer, as the case may be, notifies the Company
or the Offshore Borrowers' Agent (as the case may be) of the Change
in Law giving rise to such increased costs or
87
reductions and of such Lender's or such L/C Issuer's intention to
claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) Additional Reserve Requirements. The Borrowers shall pay
to each Lender (y) to the extent such Lender is not otherwise being
compensated for such costs pursuant to the Mandatory Cost Formulae
set forth in Schedule 1.01 and (z) to the extent such Lender is
seeking such reimbursement from all similarly situated Borrowers (if
any) (i) as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each Eurocurrency Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall
be conclusive), and (ii) as long as such Lender shall be required to
comply with any reserve ratio requirement or analogous requirement
of any other central banking or financial regulatory authority
imposed in respect of the maintenance of the Commitments or the
funding of Eurocurrency Rate Loans, such additional costs (expressed
as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to
such Commitment or Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive), which in
each case, shall be due and payable on each date on which interest
is payable on such Loan, provided the Company or the Offshore
Borrower's Agent, as applicable, shall have received at least 10
days' prior notice (with a copy to the Administrative Agent and the
Offshore Sub-Administrative Agent,) of such additional interest or
costs from such Lender. If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional
interest or costs shall be due and payable 10 days from receipt of
such notice.
5.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a
copy to the Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable) from time to time, the Company shall promptly compensate such Lender
for and hold such Lender harmless from any loss, cost or expense incurred by it
as a result of:
(a) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue
or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Company or the Offshore Borrowers' Agent;
(c) any failure by any Borrower to make payment of any Loan
or drawing under any Letter of Credit (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or
any payment thereof in a different currency;
88
(d) any assignment of a Eurocurrency Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by
the Company pursuant to Section 12.13; or
(e) any failure to consummate any purchase of a Domestic Loan in
accordance with the provisions of Section 2.11;
including any foreign exchange losses and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or
from the performance of any foreign exchange contract. The Company shall also
pay any customary administrative fees charged by such Lender in connection with
the foregoing.
For purposes of calculating amounts payable by the Company to the Lenders under
this Section 5.05, each Lender shall be deemed to have funded each Eurocurrency
Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching
deposit or other borrowing in the offshore interbank market for such currency
for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.
5.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 5.04, or any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 5.01, or if any Lender gives
a notice pursuant to Section 5.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 5.01 or 5.04, as the case may be, in
the future, or eliminate the need for the notice pursuant to Section 5.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders. If (i) any Lender requests
compensation under Section 5.04, (ii) any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 5.01, (iii) any Lender fails to
comply with any of the provisions of Section 5.01(e), or (iv) any Lender
fails to make any Loan available to any Borrower in accordance with the
terms of Section 5.02, the Company may replace such Lender in accordance
with Section 12.13.
5.07 SURVIVAL. All of the Borrowers' obligations under this Article V
shall survive termination of the Aggregate Domestic Commitments, Aggregate
Offshore Commitments and repayment of the Total Outstandings and all other
Obligations hereunder.
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ARTICLE VI.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
6.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible
Officer of the signing Borrower, each dated the Closing Date (or, in the
case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance reasonably satisfactory to
the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Company
Guaranty, sufficient in number for distribution to the
Administrative Agent, each Lender and the Company;
(ii) applicable Notes executed by the applicable Borrowers in
favor of each Lender requesting such Notes not less than 5 Business
Days before the Closing Date;
(iii) certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of
each Borrower evidencing the identity, authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan
Documents to which such Borrower is a party;
(iv) documents and certifications evidencing that each
Borrower is duly organized or formed, and that each Borrower and
each Material Subsidiary is validly existing, in good standing and
qualified to engage in business in each jurisdiction where it is
organized, and in each other jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (i) counsel to the Company,
addressed to the Administrative Agent, the Offshore
Sub-Administrative Agent and each Lender, in each case as to matters
reasonably acceptable to the Administrative Agent, Lead Arrangers
and counsel to the Administrative Agent, and such other matters
concerning the Borrowers and the Loan Documents as the
Administrative Agent or the Required Total Lenders may reasonably
request, and (ii) counsel to the Offshore Borrowers, addressed to
the Administrative Agent, the Offshore Sub-Administrative Agent and
each Offshore Lender, in each case as to matters reasonably
acceptable to the Administrative Agent, Lead Arrangers and counsel
to the Administrative Agent, and such other matters concerning the
Borrowers
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and the Loan Documents as the Administrative Agent or the Required
Total Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Borrower
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance
by such Borrower and the validity against such Borrower of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the
Company certifying (A) that the conditions specified in Sections
6.02(a) and (b) have been satisfied, and (B) that there has not
occurred a material adverse change since December 31, 2003 in the
business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole or in the facts and information
regarding such entities as represented through the Closing Date; and
(C) the current Debt Ratings of the Company;
(viii) a duly completed Compliance Certificate as of March 31,
2004, signed by a Responsible Officer of the Company;
(ix) there shall exist no Default or Event of Default under
the Existing $2 Billion Credit Agreement both before and after
giving effect to this Agreement, and there shall exist no Default or
Event of Default under the Existing $3 Billion Credit Agreement
before giving effect to this Agreement;
(x) evidence that the Existing $3 Billion Credit Agreement
has been or concurrently with the Closing Date is being terminated,
repaid or refinanced in full, except for the Existing Letters of
Credit; and
(xi) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent, each L/C Issuer, the Swing
Line Lender or the Required Total Lenders reasonably may require.
(b) Any fees (except reimbursement for legal fees) required to be
paid by the Company on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall
have paid all reasonable fees, charges and disbursements of counsel to the
Administrative Agent to the extent invoiced not less than two Business
Days prior to the Closing Date.
(d) The Closing Date shall have occurred on or before July 15,
2004.
Without limiting the generality of the provisions of Section 11.04, for purposes
of determining compliance with the conditions specified in this Section 6.01,
each Lender that has signed this
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Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
6.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension (other than (x) a Committed Loan
Notice (1) requesting only a conversion of Committed Loans to the other Type,
(2) requesting a continuation of Eurocurrency Rate Loans, (3) as a result of a
draw under a Letter of Credit or (4) as a result of an event under Section 5.02
or Section 5.03, (y) a UK Offshore Loan Notice requesting only a continuation of
a UK Offshore Loan, or (z) a Company Hybrid Offshore Loan Notice requesting (1)
a conversion of Hybrid Offshore Loans to the other Type, or (2) a continuation
of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of (i) the Borrowers
contained in Article VII and (ii) each Borrower contained in each other
Loan Document or in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all
material respects on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of
such earlier date, and except that for purposes of this Section 6.02, the
representations and warranties contained in subsections (a) and (b) of
Section 7.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 8.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension or the application of the proceeds thereof.
(c) The Administrative Agent and as applicable, the Offshore
Sub-Administrative Agent, and, if applicable, the applicable L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension
in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an
Alternative Currency, there shall not have occurred any change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Offshore Sub-Administrative Agent (in the case
of Offshore Loans), or the Required Total Lenders (in the case of any
Loans to be denominated in an Alternative Currency), or the applicable L/C
Issuer (in the case of any Letter of Credit to be denominated in an
Alternative Currency) would make it impracticable for such Credit
Extension to be denominated in the relevant Alternative Currency.
Each Request for Credit Extension (other than (x) a Committed Loan Notice
(1) requesting only a conversion of Committed Loans to the other Type, (2)
requesting a continuation of Eurocurrency Rate Loans, (3) as a result of a draw
under a Letter of Credit or (4) as a result of an event under Section 5.02 or
Section 5.03, (y) a UK Offshore Loan Notice
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requesting only a continuation of a UK Offshore Loan, or (z) a Company Hybrid
Offshore Loan Notice requesting (1) a conversion of Hybrid Offshore Loans to the
other Type, or (2) a continuation of Eurocurrency Rate Loans) submitted by the
Company shall be deemed to be a representation and warranty that the conditions
specified in Sections 6.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Except as otherwise provided in Section 7.16, each Borrower represents and
warrants to the Administrative Agent, the Offshore Sub-Administrative Agent and
the Lenders that:
7.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Borrower and each Significant Subsidiary (a) is duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
7.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Borrower of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law, except in each case referred to in (b) and (c) above,
that could not reasonably be expected to have a Material Adverse Effect. Each
Borrower and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.
7.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Borrower of this Agreement or any other Loan Document, except for
notice filings of this Agreement with the FCC and SEC.
7.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Borrower that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will
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constitute, a legal, valid and binding obligation of such Borrower, enforceable
against each Borrower that is party thereto in accordance with its terms,
subject to enforcement of remedies to the following qualifications: (i)
equitable principles generally, and (ii) Debtor Relief Laws (insofar as any such
law relates to the bankruptcy, insolvency or similar event of any Borrower or
any Subsidiary of any Borrower).
7.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (ii) fairly
present in all material respects the financial condition of the Company
and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein.
(b) The unaudited consolidated balance sheet of the Company and
its Subsidiaries dated March 31, 2004, and the related consolidated
statements of operations, changes in shareholders' equity and cash flows
for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present in
all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii),
to the absence of footnotes and to normal year-end audit adjustments.
Schedule 7.05 sets forth the maximum amount of Consolidated Funded
Indebtedness of the Company and its consolidated Subsidiaries as of June
30, 2004. There have been no material and adverse variations as of the
Closing Date from the liabilities, direct or contingent, of the Company
and its consolidated Subsidiaries, including liabilities for taxes and
material commitments, disclosed on the Company's Form 10-K for the fiscal
year ended December 31, 2003 as updated on the Company's Form 10-Q for the
fiscal quarter ended March 31, 2004.
(c) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate,
that has had or could reasonably be expected to have a Material Adverse
Effect.
7.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Company or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, if determined adversely,
would reasonably be expected to have a Material Adverse Effect.
7.07 OWNERSHIP OF PROPERTY; LIENS. The Company and its Subsidiaries have
good title to, or valid leasehold interests in, all real property necessary in
the ordinary conduct of their business, except for such defects in title as
could not, individually or in the aggregate, reasonably
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be expected to have a Material Adverse Effect. The property of the Company and
its Subsidiaries is subject to no Liens, other than Liens permitted by Section
9.01.
