AMENDED AND RESTATED CREDIT AGREEMENT among DOLAN MEDIA COMPANY, DOLAN FINANCE COMPANY, DOLAN PUBLISHING COMPANY, DOLAN PUBLISHING FINANCE COMPANY, HENRY M. GREENE & ASSOCIATES, INC., LONG ISLAND COMMERCIAL REVIEW, INC., DAILY JOURNAL OF COMMERCE,...
Execution Copy
Exhibit 10.13
AMENDED AND RESTATED
CREDIT AGREEMENT
CREDIT AGREEMENT
among
XXXXX MEDIA COMPANY,
XXXXX FINANCE COMPANY,
XXXXX PUBLISHING COMPANY,
XXXXX PUBLISHING FINANCE COMPANY,
XXXXX X. XXXXXX & ASSOCIATES, INC.,
LONG ISLAND COMMERCIAL REVIEW, INC.,
DAILY JOURNAL OF COMMERCE, INC.,
LAWYER’S WEEKLY, INC.,
LEGAL LEDGER, INC.,
THE JOURNAL RECORD PUBLISHING CO.,
DAILY REPORTER PUBLISHING COMPANY,
NEW ORLEANS PUBLISHING GROUP, INC.,
NOPG, L.L.C.,
WISCONSIN PUBLISHING COMPANY,
LEGAL COM OF DELAWARE, INC.,
LEGAL COMMUNICATIONS CORPORATION,
THE DAILY RECORD COMPANY,
IDAHO BUSINESS REVIEW, INC.,
FINANCE AND COMMERCE, INC.,
COUNSEL PRESS, LLC,
ARIZONA NEWS SERVICE, LLC,
XXXXX DLN, LLC,
XXXXX APC LLC,
as Borrowers,
XXXXX FINANCE COMPANY,
XXXXX PUBLISHING COMPANY,
XXXXX PUBLISHING FINANCE COMPANY,
XXXXX X. XXXXXX & ASSOCIATES, INC.,
LONG ISLAND COMMERCIAL REVIEW, INC.,
DAILY JOURNAL OF COMMERCE, INC.,
LAWYER’S WEEKLY, INC.,
LEGAL LEDGER, INC.,
THE JOURNAL RECORD PUBLISHING CO.,
DAILY REPORTER PUBLISHING COMPANY,
NEW ORLEANS PUBLISHING GROUP, INC.,
NOPG, L.L.C.,
WISCONSIN PUBLISHING COMPANY,
LEGAL COM OF DELAWARE, INC.,
LEGAL COMMUNICATIONS CORPORATION,
THE DAILY RECORD COMPANY,
IDAHO BUSINESS REVIEW, INC.,
FINANCE AND COMMERCE, INC.,
COUNSEL PRESS, LLC,
ARIZONA NEWS SERVICE, LLC,
XXXXX DLN, LLC,
XXXXX APC LLC,
as Borrowers,
THE BANKS FROM TIME TO TIME PARTY HERETO,
LASALLE BANK NATIONAL ASSOCIATION,
one of the Banks, as Documentation Agent
one of the Banks, as Documentation Agent
and
U.S. BANK NATIONAL ASSOCIATION,
one of the Xxxxx, XX Bank and Lead Arranger, as agent for the Banks
one of the Xxxxx, XX Bank and Lead Arranger, as agent for the Banks
Dated as of March 14, 2006
TABLE OF CONTENTS
Article I DEFINITIONS AND ACCOUNTING TERMS | 1 | |||||
Section 1.1 |
Defined Terms | 1 | ||||
Section 1.2 |
Accounting Terms and Calculations | 15 | ||||
Section 1.3 |
Computation of Time Periods | 15 | ||||
Section 1.4 |
Other Definitional Terms | 15 | ||||
Article II TERMS OF THE CREDIT FACILITIES | 16 | |||||
Section 2.1 |
Lending Commitments | 16 | ||||
Section 2.2 |
Procedure for Loans | 16 | ||||
Section 2.3 |
Notes | 18 | ||||
Section 2.4 |
Conversions and Continuations | 18 | ||||
Section 2.5 |
Interest Rates, Interest Payments and Default Interest | 19 | ||||
Section 2.6 |
Repayment and Mandatory Prepayment | 20 | ||||
Section 2.7 |
Optional Prepayments | 21 | ||||
Section 2.8 |
Letters of Credit | 21 | ||||
Section 2.9 |
Procedures for Letters of Credit | 21 | ||||
Section 2.10 |
Terms of Letters of Credit | 22 | ||||
Section 2.11 |
Agreement to Repay Letter of Credit Drawings | 22 | ||||
Section 2.12 |
Obligations Absolute | 22 | ||||
Section 2.13 |
Revolving Commitment Reduction or Termination; Incremental Term Loan Commitment | 23 | ||||
Section 2.14 |
Loans to Cover Unpaid Drawings | 25 | ||||
Section 2.15 |
Agent’s and Closing Fees | 26 | ||||
Section 2.16 |
Revolving Commitment Fee | 26 | ||||
Section 2.17 |
Letter of Credit Fees | 27 | ||||
Section 2.18 |
[Intentionally Omitted.] | 27 | ||||
Section 2.19 |
Computation | 27 | ||||
Section 2.20 |
Payments | 27 | ||||
Section 2.21 |
Use of Loan Proceeds | 27 | ||||
Section 2.22 |
Interest Rate Not Ascertainable, Etc | 28 | ||||
Section 2.23 |
Increased Cost | 28 | ||||
Section 2.24 |
Illegality | 29 | ||||
Section 2.25 |
Capital Adequacy | 29 | ||||
Section 2.26 |
Funding Losses; Eurodollar Rate Advances | 29 | ||||
Section 2.27 |
Discretion of Bank as to Manner of Funding | 30 | ||||
Section 2.28 |
Taxes | 30 | ||||
Section 2.29 |
Replacement of Bank in Respect of Increased Costs | 32 | ||||
Article III CONDITIONS PRECEDENT | 33 | |||||
Section 3.1 |
Conditions of Initial Transaction | 33 | ||||
Section 3.2 |
Conditions Precedent to all Loans and Letters of Credit | 35 | ||||
Article IV REPRESENTATIONS AND WARRANTIES | 35 | |||||
Section 4.1 |
Organization, Standing, Etc | 35 | ||||
Section 4.2 |
Authorization and Validity | 36 | ||||
Section 4.3 |
No Conflict; No Default | 36 | ||||
Section 4.4 |
Government Consent | 36 |
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Section 4.5 |
Financial Statements and Condition | 36 | ||||
Section 4.6 |
Litigation | 36 | ||||
Section 4.7 |
Environmental, Health and Safety Laws | 37 | ||||
Section 4.8 |
ERISA | 37 | ||||
Section 4.9 |
Federal Reserve Regulations | 37 | ||||
Section 4.10 |
Title to Property; Leases; Liens; Subordination | 37 | ||||
Section 4.11 |
Taxes | 38 | ||||
Section 4.12 |
Trademarks, Patents | 38 | ||||
Section 4.13 |
Force Majeure | 38 | ||||
Section 4.14 |
Investment Company Act | 38 | ||||
Section 4.15 |
[Intentially Omitted.] | 38 | ||||
Section 4.16 |
Retirement Benefits | 38 | ||||
Section 4.17 |
Full Disclosure | 38 | ||||
Section 4.18 |
Subsidiaries | 39 | ||||
Section 4.19 |
Labor Matters | 39 | ||||
Section 4.20 |
Solvency | 39 | ||||
Section 4.21 |
Related Agreements, etc. | 39 | ||||
Section 4.22 |
Anti-Terrorism Law Compliance | 40 | ||||
Article V AFFIRMATIVE COVENANTS | 40 | |||||
Section 5.1 |
Financial Statements and Reports | 40 | ||||
Section 5.2 |
Existence | 42 | ||||
Section 5.3 |
Insurance | 42 | ||||
Section 5.4 |
Payment of Taxes and Claims | 42 | ||||
Section 5.5 |
Inspection | 43 | ||||
Section 5.6 |
Maintenance of Properties | 43 | ||||
Section 5.7 |
Books and Records | 43 | ||||
Section 5.8 |
Compliance | 43 | ||||
Section 5.9 |
ERISA | 43 | ||||
Section 5.10 |
Environmental Matters; Reporting | 44 | ||||
Section 5.11 |
Further Assurances | 44 | ||||
Article VI NEGATIVE COVENANTS | 44 | |||||
Section 6.1 |
Merger | 44 | ||||
Section 6.2 |
Disposition of Assets | 45 | ||||
Section 6.3 |
Plans | 45 | ||||
Section 6.4 |
Change in Nature of Business | 45 | ||||
Section 6.5 |
Acquisitions; Subsidiaries, Partnerships and Joint Ventures and Ownership | 45 | ||||
Section 6.6 |
Negative Pledges | 46 | ||||
Section 6.7 |
Restricted Payments | 46 | ||||
Section 6.8 |
Transactions with Affiliates | 46 | ||||
Section 6.9 |
Accounting Changes | 46 | ||||
Section 6.10 |
[Intentionally Omitted.] | 46 | ||||
Section 6.11 |
Subordinated Debt | 47 | ||||
Section 6.12 |
Investments | 47 | ||||
Section 6.13 |
Indebtedness | 48 | ||||
Section 6.14 |
Liens | 48 |
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Section 6.15 |
Contingent Liabilities | 49 | ||||
Section 6.16 |
[Intentionally Omitted] | 50 | ||||
Section 6.17 |
Fixed Charge Coverage Ratio | 50 | ||||
Section 6.18 |
Senior Leverage Ratio | 50 | ||||
Section 6.19 |
Loan Proceeds | 50 | ||||
Section 6.20 |
Sale and Leaseback Transactions | 50 | ||||
Section 6.21 |
Hedging Agreements | 50 | ||||
Article VII EVENTS OF DEFAULT AND REMEDIES | 50 | |||||
Section 7.1 |
Events of Default | 50 | ||||
Section 7.2 |
Remedies | 52 | ||||
Section 7.3 |
Offset | 53 | ||||
Article VIII THE AGENT | 53 | |||||
Section 8.1 |
Appointment and Authorization | 53 | ||||
Section 8.2 |
Note Holders | 53 | ||||
Section 8.3 |
Consultation With Counsel | 53 | ||||
Section 8.4 |
Loan Documents | 53 | ||||
Section 8.5 |
USBNA and Affiliates | 54 | ||||
Section 8.6 |
Action by Agent | 54 | ||||
Section 8.7 |
Credit Analysis | 54 | ||||
Section 8.8 |
Notices of Event of Default, Etc. | 54 | ||||
Section 8.9 |
Indemnification | 54 | ||||
Section 8.10 |
Payments and Collections | 55 | ||||
Section 8.11 |
Sharing of Payments | 55 | ||||
Section 8.12 |
Advice to Banks | 55 | ||||
Section 8.13 |
Defaulting Bank | 56 | ||||
Section 8.14 |
Resignation | 57 | ||||
Article IX MISCELLANEOUS | 57 | |||||
Section 9.1 |
Modifications | 57 | ||||
Section 9.2 |
Expenses | 58 | ||||
Section 9.3 |
Waivers, etc. | 58 | ||||
Section 9.4 |
Notices | 58 | ||||
Section 9.5 |
Successors and Assigns; Participations; Purchasing Banks | 58 | ||||
Section 9.6 |
Confidentiality of Information | 60 | ||||
Section 9.7 |
Governing Law and Construction | 61 | ||||
Section 9.8 |
Consent to Jurisdiction | 61 | ||||
Section 9.9 |
Waiver of Jury Trial | 62 | ||||
Section 9.10 |
Survival of Agreement | 62 | ||||
Section 9.11 |
Indemnification | 62 | ||||
Section 9.12 |
Captions | 63 | ||||
Section 9.13 |
Entire Agreement | 63 | ||||
Section 9.14 |
Counterparts | 63 | ||||
Section 9.15 |
Borrower Acknowledgements | 63 | ||||
Section 9.16 |
Appointment of and Acceptance by Borrowers’ Agent | 63 | ||||
Section 9.17 |
Automatic Debit of Fees | 63 | ||||
Section 9.18 |
Relationship Among Borrowers | 63 | ||||
Section 9.19 |
Interest Rate Limitation | 66 |
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Section 9.20 |
Effect of Existing Credit Agreement and Existing Security Documents | 66 |
Schedules |
||
Schedule 1.1 |
Subordinated Debt | |
Schedule 4.6 |
Litigation | |
Schedule 4.7 |
Environmental Matters | |
Schedule 4.16 |
Retirement Benefits | |
Schedule 4.18 |
Subsidiaries | |
Schedule 6.8 |
Affiliate Transactions | |
Schedule 6.12 |
Existing Investments | |
Schedule 6.13 |
Existing Indebtedness | |
Schedule 6.14 |
Existing Liens | |
Schedule 6.15 |
Contingent Obligations | |
Exhibits |
||
Exhibit A |
Form of Revolving Note | |
Exhibit B |
Form of Term Note | |
Exhibit C |
Form of Assignment Agreement | |
Exhibit D |
Form of Compliance Certificate | |
Exhibit E |
Form of Collateral Assignment (Trademarks) | |
Exhibit F |
Form of Pledge Agreement | |
Exhibit G |
Form of Security Agreement |
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 14, 2006, is by and among XXXXX
MEDIA COMPANY, a Delaware corporation, XXXXX FINANCE COMPANY, a Minnesota corporation, XXXXX
PUBLISHING COMPANY, a Delaware corporation, XXXXX PUBLISHING FINANCE COMPANY, a Minnesota
corporation, XXXXX X. XXXXXX & ASSOCIATES, INC., a Delaware corporation, LONG ISLAND COMMERCIAL
REVIEW, INC., a New York corporation, DAILY JOURNAL OF COMMERCE, INC., a Delaware corporation,
LAWYER’S WEEKLY, INC., a Delaware corporation, LEGAL LEDGER, INC., a Minnesota corporation, THE
JOURNAL RECORD PUBLISHING CO., a Delaware corporation, DAILY REPORTER PUBLISHING COMPANY, a
Delaware corporation, NEW ORLEANS PUBLISHING GROUP, INC., a Louisiana corporation, NOPG, L.L.C., a
Louisiana limited liability company, WISCONSIN PUBLISHING COMPANY, a Minnesota corporation, LEGAL
COM OF DELAWARE, INC., a Delaware corporation, LEGAL COMMUNICATIONS CORPORATION, a Missouri
corporation, THE DAILY RECORD COMPANY, a Maryland corporation, IDAHO BUSINESS REVIEW, INC., an
Idaho corporation, FINANCE AND COMMERCE, INC., a Minnesota corporation, COUNSEL PRESS, LLC, a
Delaware limited liability company, ARIZONA NEWS SERVICE, LLC, a Delaware limited liability
company, XXXXX DLN LLC, a Delaware limited liability company, and XXXXX APC LLC, a Delaware limited
liability company (individually, a “Borrower” and, collectively, the “Borrowers”),
the banks from time to time party hereto (individually, a “Bank” and, collectively, the
“Banks”), LASALLE BANK NATIONAL ASSOCIATION, a national banking association, one of the
Banks, as Documentation Agent, and U.S. BANK NATIONAL ASSOCIATION, a national banking association,
one of the Xxxxx, XX Bank and Lead Arranger, as agent for the Banks (in such capacity, the
“Agent”).
