Exhibit 99.2
EXECUTION COPY
CREDIT AGREEMENT
Dated as of December 19, 2003
among
PEGASUS MEDIA & COMMUNICATIONS, INC.
as the Borrower,
XXXXXXXXX L.L.C.,
as Administrative Agent,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.01 Certain Defined Terms.......................................................................1
1.02 Incorporated Definitions....................................................................8
1.03 Other Interpretive Provisions...............................................................8
1.04 Times of Day................................................................................9
1.05 Letter of Credit Amounts....................................................................9
ARTICLE IA SECURITY; SUBORDINATION...............................................................................9
1A.01 Collateral..................................................................................9
1A.02 Subordination..............................................................................10
1A.03 Security Documents.........................................................................10
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS................................................................11
2.01 Loans......................................................................................11
2.02 Borrowings, Conversions and Continuations of Loans.........................................11
2.03 Prepayments................................................................................12
2.04 Termination or Reduction of Commitments....................................................13
2.05 Repayment of Loans.........................................................................13
2.06 Interest...................................................................................14
2.07 Fees.......................................................................................14
2.08 Computation of Interest and Fees...........................................................14
2.09 Evidence of Debt...........................................................................15
2.10 Payments Generally.........................................................................15
2.11 Sharing of Payments........................................................................17
2.12 Letters of Credit..........................................................................18
2.13 Change of Control Put......................................................................24
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY..............................................................25
3.01 Taxes......................................................................................25
3.02 Illegality.................................................................................26
3.03 Inability to Determine Rates...............................................................26
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on LIBOR Loans...............27
3.05 Funding Losses.............................................................................28
3.06 Matters Applicable to all Requests for Compensation........................................28
3.07 Survival...................................................................................28
ARTICLE IV CONDITIONS PRECEDENT TO CLOSING DATE AND CREDIT EXTENSIONS...........................................29
4.01 Conditions of Closing Date and Initial Credit Extension....................................29
4.02 Conditions to all Credit Extensions........................................................31
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................................................32
5.01 Representations and Warranties under the Borrower Term Loan Agreement......................32
5.02 Organization, Qualification, Etc...........................................................32
5.03 Authorization; Compliance; Etc.............................................................32
5.04 Governmental and Other Consents, Etc.......................................................33
5.05 Compliance with Laws and Agreements........................................................33
5.06 Incorporated Representations and Warranties................................................34
ARTICLE VI AFFIRMATIVE COVENANTS................................................................................35
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6.01 Incorporated Representations and Warranties................................................35
6.02 Deposit Accounts...........................................................................35
6.03 Further Assurances Regarding Real Estate...................................................36
ARTICLE VII NEGATIVE COVENANTS..................................................................................37
ARTICLE VIII FINANCIAL COVENANTS................................................................................37
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES.......................................................................38
9.01 Events of Default..........................................................................38
9.02 Remedies Upon Event of Default.............................................................40
ARTICLE X Administrative Agent..................................................................................41
10.01 Appointment and Authorization of Administrative Agent......................................41
10.02 Delegation of Duties.......................................................................42
10.03 Liability of Administrative Agent..........................................................42
10.04 Reliance by Administrative Agent...........................................................42
10.05 Notice of Default..........................................................................43
10.06 Credit Decision; Disclosure of Information by Administrative Agent.........................43
10.07 Indemnification of Administrative Agent....................................................44
10.08 Administrative Agent in its Individual Capacity............................................44
10.09 Successor Administrative Agent.............................................................44
10.10 Administrative Agent May File Proofs of Claim..............................................45
10.11 Collateral and Guaranty Matters............................................................46
ARTICLE XI MISCELLANEOUS........................................................................................46
11.01 Amendments, Etc............................................................................46
11.02 Notices and Other Communications; Facsimile Copies.........................................48
11.03 No Waiver; Cumulative Remedies.............................................................49
11.04 Attorney Costs, Expenses and Taxes.........................................................49
11.05 Indemnification by the Borrower............................................................49
11.06 Payments Set Aside.........................................................................50
11.07 Successors and Assigns.....................................................................50
11.08 Set-off....................................................................................53
11.09 Counterparts...............................................................................54
11.10 Integration................................................................................54
11.11 Survival of Representations and Warranties.................................................54
11.12 Severability...............................................................................54
11.13 Tax Forms..................................................................................55
11.14 Governing Law..............................................................................55
11.15 Waiver of Right to Trial by Jury...........................................................55
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SCHEDULES
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 4.01(d)(iii) Real Property
Schedule 11.02 Administrative Agent Address, Etc.
EXHIBITS
A Form of Assignment and Assumption
B Form of Loan Notice
C Form of Note
D Form of L/C Issuer Joinder Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of December 19, 2003, among
PEGASUS MEDIA & COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"),
each lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and XXXXXXXXX L.L.C., in its capacity as
administrative agent for the Lenders (in such capacity, together with its
permitted successors and assigns, the "Administrative Agent").
RECITALS
A. The Borrower has requested that the Lenders provide a TWENTY MILLION
DOLLAR ($20,000,000) revolving credit facility, including a subfacility for the
issuance of letters of credit, for the purposes hereinafter set forth.
B. The Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, 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 Certain Defined Terms.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 11.02, or such
other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.
"Aggregate Commitments" means the Commitments of all the Lenders. The
Aggregate Commitments as of the Closing Date shall be TWENTY MILLION DOLLARS
($20,000,000).
"Agreement" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit A.
"Availability Period" means the period from and including Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Commitments pursuant to Section 2.04, and (c) the date of termination of the
commitment of each Lender to make Loans pursuant to Article IX.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means, for any day, a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1% and (b) the Prime Rate.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower Intercreditor Agreement" means the Intercreditor Agreement
dated as of the Closing Date by and among the Borrower, the Administrative Agent
and Bank of America, N.A., in its capacity as administrative agent for the
lenders under the Borrower Term Loan Agreement.
"Borrower Revolver Security Agreement" means the Security and Pledge
Agreement (Borrower) dated as of the Closing Date by and between the Borrower
and the Administrative Agent, as amended, supplemented or otherwise modified
from time to time.
"Borrower Term Loan Agreement" means the Fourth Amendment and
Restatement of Credit Agreement dated as of October 22, 2003 among the Borrower,
the financial institutions party thereto from time to time, as lenders, and Bank
of America, N.A., in its capacity as administrative agent.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and, in the case of LIBOR Loans, having the same Interest Period made
by each of the Lenders pursuant to Section 2.01.
"Business Day" means (a) for all purposes other than as provided in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in New York, New York are open for the transaction of a substantial
part of their commercial banking business; and (b) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, any day that is a Business Day described in clause (a) and
that is also (i) a day when on which banks in London, England are open for the
transaction of a substantial part of their commercial banking business and (ii)
a day for trading by and between banks in U.S. Dollar deposits in the London
interbank market.
"Cash Collateralize" has the meaning specified in Section 2.12(g).
"Change of Control Put Amount" has the meaning specified in Section
2.13.
"Closing Date" means the date hereof provided all the conditions
precedent in Section 4.01 are satisfied and/or waived by the Administrative
Agent.
"Commitment" means, as to each Lender, its obligation to (a) make Loans
to the Borrower pursuant to Section 2.01 and (b) to purchase participations in
L/C Obligations, in an aggregate principal amount at any one time outstanding
not to exceed the 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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"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"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 (a) an Event of Default or (b) an event or condition
that, but for the requirement that time elapse or notice be given, or both,
would constitute an Event of Default.
"Default Rate" means an interest rate equal to (a) the interest rate
then applicable to a Base Rate Loan pursuant to Section 2.06(a) plus (b) 2% per
annum; provided, however, that with respect to a LIBOR Loan, the Default Rate
shall be an interest rate equal to the interest rate otherwise applicable to
such Loan plus 2% per annum, in each case to the fullest extent permitted by
applicable Laws.
"Dollar" and "$" mean lawful money of the United States.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means the interest rate per annum charged on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers on the date of determination, as
published for any day which is a Business Day by the Federal Reserve Bank of New
York (or, in the absence of such publication, as reasonably determined by the
Administrative Agent).
"Honor Date" has the meaning specified in Section 2.12(c).
"Incorporated Affirmative Covenants" has the meaning set forth in
Article VI.
"Incorporated Definitions" has the meaning set forth in Section 1.02.
"Incorporated Events of Default" has the meaning set forth in Section
9.01(g).
"Incorporated Financial Covenants" has the meaning set forth in Article
VIII.
"Incorporated Negative Covenants" has the meaning set forth in
Article VII.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"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 LIBOR Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment
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Dates; and (b) as to any Base Rate Loan, the last Business Day of each March,
June, September and December and the Maturity Date.
"Interest Period" means, as to each LIBOR Loan, the period commencing
on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR
Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in its Loan Notice; 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.
"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, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"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 Borrowing of Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means any Person (including a Lender) selected by the
Borrower and acceptable to the Administrative Agent in its sole discretion that
agrees to issue one or more Letters of Credit hereunder pursuant to an L/C
Issuer Joinder Agreement duly executed on behalf of such Person and the
Administrative Agent. Each of Bank of America, N.A., Fleet National Bank and
Canadian Imperial Bank of Commerce shall be deemed to be an acceptable L/C
Issuer to the Administrative Agent.
"L/C Issuer Joinder Agreement" means a joinder agreement substantially
in the form of Exhibit D hereto.
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"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes each L/C Issuer.
"Lending Office" means, as to any Lender, the office or offices of such
Lender set forth on the signature pages hereto or on the schedules to the
Assignment and Assumption pursuant to which such Lender became a party hereto,
or such other office or offices as a Lender may from time to time notify the
Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder in
accordance with the provisions of Section 2.12(a). A Letter of Credit may be a
standby letter of credit only.
"Letter of Credit Application" means an application form for the
issuance of standby letters of credit as shall at any time be in use at an L/C
Issuer, as each such L/C Issuer shall request.