7.08 ENVIRONMENTAL COMPLIANCE. To the Company's knowledge, the Company
has no Environmental Law claims that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
7.09 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or the applicable Subsidiary
operates, except to the extent Company and its Subsidiaries maintain reasonable
self-insurance with respect to such risks (through an Affiliate or otherwise).
7.10 TAXES. The Company and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP, in each case except where
failure to file or pay could reasonably be expected to have a Material Adverse
Effect.
7.11 ERISA COMPLIANCE.
(a) Each Plan (i) is in compliance with the applicable provisions
of ERISA, the Code and other Federal or state Laws, and (ii) that is
intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a
letter is currently being processed by the IRS with respect thereto and,
to the best knowledge of the Company, nothing has occurred which would
prevent, or cause the loss of, such qualification, except in each case of
(i) and (ii) preceding, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect. The Company and
each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412
of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to
have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any
Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title
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IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA,
except in each case of (ii), (iii), (iv) and (v) preceding, to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
7.12 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) No Borrower is engaged or will engage, principally or as one
of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or drawing
under each Letter of Credit, not more than 25% of the value of the assets
(either of the Company or the Company and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 9.01 or Section
9.06 or subject to any restriction contained in any agreement or
instrument between the Company and any Lender or any Affiliate of any
Lender relating to indebtedness and within the scope of Section 10.01(e)
will be margin stock.
(b) None of the Company, any Person Controlling the Company, or
any Subsidiary (i) 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," within the meaning of the
Public Utility Holding Company Act of 1935, or (ii) is or is required to
be registered as an "investment company" under the Investment Company Act
of 1940.
7.13 DISCLOSURE. The Company has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Borrower to the Administrative Agent, the Offshore Sub-Administrative Agent
or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Company represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time. Any forward looking statements contained therein are
inherently subject to risk and uncertainties, many of which cannot be predicted
with accuracy, and some of which might not be anticipated. Future
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events and actual results, financial and otherwise, could differ materially from
those set forth therein or contemplated by the forward looking statements
contained therein.
7.14 COMPLIANCE WITH LAWS. Each of the Company and each Significant
Subsidiary is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. Each of the Company and each
Subsidiary is in compliance with the rules and regulations of the FCC relating
to the operation of television and radio stations, except to the extent that any
failure to file or failure to comply could not reasonably be expected to have a
Material Adverse Effect. The Company and its Subsidiaries have obtained all
appropriate approvals and consents of, and have made all filings with, the FCC
in connection with the acquisition and ownership of each of their television and
radio stations, and no Person has filed or submitted any document or instrument
to the FCC challenging or contesting the FCC order approving any assignment of a
FCC license to the Company or any of its Subsidiaries, except to the extent that
any such action could not reasonably be expected to have a Material Adverse
Effect.
7.15 INTELLECTUAL PROPERTY; LICENSES, ETC. The Company and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person, except for any conflicts that
could not reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person, except where such infringement could not
reasonably be expected to have a Material Adverse Effect.
7.16 REPRESENTATIONS AS TO FOREIGN OBLIGORS. The Company and each Foreign
Obligor represents and warrants to the Administrative Agent, the Offshore
Sub-Administrative Agent and the Lenders that:
(a) Such Foreign Obligor is subject to civil and commercial Laws
with respect to its obligations under this Agreement and the other Loan
Documents to which it is a party (collectively as to such Foreign Obligor,
the "Applicable Foreign Obligor Documents"), and the execution, delivery
and performance by such Foreign Obligor of the Applicable Foreign Obligor
Documents constitute and will constitute private and commercial acts and
not public or governmental acts. Neither such Foreign Obligor nor any of
its property has any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under
the laws of the jurisdiction in which such Foreign Obligor is organized
and existing in respect of its obligations under the Applicable Foreign
Obligor Documents.
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(b) The Applicable Foreign Obligor Documents are in proper legal
form under the Laws of the jurisdiction in which such Foreign Obligor is
organized and existing for the enforcement thereof against such Foreign
Obligor under the Laws of such jurisdiction, and to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the
Applicable Foreign Obligor Documents. It is not necessary to ensure the
legality, validity, enforceability, priority or admissibility in evidence
of the Applicable Foreign Obligor Documents that the Applicable Foreign
Obligor Documents be filed, registered or recorded with, or executed or
notarized before, any court or other authority in the jurisdiction in
which such Foreign Obligor is organized and existing or that any
registration charge or stamp or similar tax be paid on or in respect of
the Applicable Foreign Obligor Documents or any other document, except for
(i) any such filing, registration, recording, execution or notarization as
has been made or is not required to be made until the Applicable Foreign
Obligor Document or any other document is sought to be enforced and (ii)
any charge or tax as has been timely paid.
(c) There is no tax, levy, impost, duty, fee, assessment or other
governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which such Foreign
Obligor is organized and existing either (i) on or by virtue of the
execution or delivery of the Applicable Foreign Obligor Documents or (ii)
on any payment to be made by such Foreign Obligor pursuant to the
Applicable Foreign Obligor Documents, except as has been disclosed both to
the Administrative Agent and the Offshore Sub-Administrative Agent.
(d) The execution, delivery and performance of the Applicable
Foreign Obligor Documents executed by such Foreign Obligor are, under
applicable foreign exchange control regulations of the jurisdiction in
which such Foreign Obligor is organized and existing, not subject to any
notification or authorization except (i) such as have been made or
obtained or (ii) such as cannot be made or obtained until a later date
(provided that any notification or authorization described in clause (ii)
shall be made or obtained as soon as is reasonably practicable).
provided that, the Company shall not, nor shall any Foreign Obligor, be in
breach of, or failure to comply with, any of the terms or provisions of
subsections (a), (b), (c) or (d) preceding, unless such breach or failure to
comply would reasonably be expected to have a Material Adverse Effect.
7.17 SOLVENT. The Company is, and the Company and its Subsidiaries are on
a consolidated basis, Solvent.
7.18 BLOCKED PERSONS LIST. None of the Company, Subsidiaries of the
Company, or Affiliates of the Company are named on the United States Department
of the Treasury's Specially Designated Nationals or Blocked Persons list
available through xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx as of
the Closing Date.
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ARTICLE VIII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall, and shall (except in the
case of the covenants set forth in Sections 8.01, 8.02, and 8.03) cause each
Significant Subsidiary to:
8.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent and the Required Total
Lenders:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Company, a consolidated balance sheet
of the Company and its consolidated Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of operations,
changes shareholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any qualifications or
exceptions as to the scope of such audit nor to any qualifications or
exceptions not reasonably acceptable to the Administrative Agent; and
(b) as soon as available, but in any event within 45 days after
the end of each of the first three fiscal quarters of the Company, a
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of operations, changes shareholders' equity and
cash flows for such fiscal quarter and for the portion of the Company's
fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in
reasonable detail, such consolidated statements to be certified by a
Responsible Officer of the Company as fairly presenting the financial
condition, results of operations, changes in shareholders' equity and cash
flows of the Company and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
8.02(c), the Company shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
8.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent, in form and detail satisfactory to the Administrative Agent and the
Required Total Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 8.01(a), a certificate of its independent certified
public accountants certifying
99
such financial statements and stating that in connection with their audit,
nothing came to their attention that caused them to believe that the
Company failed to comply with the terms, covenants, provisions, or
conditions of Section 9.03(b), Section 9.03(c) and Section 9.10 insofar as
they relate to accounting matters, or if the Company did fail to comply,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 8.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Company;
(c) promptly after the same are publicly available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Company, and copies of all
annual, regular, periodic and special reports and registration statements
which the Company may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant
hereto;
(d) promptly upon receipt thereof, information with respect to and
copies of any notices received from the FCC or any other federal, state or
local regulatory agencies or any tribunal relating to any order, ruling,
law, information or policy that relates to a breach of or noncompliance
with the Communications Act, which in each case could reasonably be
expected to result in the payment of money by the Company or any
Subsidiary in excess of the Threshold Amount, or otherwise have a Material
Adverse Effect, or result in the loss or suspension of any Necessary
Authorization; provided, however, no information shall be required to be
delivered hereunder if, in the opinion of counsel to the Company or such
Subsidiary, there is no reasonable possibility of an adverse determination
with respect to such notice;
(e) promptly, such additional information regarding outstanding
Equity Interests in Subsidiaries of the Company and equity investments of
the Company and its Subsidiaries in other corporations or entities other
than Subsidiaries of the Company as reasonably requested by the
Administrative Agent or any Lender through the Administrative Agent from
time to time, and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender through the Administrative Agent may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 8.01(a) or (b) or
Section 8.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on Schedule 12.02; or (ii)
on which such documents are posted on the Company's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial,
100
third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender and (ii) the Company shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Company shall be required to
provide paper copies of the Compliance Certificates required by Section 8.02(b)
to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Company with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent, the
Offshore Sub-Administrative Agent and/or the Arrangers will make available to
the Lenders and the L/C Issuers materials and/or information provided by or on
behalf of such Borrower hereunder (collectively, "Borrower Materials") by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the "Platform") and (b) certain of the Lenders may be "public-side"
Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to any Borrower or its securities) (each, a "Public
Lender"). Each Borrower hereby agrees that (w) all Borrower Materials that are
to be made available to Public Lenders shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear
prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC", the Borrowers shall be deemed to have authorized the Administrative
Agent, the Offshore Sub-Administrative Agent, the Arrangers, the L/C Issuers and
the Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrowers or their respective securities for
purposes of United States Federal and state securities laws; (y) all Borrower
Materials marked "PUBLIC" are permitted to be made available through a portion
of the Platform designated "Public Investor"; and (z) the Administrative Agent,
Offshore Sub-Administrative Agent, L/C Issuers and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked "PUBLIC" as being
suitable only for posting on a portion of the Platform not designated as "Public
Investor."