XXXIX.
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
A. Defined Terms. As used in this Agreement the following terms shall have the
following respective meanings (and such meanings shall be equally applicable to both the singular
and plural form of the terms defined, as the context may require):
“Acquisition”: Any transaction or series of transactions by which a Borrower acquires,
either directly or through an Affiliate or otherwise, (a) any or all of the stock or other
securities of any class of any Person or (b) a substantial portion of the assets, or a division,
line of business or publication of any Person.
“Acquisition Services Agreements”: Agreements for payment for consulting services and
non-competition agreements or other similar agreements entered into by any of the Borrowers in
connection with acquisitions of other companies, lines of business, businesses or publications.
“Adjusted Eurodollar Rate”: With respect to each Interest Period applicable to a
Eurodollar Rate Advance, the rate (rounded upward, if necessary, to the next one hundredth of
one percent) determined by dividing the Eurodollar Rate for such Interest Period by 1.00 minus
the Eurodollar Reserve Percentage.
“Advance”: Any portion of the outstanding Revolving Loans or Term Loan by a Bank as to
which one of the available interest rate options and, if pertinent, an Interest Period, is
applicable. An Advance may be a Eurodollar Rate Advance or a Prime Rate Advance.
“Affected Bank”: As defined in Section 2.29.
“Affiliate”: When used with reference to any Person, (a) each Person that, directly or
indirectly, controls, is controlled by or is under common control with, the Person referred to,
(b) each Person
which beneficially owns or holds, directly or indirectly, ten percent (10%) or
more of any class of voting Equity Interests of the Person referred to, (c) each Person, ten
percent (10%) or more of the voting Equity Interests (or if such Person is not a corporation,
five percent or more of the equity interest) of which is beneficially owned or held, directly or
indirectly, by the Person referred to, and (d) each of such Person’s officers, directors, and
general partners. The term control (including the terms “controlled by” and “under common
control with”) means the possession, directly, of the power to direct or cause the direction of
the management and policies of the Person in question.
“Affirmation of Security Documents”: The Affirmation of Security Documents dated as of
the Closing Date by certain of the Borrowers in favor of the Agent.
“Agent”: As defined in the opening paragraph hereof.
“Aggregate Revolving Commitment Amounts”: As of any date, the sum of the Revolving
Commitment Amounts of all the Banks, which, in any event, shall not exceed $15,000,000.
“APC”: American Processing Company, LLC, a Michigan limited liability company.
“APC Acquisition”: The acquisition by Xxxxx Media, either directly or indirectly
through one or more Subsidiaries, of approximately 81% of the Equity Interests of APC.
“APC LLC Agreement”: The Amended and Restated Operating Agreement of American
Processing Company, LLC dated as of March 14, 2006 by and among APC, Xxxxx APC LLC and Trott &
Trott, P.C.
“APC Side Letter”: The letter agreement dated as of the Closing Date by and between the
Agent and the members of APC.
“Applicable Lending Office”: For each Bank and for each type of Advance, the office of
such Bank identified as such Bank’s Applicable Lending Office on the signature pages hereof or
such other domestic or foreign office of such Bank (or of an Affiliate of such Bank) as such
Bank may specify from time to time, by notice given pursuant to Section 9.4, to the Agent and
the Borrowers as the office by which its Advances of such type are to be made and maintained.
“Applicable Margin”: Subject to the last sentence of this definition, with respect to
the period beginning one day after the compliance certificate required by Section 5.1(e) with
respect to a fiscal quarter is required to be delivered and ending on the date one day after the
date such compliance certificate for the next fiscal quarter is required to be delivered, the
percentage specified as applicable to Prime Rate Advances or Eurodollar Rate Advances, based on
the Senior Leverage Ratio calculated as of the end of the fiscal quarter for which such
compliance certificate was delivered:
Eurodollar | Prime | |||||||
Rate | Rate | |||||||
Senior Leverage Ratio | Advances | Advances | ||||||
Less than 2.50:1.00 |
2.00 | % | 0.00 | % | ||||
Equal to or greater than 2.50:1.00
|
||||||||
but less than
3.50:1.00 |
||||||||
2.50 | % | 0.50 | % | |||||
Equal to or greater than 3.50:1.00 |
2.75 | % | 0.75 | % |
For any period beginning one day after the compliance certificate required by Section 5.1(e)
with respect to a fiscal quarter is required to be but is not delivered and ending on the
date one day after the date such compliance certificate is delivered, the Applicable Margin
shall be as specified for a Senior Leverage Ratio equal to or greater than 3.50 to 1.00; provided,
however, that until
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May 16, 2006 the Applicable Margin shall be as specified for a
Senior Leverage Ratio of greater than or equal to 3.50 to 1.00.
“Availability”: On any date of determination, the sum of (a) the Aggregate Revolving
Commitment Amounts less (b) Total Revolving Outstandings.
“AZC Acquisition”: The purchase by Xxxxx Media, either directly or indirectly through
one or more subsidiaries, in or about April 2005, of certain assets of Arizona News Service,
Inc. and Arizona Capitol Reports LLC.
“Bank”: As defined in the opening paragraph hereof.
“Board”: The Board of Governors of the Federal Reserve System or any successor thereto.
“Borrowers”: As defined in the opening paragraph hereof.
“Borrowers’ Agent”: Xxxxx Media.
“Borrower Loan Documents”: The Loan Documents executed, or to be executed, by any
Borrower, or pursuant to which such Borrower is bound.
“BSA”: As defined in Section 5.8.
“Business Day”: Any day (other than a Saturday, Sunday or legal holiday in the State of
Minnesota) on which banks are permitted to be open in Minneapolis, Minnesota.
“Capital Expenditures”: For any period, the sum of all amounts that would, in
accordance with GAAP, be included as additions to property, plant and equipment on a
consolidated statement of cash flows for the Borrowers during such period, in respect of (a) the
acquisition, construction, improvement, replacement or betterment of land, buildings, machinery,
equipment or of any other fixed assets or leaseholds, (b) to the extent related to and not
included in (a) above, materials, contracts and labor (excluding expenditures properly
chargeable to repairs or maintenance in accordance with GAAP), and (c) other expenditures
recorded as capital expenditures in accordance with GAAP, plus expenditures for software that
are capitalized on the Borrowers’ balance sheet.
“Capital Expenditure Financing”: Indebtedness incurred to finance Capital Expenditures
and secured solely by Liens on the property acquired, provided that the amount of any
such Indebtedness shall not exceed the purchase price of the property acquired therewith.
“Capitalized Lease”: A lease of (or other agreement conveying the right to use) real or
personal property with respect to which at least a portion of the rent or other amounts thereon
constitute Capitalized Lease Obligations.
“Capitalized Lease Obligations”: As to any Person, the obligations of such Person to
pay rent or other amounts under a lease of (or other agreement conveying the right to use) real
or personal property which obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board), and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP (including such Statement No. 13).
“Change of Control”: The occurrence, after the Closing Date, of any of the following
circumstances: (a) any Person or two or more Persons (other than Xxxxx Media, a Borrower that is
a wholly-owned Subsidiary or a Person that owned a direct Equity Interest of Xxxxx Media or such
Person’s Affiliate as of the Closing Date) acting in concert acquiring beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Equity Interests of any Borrower representing
30% or more of the combined
voting power of all Equity Interests of such Borrower entitled to vote in the election of
directors; or
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(b) during any period of up to twelve (12) consecutive months, whether commencing
before or after the Closing Date, individuals who at the beginning of such twelve-month period
were directors of any Borrower ceasing for any reason to constitute a majority of the Board of
Directors of any Borrower (other than by reason of death, disability or scheduled retirement and
excluding the replacement of individuals by a Person who owns an Equity Interest in a Borrower
as of the Closing Date with another individual designated by such Person); or (c) any Person or
two or more Persons (other than Xxxxx Media, a Borrower that is a wholly-owned Subsidiary or a
Person that owned a direct Equity Interest of Xxxxx Media or such Person’s Affiliate as of the
Closing Date) acting in concert acquiring by contract or otherwise, or entering into a contract
or arrangement which upon consummation will result in its or their acquisition of, control over
Equity Interests of any Borrower representing 30% or more of the combined voting power of all
Equity Interests of any Borrower entitled to vote in the election of directors.
“Charges”: As defined in Section 9.19.
“Closing Date”: March 14, 2006.
“Code”: The Internal Revenue Code of 1986, as amended.
“Collateral Assignment (Trademarks)”: The (i) Existing Collateral Assignments
(Trademarks) and (ii) each other Collateral Assignment (Trademarks) executed by a Borrower in
substantially the form of Exhibit E hereto.
“Collateral Assignments of Undertakings”: Collectively, (i) the Collateral Assignment
dated as of November 30, 2005 by Xxxxx DLN, LLC in favor of the Agent, (ii) the Collateral
Assignment dated as of September 1, 2004 by Lawyer’s Weekly, Inc. (formerly known as Virginia
Publishing Company) in favor of the Agent, and (iii) each other Collateral Assignment of
Undertakings executed by a Borrower in favor of the Agent in connection with a Permitted
Acquisition.
“Commitments”: The Revolving Commitments, the Term Loan Commitments and the
Incremental Term Loan Commitments.