"Letter of Credit Expiration Date" means the day that is seven (7) days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"LIBOR" means for any Interest Period with respect to any LIBOR Loan,
the per annum rate (rounded to the next higher 1/100 of 1%) for deposits in
Dollars for a period equal to the relevant Interest Period as reported on
Telerate Page 3750 as of 11:00 a.m. (London time), on the day that is two (2)
Business Days prior to the commencement of such Interest Period. If, for any
reason, such rate does not appear on Telerate Page 3750, or shall cease to be
available from Telerate News Service, then "LIBOR" shall be determined by the
Administrative Agent from such financial reporting service or other information
as shall be reasonably designated by the Administrative Agent, to be the
arithmetic average (rounded upward, if necessary, to the next higher 1/100 of
1%) of the interest rate per annum representing the British Banker's Association
average of interbank offered rates for deposits in U.S. Dollars in the London
Interbank Market approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period for a period equal to
such Interest Period and in an amount substantially equal to the amount of the
applicable LIBOR Loan.
"LIBOR Loan" means a Loan that bears interest at a rate based on LIBOR.
"Loan" has the meaning specified in Section 2.01.
"Loan Account" means an account maintained hereunder by the
Administrative Agent on its books of account at the Administrative Agent's
Office, and with respect to the Borrower, in which (subject to the terms hereof)
the Borrower will be charged with all Loans made to, and all other Obligations
incurred by, the Borrower.
"Loan Documents" means this Agreement, each Note, each Letter of
Credit, each Letter of Credit Application , each L/C Issuer Joinder Agreement
and the Security Documents.
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"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of LIBOR Loans, pursuant
to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit B.
"Loan Parties" means, collectively, the Borrower, the Parent and each
Subsidiary party to the Subsidiary Revolver Security Agreement.
"Xxxxxxxxx" means Xxxxxxxxx L.L.C., a New York limited liability
company.
"Material Adverse Effect" means (a) an adverse effect on the validity
or enforceability of this Agreement or any of the other Loan Documents in any
material respect, (b) an adverse effect on the condition (financial or other),
business, results of operations, prospects or properties of the Borrower and its
Subsidiaries, taken as a whole, in any material respect or (c) an impairment of
the ability of the Companies to fulfill their obligations under this Agreement
or any other Loan Document to which any Company is a party, in any material
respect.
"Maturity Date" means July 31, 2006.
"Mortgaged Property(ies)" has the meaning specified in Section 6.03.
"Mortgage Instrument(s)" has the meaning specified in Section 6.03.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party 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
Loan Party 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.
"Outstanding Amount" means (i) with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments of Loans occurring on such date; and
(ii) with respect to any L/C Obligations on any date, the 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 of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"Parent Intercreditor Agreement" means the "Intercreditor Agreement"
defined in the Borrower Term Loan Agreement.
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"Parent Revolver Guaranty Agreement" means the Limited Recourse
Guaranty (Parent) dated as of the Closing Date by and between the Parent and the
Administrative Agent, as amended, supplemented or otherwise modified from time
to time.
"Parent Revolver Security Agreement" means the Securities Pledge
Agreement (Parent) dated as of the Closing Date by and between the Parent and
the Administrative Agent, and as it may thereafter be amended, supplemented or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Prime Rate" means the per annum interest rate published as being the
"Prime Rate" in the Eastern Edition of The Wall Street Journal in effect on a
given day, or in the event that The Wall Street Journal ceases for any reason to
publish or announce such rate of interest, any other source selected by the
Administrative Agent.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans has been
terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Put Offer" has the meaning specified in Section 2.13.
"Register" has the meaning specified in Section 11.07(c).
"Registered Loan" has the meaning specified in Section 11.07(c).
"Registered Note" has the meaning specified in Section 11.07(c).
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice and (b) with respect to an
L/C Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans has been terminated pursuant to Section 9.02, 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 being deemed "held" by such Lender for the purposes of this
definition).
"Revolver Affiliate Subordination Agreement" means the Affiliate
Subordination Agreement dated as of the Closing Date by and among Pegasus
Communications Management
7
Company, Pegasus Development Corporation, Pegasus Communications Corporation and
the Administrative Agent, as amended, supplemented or otherwise modified from
time to time.
"Security Document(s)" has the meaning specified in Section 1A.03.
"Subsidiary Revolver Security Agreement" means the Subsidiary Guaranty,
Security and Pledge Agreement dated as of the Closing Date by and among the
various Subsidiaries of the Borrower party thereto and the Administrative Agent,
as amended, supplemented or otherwise modified from time to time.
"Total Outstandings" means, as of any date, the aggregate Outstanding
Amount of all Loans and all L/C Obligations.
"Type" means, with respect to a Loan, its character as a Base Rate Loan
or a LIBOR Loan.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.12(c).
1.02 Incorporated Definitions.
Unless otherwise defined herein or the context otherwise requires,
terms used in this Agreement, including its preamble and recitals, shall have
the meaning given to such terms in the Borrower Term Loan Agreement as in effect
on the Closing Date and, subject to the provisions of Section 11.01, as the same
may be amended, supplemented or otherwise modified from time to time after the
Closing Date (the "Incorporated Definitions"), and such terms are hereby
incorporated herein by reference and shall be as binding on the Borrower as if
set forth fully herein until such time as the Commitments shall have expired or
been terminated in full and all of the Obligations shall have been paid in full.
The incorporation by reference to the Borrower Term Loan Agreement of the
Incorporated Definitions pursuant to this Section 1.02 shall survive the
termination of the Borrower Term Loan Agreement. For purposes of the
incorporation of the Incorporated Definitions pursuant to this Section 1.02, all
references in the Incorporated Definitions to the "Agent" shall be deemed to
refer to the Administrative Agent hereunder, all references in the Incorporated
Definitions to a "Lender" or the "Lender" shall be deemed to refer to one or
more of the Lenders hereunder, all references in the Incorporated Definitions to
the "Required Lenders" shall be deemed to refer to the Required Lenders
hereunder, all references in the Incorporated Definitions to the "Credit
Agreement", "this Agreement," or any similar references, shall be deemed to
refer to this Agreement, and all references in the Incorporated Definitions to a
"Loan Document" or the "Loan Documents," or any similar references, shall be
deemed to refer to one or more of the Loan Documents as defined in Section 1.01,
and all references in the Incorporated Definitions to the "Fourth Amendment
Effective Date" and/or the "Closing Date" shall be deemed to refer to the
Closing Date hereunder.
1.03 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
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(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to
such Loan Document as a whole and not to any particular provision
thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) 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.
1.04 Times of Day.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.05 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Letter of Credit Application therefor, whether
or not such maximum face amount is in effect at such time.
ARTICLE IA
SECURITY; SUBORDINATION
The Borrower hereby agrees that, until such time as the Commitments
shall have expired or been terminated in full and all of the Obligations shall
have been paid in full:
1A.01 Collateral.
The Obligations shall be secured at all times by:
9
(a) the unconditional guaranty of each of the Subsidiaries
(including the Finance Subsidiaries but excluding the Special Purpose
Subsidiary, the Letter-of-Credit Subsidiary and South Plains DBS (so
long as South Plains DBS is not a Material Subsidiary)) and the Parent
(provided that the Parent's guaranty shall be non-recourse, except to
the extent of the Collateral required to be provided by the Parent
under subsection (b) below); and
(b) subject to the terms of the Borrower Intercreditor
Agreement, an equal and ratable lien in the collateral securing the
obligations of the Borrower under the Borrower Term Loan Agreement, to
the same extent and in the same manner described in clauses (ii),
(iii), (iv), (v), (vi), (vii) and (viii) of Section 2.01(a) of the
Borrower Term Loan Agreement subject to the exceptions set forth in
Schedule 2.01(a) to the Borrower Term Loan Agreement.
1A.02 Subordination.
(a) All existing and hereafter arising indebtedness of the
Borrower and the Subsidiaries, if any, to Sellers which constitutes
Permitted Seller Subordinated Debt shall be subordinated to any
Indebtedness of the Companies to the Administrative Agent or the
Lenders pursuant to a Seller Subordination Agreement.
(b) Without limiting the generality of Section 7.01 of the
Incorporated Negative Covenants, all existing and hereafter arising
Indebtedness of the Borrower and the Subsidiaries to the Parent and its
other subsidiaries, including without limitation the Manager, shall be
subordinated to any Indebtedness of the Companies to the Lenders
pursuant to a subordination agreement in form and substance similar to
the Revolver Affiliate Subordination Agreement.
1A.03 Security Documents.
All agreements and instruments described or contemplated in this
Article IA, including but not limited to the Parent Revolver Guaranty Agreement,
the Parent Revolver Security Agreement, the Borrower Revolver Security
Agreement, the Subsidiary Revolver Security Agreement, the Revolver Affiliate
Subordination Agreement, the Parent Intercreditor Agreement and the Borrower
Intercreditor Agreement), together with any and all other agreements and
instruments heretofore or hereafter securing the Obligations or otherwise
executed in connection with this Agreement, as such agreements or instruments
are amended, supplemented or otherwise modified from time to time in accordance
with the terms hereof, are sometimes hereinafter referred to collectively as the
"Security Documents" and each individually as a "Security Document". The
Borrower agrees to execute and deliver any and all Security Documents, in form
and substance satisfactory to the Administrative Agent, and take such action as
the Lenders may reasonably request from time to time in order to cause the
Administrative Agent and the Lenders to be secured at all times as described in
this Article IA.
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ARTICLE II
THE COMMITMENTS and CREDIT EXTENSIONS
2.01 Loans.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Loan") to the Borrower 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
Lender's Commitment; provided, however, that after giving effect to any
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments
and (ii) the aggregate Outstanding Amount of the Loans of any Lender plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations shall
not exceed such Lender's Commitment. Within the limits of each Lender's
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay under Section 2.04, and reborrow
under this Section 2.01. Loans may be Base Rate Loans or LIBOR Loans, as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of LIBOR Loans shall be made upon irrevocable
notice from the Borrower to the Administrative Agent, which may be given by
telephone (provided that such telephonic notice complies with the information
requirements of the form of Loan Notice attached hereto). 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 Borrowing of, conversion to or
continuation of LIBOR Loans, and (ii) one Business Day prior to the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by an Authorized Officer of the Borrower. Each Borrowing of, conversion
to or continuation of LIBOR Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof. Each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of Loans from one Type to the other, or a continuation of LIBOR
Loans, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails
to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans
shall be made as, or converted to, Base Rate Loans. Any such 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 LIBOR Loans. If
the Borrower requests a Borrowing of, conversion to, or continuation of LIBOR
Loans in any such Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.
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(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.02 (and, if such Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent shall make
all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of the Administrative Agent 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 Borrower.