8.03 NOTICES. Promptly notify the Administrative Agent, the Offshore
Sub-Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter including (i) breach or non-performance of, or
any default under, a Contractual Obligation of the Company or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in,
any litigation or proceeding affecting the Company or any
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Subsidiary, including pursuant to any applicable Environmental Laws, in
each case that has resulted or could reasonably be expected to result in a
Material Adverse Effect;
(c) of the occurrence of any ERISA Event which could reasonably be
expected to result in a Material Adverse Effect;
(d) of any material change in accounting policies or financial
reporting practices by the Company or any Subsidiary;
(e) of any public announcement by Xxxxx'x or S&P of any change or
pending change in a Debt Rating of which the Company has actual knowledge;
and
(f) of the commencement of all proceedings and investigations of
which the Company has actual knowledge by or before the FCC or any other
governmental body, and all actions and proceedings of which any Borrower
or any Subsidiary has actual knowledge in any court or before any
arbitrator involving claims for damages, fines or penalties (including
punitive damages) in excess of $50,000,000 per claim and $250,000,000 in
the aggregate (after deducting the amount with respect to the Company or
any Subsidiary such Person is insured, provided such claim has not been
denied), against or in any other way relating directly to the Company, any
Subsidiary, or any of their properties or businesses; provided, however,
no notice shall be required to be delivered hereunder if, in the opinion
of counsel to the Company or such Subsidiary, there is no reasonable
possibility of an adverse determination in such action or proceeding;
Each notice pursuant to Section 8.03(a), (b), (c) and (f) shall be
accompanied by a statement of a Responsible Officer of the Company setting forth
details of the occurrence referred to therein and stating what action the
Company has taken and proposes to take with respect thereto. Each notice
pursuant to Section 8.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
8.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its material obligations and liabilities, including all
material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary.
8.05 PRESERVATION OF EXISTENCE, ETC. (a) Except as permitted by the terms
of this Agreement, preserve, renew and maintain in full force and effect its
legal existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 9.05 or 8.13; (b) take
all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
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8.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in reasonably good working order and condition, ordinary wear and tear excepted
and (b) make all necessary repairs thereto and renewals and replacements
thereof, in each case except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
8.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Company, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons, except to the extent the Company maintains
reasonable self-insurance with respect to such risks (through an Affiliate or
otherwise).
8.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
8.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or such Subsidiary, as the case may be.
8.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent, the Offshore Sub-Administrative Agent
and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company and the Administrative Agent; provided,
however, that when an Event of Default exists the Administrative Agent, the
Offshore Sub-Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Company at any time during normal business hours.
8.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
working capital, capital expenditures, consummation of Acquisitions, repayment
of commercial paper, support for any commercial paper program, repayment of
outstanding amounts under the Existing $3 Billion Credit Agreement, repayment of
long term debt and general and other corporate purposes not in contravention of
any Law or of any Loan Document.
8.12 APPROVALS AND AUTHORIZATIONS. Maintain all authorizations, consents,
approvals and licenses from, exemptions of, and filings and registrations with,
each Governmental
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Authority of the jurisdiction in which each Foreign Obligor is organized and
existing, and all approvals and consents of each other Person in such
jurisdiction, in each case that are required in connection with the Loan
Documents, except to the extent failure to do so would not reasonably be
expected to have a Material Adverse Effect.
8.13 PRIMARY LINES OF BUSINESS. Maintain, on a consolidated basis, the
Company's media, communications, entertainment, internet and related businesses
as its primary lines of business.
ARTICLE IX.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
9.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) (i) Liens for taxes not yet delinquent, (ii) Liens created by
lease agreements to secure the payments of rental amounts and other sums
not yet due thereunder, (iii) Liens on leasehold interests created by the
lessor in favor of any mortgagee of the leased premises, and (iv) Liens
for taxes, assessments, governmental charges, levies or claims that are
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on such Person's
books, but only so long as no foreclosure, restraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen and other similar Liens incurred in the ordinary course of
business for sums not yet due or being contested in good faith, if such
reserve or appropriate provision, if any, as shall be required by GAAP
shall have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or similar
legislation;
(e) Easements, right-of-way and zoning restrictions and other
similar encumbrances on the use of real property which do not interfere
with the ordinary conduct of the business of such Person;
(f) Liens securing Swap Contracts of the Company and indebtedness
permitted by Section 9.03 hereof, so long as in each case such Liens do
not in the aggregate secure indebtedness which, when aggregated with the
aggregate amount of net sale proceeds from Sale and Leaseback Transactions
permitted by Section 9.04, exceed
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an amount equal to 15% of the Company's total consolidated Shareholder's
Equity (including preferred stock) as shown on the Company's audited
consolidated balance sheet contained in the latest annual report to
stockholders of the Company, provided that indebtedness secured by Liens
permitted by subsections (a)-(e) above and (g) below shall not be included
in the amount of such indebtedness; and
(g) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay
of execution upon any such appeal or proceeding for review shall have been
secured, provided that (i) such Person shall have established adequate
reserves for such judgments or awards, (ii) such judgments or awards shall
be fully insured and the insurer shall not have denied coverage, or (iii)
such judgments or awards shall have been bonded to the satisfaction of the
Required Total Lenders.
9.02 INVESTMENTS AND ACQUISITIONS. Make any Investment, unless both prior
to and after giving effect to any such Investment, there exists no Default,
provided that, notwithstanding the foregoing, the Company and its Subsidiaries
may, during the existence and continuance of a Default, so long as such
Investments are in the ordinary course of business and in accordance with past
practices:
(a) make Investments in cash equivalents and in accounts
receivable that are current assets;
(b) make advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in an amount not to exceed
$5,000,000 during the continuance of such Default;
(c) make intercompany Investments among the Company and its
wholly-owned Subsidiaries, and investments by less than wholly owned
Subsidiaries in the Company and its wholly owned Subsidiaries; and
(d) make Investments constituting endorsement of checks, drafts,
and other instruments and documents, leases, prepaid utilities, worker's
compensation and other similar deposits and prepaid expenses.
9.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Consolidated Funded Indebtedness, except:
(a) Consolidated Funded Indebtedness under the Loan Documents;
(b) Consolidated Funded Indebtedness of the Company (including,
without limitation, Guarantees by the Company of the Indebtedness of AMFM,
Inc. existing on the Closing Date); and
(c) so long as there exists no Default both before and after
giving effect to any such incurrence, Consolidated Funded Indebtedness of
the Subsidiaries (including,
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without limitation, Consolidated Funded Indebtedness of AMFM, Inc.,
Consolidated Funded Indebtedness under the Existing $2 Billion Credit
Agreement and all other existing Consolidated Funded Indebtedness) which
will not exceed an amount equal to 15% of the Company's total consolidated
Shareholder's Equity (including preferred stock) as shown on the Company's
audited consolidated balance sheet contained in the latest annual report
to stockholders of the Company, provided that, (i) the intercompany
indebtedness of the Company and its Subsidiaries and (ii) Guaranties of
indebtedness by the Company or a Subsidiary of the Company where the
primary obligor of such indebtedness is the Company or a Subsidiary of the
Company shall be excluded from Consolidated Funded Indebtedness of the
Subsidiaries.
9.04 SALE AND LEASEBACK TRANSACTIONS. Enter into any Sale and Leaseback
Transaction, provided that, so long as there exists no Default both before and
after giving effect to any such transaction on the date such transaction is
consummated, the Company and its Subsidiaries may enter into Sale and Leaseback
Transactions in such amount that when all net sale proceeds from Sale and
Leaseback Transactions are aggregated with the outstanding principal amount of
all Consolidated Funded Indebtedness secured by Liens in accordance with the
terms of Section 9.01(f) above, such aggregate amount will not exceed an amount
equal to 15% of the Company's total consolidated Shareholder's Equity (including
preferred stock) as shown on the Company's audited consolidated balance sheet
contained in the latest annual report to stockholders of the Company.
9.05 FUNDAMENTAL CHANGES. Merge , liquidate, dissolve or consolidate with
or into another Person,
(a) provided that, nothing in this Section 9.05 shall be construed
to prohibit the Company from reincorporating in another domestic
jurisdiction, changing its form of organization or merging into, or
transferring all or substantially all of its assets to, another domestic
Person, so long as
(i) either (x) the Company shall be the surviving entity
with substantially the same assets immediately following the
reincorporation or reorganization or (y) the surviving entity or
transferee (the "Successor Corporation") shall be a domestic Person
and shall, immediately following the merger or transfer, as the case
may be, (A) have substantially all of the assets of the Company
immediately preceding the merger or transfer, as the case may be,
(B) have duly assumed all of the Company's obligations hereunder and
under the other Loan Documents in form and substance satisfactory to
the Administrative Agent (and, if requested, by Administrative
Agent, the Successor Corporation shall have delivered an opinion of
counsel as to the assumption of such obligations) and (C) either (I)
have then-effective ratings (or implied ratings) published by
Xxxxx'x or S&P applicable to such Successor Corporation's senior,
unsecured, non-credit-enhanced, long term indebtedness for borrowed
money, which ratings shall be either Baa2 or higher (if assigned by
Xxxxx'x) or BBB or higher (if assigned by S&P) or (II) be acceptable
to Total Required Lenders; and
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(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing, and
(iii) the Company shall be in compliance with Section 8.13,
and
(b) any Subsidiary that is not a Significant Subsidiary may merge,
consolidate, liquidate or dissolve,
(c) any Significant Subsidiary may merge with or consolidate into
(i) the Company if the Company shall be the continuing or surviving Person
or (ii) any other Subsidiary; provided that, if any such transaction shall
be between a Subsidiary and a wholly owned Subsidiary, such wholly owned
subsidiary shall be the continuing or surviving Person;
(d) any Significant Subsidiary may liquidate or dissolve into the
Company or a wholly owned Subsidiary of the Company; and
(e) any Significant Subsidiary may merge or consolidate with or
into any other Person if, both before and after giving effect thereto, no
Default shall have occurred and be continuing.
9.06 DISPOSITIONS. Make any Disposition of all or substantially all of
the assets of the Company.
9.07 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Company
and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made;
(b) the Company and each Subsidiary may declare and make dividend
payments or other distributions payable in the common stock or other
common Equity Interests of such Person;
(c) the Company and each Subsidiary may purchase, redeem or
otherwise acquire Equity Interests issued by it with the proceeds received
from the substantially concurrent issue of new shares of its common stock
or other common Equity Interests; and
(d) so long as there exists no Default both before and after
giving effect to any such Restricted Payment, the Company may declare or
pay cash dividends to its stockholders, and purchase, redeem or otherwise
acquire for cash Equity Interests issued by it.