“Contingent Obligation”: With respect to any Person at the time of any determination,
without duplication, any obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary
obligor”) in any manner, whether directly or otherwise: (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any direct or indirect security therefore, (b) to purchase
property, securities, Equity Interests or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness, (c) to maintain working capital, equity
capital or other financial statement condition of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or otherwise to protect the owner thereof against loss
in respect thereof, or (d) entered into for the purpose of assuring in any manner the owner of
such Indebtedness of the payment of such Indebtedness or to protect the owner against loss in
respect thereof; provided, that the term “Contingent Obligation” shall not include
endorsements for collection or deposit, in each case in the ordinary course of business.
“Current Liabilities”: As of any date, the consolidated current liabilities of the
Borrowers, determined in accordance with GAAP.
“Default”: Any event which, with the giving of notice (whether such notice is required
under Section CCC, or under some other provision of this Agreement, or otherwise) or lapse of
time, or both, would constitute an Event of Default.
“Defaulting Bank”: At any time, any Bank that, at such time (a) has failed to make a
Revolving Loan or its Term Loan or any Advances thereunder required pursuant to the terms of
this Agreement,
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including the funding of any participation in accordance with the terms of this
Agreement, (b) has failed to pay to the Agent or any other Bank an amount owed by such Bank
pursuant to the terms of this Agreement, or (c) has been deemed insolvent by the Agent in its
commercially reasonable discretion or has become subject to a bankruptcy, receivership or
insolvency proceeding, or to a receiver, trustee or similar official.
“Detroit News Acquisition”: The purchase by Xxxxx DLN LLC in or about November 2005, of
35% of the issued and outstanding Equity Interests of Detroit Legal News Publishing, LLC.
“Xxxxx Media”: Xxxxx Media Company, a Delaware corporation.
“EBITDA”: For any Person for any period of calculation, the consolidated net income of
such Person before provision for income taxes and interest expense (including, without
limitation, imputed interest expense on Capitalized Leases), all as determined in accordance
with GAAP, excluding therefrom (to the extent included): (a) depreciation, amortization and
goodwill impairment expense; (b) non-operating gains (including, without limitation,
extraordinary or nonrecurring gains, gains from discontinuance of operations and gains arising
from the sale of assets other than inventory) during the applicable period; (c) similar
non-operating losses during such period; (d) the effect of deductions from income resulting from
the granting of options to officers or employees of the Borrowers to purchase stock at a price
below its fair market value; and (e) other non-cash charges acceptable to the Majority Banks.
“Equity Interests”: All shares, interests, participation or other ownership interests,
however designated, of or in a corporation, limited liability company or other entity, whether
or not voting, including but not limited to common stock, member interests, warrants, preferred
stock, convertible debentures, and all agreements, instruments and documents convertible, in
whole or in part, into any one or more or all of the foregoing.
“ERISA”: The Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate”: Any trade or business (whether or not incorporated) that is a member
of a group of which a Borrower is a member and which is treated as a single employer under
Section 414 of the Code.
“Eurodollar Business Day”: A Business Day which is also a day for trading by and
between banks in United States dollar deposits in the interbank Eurodollar market and a day on
which banks are open for business in New York City.
“Eurodollar Rate”: With respect to each Interest Period applicable to a Eurodollar Rate
Advance, the average offered rate for deposits in United States dollars (rounded upward, if
necessary, to the nearest 1/16 of 1%) for delivery of such deposits on the first day of such
Interest Period, for the number of days in such Interest Period, which appears on Telerate page
3750 as of 11:00 A.M., London time (or such other time as of which such rate appears) two
Eurodollar Business Days prior to the first day of such Interest Period, or the rate for such
deposits determined by the Agent at such time based on such other published service of general
application as shall be selected by the Agent for such purpose; provided, that if the
Telerate page 3750 is not published at the time and no such published service is then available,
in lieu of determining the rate in the foregoing manner, the Agent may determine the rate based
on rates at which United States dollar deposits are offered to the Agent in the interbank
Eurodollar market at such time for delivery in Immediately Available Funds on the first day of
such Interest Period in an amount approximately equal to the Advance by the Agent to which such
Interest Period is to apply (rounded upward, if necessary, to the nearest 1/16 of 1%).
“Telerate page 3750” means the display designated as such on the Telerate reporting system
operated by Telerate System
Incorporated (or such other page as may replace page 3750 for the purpose of displaying London
interbank offered rates of major banks for United States dollar deposits).
- 5 -
“Eurodollar Rate Advance”: An Advance with respect to which the interest rate is
determined by reference to the Adjusted Eurodollar Rate.
“Eurodollar Reserve Percentage”: As of any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board for determining the maximum
reserve requirement (including any basic, supplemental or emergency reserves) for a member bank
of the Federal Reserve System, with deposits comparable in amount to those held by the Agent, in
respect of “Eurocurrency Liabilities” as such term is defined in Regulation D of the Board. The
rate of interest applicable to any outstanding Eurodollar Rate Advances shall be adjusted
automatically on and as of the effective date of any change in the Eurodollar Reserve
Percentage.
“Event of Default”: Any event described in Section CCC.
“Existing Collateral Assignments (Trademarks)”: Collectively, (i) the Collateral
Assignment (Trademarks) dated as of September 1, 2004 by Xxxxx Media in favor of the Agent, as
amended, (ii) the Collateral Assignment (Trademarks) dated as of September 1, 2004 by Finance
and Commerce, Inc. in favor of the Agent, and (iii) the Collateral Assignment (Trademarks) dated
as of September 1, 2004 by Long Island Commercial Review, Inc., in favor of the Agent.
“Existing Credit Agreement”: The Credit Agreement dated as of September 1, 2004, as
amended by the First Amendment to Credit Agreement dated as of January 20, 2005, and the Second
Amendment to Credit Agreement dated as of November 30, 2005, by and among the Borrowers (as
original parties thereto or as parties thereto by joinder), U.S. Bank National Association, as
Agent, and the banks from time to time party thereto.
“Existing Pledge Agreements”: Collectively, (i) the Pledge Agreement dated as of August
31, 2004 by Xxxxx Media in favor of the Agent, (ii) the Pledge Agreement dated as of August 31,
2004 by Xxxxx Publishing Company in favor of the Agent, (iii) the Pledge Agreement dated as of
August 31, 2004 by New Orleans Publishing Group, Inc. in favor of the Agent, (iv) the Pledge
Agreement dated as of August 31, 2004 by Legal Com of Delaware, Inc. in favor of the Agent, (v)
the Pledge Agreement dated as of August 31, 2004 by The Daily Record Company in favor of the
Agent, and (vi) the Pledge Agreement dated as of November 30, 2005 by Xxxxx DLN LLC in favor of
the Agent.
“Existing Security Agreement”: The Security Agreement dated as of August 31, 2004 by
the Borrowers (as original parties thereto or as parties thereto by joinder) in favor of the
Agent, as amended.
“Existing Security Documents”: The Existing Collateral Assignments (Trademarks), the
Existing Pledge Agreements and the Existing Security Agreement.
“Federal Funds Rate”: For any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight federal funds
transactions, with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for such day on such transactions received
by the Agent from three federal funds brokers of recognized standing selected by it.
“Fee Letter”: As defined in Section 2.15.
“Fixed Charge Coverage Ratio”: For any period of determination, the ratio of
(a) EBITDA, minus income taxes paid in cash, minus Net Capital
Expenditures paid in cash, minus Restricted Payments paid in cash (other
than Restricted Payments from one Borrower to another Borrower),
to
- 6 -
(b) Interest Expense, plus all Quarterly Principal Payments,
plus all other principal payments required with respect to Total Liabilities
bearing interest excluding principal payments made under Section 2.6(a), 2.6(c) or
2.6(d), plus all payments made pursuant to Acquisition Services Agreements,
in each case determined for the four consecutive fiscal quarters of the Borrowers ending on
or most recently ended before such date on a consolidated basis in accordance with GAAP.
“GAAP”: Generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of any date of
determination.
“Holding Account”: A deposit account belonging to the Agent for the benefit of the
Banks into which the Borrowers may be required to make deposits pursuant to the provisions of
this Agreement, such account to be under the sole dominion and control of the Agent and not
subject to withdrawal by the Borrowers, with any amounts therein to be held for application
toward payment of any outstanding Letters of Credit when drawn upon or applied as specified in
Section 2.11, as the case may be.
“Immediately Available Funds”: Funds with good value on the day and in the city in
which payment is received.
“Increase Effective Date”: As defined in Section 2.13(b)(i).
“Increase Joinder”: As defined in Section 2.13(b)(iii).
“Incremental Term Loan Commitment”: As defined in Section 2.13(b)(i).
“Incremental Term Loan Commitment Amount”: With respect to any Bank or New Bank, the
amount of such Bank’s or New Bank’s Incremental Term Loan Commitment as established pursuant to
Section 2.13(b).
“Incremental Term Loans”: As defined in Section 2.13(b)(iii).
“Indebtedness”: With respect to any Person at the time of any determination, without
duplication, all obligations, contingent or otherwise, of such Person which in accordance with
GAAP should be classified upon the balance sheet of such Person as liabilities, but in any event
including: (a) all obligations of such Person for borrowed money (including non-recourse
obligations), (b) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid or accrued, (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person, (e) all obligations of
such Person issued or assumed as the deferred purchase price of property or services, (f) all
obligations of others secured by any Lien on property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Capitalized Lease Obligations
of such Person, (h) all obligations of such Person in respect of interest rate swap agreements,
cap or collar agreements, interest rate futures or option contracts, currency swap agreements,
currency futures or option agreements and other similar
contracts, (i) all obligations of such Person, actual or contingent, as an account party in
respect of letters of credit or bankers’ acceptances, (j) all obligations of any partnership or
joint venture as to which such Person is personally liable, (k) all obligations of such Person
under any Acquisition Services Agreement, and (l) all Contingent Obligations of such Person for
which such Person would reserve in accordance with GAAP; provided, however, that
(x) for purposes of determining the Senior Leverage Ratio, obligations set forth in (h) and (j)
shall not be included in the calculation of
- 7 -
Indebtedness and (y) for purposes of this Agreement, the Preferred Stock shall not be considered Indebtedness.
“Indemnitee”: As defined in Section Y.
“Interest Expense”: For any period of determination, the aggregate consolidated amount,
without duplication, of (i) interest paid, accrued or scheduled to be paid in respect of any
Indebtedness of the Borrowers, including (a) all but the principal component of payments in
respect of conditional sale contracts, Capitalized Leases and other title retention agreements,
(b) commissions, discounts and other fees and charges with respect to letters of credit and
bankers’ acceptance financings and (c) net costs under interest rate protection agreements, in
each case determined in accordance with GAAP, but excluding, in any event, (X) interest on
Indebtedness of the Borrowers (other than Indebtedness under this Agreement) that is accrued and
not paid in cash, (Y) amortized deferred financing costs that are not paid in cash and (Z) other
non-cash payments of interest less (ii) interest income of the Borrowers (but in no
event less than zero).
“Interest Period”: With respect to each Eurodollar Rate Advance, the period commencing
on the date of such Advance or on the last day of the immediately preceding Interest Period, if
any, applicable to an outstanding Advance and ending one, two, three, six or twelve months
thereafter, as the Borrowers may elect in the applicable notice of borrowing, continuation or
conversion; provided that:
(1) Any Interest Period that would otherwise end on a day which is not a
Eurodollar Business Day shall be extended to the next succeeding Eurodollar Business
Day unless such Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Eurodollar Business Day;
(2) Any Interest Period that begins on the last Eurodollar Business Day of a
calendar month (or 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 Eurodollar
Business Day of a calendar month; and
(3) Any Interest Period applicable to an Advance on a Revolving Loan that would
otherwise end after the Revolving Loan Termination Date shall end on the Revolving
Loan Termination Date, and any Interest Period applicable to an Advance on a Term
Loan that would otherwise end after the scheduled maturity of such Term Loan shall
end on such maturity.
Interest Periods shall be selected so that the installment payments on the Term Notes can be
paid without having to pay a Eurodollar Rate Advance prior to the last day of the Interest
Period applicable thereto.
For purposes of determining an Interest Period, a month means a period starting on one day
in a calendar month and ending on the numerically corresponding day in the next calendar
month; provided, however, that if there is no numerically corresponding day
in the month in which such an Interest Period is to end or if such an Interest Period begins
on the last Business Day of a calendar month, then such Interest Period shall end on the
last Business Day of the calendar month in which such Interest Period is to end.