(c) Except as otherwise provided herein, a LIBOR Loan may be continued
or converted only on the last day of an Interest Period for such LIBOR Loan.
During the existence of a Default, no Loans may be requested as, converted to or
continued as LIBOR Loans without the consent of the Required Lenders.
2.03 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time (i) voluntarily prepay Base Rate Loans in whole or in
part without premium or penalty, and (ii) voluntarily prepay LIBOR Loans in
whole or in part on the last day of the applicable Interest Period 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 LIBOR Loans and (B) on the date of prepayment of Base
Rate Loans; (ii) any prepayment of LIBOR Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof; and (iii) any
prepayment of Base Rate 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 Loans to be prepaid.
The Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower 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 LIBOR Loan shall be
accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied
to the Loans of the Lenders in accordance with their respective Pro Rata Shares.
(b) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.03(b) unless
after the prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.
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2.04 Termination or Reduction of Commitments.
(a) Voluntary Termination or Reduction of Commitments. The Borrower
may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by the Administrative Agent
not later than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$500,000 or any whole multiple of $100,000 in excess thereof, (iii) the Borrower
shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments. The Administrative Agent will promptly
notify the Lenders of any such notice of termination or reduction of the
Aggregate Commitments. Any such voluntary reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Pro Rata
Share. All commitment fees accrued until the effective date of any termination
of the Commitments shall be paid on the effective date of such termination.
(b) Mandatory Reduction of Commitments. Upon the occurrence of any
voluntary and/or mandatory prepayment of the Tranche D Term Loans pursuant to
Section 1.08(c), Section 1.09(i) or Section 1.09(j) of the Borrower Term Loan
Agreement, as applicable, the Aggregate Commitments shall be automatically and
permanently reduced by a ratable amount in accordance with the respective
amounts thereof of (i) the aggregate unpaid principal amount of the Tranche D
Term Loans outstanding immediately prior to such prepayment and (ii) the
Aggregate Commitments then in effect. Any such mandatory reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. Simultaneously with each mandatory automatic
reduction of the Commitments under this Section 2.04(b), the Borrower shall (A)
pay to the Administrative Agent, for the ratable account of each Lender
according to its Pro Rata Share, (1) any then accrued unpaid Commitment Fee on
the reduced portion of the Commitments, (2) pursuant to Section 2.03(b), such
amount for the purpose of prepaying the Loans and/or Cash Collateralizing the
L/C Obligations as shall be required to cause the Total Outstandings to be no
greater than the Aggregate Commitments after giving effect to such reduction and
(3) in the case of any mandatory prepayment of the Tranche D Term Loans pursuant
to Section 1.09(i) or Section 1.09(j) of the Borrower Term Loan Agreement, a
prepayment premium equal to (x) the percentage amount by which the percentage
then in effect under the Borrower Term Loan Agreement (as in effect as of the
Closing Date) for calculation of the Fixed Early Payment Amount exceeds par
multiplied by (y) the amount of such reduction in the Aggregate Commitments and
(B) compensate the Lenders pursuant to and in accordance with Section 3.05 in
respect of Eurodollar Loans prepaid in connection with such reduction in the
Aggregate Commitments.
(c) Reduction of Commitments in Connection with a Put Change of
Control. The Commitment of each Lender that elects to exercise its put rights
pursuant to Section 2.13 shall immediately be reduced to zero as of the date
such Lender accepts its Put Offer.
2.05 Repayment of Loans.
The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Loans outstanding on such date.
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2.06 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each LIBOR
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to 7.00% plus the greater of (x) the
LIBOR for such Interest Period and (y) 2.00%; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus 6.00%.
(b) If any amount payable by the Borrower under any Loan Document is
not paid when due (without regard to any applicable grace periods), 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
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each 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. The Borrower hereby
authorizes the Administrative Agent to, and the Administrative Agent may from
time to time, charge the Loan Account pursuant to (and in accordance with)
Section 2.10 with any interest payment due hereunder.
2.07 Fees.
In addition to certain fees described in subsections (i) and (j) of
Section 2.12:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
commitment fee equal to 1.50% times the actual daily amount by which the
Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue
at all times during the Availability Period, including at any time during which
one or more of the conditions in Article IV 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.
(b) Other Fees. The Borrower shall pay to the Administrative Agent
and/or the Lenders 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.
2.08 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by the Prime Rate shall be made on the basis of a year of 365 or 366
days, as the case may be, and
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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 or interest, as applicable, being paid than if computed on the basis of a
365-day year). 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 2.10(a), bear
interest for one day.
2.09 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 in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower 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 Borrower 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 in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
2.10 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. The Lenders and the Borrower hereby
authorize the Administrative Agent to, and the Administrative Agent may, from
time to time, charge the Loan Account with any amount due and payable by the
Borrower under any Loan Document; provided, however, that unless a Default or
Event of Default shall already exist and be continuing, no such charge may be
made to the Loan Account if after giving effect to such charge, the Total
Outstandings would exceed the Aggregate Commitments then in effect. Any amount
charged to the Loan Account of the Borrower shall be deemed a Loan hereunder
made by the Lenders to the Borrower, funded by the Administrative Agent on
behalf of the Lenders and subject to Section 2.02. The Lenders and the Borrower
confirm that any charges which the Administrative Agent may so make to the Loan
Account of the Borrower as herein
15
provided will be made as an accommodation to the Borrower and solely at the
Administrative Agent's discretion.
(b) The Administrative Agent shall provide the Borrower prompt notice
of any charge to the Loan Account, and, promptly after the end of each calendar
month, a summary statement (in the form from time to time used by the
Administrative Agent) of the opening and closing daily balances in the Loan
Account of the Borrower during such month, the amounts and dates of all Loans
made to the Borrower during such month, the amounts and dates of all payments on
account of the Loans to the Borrower during such month and the Loans to which
such payments were applied, the amount of interest accrued on the Loans to the
Borrower during such month, any Letters of Credit issued by the L/C Issuers for
the account of the Borrower during such month, specifying the face amount
thereof, the amount of charges to the Loan Account and/or Loans made to the
Borrower during such month to reimburse the Lenders for drawings made under
Letters of Credit, and the amount and nature of any charges to the Loan Account
made during such month on account of fees, commissions, expenses and other
Obligations. All entries on any such statement shall be presumed to be correct
and, thirty (30) days after the same is sent, shall be final and conclusive
absent manifest error.
(c) If any payment to be made by the 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.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent
16
may make a demand therefor upon the Borrower, and the Borrower shall
pay such amount to the Administrative Agent, together with interest
thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its Commitment or to prejudice any rights which the Administrative
Agent or the Borrower may have against any Lender as a result of any
default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans are several
and not joint. The failure of any Lender to make any Loan 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.
(g) 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.
2.11 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them as shall be necessary to cause such purchasing Lender to share the excess
payment in respect of such Loans or such participations, as the case may be, pro
rata with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under any of
the circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 11.08) with respect to such participation as
17
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.11 and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section 2.11 shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.12 Letters of Credit.
(a) The Letter of Credit Commitment. Subject to the terms and
conditions set forth herein, (A) the Borrower shall be entitled during the
period from the Closing Date until the Letter of Credit Expiration Date to
utilize availability under the Aggregate Commitments for the purpose of having
L/C Issuers issue, amend or renew Letters of Credit for the account of the
Borrower and (B) the Lenders severally agree to participate in Letters of Credit
issued by L/C Issuers pursuant to and in accordance with the terms hereof;
provided, however, that the Lenders shall not be obligated to participate in any
Letter of Credit unless (i) such Letter of Credit (A) is issued prior to the
Letter of Credit Expiration Date and (B) has an expiry date occurring (1) not
more than twelve months after the date of issuance, amendment or renewal, as
applicable, and (2) on or before the Letter of Credit Expiration Date and (ii)
after giving effect to the issuance, amendment or renewal, as applicable, of
such Letter of Credit, (A) the Total Outstandings shall not exceed the Aggregate
Commitments and (B) the aggregate Outstanding Amount of the Loans of each Lender
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations shall not exceed such Lender's Commitment. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's ability
to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit from an L/C
Issuer to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. Each Letter of Credit Application shall be prepared and
signed by the Borrower; provided, however, that the Borrower shall be permitted
to designate any Subsidiary as the account party for the requested Letter of
Credit, although, notwithstanding such designation, the Borrower shall be the
actual account party for all purposes of this Agreement for such Letter of
Credit and such designation shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, pursuant to a Letter of Credit Application and other
appropriate documentation required by the applicable L/C Issuer (a copy
of which shall be delivered to the Administrative Agent) and in
accordance with arrangements between the applicable L/C Issuer and the
Borrower to provide such L/C Issuer electronically with the information
necessary to issue or amend Letters of Credit.
(ii) Prior to the issuance or amendment of any Letter of
Credit, the applicable L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) (A) that the Administrative Agent
has received an executed copy of the related Letter of
18
Credit Application and (B) that the requested issuance or amendment is
permitted in accordance with the terms of this Agreement (including,
without limitation, this Section 2.12 and Article IV). Immediately upon
the issuance or amendment of each Letter of Credit in accordance with
the terms hereof, each 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 Lender's Pro Rata Share times the amount
of such Letter of Credit.
(iii) Concurrently with the delivery of any Letter of Credit
or any amendment to a Letter of Credit by an L/C Issuer to an advising
bank with respect thereto or to the beneficiary thereof, such L/C
Issuer will also deliver to 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 Borrower and the Administrative Agent
thereof. Not later than 11:00 a.m. on the date of any payment by an L/C
Issuer under a Letter of Credit (each such date, an "Honor Date"), the
Borrower shall reimburse such L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse such L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount
of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Lender's Pro Rata Share thereof. In such event, the Borrower
shall be deemed to have requested a 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, but subject to the
amount of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Loan
Notice). Any notice given by an L/C Issuer or the Administrative Agent
pursuant to this Section 2.12(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) Subject to the provisions of Section 2.10, the
Administrative Agent shall have the right to charge the Loan Account
with the amount of any and all Indebtedness, liabilities and
obligations of any kind (including indemnification for breakage costs,
capital adequacy and reserve requirement charges) incurred by an L/C
Issuer with respect to a Letter of Credit upon the occurrence of any
Default or Event of Default. Any amount charged to the Loan Account
shall be deemed a Loan hereunder made by the Lenders to the Borrower,
funded by the Administrative Agent on behalf of the Lenders and subject
to Section 2.02. Any charges, fees, commissions, costs and expenses
charged to the Administrative Agent for the Borrower's account by an
L/C Issuer in connection with or arising out of Letters of Credit or
transactions relating thereto will be charged to the Loan Account in
full when charged to or paid by the Administrative Agent and, when
charged, shall be conclusive on the Borrower absent manifest error.