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9.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Company, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Company or such Subsidiary as would be obtainable by the Company or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among the Company and any of its Subsidiaries or
joint ventures, or between and among any Subsidiaries or joint ventures.
9.09 RESTRICTIVE AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) pursuant to which the ability of
the Company or any Subsidiary to (a) accept any waiver or consent with respect
to any provision of this Agreement or (b) enter into any amendment, amendment
and restatement, replacement or other substitution of this Agreement or any Loan
Document, is prohibited or limited in any manner.
9.10 FINANCIAL COVENANTS.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Company to be greater
than 5.25 to 1.00.
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the Company
to be less than 2.50 to 1.00.
ARTICLE X.
EVENTS OF DEFAULT AND REMEDIES
10.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. Any Borrower fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any
amount of principal of any Loan or any L/C Obligation, or to consummate
any purchase of a Domestic Loan in accordance with the provisions of
Section 2.11, or (ii) within five Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. Any Borrower fails to perform or observe
any term, covenant or agreement contained in any of Section 8.03(a), 8.11
or Article IX; or
(c) Other Defaults. Any Borrower fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed,
and such failure shall not be cured within a period of 30 days after the
earlier of (i) written notice from the Administrative Agent thereof and
(ii) actual knowledge thereof by any member of senior management of the
Company; or
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(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Company or any other Borrower herein, in any other Loan Document, or
in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made;
or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Consolidated Funded Indebtedness of the Company and its Subsidiaries or
Guarantee (other than Consolidated Funded Indebtedness hereunder) having
an outstanding aggregate principal amount (including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more
than the $200,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Consolidated Funded
Indebtedness or Guarantee of more than the $200,000,000 or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event occurs, the effect of which default or other event is to
cause, or to permit the holder or holders of such Consolidated Funded
Indebtedness of more than the $200,000,000 or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Consolidated Funded Indebtedness of
more than the $200,000,000 to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an offer to repurchase, prepay, defease or redeem such Consolidated
Funded Indebtedness of more than the $200,000,000 to be made, prior to its
stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded and all applicable cure periods shall have
expired; (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which the Company or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Company or any Subsidiary is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $200,000,000; or (iii)
there exists an "Event of Default" as defined in, and under the Existing
$2 Billion Credit Agreement; or
(f) Insolvency Proceedings, Etc. Any Borrower or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is
instituted without the
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consent of such Person and continues undismissed or unstayed for 60
calendar days, or an order for relief is entered in any such proceeding;
or
(g) Inability to Pay Debts; Attachment. (i) The Company or any
Significant Subsidiary becomes unable or admits in writing its inability
or fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person
and is not released, vacated or fully bonded within 30 days after its
issue or levy; or
(h) Judgments. There is entered against the Company or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered
by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or
(B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise,
is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Company under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) the Company or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material provision of any
Loan Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or satisfaction in full
of all the Obligations, ceases to be in full force and effect; or any
Borrower, any Subsidiary of any Borrower or any Affiliate of any Borrower
contests in any manner the validity or enforceability of any material
provision of any Loan Document; or any Borrower denies that it has any or
further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any material provision of any Loan Document,
and in each case, such Default shall not be cured within a period of five
Business Days after the earlier of (i) written notice from the
Administrative Agent thereof and (ii) actual knowledge thereof by any
member of senior management of the Company; or
(k) Change of Control. There occurs any Change of Control; or
(l) FCC and the Communications Act. The Company or any Subsidiary
shall fail to comply with the Communications Act, or any rule or
regulation promulgated by
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the FCC, and such failure could reasonably be expected to have a Material
Adverse Effect.
10.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Total
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuers to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, notice of acceleration, notice
of intent to accelerate, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that the Company Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof);
and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry
of an order for relief with respect to any Borrower under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and
any obligation of the L/C Issuers to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Company to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent,
the Offshore Sub-Administrative Agent or any Lender.
10.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 10.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 10.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and the Offshore
Sub-Administrative Agent and amounts payable under Article V) payable to the
Administrative Agent and the Offshore Sub-Administrative Agent in their capacity
as such;
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Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
respective Lenders and the L/C Issuers (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuers and
amounts payable under Article V), ratably among them in proportion to the
amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuers in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuers in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuers, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit;
Sixth, to the payment of all other unpaid Obligations, ratably among the
Domestic Lenders, the Offshore Lenders and the L/C Issuers in proportion to the
respective amounts described in this clause Sixth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE XI.
ADMINISTRATIVE AGENT AND OFFSHORE SUB-ADMINISTRATIVE AGENT
11.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuers
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and Bank of America, London to act as Offshore
Sub-Administrative Agent hereunder, and in each case, under the other Loan
Documents, and authorizes the Administrative Agent or the Offshore
Sub-Administrative Agent, or both, as appropriate, to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
or the Offshore Sub-Administrative Agent, or both, as appropriate, by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. Except for the rights of the Company pursuant to Section
11.06, the provisions of this Article are solely for the benefit of the
Administrative Agent, the Offshore Sub-Administrative Agent, the Lenders and the
L/C Issuers, and no Borrower shall have rights as a third party beneficiary of
any of such provisions.
11.02 RIGHTS AS A LENDER. The Persons serving as the Administrative Agent
or the Offshore Sub-Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent or the Offshore
Sub-Administrative Agent, and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated or unless the context otherwise requires, include
the Person serving as the Administrative Agent or the Offshore
Sub-Administrative Agent, as applicable, hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, act as
the financial advisor or in any other advisory capacity for and generally engage
in any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent or the Offshore
Sub-Administrative Agent hereunder and without any duty to account therefor to
the Lenders.
11.03 EXCULPATORY PROVISIONS. The Administrative Agent and the Offshore
Sub-Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent and the Offshore
Sub-Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent or the Offshore Sub-Administrative Agent is required
to exercise as directed in writing by the Required Total Lenders, the
Required Domestic Lenders or the Required Offshore Lenders, as appropriate
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent and the Offshore Sub-Administrative Agent shall not
be required to take any action that, in their opinion or the opinion of
their counsel, may expose the Administrative Agent or the Offshore
Sub-Administrative Agent to liability or that is contrary to any Loan
Document or Applicable Law; and
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(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to any of the
Borrowers or any of their respective Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or the Offshore
Sub-Administrative Agent or any of their Affiliates in any capacity.
Neither of the Administrative Agent and the Offshore Sub-Administrative
Agent shall be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Total Lenders, the Required Domestic
Lenders or the Required Offshore Lenders, as applicable (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
or the Offshore Sub-Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 12.01 and 10.02) or
(ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent and the Offshore Sub-Administrative Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent or the Offshore Sub-Administrative
Agent by the Company, a Lender or the L/C Issuers.
The Administrative Agent and the Offshore Sub-Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article VI or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable.
11.04 RELIANCE BY ADMINISTRATIVE AGENT AND THE OFFSHORE SUB-ADMINISTRATIVE
AGENT. The Administrative Agent and the Offshore Sub-Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent and the Offshore Sub-Administrative Agent also may rely upon any statement
made to them orally or by telephone and believed by them to have been made by
the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuers, the Administrative Agent and the
Offshore Sub-Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuers unless the Administrative Agent
or the Offshore Sub-Administrative Agent, as applicable, shall have received
notice to the contrary from such Lender or any L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent and
the Offshore Sub-Administrative Agent may consult with legal
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counsel (who may be counsel for the Company), independent accountants and other
experts selected by them, and shall not be liable for any action taken or not
taken by them in accordance with the advice of any such counsel, accountants or
experts.
11.05 DELEGATION OF DUTIES. The Administrative Agent and the Offshore
Sub-Administrative Agent may perform any and all of their duties and exercise
their rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent and the
Offshore Sub-Administrative Agent. The Administrative Agent, the Offshore
Sub-Administrative Agent and any other such sub-agent may perform any and all of
its duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent, the
Offshore Sub-Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent and
the Offshore Sub-Administrative Agent.
11.06 RESIGNATION OF ADMINISTRATIVE AGENT AND THE OFFSHORE
SUB-ADMINISTRATIVE AGENT. The Administrative Agent may at any time give notice
of its resignation to the Lenders, the L/C Issuers and the Company, and such
notice shall constitute resignation for both the Administrative Agent and the
Offshore Sub-Administrative Agent. Upon receipt of any such notice of
resignation, the Required Total Lenders shall have the right, subject to, if no
Default exists, the consent of the Company, such consent not to be unreasonably
withheld, to appoint a successor Administrative Agent and Offshore
Sub-Administrative Agent, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States,
with an offshore capability to handle the UK Offshore Loan and the Hybrid
Offshore Loan. If no such successor shall have been so appointed by the Required
Total Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuers, subject
to, if no Default exists, the consent of the Company, such consent not to be
unreasonably withheld, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Company and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent and the
Offshore Sub-Administrative Agent shall be discharged from their duties and
obligations hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent and the Offshore Sub-Administrative Agent shall instead be
made by or to each Lender and the applicable L/C Issuers directly, until such
time as the Required Total Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent and the Offshore Sub-Administrative
Agent, and the retiring Administrative Agent and the Offshore Sub-Administrative
Agent shall be discharged from all of their duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section). The fees payable by the Company to a
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successor Administrative Agent and the Offshore Sub-Administrative Agent shall
be the same as those payable to its predecessor unless otherwise agreed between
the Company and such successor. After the retiring Administrative Agent's and
the Offshore Sub-Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 12.04 shall
continue in effect for the benefit of such retiring Administrative Agent, the
Offshore Sub-Administrative Agent, their sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent and the Offshore Sub-Administrative
Agent was acting as Administrative Agent and the Offshore Sub-Administrative
Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as the Offshore
Sub-Administrative Agent, an L/C Issuer and Swing Line Lender. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of Offshore Sub-Administrative Agent, the retiring
L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line
Lender shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangement
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.
11.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and each L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Offshore Sub-Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and each L/C Issuer also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Offshore Sub-Administrative Agent or any other Lender
or any of their Related Parties and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other
Loan Document or any related agreement or any document furnished hereunder or
thereunder.
11.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Arrangers, the "Joint Book Managers" or the
Co-Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
the Offshore Sub-Administrative Agent, a Lender or an L/C Issuer hereunder.