“Investment”: The acquisition, purchase, making or holding of any Equity Interests or
other security, any loan, advance, contribution to capital, extension of credit (except for
trade and customer accounts receivable for inventory sold or services rendered in the ordinary
course of business and payable in accordance with customary trade terms), any acquisitions of
real or personal property (other than real and personal property acquired in the ordinary course
of business) and any purchase or commitment
- 8 -
or option to purchase Equity Interests, securities
or other debt of or any interest in another Person or any integral part of any business or the
assets comprising such business or part thereof and the formation of, or entry into, any
partnership as a limited or general partner or the entry into any joint venture. The amount of
any Investment shall be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment.
“LC Bank”: USBNA, in its capacity as the issuer of Letters of Credit, or, from time to
time, such successor Bank approved by the Agent that issues the Letters of Credit, in its
capacity as such issuer.
“Letter of Credit”: An irrevocable letter of credit issued by the LC Bank pursuant to
this Agreement for the account of a Borrower.
“Letter of Credit Fee”: As defined in Section 2.17.
“Lien”: With respect to any Person, any security interest, mortgage, pledge, lien,
charge, encumbrance, title retention agreement or analogous instrument or device (including the
interest of each lessor under any Capitalized Lease), in, of or on any assets or properties of
such Person, now owned or hereafter acquired, whether arising by agreement or operation of law.
“Loan”: A Revolving Loan, a Term Loan or an Incremental Term Loan.
“Loan Documents”: This Agreement, the Notes, the Security Documents, the Fee Letter, and
any other loan, security agreement, letter agreement or similar document entered into by the
Agent or any Bank and any Borrower, or made by any Borrower in favor of the Agent or any Bank,
in connection with the transactions contemplated by the Loan Documents, in each case as amended,
modified or supplemented from time to time.
“Majority Banks”: At any time, Banks other than Defaulting Banks whose Total
Percentages aggregate at least 51% (with Total Percentages being computed without reference to
the Revolving Commitment Amounts or Loans of Defaulting Banks); provided,
however, that at any time when there are only two Banks, Majority Banks shall mean both
Banks.
“Material Adverse Occurrence”: Any occurrence of whatsoever nature (including, without
limitation, any adverse determination in any litigation, arbitration, or governmental
investigation or proceeding) which could reasonably be expected to materially and adversely
affect (a) the financial condition or operations of the Borrowers taken as a whole, (b) impair
the ability of the Borrowers (taken as a whole) to perform their obligations under any Loan
Document, or any writing executed pursuant thereto, (c) the validity or enforceability of the
material obligations of any Borrower under any Loan Document, (d) the rights and remedies of the
Banks and the Agent against any Borrower, (e) the timely payment of the principal of and
interest on the Loans or other amounts payable by the Borrowers hereunder, or (f) the validity
of the joint and several nature of the obligations of the Borrowers with respect to all of the
Obligations.
“Maximum Rate”: As defined in Section 9.19.
“Multiemployer Plan”: A multiemployer plan, as such term is defined in Section 4001 (a)
(3) of ERISA, which is maintained (on the Closing Date, within the five years preceding the
Closing Date, or at any time after the Closing Date) for employees of a Borrower or any ERISA
Affiliate.
“Net Capital Expenditures”: Actual Capital Expenditures less Capital Expenditure
Financing.
“New Bank”: A Bank that does not hold a Revolving Commitment or Term Loan Commitment
but that becomes a party hereto by providing an Incremental Term Loan Commitment and agreeing to
make an Incremental Term Loan.
“Non-U.S. Bank”: As defined in Section 2.28(f).
- 9 -
“Note”: A Term Note or a Revolving Note.
“Obligations”: The Borrowers’ obligations in respect of the due and punctual payment of
principal and interest on the Notes and Unpaid Drawings when and as due, whether by acceleration
or otherwise and all fees (including Revolving Commitment Fees), expenses, indemnities,
reimbursements and other obligations of the Borrowers under this Agreement or any other Borrower
Loan Document, and the Rate Protection Obligations, in all cases whether now existing or
hereafter arising or incurred.
“OFAC”: As defined in Section 5.8.
“Other Taxes”: As defined in Section .
“Participants”: As defined in Section S(b).
“PBGC”: The Pension Benefit Guaranty Corporation, established pursuant to Subtitle A of
Title IV of ERISA, and any successor thereto or to the functions thereof.
“Permitted Acquisitions”: (i) the AZC Acquisition; (ii) the Detroit News Acquisition;
(iii) the APC Acquisition; (iv) the Watchman Acquisition, subject to compliance with clauses
(b), (h), (i), (j) and (k) below, and provided that the total consideration to be paid by the
Borrowers in connection with the Watchman Acquisition shall not exceed $3,500,000; (v) any other
Acquisition by the Borrowers where (a) the business or division acquired is for use, or the
Person acquired is engaged, in the businesses engaged in by the Borrowers on the Closing Date,
(b) immediately before and after giving effect to such Acquisition, no Event of Default shall
exist, (c) the Borrowers have Availability of not less than $4,000,000 after making such
Acquisition, (d) the total consideration to be paid by the Borrowers in connection with such
Acquisition does not exceed $5,000,000 for any one such Acquisition, or $5,000,000 in the
aggregate in any fiscal year of the Borrowers, (e) immediately after giving effect to such
Acquisition, the Borrowers are in pro forma compliance with all the financial ratios and
restrictions set forth in Sections 6.17 and 6.18, (f) the Senior Leverage Ratio, both on a pro
forma basis reflecting consummation of the Acquisition under consideration and as of the last
day of the fiscal quarter ending immediately prior to the consummation of such Acquisition, is
less than the maximum allowed Senior Leverage Ratio less 0.50%, (g) in the case of the
Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition,
(h) reasonably prior to such Acquisition, the Agent shall have received drafts of each material
document, instrument and agreement to be executed in connection with such Acquisition together
with all lien search reports and lien release letters and other documents as the Agent may
require to evidence the termination of Liens on the assets or business to be acquired, (i) not
less than ten Business Days prior to such Acquisition, the Agent shall have received an
acquisition summary with respect to the Person and/or business or division to be acquired, such
summary to include a reasonably detailed description thereof (including financial information)
and operating results (including financial statements for the most recent 12 month period for
which they are available and as otherwise available), the material terms and conditions,
including material economic terms, of the proposed Acquisition, and the calculation of Pro Forma
EBITDA relating thereto, (j) consents shall have been obtained in favor of the Agent and the
Banks to the collateral assignment of rights and indemnities under the related acquisition
documents and (if delivered to the Borrowers) opinions of counsel for the selling party in favor
of the Agent and the Banks shall have been delivered, and (k) the provisions of Section 6.5 have
been satisfied; or (vi) any other Acquisition consented to in writing by the Majority Banks.
For purposes of the foregoing, “total consideration” shall mean, without duplication, cash or
other consideration
paid, the fair market value of property or stock exchanged (or the face amount, if preferred
stock) other than common stock of the Borrowers’ Agent, the total amount of any deferred
payments or purchase money debt, all Seller Indebtedness, and the total amount of any
Indebtedness assumed or undertaken in such transactions.
- 10 -
“Person”: Any natural person, corporation, partnership, limited partnership, limited
liability company, joint venture, firm, association, trust, unincorporated organization,
government or governmental agency or political subdivision or any other entity, whether acting
in an individual, fiduciary or other capacity.
“Plan”: Each employee benefit plan (whether in existence on the Closing Date or
thereafter instituted), as such term is defined in Section 3 of ERISA, maintained for the
benefit of employees, officers or directors of a Borrower or of any ERISA Affiliate.
“Pledge Agreements”: Collectively, (i) the Existing Pledge Agreements, (ii) a Pledge
Agreement of a Borrower in the form of Exhibit F hereto, and (iii) any other agreement
pursuant to which a Borrower grants a first priority security interest to the Agent, for the
benefit of the Banks, in the Equity Interests of any Subsidiary.
“Preferred Stock”: The Series A Non-Convertible Preferred Stock, par value $0.001 per
share, the Series B Preferred Stock, par value $0.001 per share, and the Series C Participating
Convertible Preferred Stock, par value $0.001 per share, in each case of Xxxxx Media.
“Prime Rate”: The greater of (a) rate of interest from time to time publicly announced
by the Agent as its “prime rate” and (b) the Federal Funds Rate plus 0.50%. The Agent
may lend to its customers at rates that are at, above or below the Prime Rate. For purposes of
determining any interest rate hereunder or under any other Loan Document which is based on the
Prime Rate, such interest rate shall change as and when the Prime Rate shall change.
“Prime Rate Advance”: An Advance with respect to which the interest rate is determined
by reference to the Prime Rate.
“Pro Forma EBITDA”: For any period of calculation, EBITDA of the Borrowers plus, if the
Borrowers have acquired the stock or assets of another Person in a Permitted Acquisition during
such period, a fraction (the numerator of which is the number of days in such period occurring
before the closing of such Permitted Acquisition and the denominator of which is 365) multiplied
by the sum of (i) EBITDA of such Person for the four fiscal quarters or twelve months ended most
recently before the date the Permitted Acquisition closes, based on financial information that
the Borrowers and the Agent or, with respect to a Permitted Acquisition described in clause (iv)
of the definition thereof, the Majority Banks, reasonably deem reliable, plus (ii) an
amount reasonably estimated by the Borrowers as the annualized expense reduction applicable to
such Person in connection with such Permitted Acquisition, based on an equivalent amount of
business activity, which estimate shall be subject to reasonable review and approval of the
Agent or, with respect to a Permitted Acquisition described in clause (iv) of the definition
thereof, the Majority Banks (all without duplication); provided that (a) the sum of
clauses (i) and (ii) above with respect to the AZC Acquisition shall be deemed to be $389,000,
(b) the sum of clauses (i) and (ii) above with respect to the Detroit News Acquisition shall be
deemed to be thirty-five percent (35%) of $2,100,000, (c) the sum of clauses (i) and (ii) above
with respect to the APC Acquisition shall be deemed to be eighty-one percent (81%) of
$7,580,000, and (d) the sum of clauses (i) and (ii) above with respect to the Watchman
Acquisition shall be deemed to be $400,000.
“Prohibited Transaction”: The respective meanings assigned to such term in Section 4975
of the Code and Section 406 of ERISA.
“Quarterly Principal Payments”: Quarterly payments with respect to the Term Loans
(exclusive of the Incremental Term Loans) of principal payable on the last day of each fiscal
quarter commencing March 31, 2006 in the following amounts:
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Payment Date | Scheduled Payment | |
March 31, 2006 |
$ 750,000 | |
June 30, 2006 |
$1,500,000 | |
September 30, 2006 |
$1,500,000 | |
December 31, 2006 |
$1,500,000 | |
March 31, 2007 |
$1,750,000 | |
June 30, 2007 |
$1,750,000 | |
September 30, 2007 |
$1,750,000 | |
December 31, 2007 |
$1,750,000 | |
March 31, 2008 |
$2,000,000 | |
June 30, 2008 |
$2,000,000 | |
September 30, 2008 |
$2,000,000 | |
December 31, 2008 |
$2,000,000 | |
March 31, 2009 |
$2,250,000 | |
June 30, 2009 |
$2,250,000 | |
September 30, 2009 |
$2,250,000 | |
December 31, 2009 |
$2,250,000 | |
March 31, 2010 |
$2,500,000 | |
June 30, 2010 |
$2,500,000 | |
September 30, 2010 |
$2,500,000 | |
December 31, 2010 |
$2,500,000 | |
March 31, 2011 |
$2,750,000 | |
June 30, 2011 |
$2,750,000 | |
September 30, 2011 |
$2,750,000 | |
December 31, 2011 |
$2,750,000 | |
March 31, 2012 |
$3,000,000 | |
June 30, 2012 |
$3,000,000 | |
September 30, 2012 |
$3,000,000 | |
December 31, 2012 |
Remaining Balance |
“Rate Protection Agreement”: Any interest rate swap, cap or option agreement, or any
other agreement pursuant to which any Borrower xxxxxx interest rate risk with respect to a
portion of the Obligations, entered into by any Borrower with a Rate Protection Provider.