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(iii) Each Lender shall, upon any notice pursuant to Section
2.12(c)(i), make funds available to the Administrative Agent for the
account of the applicable L/C Issuer at the Administrative Agent's
Office in an amount equal to its Pro Rata Share 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 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower
in such amount. The Administrative Agent shall remit the funds so
received to such L/C Issuer.
(iv) With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing of Base Rate Loans for any other
reason, the Borrower 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 Lender's payment
to the Administrative Agent for the account of such L/C Issuer pursuant
to Section 2.12(c)(iii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.12.
(v) Until each Lender funds its Loan or L/C Advance pursuant
to this Section 2.12(c) to reimburse the applicable L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Pro Rata Share of such amount shall be solely for the account
of such L/C Issuer.
(vi) Each Lender's obligation to make Loans or L/C Advances
to reimburse the applicable L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.12(c), shall be absolute
and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against such L/C Issuer, the Borrower
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 a Lender shall not be obligated to make a Loan or L/C
Advance if, immediately after giving effect to such Loan or L/C
Advance, the aggregate Outstanding Amount of the Loans of such Lender
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations would exceed such Lender's Commitment. No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the applicable L/C Issuer for the amount of any
payment made by such L/C Issuer under any Letter of Credit, together
with interest as provided herein.
(vii) If any 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 Lender pursuant to the foregoing
provisions of this Section 2.12(c) by the time specified in Section
2.12(c)(iii), such L/C Issuer shall be entitled to recover from such
Lender, 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 such L/C Issuer at a rate per annum
equal to the Federal Funds Rate from time to time in effect. A
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certificate of an L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participation.
(i) At any time after an L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.12(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
thereon (whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Pro
Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's L/C
Advance was outstanding) 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 2.12(c)(i) is required
to be returned under any of the circumstances described in Section
11.06 (including pursuant to any settlement entered into by such L/C
Issuer in its discretion), each Lender shall pay to the Administrative
Agent for the account of such L/C Issuer its Pro Rata Share 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 Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in
effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
L/C Issuers for each drawing under Letters of Credit and to repay L/C Borrowings
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 agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower 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), the applicable 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;
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(iv) any payment by the applicable 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; or
any payment made by such 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; or
(v) 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 Borrower.
The Borrower 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 Borrower's instructions or other irregularity, the
Borrower will immediately notify the applicable L/C Issuer. The Borrower shall
be conclusively deemed to have waived any such claim against such L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer 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 Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required 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 Letter of Credit Application. The
Borrower 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 Borrower'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 Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.12(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's 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 Issuer
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 Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or
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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. If (i) an L/C Issuer has honored any full or
partial drawing request under any Letter of Credit and such drawing has resulted
in an L/C Borrowing, or (ii) as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially or wholly
undrawn, the Borrower shall immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to up to 105% of such
Outstanding Amount determined as of the date of such L/C Borrowing or the Letter
of Credit Expiration Date, as the case may be). For purposes hereof, "Cash
Collateralize" means to pledge and deposit with or deliver to the applicable L/C
Issuer, for the benefit of such L/C Issuer and the Lenders, as collateral for
the L/C Obligations, cash or deposit account balances pursuant to documentation
in form and substance satisfactory to such L/C Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to each L/C Issuer, for the benefit of such
L/C Issuer and the 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, non-interest bearing deposit accounts
at the applicable L/C Issuer.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of 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) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share a Letter of Credit fee for each Letter of Credit equal to 7.00% times
the daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit). Such letter of credit fees shall be computed on a quarterly basis in
arrears, and shall be 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. The Borrower hereby authorizes the
Administrative Agent to, and the Administrative Agent may, from time to time,
charge the Loan Account pursuant to Section 2.10 and Section 2.12(c)(ii) with
the amount of any Letter of Credit fees or charges due under this Section
2.12(i).
(j) Fronting Fee and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee
for each Letter of Credit of up to 1/4% (as determined by the applicable L/C
Issuer) times the daily maximum amount available to be drawn under such Letter
of Credit (whether or not such maximum amount is then in effect under such
Letter of Credit). Such fronting fee for each Letter of Credit shall be computed
on a quarterly basis in arrears, and shall be 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. In
addition, the Borrower shall pay directly to the L/C Issuer for its own account
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such
23
customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.13 Change of Control Put.
(a) Upon the occurrence of a Put Change of Control, each Lender shall,
unless the Loans shall have been accelerated in accordance with Section 9.02,
have the right to require that the Borrower (i) prepay in full such Lender's Pro
Rata Share of the Outstanding Amount of all Loans at such time and to Cash
Collateralize such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations at such time in an amount equal to up to 105% of the amount thereof
and (ii) pay such Lender a put premium determined by multiplying such Lender's
Commitment immediately prior to giving effect to the exercise of its rights
under this Section 2.13 by a percentage equal to the percentage amount by which
the greater of (i) 101% and (ii) the percentage then in effect under the
Borrower Term Loan Agreement (as in effect as the Closing Date) for calculation
of the Fixed Early Payment Amount exceeds par (the aggregate amount of such
prepayment and premium due with respect to any Lender, such Lender's "Change of
Control Put Amount"), plus accrued and unpaid interest, if any, to the date of
prepayment, all other Obligations due to such Lender under this Agreement and
the other Loan Documents and any incremental amount over and above such Lender's
Pro Rata Share of the Outstanding Amount of all L/C Obligations which is
required by any L/C Issuer to Cash Collateralize such L/C Obligations, in
accordance with the terms of paragraph (b) below. The portion of any Lender's
Change of Control Put Amount attributable to (and equal to) such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations (excluding the
premium relating thereto, but including any incremental amount over and above
such Outstanding Amount which is required by any L/C Issuer to Cash
Collateralize such L/C Obligations) shall be retained by the applicable L/C
Issuer(s) and applied to Cash Collateralize such Lender's Pro Rata Share of such
L/C Obligations, whereupon such Lender automatically shall be released from all
of its obligations to the Borrower, the Administrative Agent and/or such L/C
Issuer in respect of Letters of Credit under this Agreement.
(b) At least ten (10) Business Days prior to the occurrence of any Put
Change of Control, the Borrower shall mail a notice to each Lender (the "Put
Offer"), with a copy to the Administrative Agent, stating:
(i) that a Put Change of Control will occur and that such
Lender has the right to require the Borrower to prepay such Lender's
Loans in full at a prepayment price equal to the Change of Control Put
Amount, plus accrued and unpaid interest, if any, to the date of
prepayment, and showing the calculation of the prepayment price
(exclusive of other Obligations due to such Lender hereunder);
(ii) the circumstances and relevant facts regarding such Put
Change of Control (including the information with respect to pro forma
historical income, cash flow and capitalization, each after giving
effect to such Put Change of Control);
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(iii) the prepayment date (which shall be the date of the
occurrence of such Put Change of Control); and
(iv) the reasonable instructions determined by the Borrower
and Administrative Agent, consistent with this section, that a Lender
must follow in order to accept the Put Offer, which must allow each
Lender at least ten (10) Business Days after receipt of such Put Offer
by each Lender to accept such Put Offer.
(c) Lenders electing to have their Loans prepaid will be required to
surrender their Notes to the Administrative Agent at the address specified in
Section 11.02 on the prepayment date.
(d) On the prepayment date, all Notes evidencing any Loans prepaid by
the Borrower under this Section 2.13 shall be cancelled by the Borrower, and the
Borrower shall pay the Change of Control Put Amount to the Administrative Agent,
for the account of the Lenders electing to receive such prepayment, plus accrued
and unpaid interest, if any, and all other Obligations due to such Lenders under
this Agreement and the other Loan Documents to the Lenders entitled thereto.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, 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 the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (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 3.01), each of the Administrative Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, the Borrower shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a certified
copy of a receipt evidencing payment thereof.
25
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 3.01) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
Payment under this subsection (d) shall be made within 30 days after the date
the Lender or the Administrative Agent makes a demand therefor.
3.02 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 LIBOR Loans, or to determine
or charge interest rates based upon LIBOR, then, on notice thereof by such
Lender to the Borrower through the Administrative Agent, any obligation of such
Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR
Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all LIBOR 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 LIBOR Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted. Each Lender agrees to designate a different Lending Office
if such designation will avoid the need for such notice and will not, in the
good faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender.
3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining LIBOR for any requested Interest
Period with respect to a proposed LIBOR Loan, or that LIBOR for any requested
Interest Period with respect to a proposed LIBOR
26
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower and
each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR
Loans shall be suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of LIBOR Loans or, failing that, will be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans in the amount
specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy;
Reserves on LIBOR Loans.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining LIBOR Loans, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements contemplated by Section 3.04(c)), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, 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 LIBOR 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), which shall be due and payable on each date
on which interest is payable on such Loan, provided the Borrower shall have
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
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3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower 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); or
(b) any failure by the 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 Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
LIBOR Loan made by it at LIBOR for such Loan by a matching deposit or other
borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such LIBOR Loan was in fact so funded.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder. The determination by each
such Lender of the amount of any such loss or expense, when set forth in a
written notice delivered to the Administrative Agent (and thereafter delivered
by the Administrative Agent to the Borrower), containing such Lender's
calculation thereof in reasonable detail, shall be conclusive in the absence of
manifest error.
3.06 Matters Applicable to all Requests for Compensation.
A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
3.07 Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Commitments and repayment, satisfaction or discharge of the
Obligations.
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ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING DATE AND CREDIT EXTENSIONS
4.01 Conditions of Closing Date and Initial Credit Extension.
The occurrence of the Closing Date, the effectiveness of this Agreement
and the obligation of each Lender to make its initial Credit Extension hereunder
are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by an Authorized Officer of the
signing Loan Party, each dated the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Borrower
Intercreditor Agreement;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note; and
(iii) executed counterparts of the following: the Parent
Revolver Guaranty Agreement, the Parent Revolver Security Agreement,
the Borrower Revolver Security Agreement, the Subsidiary Revolver
Security Agreement, the Revolver Affiliate Subordination Agreement and
any other Security Documents reasonably requested by the Administrative
Agent in accordance with the provisions of Article IA.