11.09 ADMINISTRATIVE AGENT AND THE OFFSHORE SUB-ADMINISTRATIVE AGENT MAY
FILE PROOFS OF CLAIM. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to any Borrower, the Administrative Agent and
the Offshore Sub-Administrative Agent (irrespective of whether the principal of
any Loan or L/C Obligation shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether the
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Administrative Agent or the Offshore Sub-Administrative Agent shall have made
any demand on any Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuers, the Administrative Agent
and the Offshore Sub-Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders, the L/C Issuers, the Administrative Agent and the Offshore
Sub-Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuers, the Administrative Agent
and the Offshore Sub-Administrative Agent under Sections 2.04(i) and (j),
2.10 and 12.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuers to make such payments to the Administrative
Agent and the Offshore Sub-Administrative Agent as appropriate, and, in the
event that the Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, shall consent to the making of such payments directly to the Lenders
and the L/C Issuers, to pay to the Administrative Agent or the Offshore
Sub-Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and the
Offshore Sub-Administrative Agent, and their agents and counsel, and any other
amounts due the Administrative Agent and the Offshore Sub-Administrative Agent
under Sections 2.10 and 12.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent and the Offshore Sub-Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender or the L/C Issuers any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent or the
Offshore Sub-Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
ARTICLE XII.
MISCELLANEOUS
12.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Company or any other Borrower therefrom,
(a) shall be effective with respect to the Domestic Facility
unless in writing signed by the Required Domestic Lenders and the Company,
and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given;
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(b) shall be effective with respect to the Offshore Facility
unless in writing signed by the Required Offshore Lenders, the Company and
the Offshore Borrowers, and acknowledged by the Administrative Agent and
the Offshore Sub-Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given;
(c) shall be effective with respect to the any other term or
provision of this Agreement not covered by (a) or (b) above unless in
writing signed by the Required Total Lenders and the Company, and
acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given;
provided, however, that no such amendment, waiver or consent shall:
(i) waive any condition set forth in Section 6.01(a) without
the written consent of each Lender;
(ii) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 10.02)
without the written consent of such Lender;
(iii) postpone any date fixed by this Agreement or any other
Loan Document for any payment (excluding mandatory prepayments) of
principal, interest, fees or other amounts due to the Lenders (or
any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;
(iv) reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to
clause (v) of the second proviso to this Section 12.01) any fees or
other amounts payable hereunder or under any other Loan Document,
without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required
Domestic Lenders or Required Offshore Lenders, as applicable, shall
be necessary to amend the definition of "Default Rate" or to waive
any obligation of any Borrower to pay interest or Letter of Credit
Fees at the Default Rate;
(v) change Section 4.07 or Section 10.03 in a manner that
would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
(vi) amend Section 1.06 or the definition of "Alternative
Currency" without the written consent of each Lender;
(vii) change any provision of this Section or (except as a
result of the operation of Section 2.11), the definition of
"Required Total Lenders", "Required Domestic Lenders", "Required
Offshore Lenders", or any other provision hereof
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specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Lender;
(viii) release the Company from the Company Guaranty without
the written consent of each Offshore Lender; or
(ix) after the occurrence of, and during the continuance of
an Event of Default, release any of the Cash Collateral granted
pursuant to the terms of Section 10.02(c) if there are any
outstanding Letters of Credit or unpaid L/C Obligations without the
written consent of each Domestic Lender;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by each of the L/C Issuers in addition to the
Lenders required above, affect the rights or duties of the L/C Issuers
under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition
to the Lenders required above, affect the rights or duties of the Swing
Line Lender under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv)
no amendment, waiver or consent shall, unless in writing and signed by the
Offshore Sub-Administrative Agent in addition to the Lenders required
above, affect the Offshore Loan, or the rights or duties of the Offshore
Sub-Administrative Agent under this Agreement; (v) Section 12.06(h) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC
at the time of such amendment, waiver or other modification; and (vi) the
Fee Letters may be amended, or rights or privileges thereunder waived, in
a writing executed only by the parties thereto. Notwithstanding anything
to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except
that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
12.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to
the applicable telephone number, as follows:
(i) if to the Borrowers, the Administrative Agent, the
Offshore Sub-Administrative Agent, the L/C Issuers or the Swing Line
Lender, to the address,
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telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 12.02; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
business day for the recipient). Notices delivered through electronic
communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to
the Lenders and the L/C Issuers hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or
any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer,
as applicable, has notified the Administrative Agent that it is incapable
of receiving notices under such Article by electronic communication. The
Administrative Agent or the Company may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as
available, return e-mail or other written acknowledgement), provided that
if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next business
day for the recipient, and (ii) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrowers, the
Administrative Agent, the Offshore Sub-Administrative Agent, each L/C
Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice
to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications
hereunder by notice to the Company, the Administrative Agent, the Offshore
Sub-Administrative Agent, the L/C Issuers and the Swing Line Lender.
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(d) Reliance by Administrative Agent, L/C Issuers and Lenders. The
Administrative Agent, the Offshore Sub-Administrative Agent, the L/C
Issuers and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of any Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Company shall indemnify the Administrative
Agent, the Offshore Sub-Administrative Agent, the L/C Issuers, each Lender
and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of any Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent and
the Offshore Sub-Administrative Agent, may be recorded by the
Administrative Agent or the Offshore Sub-Administrative Agent, and each of
the parties hereto hereby consents to such recording.
12.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the
Offshore Sub-Administrative Agent or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
12.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Company and each other Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and the Offshore Sub-Administrative Agent and their
Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent and the Offshore Sub-Administrative
Agent), in connection with (A) the syndication of the credit facilities
provided for herein, (B) the preparation, negotiation, execution and
delivery of this Agreement and the Loan Documents, (C) the administration
of this Agreement and the other Loan Documents and (D) any amendments,
modifications or waivers of the provisions hereof or thereof, (in each
case of (A) (B) and (D) preceding, whether or not the transactions
contemplated hereby or thereby shall be consummated), provided that,
notwithstanding the foregoing, (I) the Company will not be required to
reimburse the Administrative Agent for legal fees incurred on behalf of an
Eligible Assignee in connection with any assignment as set forth in
Section 12.06(b)(v) and (II) all reimbursement requests for legal fees and
disbursements of counsel for time and expenses incurred after the Closing
Date shall only include charges arising from work directly requested by
the Agents, except with respect to legal expenses incurred in connection
with amendments, modifications or waivers set forth in subsection
(a)(i)(D) above, (ii) all reasonable out-of-pocket expenses incurred by
each of the L/C Issuers in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or
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any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Offshore Sub-Administrative
Agent, any Lender or each of the L/C Issuers (including the fees, charges
and disbursements of any counsel for the Administrative Agent, the
Offshore Sub-Administrative Agent, any Lender or the L/C Issuers), and
shall pay all reasonable fees and time charges for attorneys who may be
employees of the Administrative Agent, the Offshore Sub-Administrative
Agent, any Lender or the L/C Issuers, in connection with the enforcement
or protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification by the Company. The Company shall indemnify
the Administrative Agent, the Offshore Sub-Administrative Agent (and any
sub-agent of either thereof), each Lender and each L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by any Borrower arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by any L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any
property owned or operated by any Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to any Borrower or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory, whether brought by a third
party or by the Company or any other Borrower, and regardless of whether
any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY
OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR
SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such
Indemnitee, (y) result from a claim brought by the Company or any other
Borrower against an Indemnitee for breach in bad faith of such
Indemnitee's obligations hereunder or under any other Loan Document, if
the Company or such other Borrower has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction or arise solely out of claims between or among Indemnitees.
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(c) Reimbursement by Lenders. To the extent that the Company for
any reason fails to indefeasibly pay any amount required under subsection
(a) or (b) of this Section to be paid by it to the Administrative Agent or
the Offshore Sub-Administrative Agent (or any sub-agent of either
thereof), any L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent, the
Offshore Sub-Administrative Agent (or any such sub-agent of either of
them), the L/C Issuers or such Related Party, as the case may be, such
Lender's Total Applicable Percentage, Domestic Applicable Percentage or
Offshore Applicable Percentage, as applicable (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or
the Offshore Sub-Administrative Agent (or any such sub-agent of either
thereof) or such L/C Issuer in its capacity as such, or against any
Related Party of any of the foregoing acting for the Administrative Agent
(or any such sub-agent) or such L/C Issuer in connection with such
capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 4.06(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by Applicable Law, no Borrower shall assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof. In the
absence of gross negligence and willful misconduct, no Indemnitee referred
to in subsection (b) above shall be liable for any damages arising from
the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable
not later than 30 Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and any L/C Issuer, the
replacement of any Lender, the termination of the Aggregate Domestic
Commitments, Aggregate Offshore Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
12.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of any Borrower is made to the Administrative Agent, the Offshore
Sub-Administrative Agent, any L/C Issuer or any Lender, or the Administrative
Agent, the Offshore Sub-Administrative Agent, any L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the Offshore Sub-Administrative Agent,
any L/C Issuer or such Lender in its discretion)
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to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and each L/C Issuer severally agrees to pay to the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent or the Offshore Sub-Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the applicable Overnight Rate from time to time in effect, in
the applicable currency of such recovery or payment. The obligations of the
Lenders and the L/C Issuers under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this
Agreement.