“Rate Protection Obligations”: The liabilities, indebtedness and obligations of any
Borrower, if any, to any Rate Protection Provider under a Rate Protection Agreement.
“Rate Protection Provider”: Any Bank, or any Affiliate of any Bank, that is the
counterparty of any Borrower under any Rate Protection Agreement.
“Regulatory Change”: Any change after the Closing Date in federal, state or foreign
laws or regulations or the adoption or making after such date of any interpretations, directives
or requests applying to a class of banks including any Bank under any federal, state or foreign
laws or regulations (whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration thereof.
“Related Agreements”: Any merger agreement, purchase agreement, equity purchase
agreement, management agreement, tax sharing agreement, key employment agreement, or similar
agreement related to the APC Acquisition.
“Related Transactions”: The transactions contemplated by the Related Agreements.
“Replacement Bank”: As defined in Section 2.29.
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“Reportable Event”: A reportable event as defined in Section 4043 of ERISA and the
regulations issued under such Section, with respect to a Plan, excluding, however, such events
as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that
it be notified within 30 days of the occurrence of such event, provided that a failure
to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any waiver in accordance with Section
412(d) of the Code.
“Restricted Payments”: With respect to any Borrower, collectively, (a) all dividends or
other distributions of any nature (cash, Equity Interests other than common stock of such
Borrower, assets or otherwise), and all payments on any class of Equity Interests (including
warrants, options or rights therefore) issued by such Borrower, whether such Equity Interests
are authorized or outstanding on the Closing Date or at any time thereafter, (b) any redemption
or purchase of any of the foregoing, whether directly or indirectly, (c) all management fees,
consulting fees and other similar amounts payable to any present or former holder of any of the
foregoing, and (d) the prepayment of any Indebtedness of the Borrower other than the
Obligations.
“Revolving Commitment”: With respect to a Bank, the obligation of such Bank to make
Revolving Loans to, and with respect to the Agent also the obligation of the Agent to issue
Letters of Credit for the Borrowers in an aggregate principal amount outstanding at any time not
to exceed such Bank’s Revolving Commitment Amount upon the terms and subject to the conditions
and limitations of this Agreement.
“Revolving Commitment Amount”: With respect to any Bank, initially the amount set
opposite such Bank’s name on the signature page hereof as its Revolving Commitment Amount, but
as the same may be reduced from time to time pursuant to Section M(a).
“Revolving Commitment Fees”: As defined in Section P.
“Revolving Loan”: As defined in Section 2.1.
“Revolving Loan Date”: The date of the making of any Revolving Loans hereunder.
“Revolving Loan Termination Date”: The earliest of (a) December 31, 2008, (b) the date
on which the Revolving Commitment is terminated pursuant to Section 7.2 hereof or (c) the date
on which the Revolving Commitment Amount is reduced to zero pursuant to Section M hereof.
“Revolving Notes”: The promissory notes of the Borrowers in the form of Exhibit
A hereto, evidencing the obligation of the Borrowers to repay the Revolving Loans, and
“Revolving Note” means any one of such promissory notes issued hereunder without
distinction.
“Revolving Percentage”: With respect to any Bank, the percentage equivalent of a
fraction, the numerator of which is the Revolving Commitment Amount of such Bank and the
denominator of which is the Aggregate Revolving Commitment Amounts.
“Security Agreements”: Collectively, (i) the Existing Security Agreement, (ii) a
Security Agreement executed by any Borrower in the form of Exhibit G hereto, and (iii)
any other agreement pursuant to which a Borrower grants a first priority security interest in
the property described therein to the Agent, for the benefit of the Banks, to secure the
Obligations.
“Security Documents”: The Security Agreements, the Pledge Agreements, the Collateral
Assignments (Trademarks), the Collateral Assignments of Undertakings, the Affirmation of
Security Documents, and any other agreement, document or instrument pursuant to which the Agent
is granted a Lien to secure the Obligations, in each case as the same may be amended,
supplemented, extended, restated or otherwise modified and in effect from time to time.
“Seller Indebtedness”: All Indebtedness described in Section 6.13(e).
“Senior Leverage Ratio”: At any date of determination, the ratio of
- 13 -
(a) that portion of Total Liabilities bearing interest as of such date,
plus all obligations of the Borrowers, actual or contingent, as an account
party in respect of letters of credit or bankers’ acceptances, plus all
obligations under any Acquisition Services Agreements, minus Subordinated
Debt, minus, so long as no amounts are outstanding with respect to any
Revolving Commitment (it being understood that undrawn Letters of Credit shall not
constitute amounts outstanding for purposes of this definition), the sum of
consolidated cash and cash equivalents of the Borrowers on such date, up to a
maximum sum of $5,000,000
to
(b) Pro Forma EBITDA for the four consecutive fiscal quarters of the Borrowers
ended on, or most recently ended before, such date.
“Series B&C Certificate”: That certain Certificate of Designations,
Preferences and Rights of Series B Preferred Stock and Series C Participating Convertible
Preferred Stock filed with the Secretary of State of Delaware on September 1, 2004, as
amended by the Certificate of Amendment of the Certificate of Designations, Preferences and
Rights of Series B Preferred Stock and Series C Participating Convertible Preferred Stock of
Xxxxx Media Company filed with the Secretary of State of Delaware on the Closing Date.
“Subordinated Debt”: Any Indebtedness of any Borrower, now existing or hereafter
created, incurred or arising, which is subordinated in right of payment to the payment of the
Obligations in a manner and to an extent (a) that the Majority Banks have approved in writing
prior to the creation of such Indebtedness, or (b) as to any Indebtedness of any Borrower
existing on the date of this Agreement and set forth on Schedule 1.1.
“Subsidiary”: Any corporation or other entity of which Equity Interests having ordinary
voting power for the election of a majority of the board of directors or other Persons
performing similar functions are owned by any Borrower either directly or through one or more
Subsidiaries.
“Term Loan”: As defined in Section 2.1 and including, unless specifically provided for
otherwise, any Incremental Term Loan.
“Term Loan Commitment”: With respect to any Bank, the agreement of such Bank to make a
Term Loan to the Borrowers in an amount equal to such Bank’s Term Loan Commitment Amount upon
the terms and subject to the conditions of this Agreement.
“Term Loan Commitment Amount”: With respect to any Bank, the amount set opposite such
Bank’s name on the signature pages hereof as its Term Loan Commitment Amount.
“Term Loan Percentage”: With respect to any Bank, the percentage equivalent of a
fraction, the numerator of which is the amount of the Term Loan Commitment of such Bank and the
denominator of which is the sum of the Term Loan Commitments of all the Banks.
“Term Loan Termination Date”: December 31, 2012 or, with respect to any Incremental
Term Loan, the date established pursuant to Section 2.13(b)(iii).
“Term Note”: Promissory notes of the Borrowers in the form of Exhibit B hereto,
evidencing the obligation of the Borrowers to repay the Term Loans, and “Term Note”
means any one of such promissory notes without distinction.
“Total Liabilities”: At the time of any determination, the amount, on a consolidated
basis, of all items of Indebtedness of the Borrowers that would constitute “liabilities” for
balance sheet purposes in accordance with GAAP.
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“Total Percentage”: With respect to any Bank, the percentage equivalent of a fraction,
the numerator of which is the sum of the Revolving Commitment Amount of such Bank (or, if the
Revolving Commitments of such Bank have been terminated, the Total Revolving Outstandings of
such Bank) and the outstanding Term Loan of such Bank and the denominator of which is the sum of
the Revolving Commitment Amounts (or, if the Revolving Credit Commitments have terminated, the
Total Revolving Outstandings) and the outstanding Term Loans of all the Banks.
“Total Revolving Outstandings”: As of any date of determination, the sum of (a) the
aggregate unpaid principal balance of Revolving Loans outstanding on such date, (b) the
aggregate maximum amount available to be drawn under Letters of Credit outstanding on such date
and (c) the aggregate amount of Unpaid Drawings on such date.
“Triggering Event”: As defined in the Series B&C Certificate.
“Unpaid Drawing”: As defined in Section K.
“Unused Revolving Commitment”: With respect to any Bank as of any date of
determination, the amount by which such Bank’s Revolving Commitment Amount exceeds such Bank’s
Revolving Percentage of the Total Revolving Outstandings on such date.
“U.S. Taxes”: As defined in Section (e).
“USBNA”: U.S. Bank National Association in its capacity as one of the Banks hereunder.
“Watchman Acquisition”: The acquisition by Xxxxx Media, either directly or indirectly
through one or more Subsidiaries, of all or substantially all of the assets of the St. Xxxxx
Xxxxxxxx.
B. Accounting Terms and Calculations. Except as may be expressly provided to the
contrary herein, all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP. To the extent any change in GAAP
affects any computation or determination required to be made pursuant to this Agreement, such
computation or determination shall be made as if such change in GAAP had not occurred unless the
Borrowers and the Majority Banks agree in writing on an adjustment to such computation or
determination to account for such change in GAAP.
C. Computation of Time Periods. In this Agreement, in the computation of a period
of time from a specified date to a later specified date, unless otherwise stated the word “from”
means “from and including” and the word “to” or “until” each means “to and including”.
D. Other Definitional Terms. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. References to Sections, Exhibits, schedules and like references are to this Agreement
unless otherwise expressly provided. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” Unless the context in which used herein
otherwise clearly requires, “or” has the inclusive meaning represented by the phrase “and/or.”
XL.
TERMS OF THE CREDIT FACILITIES
TERMS OF THE CREDIT FACILITIES
Part A — Terms of Lending
A. Lending Commitments. On the terms and subject to the conditions hereof, each
Bank severally agrees to make the following lending facilities available to the Borrowers:
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1. Revolving Credit. A revolving credit facility available as loans
(each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the
Borrowers, jointly and severally, on a revolving basis at any time and from time to time
from the Closing Date to the Revolving Loan Termination Date, during which period the
Borrowers may borrow, repay and reborrow in accordance with the provisions hereof;
provided, however that (i) no Revolving Loan will be made in any amount
which, after giving effect thereto, would cause the Total Revolving Outstandings to exceed
the Aggregate Revolving Commitment Amounts and (ii) the initial Revolving Loan made on the
Closing Date shall not exceed $1,000,000. Revolving Loans hereunder shall be made by the
several Banks ratably in the proportion of their respective Revolving Commitments Amounts.
Revolving Loans may be obtained and maintained, at the election of the Borrowers’ Agent but
subject to the limitations hereof, as Prime Rate Advances or Eurodollar Rate Advances.
2. Term Loans. A term loan from each Bank and New Bank (each being a
“Term Loan” and, collectively, the “Term Loans”), as applicable, to the
Borrowers, jointly and severally, on the Closing Date (or, in the case of an Incremental
Term Loan, on the Increase Effective Date for such Incremental Term Loan) in an amount from
each Bank and New Bank equal to its Term Loan Commitment Amount or Incremental Term Loan
Commitment Amount, as applicable. The Term Loans and any portion of the balance thereof (in
minimum amounts of $500,000) may be made, maintained, continued and converted to Prime Rate
Advances or Eurodollar Rate Advances as the Borrowers’ Agent may elect in its notice of
borrowing, continuation or conversion; provided, however, that there shall
be no more than five (5) Eurodollar Rate Advances outstanding at any one time for the Term
Loans.
Notwithstanding any provision hereof, this Agreement and the Revolving Commitments shall terminate
and no Bank shall have any obligation hereunder if the Term Loans (exclusive of Incremental Term
Loans) hereunder have not been made by March 31, 2006; provided, however, that the
obligations of the Borrowers under Section P shall survive any such termination.
B. Procedure for Loans.
1. Procedure for Revolving Loans. Any request by the Borrowers’
Agent for Revolving Loans hereunder shall be in writing or by telephone and must be given so
as to be received by the Agent not later than 11:00 A.M. (Minneapolis time) two Eurodollar
Business Days prior to the requested Revolving Loan Date if the Revolving Loans (or any portion
thereof) are requested as Eurodollar Rate Advances and not later than 11:00 A.M.