(b) The Administrative Agent shall have received the following items
for each of the Parent, the Borrower and each other Subsidiary party to the
Subsidiary Revolver Security Agreement, in each case dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the
Closing Date) unless otherwise indicated:
(i) copies of the articles or certificates of incorporation
or other charter documents of such Person certified to be true,
complete and correct as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its
incorporation and/or certified by a secretary or assistant secretary of
such Person to be true, complete and correct as of the Closing Date;
(ii) a copy of the bylaws, partnership or operating agreement
of such Person, as applicable, certified by a secretary or assistant
secretary of such Person to be true and correct as of the Closing Date;
(iii) resolutions of its Board of Directors or other
authorizing body or Person approving and authorizing the execution,
delivery and performance of this Agreement, certified as of the Closing
Date by its secretary or an assistant secretary as being in full force
and effect without modification or amendment;
29
(iv) certificates of good standing issued as of a reasonably
recent date to the Closing Date by such Person's state of organization
or formation;
(v) a certificate of an Authorized Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party 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;
(vi) a certificate signed by an Authorized Officer of the
Borrower certifying (A) that the conditions specified in Sections 4.02
(b) and (c) have been satisfied, and (B) that there has been no event
or circumstance since December 31, 2002 that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and
(vii) signature and incumbency certificates of the officers
of such Person executing this Agreement, any amendments to Security
Documents and any other documents required to be delivered under
subsection (a) of this Section 4.01.
(c) The Administrative Agent shall have received a favorable opinion
of Drinker Xxxxxx & Xxxxx, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, in form and substance satisfactory to the
Administrative Agent.
(d) Collateral. The Administrative Agent shall have received:
(i) searches of Uniform Commercial Code filings and tax
records in the jurisdiction of incorporation or formation of each Loan
Party, copies of the financing statements on file in such jurisdictions
and evidence that no Liens exist other than Permitted Liens;
(ii) completed UCC financing statements for each appropriate
jurisdiction as is necessary, in the Administrative Agent's reasonable
discretion, to perfect the Administrative Agent's security interest in
the Collateral;
(iii) with respect to any real property owned or leased by
any Company that is not otherwise exempted from the requirements of
Article IA (collectively the "Real Property") as listed on Schedule
4.01(d)(iii) attached hereto and made a part hereof, (A) fully executed
and notarized mortgages, deeds of trust or deeds together with any
ancillary document related thereto included, but not limited to,
assignment of leases and rents UCC-1 financing statements, to secure
debt encumbering the fee interest and/or leasehold interest of any
Company in the Real Property, (B) a satisfactory title search assuring
the Administrative Agent that (1) each such mortgage creates a valid
and enforceable lien on the applicable Real Property, free and clear of
all defects and encumbrances except Permitted Liens and (2) that such
liens are junior to no liens other than the lien in favor of the
Administrative Agent for the Lenders under the Borrower Term Loan
Agreement, and (C) such other agreements, instruments and documents as
the Administrative Agent may reasonably require in order to create,
perfect, establish or
30
otherwise protect any lien purported to be covered by this Section
4.01(d)(iii); provided, however, that the Administrative Agent shall
not require delivery of agreements, instruments or documents which have
not been received or required under the Borrower Term Loan Agreement.
(iv) evidence satisfactory to the Administrative Agent of the
perfection of its security interest in and lien on all of the
Collateral (including, without limitation, through the filing of UCC
financing statements and the recordation of mortgages).
(e) The Administrative Agent shall have received copies of
certificates of insurance of the Borrower and its Subsidiaries evidencing
insurance coverage and policy provisions meeting the requirements set forth in
Section 6.02 of the Incorporated Affirmative Covenants and naming the
Administrative Agent as additional insured or loss payee, as the case may be, on
behalf of the Lenders.
(f) Any fees required to be paid on or before the Closing Date shall
have been paid.
(g) Unless waived by the Administrative Agent, the Borrower shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
(h) The Administrative Agent shall have received satisfactory evidence
that the Borrower shall have delivered to the Term Loan Agent (as defined in the
Parent Term Loan Agreement) a certificate of an Authorized Officer of the
Borrower certifying that the Indebtedness represented by the Loans is permitted
to be incurred under Section 7.01(b)(ii) of the Parent Term Loan Agreement and
qualifies as "Permitted Indebtedness" as defined in the Parent Term Loan
Agreement, together with a copy of this Agreement.
4.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension
is subject to the following further conditions precedent in addition to
satisfaction on the Closing Date of the conditions precedent set forth in
Section 4.01:
(a) The Administrative Agent and, if applicable, the L/C
Issuer shall have received a Request for Credit Extension in accordance
with the requirements hereof.
(b) The representations and warranties of the Borrower and
each other Loan Party contained in Article V or any other Loan
Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct
on and as of such date, except to the extent they relate specifically
to an earlier specified date or are affected by transactions or events
occurring after the Closing Date and permitted or not prohibited
hereunder.
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(c) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto.
(d) The Borrower shall have paid all fees, costs, expenses
and taxes then payable by the Borrower pursuant to this Agreement and
the other Loan Documents, including, without limitation, Section 2.07,
Section 2.12(i), Section 2.12(j) and Section 11.04.
(e) The making of such Loan shall not contravene any law, rule
or regulation applicable to the Administrative Agent or any Lender.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion or a continuation of Loans) shall constitute a representation
and warranty by the Borrower of the correctness of the matters specified in
subsections (b) and (c) above.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 Representations and Warranties under the Borrower Term Loan
Agreement.
The representations and warranties of the Borrower contained in Article
IV of the Borrower Term Loan Agreement are true and correct at the times as of
which such representations and warranties were made and on the Closing Date,
except to the extent they relate specifically to an earlier specified date or
are affected by transactions or events occurring after the Fourth Amendment
Effective Date and permitted or not prohibited under the Borrower Term Loan
Agreement.
5.02 Organization, Qualification, Etc.
Each of the Companies has the power and authority to execute and
deliver, and perform its respective obligations under, this Agreement, the other
Loan Documents and the other agreements and instruments relating thereto (all of
the foregoing being hereinafter referred to collectively as the "Transaction
Documents").
5.03 Authorization; Compliance; Etc.
The execution and delivery of, and performance by the Companies of
their respective obligations under, the Transaction Documents have been duly
authorized by all requisite corporate, partnership and membership action and
will not violate any provision of law (including without limitation the
Communications Act of 1934, as amended, the Copyright Revisions Act of 1976, as
amended, and all other rules, regulations, administrative orders and policies of
the FCC, the FAA and the Copyright Office), any order, judgment or decree of any
court or other agency of government, the Organization Documents of any Company
or any
32
indenture, agreement or other instrument to which any Company or the Parent is a
party, or by which any Company or the Parent is bound (including without
limitation the Borrower Term Loan Agreement, the PCC Exchange Indenture, the PCC
Exchange Notes, the PCC 1997 Indenture, the PCC 1997 Senior Notes, the PCC 1998
Indenture, the PCC 1998 Senior Notes, the PSC 2001 Indenture, the PSC 2001
Senior Notes, the Golden Sky Exchange Indentures, the Golden Sky Exchange Notes,
the PSC Subordinated Notes, the PSC Subordinated Notes Indenture, the PCC
Preferred Stock Designation and any DBS Agreement), or be in conflict with,
result in a breach of, or constitute (with due notice or lapse of time or both)
a default under, or except as may be permitted under this Agreement, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of any Company or the Parent
pursuant to, any such indenture, agreement or instrument. Each of the
Transaction Documents constitutes the valid and binding obligation of each of
the Companies and their Affiliates party thereto, enforceable against such party
in accordance with its terms, subject, however to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally or the application of principles of equity, whether in any
action in law or proceeding in equity, and subject to the availability of the
remedy of specific performance or of any other equitable remedy or relief to
enforce any right under any such agreement.
5.04 Governmental and Other Consents, Etc.
Except for filings and recordings required under Article IA and the
Security Documents and subject to the qualifications set forth in Section
4.04(b) of the Borrower Term Loan Agreement, none of the Companies or the Parent
is required to obtain any consent, approval or authorization from, to file any
declaration or statement with or to give any notice to, any Governmental
Authority (including without limitation, any Specified Authority), the NRTC,
DirecTV, any Seller or any other Person (including, without limitation, any
notices required under the applicable bulk sales law) in connection with or as a
condition to the execution, delivery or performance of any of the Transaction
Documents. All consents, approvals and authorizations described in such Schedule
have been duly granted and are in full force and effect on the Closing Date and
all filings described in such Schedule have been properly and timely made.
5.05 Compliance with Laws and Agreements.
Except as disclosed in this Agreement (including by way of
incorporation of any provisions of the Borrower Term Loan Agreement), none of
the Companies is a party to any agreement or instrument or subject to any
corporate, partnership or other restriction which could have a Material Adverse
Effect. None of the Companies or the Parent is in violation of any provision of
its Organization Documents or of any material indenture, agreement or instrument
to which it is a party or by which it is bound (including without limitation the
Borrower Term Loan Agreement, the PCC Exchange Indenture, the PCC Exchange
Notes, the PCC 1997 Indenture, the PCC 1997 Senior Notes, the PCC 1998
Indenture, the PCC 1998 Senior Notes, the PSC 2001 Indenture, the PSC 2001
Senior Notes, the Golden Sky Exchange Notes, the Golden Sky Exchange Indentures,
the PSC Subordinated Notes, the PSC Subordinated Indenture, the PCC Preferred
Stock Designation and any DBS Agreement) or, to the best of the Borrower's
knowledge and belief, of any provision of law (including without limitation the
Communications
33
Act of 1934, as amended, the Copyright Revisions Act of 1976, as amended, and
all other rules, regulations, administrative orders and policies of the FCC, the
FAA and the Copyright Office), the violation of which could have a Material
Adverse Effect, or any order, judgment or decree of any court or other
Governmental Authority (including without limitation any Specified Authority).