12.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby,
except that subject to the provisions of Section 9.05, no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent (and, with
respect to an Offshore Borrower, the Offshore Sub-Administrative Agent),
and each Lender, and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by
way of participation in accordance with the provisions of subsection (d)
of this Section, (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section, or
(iv) to an SPC in accordance with the provisions of subsection (h) of this
Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Offshore Sub-Administrative Agent, the
L/C Issuers and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to
one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Domestic Commitment, Offshore Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment, Offshore
Commitment or Domestic Commitment and the Domestic Loans, Offshore
Loans or Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Offshore
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Commitment, Domestic Commitment or Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment
is not then in effect, the principal outstanding balance of the
Offshore Loans, the Domestic Loans or the Loans of the assigning
Lender subject to each such assignment, determined as of the date
the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent not to
be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Offshore Loans,
Domestic Loans or Loans, or the Offshore Commitment, Domestic
Commitment or Commitment assigned, except that this clause (ii)
shall not apply to rights in respect of Bid Loans or Swing Line
Loans;
(iii) any assignment of a Commitment must be approved by (A)
so long as there is no continuing Default, the Company (such
approval not to be unreasonably withheld or delayed, provided that
the Company may withhold consent with respect to any Person solely
because they are a Public Lender), (B) the Administrative Agent, (C)
with respect to an assignment of the Domestic Commitment only, each
of the L/C Issuers and the Swing Line Lender and (D) with respect to
an assignment of the Offshore Commitment only, the Offshore
Sub-Administrative Agent, unless in each case of (A) through (D)
above, the Person that is the proposed assignee is itself a Domestic
Lender or Offshore Lender, an Affiliate of such Lender or an
Approved Fund of such Lender, as applicable, (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee);
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500, (except such fee
shall not be required to be paid with respect to assignments to
Affiliates of Lenders) and the Eligible Assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and
(v) each Eligible Assignee will reimburse the Administrative
Agent for the legal costs incurred by the Administrative Agent (if
any) as a direct result of such Assignment and Assumption, except
for legal costs incurred by the Company in connection with obtaining
"reliance letters" to permit new lenders to rely on the opinions
issued on the Closing Date with respect to the Offshore Borrowers
(provided that no such legal costs will be incurred on behalf of any
such Eligible Assignee unless such Eligible Assignee requests the
assistance of counsel to the Administrative Agent.)
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Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (other than its
obligations under Section 12.07) (and, in the case of an Assignment
and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of
Sections 5.01, 5.04, 5.05, and 12.04 with respect to facts and
circumstances occurring prior to the effective date of such
assignment. Upon request, each Borrower (at its expense) shall
execute and deliver an appropriate Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent and the Offshore
Sub-Administrative Agent,, acting solely for this purpose as agents
of the Borrowers, shall maintain at the Administrative Agent's
Office or the Offshore Sub-Administrative Agent's Office, a copy of
each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender, as applicable to the Domestic
Loan and the Offshore Loan, pursuant to the terms hereof from time
to time (collectively, the "Register"). The entries in the Register
shall be conclusive, and the Borrowers, the Administrative Agent and
the Offshore Sub-Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrowers and the L/C
Issuers at any reasonable time and from time to time upon reasonable
prior notice. In addition, at any time that a request for a consent
for a material or substantive change to the Loan Documents is
pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative
Agent or the Offshore Sub-Administrative Agent, as applicable, a
copy of the applicable portion of the Register.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, any Borrower or the Administrative Agent,
sell participations to any Person (other than a natural person or
the Company or any of the Company's Affiliates or Subsidiaries)
(each, a "Participant") in all or a portion of such Lender's rights
and/or obligations under this Agreement (including all or a portion
of its Commitments and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other
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parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent, the Lenders and the L/C Issuers
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement.
Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the
sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to
Section 12.01 that affects such Participant. Subject to subsection
(e) of this Section, each Borrower agrees that each Participant
shall be entitled to the benefits of Sections 5.01, 5.04 and 5.05 to
the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to
the benefits of Section 12.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 4.07 as though it
were a Lender.
(e) Limitation upon Participant Rights. A Participant shall
not be entitled to receive any greater payment under Section 5.01 or
5.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 5.01 unless the Company is notified of the
participation sold to such Participant and such Participant agrees,
for the benefit of the Borrowers, to comply with Section 5.01(e) as
though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under
this Agreement (including under its Note(s), if any) to secure
obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words
"execution," "signed," "signature," and words of like import in any
Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability
as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as
provided for in any Applicable Law, including the Federal Electronic
Signatures in Global and National Commerce Act, Chapter 43 of the
Texas Business and Commerce Code, or any other similar state laws
based on the Uniform Electronic Transactions Act.
(h) Special Purpose Funding Vehicles. Notwithstanding
anything to the contrary contained herein, any Lender (a "Granting
Lender") may grant to a special
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purpose funding vehicle identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the
Company (an "SPC") the option to provide all or any part of any Loan
that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof or, if it fails to do
so, to make such payment to the Administrative Agent as is required
under Section 4.06(b)(ii). Each party hereto hereby agrees that (i)
neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or
change the obligations of the Borrowers under this Agreement
(including its obligations under Section 5.04), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan
Document, remain the lender of record hereunder. The making of a
Loan by an SPC hereunder shall utilize the Commitments of the
Granting Lender to the same extent, and as if, such Loan were made
by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or
other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC
may (i) with notice to, but without prior consent of the Company and
the Administrative Agent and with the payment of a processing fee of
$1,000, assign all or any portion of its right to receive payment
with respect to any Loan to the Granting Lender and (ii) disclose on
a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.
(i) Resignation as L/C Issuers or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained
herein, if at any time Bank of America assigns all of its Domestic
Commitments and Domestic Loans pursuant to subsection (b) above,
Bank of America may (i) resign as an L/C Issuer and/or (ii) upon 10
days' notice to the Company, resign as Swing Line Lender. In the
event of any such resignation as an L/C Issuer or Swing Line Lender,
the Company shall be entitled to appoint from among the Domestic
Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Company to appoint any
such successor shall affect the resignation of Bank of America as an
L/C Issuer or Swing Line Lender, as the case may be. If Bank of
America resigns as an L/C Issuer, it shall retain all the rights and
obligations of the an L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its
resignation as an L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Domestic Lenders to make
Base Rate Committed Loans or fund risk participations in
Unreimbursed Amounts
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pursuant to Section 2.04c)). If Bank of America resigns as Swing
Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such resignation,
including the right to require the Domestic Lenders to make Base
Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.05c).
12.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Offshore Sub-Administrative Agent, the Lenders and
each of the L/C Issuers agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its Affiliates and to its and its Affiliates' respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by Applicable Laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to a Borrower and its obligations, (g) with the consent of the Company
or (h) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, the Offshore Sub-Administrative Agent, any Lender, any L/C
Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Company.
For purposes of this Section, "Information" means all information received
from the Company or any Subsidiary relating to the Company or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent, the Offshore Sub-Administrative Agent,
any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by
the Company or any Subsidiary, provided that, in the case of information
received from the Company or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
12.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, each L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by Applicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency but
excluding deposits held by a Borrower as a fiduciary for others) at any time
held
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and other obligations (in whatever currency) at any time owing by such
Lender, any such L/C Issuer or any such Affiliate to or for the credit or the
account of any Borrower against any and all of the obligations of such Borrower
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or any such L/C Issuer, irrespective of whether or not such Lender
or such L/C Issuer shall have made any demand under this Agreement or any other
Loan Document and although such obligations of such Borrower may be contingent
or unmatured or are owed to a branch or office of such Lender or such L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, each L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their
respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify
the Company, the Administrative Agent and the Offshore Sub-Administrative Agent,
as applicable, promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
12.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the Highest Lawful Rate. If the Administrative
Agent, the Offshore Sub-Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Highest Lawful Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Company or the appropriate Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent, the Offshore Sub-Administrative Agent or a Lender exceeds the Highest
Lawful Rate, such Person may, to the extent permitted by Applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the actual term of the Obligations
hereunder.
12.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 6.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
12.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent, the Offshore Sub-Administrative Agent and each Lender,
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regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent, the
Offshore Sub-Administrative Agent or any Lender may have had notice or knowledge
of any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
12.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.13 REPLACEMENT OF LENDERS. If the Company is entitled to replace any
Lender in accordance with the terms of Section 5.06(b), if any Lender is a
Defaulting Lender, or if any Lender does not vote in favor of an amendment or
waiver that requires the consent or vote of each of the Lenders and is approved
by the Required Total Lenders, or if any other circumstance exists hereunder
that gives the Company the right to replace a Lender as a party hereto, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent (and, with respect to Offshore Loans, the Offshore
Sub-Administrative Agent), require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 12.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) the Company shall have paid to the Administrative Agent the
assignment fee specified in Section 12.06(b);
(b) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 5.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 5.04 or payments required to be made pursuant
to Section 5.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(d) such assignment does not conflict with Applicable Laws.
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A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
12.14 GOVERNING LAW; JURISDICTION; ETC.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE
ADMINISTRATIVE Agent, THE OFFSHORE SUB-ADMINISTRATIVE AGENT AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) The parties hereto agree that Chapter 346 (other than Section
346.004) of the Texas Finance Code (which regulates certain revolving
credit accounts and revolving tri-party accounts) shall not apply to the
Loans or the other Obligations.
(c) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
TEXAS SITTING IN DALLAS COUNTY, TEXAS OR OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF TEXAS (DALLAS DIVISION), AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT
ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE OFFSHORE SUB-ADMINISTRATIVE
AGENT ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
12.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
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EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
12.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent and the Offshore
Sub-Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or the Administrative Agent and
the Offshore Sub-Administrative Agent, as applicable, to identify such Borrower
in accordance with the Act.
12.17 KNOW YOUR CUSTOMER RULES. (a) The Company and the Offshore Borrowers
shall promptly upon the request of the Offshore Sub-Administrative Agent, the
Administrative Agent or any Offshore Lender supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the
Administrative Agent, the Offshore Sub-Administrative Agent (for themselves or
on behalf of any Offshore Lender) or any Offshore Lender (for itself or on
behalf of any prospective new Lender) in order for the Administrative Agent, the
Offshore Sub-Administrative Agent, such Lender or any prospective new Lender to
carry out and be satisfied with the results of all necessary "know your
customer" or other checks in relation to any person that it is required to carry
out pursuant to the transactions contemplated in the Loan Documents.
(b) Each Offshore Lender shall promptly upon the request of the Offshore
Sub-Administrative Agent or the Administrative Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Administrative Agent (for itself) or the Offshore Sub-Administrative Agent
(for itself) in order for the Offshore Sub-Administrative Agent or the
Administrative Agent to carry out and be satisfied with the results of all
necessary "know your customer" or other checks in relation to any person that it
is required to carry out pursuant to the transactions contemplated in the Loan
Documents.