(Minneapolis time) on the requested Revolving Loan Date if the Revolving Loans are requested
as Prime Rate Advances. Each request for Revolving Loans hereunder shall be irrevocable and
shall be deemed a representation by each Borrower that on the requested Revolving Loan Date
and after giving effect to the requested Revolving Loans the applicable conditions specified
in Article III have been and will be satisfied. Each request for Revolving Loans hereunder
shall specify (i) the requested Revolving Loan Date, (ii) the aggregate amount of the
Revolving Loans to be made on such date which shall be in a minimum amount of $500,000,
(iii) whether such Revolving Loans are to be funded as Prime Rate Advances or Eurodollar
Rate Advances (and, if such Revolving Loans are to be made with more than one applicable
interest rate choice, specifying the amount to which each interest rate choice is
applicable) and (iv) in the case of Eurodollar Rate Advances, the duration of the initial
Interest Period applicable thereto; provided, however, that no Revolving
Loans shall be funded as Eurodollar Rate Advances if a Default or Event of Default has
occurred and is continuing. The Agent may rely on any telephone request by the Borrowers’
Agent for Revolving Loans hereunder which it believes in good faith to be genuine; and each
Borrower hereby waives the right to dispute the Agent’s record of the terms of such
telephone request. The
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Agent shall promptly, on the date such request is received, notify
each other Bank of the receipt of such request, the matters specified therein, and of such
Bank’s ratable share of the requested Revolving Loans. On the requested Revolving Loan
Date, each Bank shall provide its share of the requested Revolving Loans to the Agent in
Immediately Available Funds not later than 1:00 P.M. Minneapolis time. Unless the Agent
determines that any applicable condition specified in Article III has not been satisfied,
the Agent will make available to the Borrowers at the Agent’s principal office in
Minneapolis, Minnesota in Immediately Available Funds not later than 2:00 P.M. (Minneapolis
time) on the requested Revolving Loan Date the amount of the requested Revolving Loans. If
the Agent has made a Revolving Loan to the Borrowers on behalf of a Bank but has not
received the amount of such Revolving Loan from such Bank by the time herein required, such
Bank shall pay interest to the Agent on the amount so advanced at the overnight Federal
Funds rate from the date of such Revolving Loan to the date funds are received by the Agent
from such Bank, such interest to be payable with such remittance from such Bank of the
principal amount of such Revolving Loan (provided, however, that the Agent
shall not make any Revolving Loan on behalf of a Bank if the Agent has received prior notice
from such Bank that it will not make such Revolving Loan). If the Agent does not receive
payment from such Bank by the next Business Day after the date of any Revolving Loan, the
Agent shall be entitled to recover such Revolving Loan, with interest thereon at the rate
(or rates) then applicable to such Revolving Loan, on demand, from the Borrowers, without
prejudice to the Agent’s and the Borrowers’ rights against such Bank. If such Bank pays the
Agent the amount herein required with interest at the overnight Federal Funds rate before
the Agent has recovered from the Borrowers, such Bank shall be entitled to the interest
payable by the Borrowers with respect to the Revolving Loan in question accruing from the
date the Agent made such Revolving Loan.
2. Procedure for Term Loans. Not later than 11:00 A.M. (Minneapolis
time) two Eurodollar Business Days prior to the Closing Date if the Term Loans are requested
as Eurodollar Rate Advances and not later than 11:00 A.M. (Minneapolis time) one Business
Day prior to the Closing Date if the Term Loans are requested as Prime Rate Advances, the
Borrowers’ Agent shall deliver to the Agent a written notice of borrowing. Such notice of
borrowing shall be irrevocable and shall be deemed a representation by the Borrowers that on
the Closing Date and after giving effect to the Term Loans the applicable conditions
specified in Article III have been and will be satisfied. Such notice of borrowing shall
specify (i) the requested Closing Date, (ii) whether such Term Loans are to be funded as
Eurodollar Rate Advances or Prime Rate Advances (and if such Term Loans are to be made with
more than one applicable interest rate choice,
specifying the amount to which each interest rate choice is applicable), and (iii) in
the case of Eurodollar Rate Advances, the duration of the initial Interest Period applicable
thereto. The Agent shall promptly, on the date such request is received, notify each Bank
of the receipt of such notice and the matters specified therein. On the requested Closing
Date, each Bank shall provide to the Agent the amount of such Bank’s Term Loan in
Immediately Available Funds not later than 11:00 A.M., Minneapolis time. Unless the Agent
determines that any applicable condition specified in Article III has not been satisfied,
the Agent will make the proceeds of the Term Loans available to the Borrowers at the Agent’s
main office on the requested date. The foregoing shall not apply to the funding of any
Incremental Term Loans, the funding of which shall be governed by Section 2.13(b).
C. Notes. The Revolving Loans of each Bank shall be evidenced by a single Revolving
Note payable to the order of such Bank in a principal amount equal to such Bank’s Revolving
Commitment Amount originally in effect. The Term Loan of each Bank shall be evidenced by a Term
Note payable to the order of such Bank in the principal amount of such Bank’s Term Loan Commitment
Amount or Incremental Term Loan Commitment Amount, as applicable. Upon receipt of each Bank’s duly
executed Notes from the Borrowers, the Agent shall mail such Notes to such Bank. Each Bank shall
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enter in its ledgers and records the amount of its Term Loan and each Revolving Loan, the various
Advances made, converted or continued and the payments made thereon, and each Bank is authorized by
each Borrower to enter on a schedule attached to its Term Note or Revolving Note, as appropriate, a
record of such Term Loan, Revolving Loans, Advances and payments; provided,
however, that the failure by any Bank to make any such entry or any error in making such
entry shall not limit or otherwise affect the obligation of the Borrowers hereunder and on the
Notes, and, in all events, the principal amounts owing by the Borrowers in respect of the Revolving
Notes shall be the aggregate amount of all Revolving Loans made by the Banks less all payments of
principal thereof made by the Borrowers and the principal amount owing by the Borrowers in respect
of the Term Notes shall be the aggregate amount of all Term Loans made by the Banks less all
payments of principal thereof made by the Borrowers.
D. Conversions and Continuations. On the terms and subject to the limitations
hereof, the Borrowers shall have the option at any time and from time to time to convert all or any
portion of the Advances into Prime Rate Advances or Eurodollar Rate Advances, or to continue a
Eurodollar Rate Advance as such; provided, however, that a Eurodollar Rate Advance
may be converted or continued only on the last day of the Interest Period applicable thereto and no
Advance may be converted to or continued as a Eurodollar Rate Advance if a Default or Event of
Default has occurred and is continuing on the proposed date of continuation or conversion.
Advances may be converted to, or continued as, Eurodollar Rate Advances only in minimum amounts, as
to the aggregate amount of the Advances of all Banks so converted or continued, of $500,000. The
Borrowers’ Agent shall give the Agent written notice of any continuation or conversion of any
Advances and such notice must be given so as to be received by the Agent not later than 11:00 A.M.
(Minneapolis time) two Eurodollar Business Days prior to requested date of conversion or
continuation in the case of the continuation of, or conversion to, Eurodollar Rate Advances and on
the date of the requested conversion to Prime Rate Advances. The Agent shall promptly, on the date
of receipt thereof, give the Banks notice of any such request. Each such notice shall specify (a)
the amount to be continued or converted, (b) the date for the continuation or conversion (which
must be (i) the last day of the preceding Interest Period for any continuation or conversion of
Eurodollar Rate Advances, and (ii) a Eurodollar Business Day in the case of continuations as or
conversions to Eurodollar Rate Advances and a Business Day in the case of conversions to Prime Rate
Advances), and (c) in the case of conversions to or continuations as Eurodollar Rate Advances, the
Interest Period applicable thereto. Any notice given by
the Borrowers’ Agent under this Section shall be irrevocable. If the Borrowers’ Agent shall
fail to notify the Agent of the continuation of any Eurodollar Rate Advances within the time
required by this Section, at the option of the Agent, such Advances shall, on the last day of the
Interest Period applicable thereto, (A) automatically be continued as Eurodollar Rate Advances with
the same principal amount and the same Interest Period or (B) automatically be converted into Prime
Rate Advances with the same principal amount. All conversions and continuation of Advances must be
made uniformly and ratably among the Banks (e.g., when continuing a two-month Eurodollar Rate
Advance of one Bank to a three-month Eurodollar Rate Advance, the Borrowers must simultaneously
continue all two-month Eurodollar Rate Advances of all Banks having Interest Periods ending on the
date of continuation as three-month Eurodollar Rate Advances).
E. Interest Rates, Interest Payments and Default Interest.
1. The Revolving Loans. Interest shall accrue and be payable on the
Revolving Loans as follows:
a) Subject to paragraph (iii) below, each Eurodollar Rate Advance
shall bear interest on the unpaid principal amount thereof during the Interest
Period applicable thereto at a rate per annum equal to the sum of (A) the Adjusted
Eurodollar Rate for such Interest Period plus (B) the Applicable Margin.
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b) Subject to paragraph (iii) below, each Prime Rate Advance shall
bear interest on the unpaid principal amount thereof at a varying rate per annum
equal to the sum of (A) the Prime Rate plus (B) the Applicable Margin.
c) Upon the occurrence and during the continuance of any Event of
Default, each Advance shall, at the option of the Agent, bear interest until paid in
full at a rate per annum equal to the sum of the rate applicable to such Advance
plus 2.00%.
d) Interest shall be payable (A) with respect to each Eurodollar Rate
Advance, on the last day of the Interest Period applicable thereto and, if such
Interest Period is longer than three months, on each day that would have been the
last day of the Interest Period for such Advance had successive Interest Periods of
three months duration been applicable to such Advance; (B) with respect to any Prime
Rate Advance, on the last day of each month; (C) with respect to all Advances, upon
any permitted prepayment (on the amount prepaid); and (D) with respect to all
Advances that are Revolving Loans, on the Revolving Loan Termination Date;
provided, however, that interest under Section 2.5(a)(iii) shall be
payable on demand.
2. The Term Loans. Interest shall accrue and be payable on the Term
Loans as follows:
a) Subject to paragraph (iii) below, each Eurodollar Rate Advance
shall bear interest on the unpaid principal amount thereof during the Interest
Period applicable thereto at a rate per annum equal to the sum of (A) the Adjusted
Eurodollar Rate for such Interest Period plus (B) the Applicable Margin.
b) Subject to paragraph (iii) below, each Prime Rate Advance shall
bear interest on the unpaid principal amount thereof at a varying rate per annum
equal to the sum of (A) the Prime Rate plus (B) the Applicable Margin.
c) Upon the occurrence and during the continuance of any Event of
Default, each Advance shall, at the option of the Agent, bear interest until paid in
full at a rate per annum equal to the sum of the rate applicable to such Advance
plus 2.00%.
d) Interest shall be payable (A) with respect to any Eurodollar Rate
Advance, on the last day of the Interest Period applicable thereto and, if such
Interest Period is longer than three months, on each day that would have been the
last day of the Interest Period for such Advance had successive Interest Periods of
three months duration been applicable to such Advance; (B) with respect to any Prime
Rate Advance, on the last day of each month; (C) with respect to all Advances, upon
any permitted prepayment (on the amount prepaid); and (D) with respect to all
Advances that are Term Loans, on the Term Loan Termination Date; provided,
however, that interest under Section 2.5(b)(iii) shall be payable on demand.
F. Repayment and Mandatory Prepayment.
1. The Revolving Loans. The unpaid principal balance of all
Revolving Notes, together with all accrued and unpaid interest thereon, shall be due and
payable on the Revolving Loan Termination Date. If at any time Total Revolving Outstandings
exceed the Aggregate Revolving Commitment Amounts, the Borrowers shall immediately repay to
the Agent for the
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account of the Banks the amount of such excess. Any such payments shall
be applied first against Prime Rate Advances and then to Eurodollar Rate Advances in order
starting with the Eurodollar Rate Advances having the shortest time to the end of the
applicable Interest Period. If, after payment of all outstanding Advances, the Total
Revolving Outstandings still exceed the Aggregate Revolving Commitment Amounts, the
remaining amount paid by the Borrowers shall be placed in the Holding Account.
2. Mandatory Payments of Term Loans. The Borrowers shall make the
Quarterly Principal Payments for application to the Term Loans on the due dates specified in
the definition of such term in Section 1.1. In the event that any amount of principal or
interest remains unpaid with respect to the Term Loans on the Term Loan Termination Date,
such remaining amounts shall be due and payable in full on such date.