Without limiting the generality of the foregoing, all of the Obligations (a) are
permitted under, and do not and will not violate, the Borrower Term Loan
Agreement, the Parent Term Loan Agreement, the PCC Preferred Stock Designation,
the PCC Exchange Indenture, the PCC Exchange Notes, the PCC 1997 Indenture, the
PCC 1997 Senior Notes, the PCC 1998 Indenture, the PCC 1998 Senior Notes, the
PSC 2001 Indenture, the PSC 2001 Senior Notes, the Golden Sky Exchange Notes,
the Golden Sky Exchange Indentures, the PSC Subordinated Notes, and the PSC
Subordinated Indenture, and (b) constitute "Eligible Indebtedness" under the PCC
Exchange Indenture, the PCC 1997 Indenture, the Golden Sky Indenture, and the
PCC 1998 Indenture. Without limiting the generality of the foregoing, the
Indebtedness represented by the Loans is permitted to be incurred pursuant to
7.01(b)(ii) of the Parent Term Loan Agreement and constitutes "Permitted
Indebtedness" as such term is defined in the Parent Term Loan Agreement.
5.06 Incorporated Representations and Warranties.
The Borrower hereby agrees that the representations and warranties
contained in Article IV of the Borrower Term Loan Agreement as in effect as of
the Closing Date and, subject to the provisions of Section 11.01, as the same
may be amended, supplemented or otherwise modified from time to time after the
Closing Date (the "Incorporated Representations"), are hereby incorporated
herein by reference and shall be as binding on the Borrower as if set forth
fully herein. The incorporation by reference to the Borrower Term Loan Agreement
of the Incorporated Representations pursuant to this Section 5.06 shall survive
the termination of the Borrower Term Loan Agreement. For purposes of the
incorporation of the Incorporated Representations pursuant to this Section 5.06,
all references in the Incorporated Representations to the "Agent" shall be
deemed to refer to the Administrative Agent hereunder, all references in the
Incorporated Representations to a "Lender" or the "Lender" shall be deemed to
refer to one or more of the Lenders hereunder, all references in the
Incorporated Representations to the "Required Lenders" shall be deemed to refer
to the Required Lenders hereunder, all references in the Incorporated
Representations to the "Credit Agreement", "this Agreement," or any similar
references, shall be deemed to refer to this Agreement, and all references in
the Incorporated Representations to a "Loan Document" or the "Loan Documents,"
or any similar references, shall be deemed to refer to one or more of the Loan
Documents as defined in Section 1.01.
34
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Incorporated Representations and Warranties.
The Borrower hereby agrees that the affirmative covenants contained in
Article VI of the Borrower Term Loan Agreement as in effect as of the Closing
Date and, subject to the provisions of Section 11.01, as the same may be
amended, supplemented or otherwise modified from time to time after the Closing
Date (the "Incorporated Affirmative Covenants"), are hereby incorporated herein
by reference and shall be as binding on the Borrower as if set forth fully
herein until such time as the Commitments shall have expired or been terminated
in full and all of the Obligations shall have been paid in full. The
incorporation by reference to the Borrower Term Loan Agreement of the
Incorporated Affirmative Covenants pursuant to this Section 6.03 shall survive
the termination of the Borrower Term Loan Agreement. In the event a waiver is
granted under the Borrower Term Loan Agreement or an amendment or modification
is executed with respect to Borrower Term Loan Agreement, and such waiver,
amendment and/or modification affects the Incorporated Affirmative Covenants,
then such waiver, amendment or modification shall be effective with respect to
the Incorporated Affirmative Covenants as incorporated by reference into this
Agreement, subject to the provisions of Section 11.01. For purposes of the
incorporation of the Incorporated Affirmative Covenants pursuant to this Section
6.03, all references in the Incorporated Affirmative Covenants to the "Agent"
shall, except in respect of Section 6.02(b)-(h), Section 6.12(b) and Section
6.15 of the Incorporated Covenants, be deemed to refer to the Administrative
Agent hereunder, all references in the Incorporated Affirmative Covenants to a
"Lender" or the "Lender" shall be deemed to refer to one or more of the Lenders
hereunder, all references in the Incorporated Affirmative Covenants to the
"Required Lenders" shall be deemed to refer to the Required Lenders hereunder,
all references in the Incorporated Affirmative Covenants to the "Credit
Agreement", "this Agreement," or any similar references, shall be deemed to
refer to this Agreement, and all references in the Incorporated Affirmative
Covenants to a "Loan Document" or the "Loan Documents," or any similar
references, shall be deemed to refer to one or more of the Loan Documents as
defined in Section 1.01.
6.02 Deposit Accounts.
Upon the request of the Administrative Agent, subject to the last
sentence of this Section 6.02, the Borrower shall, and shall cause its relevant
Subsidiaries and the relevant depository financial institutions, to execute,
deliver and/or file or record such additional Security Documents as the
Administrative Agent shall deem necessary or advisable from time to time to
maintain, create and perfect a first priority security interest in favor of the
Agent in all "deposit accounts" (as defined in the Uniform Commercial Code) of
the Borrower and its Subsidiaries (other than the Special Purpose Subsidiary and
the Letter-of-Credit Subsidiary) in existence on the Closing Date and all
after-acquired deposit accounts in which the Borrower or any of its Subsidiaries
(other than the Special Purpose Subsidiary and the Letter-of-Credit Subsidiary)
maintains a balance in excess of $50,000.00; provided, however, that no
mandatory cash sweeps shall be required at any time when no Event of Default has
occurred and is continuing; and provided further that, subject to the last
sentence of this Section 6.02, the Borrower and its
35
Subsidiaries shall, within 45 days after the Closing Date, deliver control
agreements in form and substance satisfactory to the Administrative Agent and
the relevant depository financial institutions and signed by the respective
account holder and depository financial institution with respect to all deposit
accounts of the Borrower and its Subsidiaries (other than the Special Purpose
Subsidiary and the Letter-of-Credit Subsidiary) in existence on the Closing
Date. After the Closing Date, the Borrower and its Subsidiaries shall not open
any deposit account (other than any account relating to the operation of a
Station in which the balance does not exceed $50,000.00) unless the Borrower
shall have delivered to the Administrative Agent a control agreement in form and
substance satisfactory to the Agent and the relevant depository financial
institutions and signed by the respective account holder and depository
financial institution with respect to such deposit account. Notwithstanding the
foregoing provisions of this Section 6.02, and so long as the Borrower
Intercreditor Agreement remains in effect, the Borrower shall not be required to
deliver to the Administrative Agent any such control agreements or other
Security Documents with respect to any deposit account if the Borrower
previously has delivered a control agreement applicable to such deposit account
to the agent for the lenders under the Borrower Term Loan Agreement.
6.03 Further Assurances Regarding Real Estate.
Without limiting the generality of Sections IA.01 or 6.01 hereunder,
with respect to any real property acquired or leased by any Company after the
Closing Date that is not excepted from the requirements of Section 1A.01, cause
to be delivered to the Administrative Agent within 60 days of the date of
acquisition/lease of such real property (or such later date as the
Administrative Agent shall reasonably determine):
(i) fully executed and notarized mortgages, deeds of trust or
deeds to secure debt (each, as the same may be amended, modified,
restated or supplemented from time to time, a "Mortgage Instrument" and
collectively the "Mortgage Instruments") encumbering the fee interest
and/or leasehold interest of any Company in such property (each a
"Mortgaged Property" and collectively the "Mortgaged Properties") and
all supporting documents reasonably requested by the Administrative
Agent;
(ii) in the case of each real property leasehold interest of
any Company constituting Mortgaged Property, (A) such estoppel letters,
consents and waivers from the landlords of such real property as may be
reasonably required by the Administrative Agent, and (B) evidence that
the applicable lease, a memorandum of lease with respect thereto, or
other evidence of such lease, has been or will be recorded in all
places to the extent necessary or desirable, in the reasonable judgment
of the Administrative Agent, so as to enable the Mortgage Instrument
encumbering such leasehold interest to effectively create a valid and
enforceable first priority lien (subject to Permitted Liens) on such
leasehold interest in favor of the Administrative Agent (or such other
Person as may be required or desired under local law) for the benefit
of the Lenders.
provided, however, the failure to deliver any of the above documents
with respect to a leasehold interest shall not constitute a Default hereunder if
the Companies have been unable to obtain the same (to the extent required to be
obtained from the landlord), or the necessary consent therefor, from the
applicable landlord using commercially reasonable efforts; and,
36
provided, further, that the Administrative Agent shall not require delivery of
agreements, instruments or documents which have not been received or required
under the Borrower Term Loan Agreement.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby agrees that the negative covenants contained in
Article VII of the Borrower Term Loan Agreement as in effect as of the Closing
Date and, subject to the provisions of Section 11.01, as the same may be
amended, supplemented or otherwise modified from time to time after the Closing
Date (the "Incorporated Negative Covenants"), are hereby incorporated herein by
reference and shall be as binding on the Borrower as if set forth fully herein
until such time as the Commitments shall have expired or been terminated in full
and all of the Obligations shall have been paid in full. The incorporation by
reference to the Borrower Term Loan Agreement of the Incorporated Negative
Covenants pursuant to this Article VII shall survive the termination of the
Borrower Term Loan Agreement. In the event a waiver is granted under the
Borrower Term Loan Agreement or an amendment or modification is executed with
respect to Borrower Term Loan Agreement, and such waiver, amendment and/or
modification affects the Incorporated Negative Covenants, then such waiver,
amendment or modification shall be effective with respect to the Incorporated
Negative Covenants as incorporated by reference into this Agreement, subject to
the provisions of Section 11.01. For purposes of the incorporation of the
Incorporated Negative Covenants pursuant to this Article VII, all references in
the Incorporated Negative Covenants to the "Agent" shall be deemed to refer to
the Administrative Agent hereunder, all references in the Incorporated Negative
Covenants to a "Lender" or the "Lender" shall be deemed to refer to one or more
of the Lenders hereunder, all references in the Incorporated Negative Covenants
to the "Required Lenders" shall be deemed to refer to the Required Lenders
hereunder, all references in the Incorporated Negative Covenants to the "Credit
Agreement", "this Agreement," or any similar references, shall be deemed to
refer to this Agreement, and all references in the Incorporated Negative
Covenants to a "Loan Document" or the "Loan Documents," or any similar
references, shall be deemed to refer to one or more of the Loan Documents as
defined in Section 1.01.