12.18 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or under any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent and the Offshore Sub-Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Borrower in respect of any such
sum due from it to the Administrative Agent, the Offshore Sub-Administrative
Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with
133
the applicable provisions of this Agreement (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt by the
Administrative Agent or the Offshore Sub-Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent or the Offshore Sub-Administrative
Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Offshore Sub-Administrative Agent or the Person to
whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the
Administrative Agent or the Offshore Sub-Administrative Agent in such currency,
the Administrative Agent and the Offshore Sub-Administrative Agent, as
applicable agree to return the amount of any excess to such Borrower (or to any
other Person who may be entitled thereto under Applicable Law).
12.19 DESIGNATION AS SENIOR DEBT.
All Obligations hereunder and under the other Loan Documents shall be
designated as "Senior Indebtedness" for purposes of and as defined in, any
indenture or other similar agreement of the Company, any other Borrower and any
of their Subsidiaries.
12.20 OFFSHORE BORROWERS' AGENT.
The Company and each Offshore Borrower irrevocably appoints Clear Channel
International Limited as Offshore Borrowers' Agent, to act as its agent in
connection with the UK Offshore Loan and each UK Offshore Borrowing. Each
Offshore Borrower and the Company irrevocably authorizes the Offshore Borrowers'
Agent:
(a) to issue UK Offshore Loan Notices and give and receive any
other notices on the Company's and each such Offshore Borrower's behalf;
(b) on its behalf to perform the other duties and to exercise the
other rights, powers and discretions that are specifically delegated to it
under or in connection with the Loan Documents, together with any other
incidental rights, powers and discretions; and
(c) on its behalf to execute any Loan Document and/or any
amendment, waiver or other document related to any Loan Document.
and agrees to be bound by the acts, consents, waivers, commitments and
acquiescences of, and notices given by, Offshore Borrowers' Agent under the Loan
Documents.
12.21 THE ADMINISTRATIVE AGENT AND THE OFFSHORE SUB-ADMINISTRATIVE AGENT.
The Company and each other Borrower agrees that the Administrative Agent
and the Offshore Sub-Administrative Agent may perform any and all of their
duties,and exercise their
134
rights and powers hereunder or under any other Loan Document, by or through
their own institution, each other, or by or through any one or more sub-agents
appointed by the Administrative Agent or the Offshore Sub-Administrative Agent,
notwithstanding the delineation of certain duties in this Agreement and in the
other Loan Documents. The Administrative Agent, the Offshore Sub-Administrative
Agent and any other such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Agreement and each of the Loan Documents
shall apply to the Administrative Agent, the Offshore Sub-Administrative Agent
and any such sub-agent, and to the Related Parties of the Administrative Agent,
the Offshore Sub-Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent and
the Offshore Sub-Administrative Agent.
12.22 JOINT AND SEVERAL TERMS. Each and every representation and warranty
of the Borrowers or any two or more Borrowers or of the Company and its
Subsidiaries contained herein shall be, and shall be deemed to be, the joint and
several representation and warranty of each of the Borrowers or such Borrowers
or of the Company and each of its Subsidiaries, respectively, and of all such
Persons.
12.23 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 ORAL AGREEMENTS AMONG THE PARTIES.
12.24 LENDER CERTIFICATION. Each Lender certifies to the Administrative
Agent that it is a Private Lender on the Closing Date (such certification as a
Private Lender or Public Lender to the Administrative Agent by a Lender is
herein referred to as a "Lender Certification"). Each Person subsequently
becoming a Lender hereunder through an Assignment and Assumption, an amendment
to this Agreement, a joinder agreement or otherwise, must concurrently therewith
deliver a Lender Certification to the Administrative Agent, certifying whether
such assignee will be a Private Lender or Public Lender. Once such Lender
Certification is delivered to the Administrative Agent, no Lender shall be
entitled to change its status as a Private Lender during the term of this
Agreement, unless there shall at such time exist an Event of Default or unless
another Lender is a Public Lender at that time.
12.25 PROFESSIONAL MARKET PARTY. Each Offshore Lender hereby certifies
that, as of the date hereof, it qualifies as a Professional Market Party. Each
Person subsequently becoming an Offshore Lender hereunder through an Assignment
and Assumption, an amendment to this Agreement, a joinder agreement or
otherwise, is deemed to have made such certification as of the date on which
that Person becomes an Offshore Lender.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
135
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CLEAR CHANNEL COMMUNICATIONS, INC., as
Company, Borrower and guarantor
By: /s/ XXXXXXX XXXX
-------------------------------------
Name: Xxxxxxx Xxxx
-----------------------------------
Title: Senior Vice President - Finance
----------------------------------
CLEAR CHANNEL INTERNATIONAL LIMITED, as
Offshore Borrowers' Agent, Offshore
Borrower and Borrower
By: /s/ XXX XXXXXXX
-------------------------------------
Name: Xxx Xxxxxxx
-----------------------------------
Title: Director
----------------------------------
CLEAR CHANNEL INTERNATIONAL BV, as
Offshore Borrower and Borrower
By: /s/ XXXXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
CLEAR CHANNEL NETHERLANDS BV, as Offshore
Borrower and Borrower
By: /s/ XXXXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
CLEAR CHANNEL INTERNATIONAL HOLDINGS BV,
as Offshore Borrower and Borrower
By: /s/ XXXXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
CCW INTERNATIONAL BV, as Offshore Borrower
and Borrower
By: /s/ XXXXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Signature Page to Credit Agreement
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: Principal
----------------------------------
Signature Page to Credit Agreement
BANK OF AMERICA, N.A.,
as Offshore Sub-Administrative Agent
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
Signature Page to Credit Agreement
BANK OF AMERICA, N.A., as a Domestic
Lender, an Offshore Lender, L/C Issuer
and Swing Line Lender
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: Principal
----------------------------------
Signature Page to Credit Agreement
JPMORGAN CHASE bank,
as Syndication Agent
By: /s/ XXXXXX XXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
JPMORGAN CHASE bank, as a Domestic Lender
and an Offshore Lender
By: /s/ XXXXXX XXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
BARCLAYS BANK PLC, as Co-Documentation
Agent, a Domestic Lender and an Offshore
Lender
By: /s/ L. XXXXX XXXXXX
-------------------------------------
Name: L. Xxxxx Xxxxxx
-----------------------------------
Title: Director
----------------------------------
Signature Page to Credit Agreement
CITIBANK, N.A., as Co-Documentation Agent,
a Domestic Lender and an Offshore Lender
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH, as
Co-Documentation Agent, a Domestic Lender
and an Offshore Lender
By: /s/ XXXXXX X. XXXX
-------------------------------------
Name: Xxxxxx X. Xxxx
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: Associate
------------------------------------
Signature Page to Credit Agreement
DEUTSCHE BANK SECURITIES INC., as
Co-Documentation Agent
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
-----------------------------------
Title: Director
----------------------------------
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
DEUTSCHE BANK AG, NEW YORK BRANCH, as a
Domestic Lender
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
-----------------------------------
Title: Director
----------------------------------
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
DEUTSCHE BANK LUXEMBOURG SA, as an
Offshore Lender
By: /s/ X. XXXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ X. XXXXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
Signature Page to Credit Agreement
SUNTRUST BANK, as a Domestic Lender
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Signature Page to Credit Agreement
THE BANK OF NEW YORK,
as a Domestic Lender
By: /s/ XXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
XXXXXXX STREET CREDIT CORPORATION,
as a Domestic Lender
By: /s/ X.X. XXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxx
-----------------------------------
Title: CFO
----------------------------------
Signature Page to Credit Agreement
XXXXXX XXXXXXX BANK,
as a Domestic Lender
By: /s/ XXXXXX TWEGNE
-------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
SUMITOMO MITSUI BANKING CORP.,
NEW YORK, as a Domestic Lender
By: /s/ XXX XXXXXXXXX
-------------------------------------
Name: Xxx X. Xxxxxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
Signature Page to Credit Agreement
UBS LOAN FINANCE LLC,
as a Domestic Lender
By: /s/ JOSOLIN XXXXXXXXX
-------------------------------------
Name: Josolin Xxxxxxxxx
-----------------------------------
Title: Associate Director, Banking
Products Services, US
------------------------------------------
By: /s/ WINSLOWE OGBOURNE
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: Associate Director, Banking
Products Services, US
------------------------------------------
Signature Page to Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Domestic Lender
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------------
Title: Director
----------------------------------
Signature Page to Credit Agreement
XXXXXX XXXXXXX FINANCING, INC.,
as a Domestic Lender
By: /s/ XXXXX XXX
-------------------------------------
Name: Xxxxx Xxx
-----------------------------------
Title: Managing Director
----------------------------------
Signature Page to Credit Agreement
BNP PARIBAS, as a Domestic Lender
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: Director Media & Telecom Finance
----------------------------------
By: /s/ XXXXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
SOCIETE GENERALE, as a Domestic Lender
By: /s/ XXXX XXXXX
-------------------------------------
Name: Xxxx Xxxxx
-----------------------------------
Title: Managing Director
----------------------------------
Signature Page to Credit Agreement
UFJ BANK LIMITED, NEW YORK BRANCH,
as a Domestic Lender
By: /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Signature Page to Credit Agreement
UNION BANK OF CALIFORNIA, N.A.,
as a Domestic Lender
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
Signature Page to Credit Agreement
US BANK, NATIONAL ASSOCIATION,
as a Domestic Lender
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxx X. XxXxxx
-----------------------------------
Title: Vice president
----------------------------------
Signature Page to Credit Agreement
SCHEDULE 1.01
MANDATORY COST FORMULAE
1. The Mandatory Cost (to the extent applicable) is an addition to the
interest rate to compensate Lenders for the cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which
replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as practicable
thereafter) the Administrative Agent or the Offshore Sub-Administrative
Agent shall calculate, as a percentage rate, a rate (the "Additional Cost
Rate") for each Lender, in accordance with the paragraphs set out below.
The Mandatory Cost will be calculated by the Administrative Agent or the
Offshore Sub-Administrative Agent as a weighted average of the Lenders'
Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed
as a percentage rate per annum. The Administrative Agent or the Offshore
Sub-Administrative Agent, as applicable, will, at the request of the
Company, the Offshore Borrowers' Agent or any Lender, deliver to the
Company, the Offshore Borrowers' Agent or such Lender as the case may be,
a statement setting forth the calculation of any Mandatory Cost.