3. Proceeds of Equity. Within one Business Day following the receipt
thereof, the Borrowers shall prepay to the Agent for the benefit of the Banks an amount
equal to fifty percent (50%) of the sum of all cash proceeds of any issuance of equity
securities (except equity securities issued to fund a Permitted Acquisition) net of the
actual cash expenses paid by any Borrower in connection with such issuance. All prepayments
under this Section 2.6(c) shall be applied pro rata based on the unpaid principal balance of
the Term Loans to the principal balance of the Term Loans in inverse chronological order of
the maturities of the Quarterly Principal Payments; provided, however, that
(i) in the event a Prime Rate Advance and a Eurodollar Rate Advance have the same maturity,
the Agent, to the extent practical in the Agent’s determination, shall make such application
first to such Prime Rate Advance before application to such Eurodollar Rate Advance, and
(ii) to the extent any portion of such prepayment would be
applied to outstanding Eurodollar Rate Advances and no Default or Event of Default has
occurred and is continuing, such portion shall be deposited in the Holding Account and
withdrawn for application to such Eurodollar Rate Advances at the end of the then-current
Interest Periods applicable thereto (or earlier, upon the occurrence of a Default or an
Event of Default).
4.Proceeds of Asset Sales. Within one Business Day following the receipt thereof, the Borrowers shall prepay
to the Agent for the benefit of the Banks an amount equal to one hundred percent (100%) of all proceeds of any sale
by any Borrower of assets (excluding any sale of assets permitted by clauses (a), (b) or (c) of Section 6.2) with an
aggregate net book value in any fiscal year in excess of $500,000, or for which consideration in excess of $500,000 in
the aggregate is received in any fiscal year, net of the actual cash expenses and taxes paid or incurred by any Borrower
in connection with such sale (for the sake of clarity, such prepayment shall only be made with such net proceeds in
excess of such $500,000 threshold); provided, however that this Section 2.6(d) shall not be deemed to authorize any
sale or other transfer that would otherwise be prohibited by Section 6.2. All prepayments under this Section 2.6(d) shall
be applied pro rata based on the unpaid principal balance of the Term Loans to the principal balance of the Term Loans
in inverse chronological order of the maturities of the Quarterly
Principal Payments; provided, however, that (i) in the
event a Prime Rate Advance and a Eurodollar Rate Advance have the same maturity, the Agent, to the extent practical
in the Agent’s determination, shall make such application first to such Prime Rate Advance before application to such
Eurodollar Rate Advance, and (ii) to the extent any portion of such prepayment would be applied to outstanding Eurodollar
Rate Advances and no Default or Event of Default has occurred and is continuing, such portion shall be deposited in the
Holding Account and withdrawn for application to such Eurodollar Rate Advances at the end of the then-current Interest
Periods applicable thereto (or earlier, upon the occurrence of a Default or an Event of Default).
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G. Optional Prepayments. The Borrowers may prepay Advances, in whole or in part, at
any time, without premium or penalty, except as set forth below. Any such prepayment must be made
by the Borrower not later than 11:00 a.m. (Minneapolis time) on the date the Borrowers wish such
prepayment to become effective. Each partial prepayment shall be in a minimum amount of $500,000.
All partial prepayments of Term Loans shall be applied pro rata based on the unpaid principal
balance of the Term Loans to the principal balance of the Term Loans in inverse chronological order
of the maturities of the Quarterly Principal Payments. All partial prepayments of Revolving Loans
shall be applied pro rata based on the unpaid principal balance of the Revolving Loans. Amounts
paid (unless following an acceleration or upon termination of the Revolving Commitments in whole)
or prepaid on the Revolving Loans under this Section 2.7 may be reborrowed upon the terms and
subject to the conditions and limitations of this Agreement. Amounts paid or prepaid on the Term
Loans may not be reborrowed.
Part B — Terms of the Letter of Credit Facility
H. Letters of Credit. Upon the terms and subject to the conditions of this
Agreement, the LC Bank agrees to issue Letters of Credit for the account of the Borrowers from time
to time between the Closing Date and the Revolving Loan Termination Date in such amounts as the
Borrowers’ Agent shall request up to an aggregate amount at any time outstanding not to exceed
$1,000,000; provided, however, that no Letter of Credit will be issued in any
amount which, after giving effect to such issuance, would cause Total Revolving Outstandings to
exceed the Aggregate Revolving Commitment Amounts; provided, further, that no
Letter of Credit will be issued if a Default or Event of Default has occurred and is continuing.
I. Procedures for Letters of Credit.
1. Each request for a Letter of Credit shall be made by the Borrowers’ Agent
in writing, by telex, facsimile transmission or electronic conveyance received by the Agent
and the LC Bank by 2:00 P.M. (Minneapolis time) on a Business Day which is not less than one
Business Day preceding the requested date of issuance (which shall also be a Business Day).
Each request
for a Letter of Credit shall be deemed a representation by the each Borrower that on
the date of issuance of such Letter of Credit and after giving effect thereto the applicable
conditions specified in Article III have been and will be satisfied. The LC Bank may
require that such request be made on such letter of credit application and reimbursement
agreement form as the LC Bank may from time to time specify, along with satisfactory
evidence of the authority and incumbency of the officials of the Borrowers’ Agent making
such request. The LC Bank shall promptly, on the date of receipt thereof, notify the Agent
and the other Banks of the receipt of the request and the matters specified therein. On the
date of each issuance of a Letter of Credit the LC Bank shall send notice to the other Banks
of such issuance, accompanied by a copy of the Letter or Letters of Credit so issued.
2. The LC Bank will promptly upon the receipt of a written request from a
Bank to the Agent and the LC Bank provide to the Banks a report specifying (i) the Letters
of Credit that are then issued and outstanding, (ii) the account party, the beneficiary, the
face amount and the expiry date with respect thereto and (iii) any payments, expirations or
other activity with respect thereto that may have occurred since the date of any prior
report.
J. Terms of Letters of Credit. Letters of Credit shall be issued in support of
obligations of the Borrowers. All Letters of Credit must be issued no less than 25 days prior to
the Revolving Loan Termination Date and all Letters of Credit must expire no later than 12 months
after the Revolving Loan Termination Date. As to each Letter of Credit which is outstanding as of
the Revolving Loan Termination Date, the Borrower shall provide either (A) cash collateral in an
amount reasonably
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satisfactory to the LC Bank for deposit into the Holding Account, or (B) one or
more irrevocable letters of credit in form and substance, and issued by a bank, reasonably
satisfactory to the LC Bank pursuant to which the LC Bank is entitled to recover the maximum amount
at any time payable under each outstanding Letter of Credit, plus all costs and fees then or
thereafter payable with respect to such Letter of Credit under the terms of this Agreement,
provided further that, in the event the Borrowers fail to provide such cash collateral or one or
more letters of credit satisfactory to the LC Bank, the Banks may make a Revolving Loan, as
provided in Section 2.14, in the aggregate amount of Letters of Credit outstanding on the Revolving
Loan Termination Date, and deposit the proceeds of such Revolving Loan into the Holding Account.
K. Agreement to Repay Letter of Credit Drawings. If the LC Bank has received
documents purporting to draw under a Letter of Credit that the Agent believes conform to the
requirements of the Letter of Credit, or if the LC Bank has decided that it will comply with the
Borrowers’ Agent written or oral request or authorization to pay a drawing on any Letter of Credit
that the LC Bank does not believe conforms to the requirements of the Letter of Credit, it will
notify the Borrowers’ Agent of that fact. The Borrowers shall reimburse the LC Bank by 9:30 A.M.
(Minneapolis time) on the day on which such drawing is to be paid in Immediately Available Funds in
an amount equal to the amount of such drawing. Any amount by which the Borrowers has failed to
reimburse the LC Bank for the full amount of such drawing by 10:00 A.M. on the date on which the LC
Bank in its notice indicated that it would pay such drawing, until reimbursed by the Borrowers from
the proceeds of Loans pursuant to Section N or out of funds available in the Holding Account, is an
“Unpaid Drawing.”
L. Obligations Absolute. The obligation of the Borrowers under Section K to repay
the LC Bank for any amount drawn on any Letter of Credit and to repay the Banks for any Revolving
Loans made under Section N to cover
Unpaid Drawings shall be absolute, unconditional and irrevocable, shall continue for so long
as any Letter of Credit is outstanding notwithstanding any termination of this Agreement, and shall
be paid strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever, including without limitation the following circumstances:
1. Any lack of validity or enforceability of any Letter of Credit;
2. The existence of any claim, setoff, defense or other right which any
Borrower may have or claim at any time against any beneficiary, transferee or holder of any
Letter of Credit (or any Person for whom any such beneficiary, transferee or holder may be
acting), the LC Bank or any Bank or any other Person, whether in connection with a Letter of
Credit, this Agreement, the transactions contemplated hereby, or any unrelated transaction;
or
3. Any statement or any other document presented under any 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 whatsoever.
Neither the LC Bank nor any Bank nor officers, directors or employees thereof shall be liable or
responsible for, and the obligations of the Borrowers to the LC Bank and the Banks shall not be
impaired by:
(i) The use which may be made of any Letter of Credit or for any acts or omissions of any
beneficiary, transferee or holder thereof in connection therewith;
(ii) The validity, sufficiency or genuineness of documents, or of any endorsements thereon, even
if such documents or endorsements should, in fact, prove to be in any or all respects invalid,
insufficient, fraudulent or forged;
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(iii) The acceptance by the LC Bank of documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to the
contrary; or
(iv) Any other action of the LC Bank in making or failing to make payment under any Letter of
Credit if in good faith and in conformity with U.S. or foreign laws, regulations or customs
applicable thereto.
Notwithstanding the foregoing, the Borrowers shall have a claim against the LC Bank, and the LC
Bank shall be liable to the Borrowers, to the extent, but only to the extent, of any direct, as
opposed to consequential, damages suffered by the Borrowers which the Borrowers prove were caused
by the LC Bank’s willful misconduct or gross negligence in determining whether documents presented
under any Letter of Credit comply with the terms thereof.
Part C — General
M. Revolving Commitment Reduction or Termination; Incremental Term Loan Commitment.
1. Revolving Commitments The Borrowers may, at any time, upon not
less than 5 Business Days prior written notice from the Borrowers’ Agent to the Agent,
reduce the Revolving Commitment Amounts, ratably, with any such reduction in a minimum
aggregate amount for all the Banks of $1,000,000, or, if more, in an integral multiple of
$500,000; provided, however, that the Borrowers may not at any time reduce
the Aggregate Revolving Commitment Amounts below the Total Revolving Outstandings. The
Borrowers’ Agent may, at any time when there are no Letters of Credit outstanding, upon not
less than 5 Business Days prior written notice from the Borrowers’ Agent to the Agent,
terminate the Revolving Commitments in their entirety. The
Agent shall promptly, on the date of receipt thereof, give the Banks notice of any such
request. Upon termination of the Revolving Commitments pursuant to this Section, the
Borrowers shall pay to the Agent for the account of the Banks the full amount of all
outstanding Advances, all accrued and unpaid interest thereon, all unpaid Revolving
Commitment Fees accrued to the date of such termination, any indemnities payable with
respect to Advances pursuant to Section Z and all other unpaid Obligations of the Borrowers
to the Agent and the Banks hereunder.
2. Incremental Term Loan Commitment.
a) The Borrowers may by written notice from the Borrowers’ Agent to
the Agent (who shall promptly notify each of the Banks) elect to request the
establishment of one or more new Term Loan Commitments (each, an “Incremental
Term Loan Commitment”) by an amount not in excess of $25,000,000 in the
aggregate and not less than $10,000,000 individually for the purposes of financing
any Permitted Acquisition. The new Term Loan Commitments may be of an existing or a
new class of Term Loans. Each such notice shall specify (i) the date (each, an
“Increase Effective Date”) on which the Borrowers’ Agent proposes that the
increased or new Term Loan Commitments shall be effective, which shall be a date not
fewer than 10 Business Days after the date on which such notice is delivered to the
Agent and (ii) the identity of each Bank and each New Bank (which New Bank shall be
reasonably acceptable to the Agent) to whom the Borrower proposes any portion of
such increased or new Term Loan Commitments be allocated and the amounts of such
allocations; provided that any existing Bank approached to provide all or a
portion of the increased or new Term Loan Commitments may elect or decline, in its
sole discretion, to provide such increased or new Term Loan Commitment.