ARTICLE VIII
FINANCIAL COVENANTS
The Borrower hereby agrees that the financial covenants contained in
Article V of the Borrower Term Loan Agreement as in effect as of the Closing
Date and, subject to the provisions of Section 11.01, as the same may be
amended, supplemented or otherwise modified from time to time after the Closing
Date (the "Incorporated Financial Covenants"), are hereby incorporated herein by
reference and shall be as binding on the Borrower as if set forth fully herein
until such
37
time as the Commitments shall have expired or been terminated in full and all of
the Obligations shall have been paid in full. The incorporation by reference to
the Borrower Term Loan Agreement of the Incorporated Financial Covenants
pursuant to this Article VIII shall survive the termination of the Borrower Term
Loan Agreement. In the event a waiver is granted under the Borrower Term Loan
Agreement or an amendment or modification is executed with respect to Borrower
Term Loan Agreement, and such waiver, amendment and/or modification affects the
Incorporated Financial Covenants, then such waiver, amendment or modification
shall be effective with respect to the Incorporated Financial Covenants as
incorporated by reference into this Agreement, subject to the provisions of
Section 11.01. For purposes of the incorporation of the Incorporated Financial
Covenants pursuant to this Article VIII, all references in the Incorporated
Financial Covenants to the "Agent" shall be deemed to refer to the
Administrative Agent hereunder, all references in the Incorporated Financial
Covenants to a "Lender" or the "Lender" shall be deemed to refer to one or more
of the Lenders hereunder, all references in the Incorporated Financial Covenants
to the "Required Lenders" shall be deemed to refer to the Required Lenders
hereunder, all references in the Incorporated Financial Covenants to the "Credit
Agreement", "this Agreement," or any similar references, shall be deemed to
refer to this Agreement, and all references in the Incorporated Financial
Covenants to a "Loan Document" or the "Loan Documents," or any similar
references, shall be deemed to refer to one or more of the Loan Documents as
defined in Section 1.01, and all references in the Incorporated Financial
Covenants to the "Fourth Amendment Effective Date" and/or "Closing Date" shall
be deemed to refer to the Closing Date hereunder.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default hereunder:
(a) default in the payment of any principal of any of the Loans or of
any payment pursuant to Section 2.13, in either case, when the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment or by acceleration or otherwise (including, but not limited to, any
payment due pursuant to Section 2.13);
(b) default in the payment of any interest on the Loans or of any
premium, fee or other amounts owing hereunder or under any other Loan Documents
for more than five (5) calendar days after the date when the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment or by acceleration or otherwise;
(c) default by any Loan Party in the due observance or performance of,
or compliance with, any covenant or agreement contained in Article 1A, Sections
6.02, 6.03 (but only if the same involves any seizure or property), 6.04, 6.05,
6.06, 6.07, 6.09 and 6.11 of the Incorporated Affirmative Covenants, Article VII
or Article VIII; provided, however, that a default in the delivery of financial
or other information under paragraphs (b) through (e) of Section 6.05 of the
38
Incorporated Affirmative Covenants shall not constitute an Event of Default
unless and until the same continues unremedied for thirty (30) days after (i)
written notice thereof from the Administrative Agent (at the direction of the
Required Lenders)) or any Lender to the Borrower or (ii) if earlier, the
occurrence thereof (provided that such thirty (30) day period shall be available
for the remedy of any such default only once in any period of twelve (12)
consecutive months and three (3) times during the term of this Agreement);
(d) any representation or warranty made by Borrower pursuant to
Article V or any representation or warranty made by or on behalf of the
Borrower, any of its Subsidiaries or any of its Affiliates (including without
limitation those of the Parent Affiliates which are parties to any Loan
Documents) in any other Loan Document, or in any report, certificate, financial
statement or other instrument furnished in connection with this Agreement, any
other Loan Document or the borrowings hereunder, shall prove to be false or
misleading in any material respect when made or reconfirmed;
(e) default by any Loan Party in the due observance or performance of,
or compliance with, any covenant, condition or agreement to be observed or
performed pursuant to the terms of any other Loan Document, which default is not
referred to in paragraphs (a)-(d), inclusive, of this Article IX and which
default shall continue unremedied for thirty (30) days after the earlier to
occur of (i) the Borrower's discovery of such default or (ii) written notice
thereof from the Agent (at the direction of the Required Lenders) or any Lender
to the Borrower, provided, however, that if any such default cannot be remedied,
then such default shall be deemed to be an Event of Default as of the date of
the occurrence thereof;
(f) any default with respect to any Indebtedness of the Borrower or
any of its Subsidiaries (other than to the Lenders hereunder) for borrowed
money, or default under any agreement giving rise to monetary remedies, in each
case (under this paragraph (f)) which, when aggregated with all other such
defaults of the Borrower and its Subsidiaries, exceeds $2,000,000, if the effect
of such default described in this paragraph (f) is to permit the holder of such
Indebtedness to accelerate the maturity of such Indebtedness, unless such holder
shall have permanently waived the right to accelerate the maturity of such
Indebtedness on account of such default;
(g) the occurrence of an "Event of Default" under any of paragraph
(f)(i)-(iii) or paragraphs (g)-(u) of Article VIII of the Borrower Term Loan
Agreement, as in effect as of the Closing Date and, subject to the provisions of
Section 11.01, as the same may be amended, supplemented or otherwise modified
from time to time after the Closing Date, which "Events of Default" (the
"Incorporated Events of Default"), are hereby incorporated herein by reference
as if set forth fully herein and shall be as binding on the Borrower as if set
forth fully herein until such time as the Commitments shall have expired or been
terminated in full and all of the Obligations shall have been paid in full. The
incorporation by reference to the Borrower Term Loan Agreement of the
Incorporated Event of Defaults pursuant to this paragraph (g) shall survive the
termination of the Borrower Term Loan Agreement. In the event a waiver is
granted under the Borrower Term Loan Agreement or an amendment or modification
is executed with respect to Borrower Term Loan Agreement, and such waiver,
amendment and/or modification affects the Incorporated Events of Default, then
such waiver, amendment or modification shall be effective with respect to the
Incorporated Events of Default as incorporated by reference into this
39
Agreement, subject to the provisions of Section 11.01. For purposes of the
incorporation of the Incorporated Events of Default pursuant to this Section
9.01(a), all references in the Incorporated Events of Default to the "Agent"
shall be deemed to refer to the Administrative Agent hereunder, all references
in the Incorporated Events of Default to a "Lender" or the "Lender" shall be
deemed to refer to one or more of the Lenders hereunder, all references in the
Incorporated Events of Default to the "Required Lenders" shall be deemed to
refer to the Required Lenders hereunder, all references in the Incorporated
Events of Default to the "Credit Agreement", "this Agreement," or any similar
references, shall be deemed to refer to this Agreement, and all references in
the Incorporated Events of Default to a "Loan Document" or the "Loan Documents,"
or any similar references, shall be deemed to refer to one or more of the Loan
Documents as defined in Section 1.01, and all references in the Incorporated
Events of Default to the First Amendment Effective Date and/or Closing Date
shall be deemed to refer to the Closing Date hereunder.
9.02 Remedies Upon Event of Default.
In case any one or more Events of Default shall occur and be
continuing, but subject in all cases to the provisions of the Borrower
Intercreditor Agreement, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required 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 Issuer 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, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations in an amount equal to up to 105% (as determined by the
applicable L/C Issuer) of 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
or applicable law;
provided, however, that upon the occurrence of an Event of Default
under paragraph (u) of Article VIII of the Incorporated Events of Default, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer 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 Borrower
to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent
or any Lender.
Notwithstanding anything to the contrary herein, if the Loans are
accelerated in connection with an Event of Default resulting from a Put Change
of Control, then the Total
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Outstandings shall be payable at par (together with accrued interest and fees,
including any applicable default rate of interest, and such additional amount as
shall be required by the L/C Issuer to Cash Collateralize the L/C Obligations in
an amount equal to up to 105% of the then Outstanding Amount thereof) plus a
premium in an amount such that the sum of the Total Outstandings and such
premium shall be equal to the greater of (i) 101% and (ii) a percentage equal to
the percentage used to calculate the Fixed Early Payment Amount then applicable
under the Borrower Term Loan Agreement, in either case, of the Total
Outstandings (excluding any incremental amount over and above the Outstanding
Amount of L/C Obligations which is required to Cash Collateralize such L/C
Obligations), plus all other Obligations due to the Lenders under this Agreement
and the other Loan Documents. The portion of the amount payable pursuant to the
preceding sentence with is attributable to (and equal to) the Outstanding Amount
of L/C Obligations (excluding the premium relating thereto but including any
incremental amount over and above such Outstanding Amount which is required to
Cash Collateralize such L/C Obligations) shall be delivered by the
Administrative Agent to the L/C Issuer and applied to Cash Collateralize such
L/C Obligations.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) Each L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
each L/C Issuer shall have all of the benefits and immunities (i) provided to
the Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by such L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for letters
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of credit pertaining to such Letters of Credit as fully as if the
term "Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
10.03 Liability of Administrative Agent.
The Administrative Agent shall not be (a) liable for any action taken
or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein) or (b) responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender or
participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.
10.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
42
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
10.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower referring
to this Agreement, describing such Default and stating that such notice is a
"notice of default." The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders in accordance
with Article IX; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.
10.06 Credit Decision; Disclosure of Information by
Administrative Agent.
Each Lender acknowledges that the Administrative Agent has not made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender as to any matter. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
and the other Loan Parties hereunder. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of the
Administrative Agent.
43
10.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand the Administrative Agent (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold the Administrative
Agent harmless from and against any and all Indemnified Liabilities incurred by
it; provided, however, that no Lender shall be liable for the payment to the
Administrative Agent of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from the Administrative Agent's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section
10.07. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section 10.07 shall survive termination of the Commitments,
repayment, satisfaction or discharge of the Obligations and the resignation of
the Administrative Agent.