3. The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to the Administrative Agent or the Offshore Sub-Administrative Agent. This
percentage will be certified by such Lender in its notice to the
Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, as the cost (expressed as a percentage of such Lender's
participation in all Loans made from such Lending Office) of complying
with the minimum reserve requirements of the European Central Bank in
respect of Loans made from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office in
the United Kingdom will be calculated by the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, as follows:
(a) in relation to any Loan in Sterling:
AB+C(B-D)+E x 0.01
------------------- per cent per annum
100 - (A+C)
(b) in relation to any Loan in any currency other than Sterling:
E x 0.01
--------- per cent per annum
300
Schedule 1.01
Page 1
Where:
"A" is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
"B" is the percentage rate of interest (excluding the Applicable Rate,
the Mandatory Cost and any interest charged on overdue amounts
pursuant to the first sentence of Section 4.01 and, in the case of
interest (other than on overdue amounts) charged at the Default
Rate, without counting any increase in interest rate effected by the
charging of the Default Rate) payable for the relevant Interest
Period of such Loan.
"C" is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.
"D" is the percentage rate per annum payable by the Bank of England to
the Administrative Agent or the Offshore Sub-Administrative Agent on
interest bearing Special Deposits.
"E" is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by the Administrative Agent or the
Offshore Sub-Administrative Agent as being the average of the most
recent rates of charge supplied by the Lenders to the Administrative
Agent or the Offshore Sub-Administrative Agent pursuant to paragraph
7 below and expressed in Sterling per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Regulations" means the FSA Supervision Manual or such other
law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Regulations under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the Fees
Regulations but taking into account any applicable discount rate);
and
(d) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5% will be included in the formula as 5
and not as 0.05). A negative result
Schedule 1.01
Page 2
obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.
7. If requested by the Administrative Agent, the Offshore Sub-Administrative
Agent, the Offshore Borrowers' Agent or the Company, each Lender with a
Lending Office in the United Kingdom or a Participating Member State
shall, as soon as practicable after publication by the Financial Services
Authority, supply to the Administrative Agent, the Offshore
Sub-Administrative Agent, the Offshore Borrowers' Agent and the Company,
the rate of charge payable by such Lender to the Financial Services
Authority pursuant to the Fees Regulations in respect of the relevant
financial year of the Financial Services Authority (calculated for this
purpose by such Lender as being the average of the Fee Tariffs applicable
to such Lender for that financial year) and expressed in Sterling
per(pound)1,000,000 of the Tariff Base of such Lender.
8. Each Lender shall supply any information required by the Administrative
Agent and the Offshore Sub-Administrative Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing
on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of the
Lending Office out of which it is making available its participation
in the relevant Loan; and
(b) any other information that the Administrative Agent or the Offshore
Sub-Administrative Agent may reasonably require for such purpose.
Each Lender shall promptly notify the Administrative Agent or the Offshore
Sub-Administrative Agent, as applicable, in writing of any change to the
information provided by it pursuant to this paragraph.
9. The percentages or rates of charge of each Lender for the purpose of A, C
and E above shall be determined by the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent or the
Offshore Sub-Administrative Agent, as applicable, to the contrary, each
Lender's obligations in relation to cash ratio deposits, Special Deposits
and the Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Lending Office in the same
jurisdiction as such Lender's Lending Office.
10. The Administrative Agent and the Offshore Sub-Administrative Agent shall
have no liability to any Person if such determination results in an
Additional Cost Rate which over- or under-compensates any Lender and shall
be entitled to assume that the information provided by any Lender pursuant
to paragraphs 3, 7 and 8 above is true and correct in all respects.
11. The Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender
pursuant to paragraphs 3, 7 and 8 above.
Schedule 1.01
Page 3
12. Any determination by the Administrative Agent or the Offshore
Sub-Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all parties hereto.
13. The Administrative Agent or the Offshore Sub-Administrative Agent, as
applicable, may from time to time, after consultation with the Company,
the Offshore Borrowers' Agent and the Lenders, as applicable, determine
and notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
Schedule 1.01
Page 4
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
OFFSHORE DOMESTIC TOTAL
OFFSHORE APPLICABLE DOMESTIC APPLICABLE APPLICABLE
INSTITUTION COMMITMENT PERCENTAGES COMMITMENT PERCENTAGES PERCENTAGE
----------- ---------- ----------- ---------- ----------- ----------
Bank of America, N.A. $25,000,000 16.666666667% $ 121,669,170 7.604323125% 8.381095429%
JPMorgan Chase Bank $25,000,000 16.666666667% $ 121,669,170 7.604323125% 8.381095429%
Barclays Bank PLC $25,000,000 16.666666667% $ 102,500,000 6.406250000% 7.285714286%
Citibank, N.A. $25,000,000 16.666666667% $ 102,500,000 6.406250000% 7.285714286%
Credit Suisse First Boston
acting through its Cayman
Islands Branch $25,000,000 16.666666667% $ 102,500,000 6.406250000% 7.285714286%
Deutsche Bank Luxembourg SA $25,000,000 16.666666667% - - 1.428571428%
Deutsche Bank AG New York Branch - - $ 102,500,000 6.406250000% 5.857142857%
SunTrust Bank - - $ 110,000,000 6.875000000% 6.285714286%
The Bank of New York - - $ 95,000,000 5.937500000% 5.428571429%
Xxxxxxx Street Credit
Corporation - - $ 95,000,000 5.937500000% 5.428571429%
Xxxxxx Xxxxxxx Bank - - $ 95,000,000 5.937500000% 5.428571429%
Sumitomo Mitsui Banking
Corp., New York - - $ 95,000,000 5.937500000% 5.428571429%
UBS Loan Finance, LLC - - $ 95,000,000 5.937500000% 5.428571429%
Wachovia Bank, National
Association - - $ 95,000,000 5.937500000% 5.428571429%
Xxxxxx Xxxxxxx Financing, Inc. - - $ 50,000,000 3.125000000% 2.857142857%
BNP Paribas - - $ 50,000,000 3.125000000% 2.857142857%
Societe Generale - - $ 50,000,000 3.125000000% 2.857142857%
UFJ Bank Limited, New York
Branch - - $ 50,000,000 3.125000000% 2.857142857%
Union Bank of California, N.A. - - $ 36,661,660 2.291353750% 2.094952000%
US Bank, National Association - - $ 30,000,000 1.875000000% 1.714285714%
------------ ------------- -------------- ------------- -------------
TOTAL $150,000,000 100.000000000% $1,600,000,000 100.000000000% 100.000000000%
------------ ------------- -------------- ------------- -------------
Total Percentage
Schedule 2.01
Page 1
SCHEDULE 7.05
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
Schedule 7.13
Page 1
SCHEDULE 12.02
CERTAIN ADDRESSES FOR NOTICES
ADMINISTRATIVE AGENT'S OFFICE;
OFFSHORE SUB-ADMINISTRATIVE AGENT'S OFFICE;
CLEAR CHANNEL COMMUNICATIONS, INC.:
Clear Channel Communications, Inc.
000 Xxxx Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx, Vice President, Treasurer
Telephone: 000.000.0000
Telecopier: 210.822.3888
Electronic Mail: XxxxxXxxxxxx@xxxxxxxxxxxx.xxx
Website Address: xxx.xxxxxxxxxxxx.xxx
CLEAR CHANNEL INTERNATIONAL LIMITED
Clear Channel International Limited
0 Xxxxx Xxxx
Xxxxxx XX0 0XX
Attention: Xxxxx Xxxxxxx, Treasury and Finance Manager
Telephone: x00 00 0000 0000
Telecopier: x00 00 0000 0000
Electronic Mail: XxxxxXxxxxxx@xxxxxxxxxxxxxxx.xxx
Website Address: xxx.xxxxxxxxxxxx.xxx/xxxxxxxxxxxxx
Schedule 7.13
Page 2
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
000 Xxxx Xx. 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000 000-0000
Telecopier: 000 000-0000
Electronic Mail: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Account No. (for Dollars): 1292000883
Ref: Clear Channel Communications, Inc., Attn: Credit Services
ABA# 000000000
Account No. (for Euro): 00000000
Ref: Clear Channel Communications, Inc., Attn: Credit Services
Swift Address: XXXXXX00
[ACCOUNT NO. (FOR STERLING): 65280027
REF: CLEAR CHANNEL COMMUNICATIONS, INC., ATTN: CREDIT SERVICES
LONDON SORT CODE: 16-50-50
SWIFT ADDRESS: XXXXXX00]
Schedule 7.13
Page 3
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Mail Code: TX1-492-14-11
Xxxxxx, Xxxxx, 00000
City, State ZIP Code
Attention: Xxxxxxx Xxxx
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Electronic Mail: xxxxxxx.x.xxxx@xxxxxxxxxxxxx.xxx
Electronic Mail: xxxxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
L/C ISSUER:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA9-703-19-23
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx
Vice President
Telephone: 000.000.0000
Telecopier: 213.345.6694
Electronic Mail: Xxxxxx.Xxxx@xxxxxxxxxxxxx.xxx
SWING LINE LENDER:
Bank of America, N.A.
Street Address 000 Xxxx Xx 00xx Xxxxx
Mail Code: TX1-492-14-12
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000 000-0000
Telecopier: 000 000-0000
Electronic Mail: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Account No.: 1292000883
Ref: Clear Channel Communications, Inc.
ABA# 000000000
Schedule 7.13
Page 4
OFFSHORE SUB-ADMINISTRATIVE AGENT:
(for payments and Request for Credit Extensions)
Bank of America, N.A.
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Loans Agency
Telephone: x00 00 0000 0000
Telecopied: x00 00 0000 0000
ACCOUNT NO. (FOR US DOLLARS)
Bank of America N.A., New York
ABA No: 000000000
Account: Bank of America, N.A., London
Account No. 37/60564
Attention: Xxxxx Xxxx, Loans Agency
ACCOUNT NO. (FOR STERLING)
Bank of America, N.A., London
Sort Code: 16-50-50
SWIFT: BOFAGB22
Attention: Xxxxx Xxxx, Loans Agency
ACCOUNT NO. (FOR EURO)
Bank of America, N.A., London
SWIFT: BOFAGB22
Attention: Xxxxx Xxxx, Loans Agency
Schedule 7.13
Page 5