10.08 Administrative Agent in its Individual Capacity.
Xxxxxxxxx and its Affiliates may make loans to, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Loan Parties
and their respective Affiliates as though Xxxxxxxxx were not the Administrative
Agent hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Xxxxxxxxx or its Affiliates may
receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Xxxxxxxxx shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders"
include Xxxxxxxxx in its individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be consented to by the Borrower at all times other than during the existence of
an Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor Administrative Agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may
44
appoint, after consulting with the Lenders and the Borrower, a successor
Administrative Agent from among the Lenders. Upon the acceptance of its
appointment as successor Administrative Agent hereunder, the Person acting as
such successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
Administrative Agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
10.10 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 Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on the 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 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 and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.07 and 11.04) 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 to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.07 and 11.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or
45
to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
10.11 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release any Lien on any property granted to or held by
the Administrative Agent under any Security Document (i) upon
termination of the Commitments and repayment, satisfaction or discharge
of the Obligations (other than contingent indemnification obligations),
(ii) that is transferred or to be transferred as part of or in
connection with any Disposition permitted hereunder or under any other
Loan Document, or (iii) subject to Section 11.01, if approved,
authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property or asset granted
to or held by the Administrative Agent under any Loan Document to the
holder of any Lien on such Property that is permitted hereunder;
(c) to release any Company party to the Subsidiary Revolver
Security Agreement from its obligations thereunder if such Person
ceases to be a Subsidiary as a result of a transaction permitted
hereunder;
(d) to release any Lien on any property or assets granted to
or held by the Administrative Agent under the Parent Revolver Pledge
Agreement upon termination of the Parent Term Loan Agreement and
payment in full of all obligations (other than contingent
indemnification obligations) of the Parent thereunder; and
(e) to enter into the Borrower Intercreditor Agreement.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No provision of this Agreement or any other Loan Document may be
amended, changed, waived, discharged or terminated unless such amendment,
change, waiver, discharge or termination is (i) in writing entered into by, or
approved in writing by, each of the Loan Parties party thereto and the Required
Lenders and (ii) has been consented in writing by the Majority Secured Parties
as defined in the Borrower Intercreditor Agreement; provided, however, that:
(a) subject to the terms of subsections (b) and (c) of this
Section 11.01, any amendment, change, waiver, discharge or termination
in respect of any of the Incorporated
46
Definitions, the Incorporated Representations and Warranties, the
Incorporated Affirmative Covenants, the Incorporated Negative
Covenants, the Incorporated Financial Covenants or the Incorporated
Events of Default that becomes effective in accordance with the terms
of Article XI of the Borrower Term Loan Agreement automatically shall
be incorporated by reference herein;
(b) no amendment, change, waiver, discharge or termination of
any provision of this Agreement or any other Loan Document shall:
(i) extend or increase the Commitment of any Lender
without the written consent of such Lender;
(ii) postpone any date fixed by this Agreement or
any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of
them) or any mandatory reduction of the Aggregate Commitments
hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(iii) reduce the principal of, or the rate of
interest specified herein on, any Loan, or any fees or other
amounts payable hereunder or under any other Loan Document,
without the written consent of each Lender directly affected
thereby;
(iv) change Section 2.11 in a manner that would
alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
(v) subject to the terms of the Borrower
Intercreditor Agreement, release all or substantially all of
the Collateral without the written consent of each Lender;
(vi) consent to the assignment or transfer by the
Borrower of any of its rights or obligations under this
Agreement without the written consent of each Lender; or
(vii) amend, modify or otherwise waive any provision
of Section 2.13 without the written consent of each Lender;
(c) no waiver of an Incorporated Event of Default that
becomes effective in accordance with the terms of Article XI of the
Borrower Term Loan Agreement shall be effective for purposes of Section
4.02(c) without the consent of the Required Lenders;
(d) no amendment, waiver or consent of any provision of this
Agreement or any other Loan Document shall, unless in writing and
signed by the Administrative Agent, affect the rights or duties of the
Administrative Agent thereunder; and
(e) no amendment, waiver or consent of any provision of this
Agreement or any other Loan Document shall, unless in writing and
signed by each affected L/C Issuer,
47
affect the rights or duties of such L/C Issuer under this Agreement or
any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, 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 Borrower or the Administrative Agent, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 11.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties;
(ii) if the any L/C Issuer, to the address and to the
address, facsimile number, electronic mail address or telephone number
specified for such Person in the applicable joinder document pursuant
to which such Person became an L/C Issuer or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower and the
Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices)
48
purportedly given by or on behalf of the 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
Borrower shall indemnify the Administrative Agent and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender 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.
11.04 Attorney Costs, Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Administrative Agent, each L/C Issuer and each
Lender for all costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents, including all Attorney Costs (including
all such reasonable costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law). The agreements in this
Section 11.04 shall survive the termination of the Commitments and repayment,
satisfaction or discharge of the Obligations.
11.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify and hold harmless the Administrative Agent, each
L/C Issuer, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit
or the use or proposed use
49
of the proceeds therefrom (including any refusal by the 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), or (c) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by the
Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability
related in any way to the Borrower, any Subsidiary or any other Loan Party, or
(d) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory (including any investigation of, preparation for, or defense of any
pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements 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. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any Indemnitee
have any liability for any indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All
amounts due under this Section 11.05 shall be payable within ten Business Days
after demand therefor. The agreements in this Section 11.05 shall survive the
resignation of the Administrative Agent, the termination of the Commitments and
the repayment, satisfaction or discharge of the Obligations.
11.06 Payments Set Aside.
To the extent that any payment by or on behalf of the Borrower is made
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off 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 or such Lender in its
discretion) 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 set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the 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 Federal Funds Rate from time to
time in effect.
11.07 Successors and Assigns.
(a) 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 the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
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
50
provisions of subsection (b) of this Section 11.07, or (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section 11.07 (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 11.07 and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) 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 Commitment and the Loans (including for the
purposes of this subsection (b), participations in L/C Obligations) 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 and the Loans at
the time owing to it or in the case of an assignment to a Lender or Related
Lender Party, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) 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 $1,000,000 unless the Administrative Agent otherwise consents; (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 Loans or the Commitment assigned; (iii) any assignment of a
Commitment must be approved by the Administrative Agent and each L/C Issuer
unless the Person that is the proposed assignee is itself a Lender or a Related
Lender Party (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption. Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section 11.07, 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 (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 3.01, 3.04, 3.05, 11.04 and 11.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a 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 11.07. Except for an assignment made to an
Eligible Assignee, and except during the existence of a Default, no assignment
shall be permitted pursuant to this Section 11.07 without the prior written
consent of the Administrative Agent and the Borrower, which consent shall not be
unreasonably withheld.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the 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
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Lenders, and the Commitments of, and principal amounts of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
Administrative Agent, on behalf of the Borrower, agrees to record each Loan on
the Register. The Loan recorded on the Register (the "Registered Loan") may not
be evidenced by promissory notes other than a Registered Note (as defined
below). Upon the registration of a Loan, any promissory note (other than a
Registered Note) evidencing the same shall be null and void and shall be
returned to the Borrower. The Borrower agrees, at the request of any Lender, to
execute and deliver to such Lender a promissory note in registered form to
evidence such Registered Loan (i.e., containing registered note language) (a
"Registered Note"), payable to the order of such Lender and otherwise duly
completed. Once recorded on the Register, the Obligations evidenced by such
Registered Note may not be removed from the Register so long as it remains
outstanding, and a Registered Note may not be exchanged for a promissory note
that is not a Registered Note. The entries in the Register shall be conclusive,
and the Borrower, the 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 the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) A Registered Loan (and the Registered Note, if any, evidencing the
same) may be assigned or sold in whole or in part only by registration of such
assignment or sale on the Register (and each Registered Note shall expressly so
provide). Any assignment or sale of all or part of such Registered Loan (and the
Registered Note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register, together with the
surrender of the Registered Note, if any, evidencing the same duly endorsed by
(or accompanied by a written instrument of assignment or sale duly executed by)
the holder of such Registered Note, whereupon, at the request of the designated
assignee(s) or transferee(s), one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s). No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the register as provided in this paragraph;
provided that in the case of an assignment by a Lender to a Lender Related Party
that is not reflected in the Administrative Agent's Register, the assigning
Lender shall maintain a comparable register on behalf of the Administrative
Agent.
(e) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower'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 Commitment and/or the Loans (including such Lender's participations in L/C
Obligations) 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 parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders 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
52
other modification described in the first proviso to Section 11.01 and/or
Section 2.13 that directly affects such Participant. Subject to subsection (e)
of this Section 11.07, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section 11.07. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.11 as
though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 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 Borrower's
prior written consent.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) a separately
organized branch of a Lender, (c) a Related Lender Party or (d) a
Qualified Institutional Lender; provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include (i) any Person (other
than a Related Lender Party) that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code, or (ii) the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Related Lender Party" means, with respect to any Lender, such
Lender's parent company and/or any affiliate of such Lender which is at
least fifty percent (50%) owned by such Lender or its parent company
or, in the case of any Lender which is a fund or similar investment
vehicle investing in or making commercial loans, any other fund of
similar investment vehicle that invests in or makes commercial loans
and is managed or advised by the same investment advisor of such Lender
or by a controlled affiliate of such investment advisor.
"Qualified Institutional Lender" means any Person having as a
substantial part of its overall business activities the business of
investing in bank loans and/or debt securities; provided that
"Qualified Institutional Lender" shall not include the Borrower, any of
the Borrower's Affiliates, or any natural Person.
11.08 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrower or any other Loan Party, any such notice being waived by the
Borrower (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties, and each Loan Party hereby grants a
security interest in all such deposits and indebtedness to the Administrative
Agent for the benefit of the Administrative Agent and the Lenders, against any
and all Obligations owing to such Lender hereunder or under any other Loan
Document, now or
53
hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or indebtedness. Each Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.09 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.10 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.11 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 and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the 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.
11.12 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.
54
11.13 Tax Forms.
Upon the request of the Administrative Agent, each Lender shall deliver
to the Administrative Agent two duly signed completed copies of Form W-9 of
United States Internal Revenue Service. If such Lender fails to deliver such
forms, then the Administrative Agent may withhold from any interest payment to
such Lender an amount equivalent to the applicable back-up withholding tax
imposed by the Code, without reduction.
11.14 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
11.15 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.15
WITH
55
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PEGASUS MEDIA & COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Blank
----------------------------------
Name: Xxxxx X. Blank
--------------------------------
Title: Senior Vice President
-------------------------------
XXXXXXXXX L.L.C., as
Administrative Agent and as a Lender
By: /s/ Xxxxx X. Genda
----------------------------------
Name: Xxxxx X. Genda
--------------------------------
Title: Vice President
-------------------------------