- 23 -
b) Each Incremental Term Loan Commitment shall become effective, as
of such Increase Effective Date; provided that:
(1) each of the conditions set forth in Section 3.2 shall be
satisfied;
(2) no Default or Event of Default shall have occurred and be
continuing or would result from the borrowings to be made on the Increase
Effective Date;
(3) after giving pro forma effect to the borrowings to be
made on the Increase Effective Date and to any change in EBITDA of the
Borrowers and any increase in Total Liabilities resulting from the
consummation of any Permitted Acquisition as of the date of the most recent
financial statements delivered pursuant to Section 5.1(c), the Borrowers
shall be in compliance with each of the covenants set forth in Section 6.17
and Section 6.18; and
(4) the Borrowers shall deliver or cause to be delivered any
legal opinions (in form and substance substantially similar to the legal
opinion delivered pursuant to Section 3.1(b)) or other documents reasonably
requested by the Agent in connection with any such transaction, which
opinions and documents shall be in form and substance reasonably
satisfactory to the Agent.
c) Certain terms and provisions of Term Loans made pursuant to
Incremental Term Loan Commitments (“Incremental Term Loans”) shall be as
follows:
(1) amortization payments shall be no more than ratable with
the amortization payments under any existing tranche of the Term Loans, and
the Incremental Term Loans shall otherwise be no more than pari
passu with the existing Term Loans with respect to mandatory
prepayments and other payment rights;
(2) the maturity date of Incremental Term Loans shall not be
earlier than the maturity of any other class of Term Loans outstanding under
this Agreement; and
(3) the applicable margins for the Incremental Term Loans
shall be determined by the Borrowers’ Agent and the New Banks but shall not
be greater than the existing Applicable Margins;
Each Incremental Term Loan Commitment shall be effected by a joinder agreement (the
“Increase Joinder”) executed by the Borrowers, the Agent and each Bank or
New Bank making such Incremental Term Loan Commitment, in form and substance
reasonably satisfactory to each of them. The Increase Joinder may, without the
consent of any other Banks, effect such amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Agent, to give effect to the provisions of this Section 2.13(b).
d) On any Increase Effective Date on which new Commitments for
Incremental Term Loans are effective, subject to the satisfaction of the foregoing
terms and conditions, each Bank with an Incremental Term Loan Commitment shall make
an
- 24 -
Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term
Loan Commitment Amount.
e) The Incremental Term Loans and Incremental Term Loan Commitments
established pursuant to this Section 2.13(b) shall constitute Term Loans and Term
Loan Commitments under, and shall be entitled to all the benefits afforded by, this
Agreement and the other Loan Documents, and shall, without limiting the foregoing,
benefit equally and ratably from the security interests created by the Security
Documents. The Borrowers shall take any actions reasonably required by the Agent to
ensure and/or demonstrate that the Liens and security interests granted by the
Security Documents continue to be perfected under the UCC (as defined in the
Security Documents) or otherwise after giving effect to the establishment of such
class of Term Loans or any such new Commitments.
N. Loans to Cover Unpaid Drawings. Whenever any Unpaid Drawing exists for which
there are not then funds in the Holding Account to cover the same, the Agent shall give the other
Banks notice to that effect, specifying the amount thereof, in which event the Agent is authorized
(and the Borrowers do here so authorize each Bank) to, and shall, make a Revolving Loan (as a Prime
Rate Advance) to the Borrowers in an amount equal to such Bank’s Revolving Percentage of the amount
of the Unpaid Drawing. The Agent shall notify each Bank by 11:00 AM (Minneapolis time) on the date
such Unpaid Drawing occurs of the amount of the Revolving Loan to be made by such Bank. Notices
received after such time shall be deemed to have been received on the next Business Day. Each Bank
shall then make such Revolving Loan (regardless of noncompliance with the applicable conditions
precedent specified in Article III hereof and regardless of whether an Event of Default then
exists) and each Bank shall provide the Agent with the proceeds of such
Revolving Loan in Immediately Available Funds, at the office of the Agent, not later than 2:00
PM (Minneapolis time) on the day on which such Bank received such notice (or, in the case of
notices received after 11:00 AM, Minneapolis time, is deemed to have received such notice). The
Agent shall apply the proceeds of such Revolving Loans directly to reimburse the LC Bank for such
Unpaid Drawing. If any portion of any such amount paid to the LC Bank should be recovered by or on
behalf of any Borrower from the LC Bank in bankruptcy, by assignment for the benefit of creditors
or otherwise, the loss of the amount so recovered shall be ratably shared between and among the
Banks in the manner contemplated by Section 8.10 hereof. If at the time the Banks make funds
available to the Agent pursuant to the provisions of this Section, the applicable conditions
precedent specified in Article III shall not have been satisfied, the Borrowers shall pay to the
Agent for the account of the Banks interest on the funds so advanced at a floating rate per annum
equal to the sum of the Prime Rate plus the Applicable Margin for Prime Rate Advances plus two
percent (2.00%). Interest under this Section shall be payable on demand. If for any reason any
Bank is unable to make a Revolving Loan to the Borrowers to reimburse the LC Bank for an Unpaid
Drawing, then such Bank shall immediately purchase from the LC Bank a risk participation in such
Unpaid Drawing, at par, in an amount equal to such Bank’s Revolving Percentage of the Unpaid
Drawing.
O. Agent’s and Closing Fees. On or before the Closing Date, the Borrowers shall pay
to the Agent the fees set forth in the separate letter agreement dated as of the Closing Date (the
“Fee Letter”) between the Agent and the Borrowers’ Agent. Such fees shall be paid on the
Closing Date and at such other times as may be required pursuant to the terms of such letter
agreement.
P. Revolving Commitment Fee. Subject to the last sentence of this Section 2.16,
with respect to the period beginning one day after the day the financial statements and compliance
certificate required by Sections 5.1(c) and (d) with respect to a fiscal quarter are required to be
delivered and ending on the date one day after the date such financial statements and compliance
certificate for the next fiscal quarter are required to be delivered, the Borrowers shall pay to
the Agent for the account of each Bank
- 25 -
fees (the “Revolving Commitment Fees”) in an amount
determined by applying the percentage specified below based on the Senior Leverage Ratio calculated
as of the end of the fiscal quarter for which such financial statements were delivered to the
average daily unused Revolving Commitment Amount of each Bank:
Senior Leverage Ratio | Commitment Fee Percentage |
|
Less than 2.50:1.00
|
0.250% | |
Equal to or greater than 2.50:1.00 | ||
but
less than 3.50:1.00 |
||
0.375% | ||
Equal to or greater than 3.50:1.00 | ||
0.500% |
Revolving Commitment Fees are payable quarterly on the last day of each calendar quarter and on the
Revolving Loan Termination Date. Following the occurrence and during the continuance of an Event
of Default or for any period beginning one day after the compliance certificate required by Section
5.1(e) with respect to a fiscal quarter is required to be but is not delivered and ending on the
date one day after the date such compliance certificate is delivered, the Commitment Fee Percentage
shall be as specified for a Senior Leverage Ratio equal to or greater than 3.50 to 1.00;
provided, however, that until May 16, 2006
the Commitment Fee Percentage shall be as specified for a Senior Leverage Ratio of equal to or
greater than 3.50 to 1.00.
Q. Letter of Credit Fees. For each Letter of Credit issued, the Borrowers shall pay
to the Agent for the account of the Banks, in arrears, payable on the last day of each calendar
quarter, a fee (a “Letter of Credit Fee”) in an amount determined by applying a per annum
rate equal to the Applicable Margin for Eurodollar Rate Advances in effect on such date to the
original face amount of such Letter of Credit. In addition to the Letter of Credit Fee, the
Borrowers shall pay to the LC Bank, on demand, all issuance, amendment, drawing and other fees
regularly charged by the LC Bank to its letter of credit customers and a fronting fee at the per
annum rate of one eighth of one percent (0.125%) of the face amount of each Letter of Credit for
the period from the date of issuance to the scheduled expiration date of such Letter of Credit, and
all out-of-pocket expenses incurred by the LC Bank in connection with the issuance, amendment,
administration or payment of any Letter of Credit. Upon the occurrence and during the continuance
of any Default or Event of Default, each Letter of Credit shall accrue a fee at a rate equal to the
rate otherwise applicable to the Letter of Credit Fee plus 2.00%.
R. [Intentionally Omitted.]
S. Computation. Revolving Commitment Fees, Letter of Credit Fees and interest on
the Loans shall be computed on the basis of actual days elapsed (or, in the case of Letter of
Credit Fees which are paid in advance, actual days to elapse) and a year of 360 days.
T. Payments. Payments and prepayments of principal of, and interest on, the Notes
and all fees, expenses and other obligations under this Agreement payable to the Agent or the Banks
shall be made without setoff or counterclaim in Immediately Available Funds not later than 1:00
P.M. (Minneapolis time) on the dates called for under this Agreement and the Notes to the Agent at
its main office in Minneapolis, Minnesota. Funds received after such time shall be deemed to have
been received on the next Business Day. The Agent will promptly distribute in like funds to each
Bank its ratable share of each such payment of principal, interest and fees received by the Agent
for the account of the Banks. Whenever any payment to be made hereunder or on the Notes shall be
stated to be due on a day which is
- 26 -
not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time, in the case of a payment of principal, shall be
included in the computation of any interest on such principal payment; provided,
however, that if such extension would cause payment of interest on or principal of a
Eurodollar Rate Advance to be made in the next following calendar month, such payment shall be made
on the next preceding Business Day.
U. Use of Loan Proceeds. The proceeds of the Term Loans shall be used to (i) fund
the APC Acquisition, (ii) fund the Watchman Acquisition, (iii) refinance certain of the obligations
of the Borrowers under the Existing Credit Agreement, and (iv) fund transaction costs in connection
with this Agreement and working capital of the Borrowers. The proceeds of the Revolving Loans
shall be used for general corporate purposes of the Borrowers (including Permitted Acquisitions and
transaction costs in respect thereof) in a manner not in conflict with any of the Borrowers’
covenants in this Agreement.
V. Interest Rate Not Ascertainable, Etc. If, on or prior to the date for
determining the Adjusted Eurodollar Rate in respect of the Interest Period for any Eurodollar Rate
Advance, any Bank determines (which determination shall be conclusive and binding, absent error)
that:
1. deposits in dollars (in the applicable amount) are not being made
available to such Bank in the relevant market for such Interest Period, or
2. the Adjusted Eurodollar Rate will not adequately and fairly reflect the
cost to such Bank of funding or maintaining Eurodollar Rate Advances for such Interest
Period,
such Bank shall forthwith give notice to the Borrowers’ Agent and the other Banks of such
determination, whereupon the obligation of such Bank to make or continue, or to convert any
Advances to, Eurodollar Rate Advances shall be suspended until such Bank notifies the Borrowers’
Agent and the Agent that the circumstances giving rise to such suspension no longer exist. While
any such suspension continues, all further Advances by such Bank shall be made as Prime Rate
Advances. No such suspension shall affect the interest rate then in effect during the applicable
Interest Period for any Eurodollar Rate Advance outstanding at the time such suspension is imposed.
W. Increased Cost. If any Regulatory Change:
1. shall subject any Bank (or its Applicable Lending Office) to any tax, duty
or other charge with respect to its Eurodollar Rate Advances, its Notes or its obligation to
make Eurodollar Rate Advances or shall change the basis of taxation of payment to any Bank
(or its Applicable Lending Office) of the principal of or interest on Eurodollar Rate
Advances or any other amounts due under this Agreement in respect of Eurodollar Rate
Advances or its obligation to make Eurodollar Rate Advances (except for changes in the rate
of tax on the overall net income of such Bank or its Applicable Lending Office imposed by
the jurisdiction in which such Bank’s principal office or Applicable Lending Office is
located); or
2. shall impose, modify or deem applicable any reserve, special deposit or
similar requirement (including, without limitation, any such requirement imposed by the
Board, but excluding with respect to any Eurodollar Rate Advance any such requirement to
the extent included in calculating the applicable Adjusted Eurodollar Rate) against assets
of, deposits with or for the account of, or credit extended by, any Bank’s Applicable
Lending Office or against Letters of Credit issued by the LC Bank or shall impose on any
Bank (or its Applicable Lending Office) or the interbank Eurodollar market any other
condition affecting its Eurodollar Rate Advances, its Notes or its obligation to make
Eurodollar Rate Advances or affecting any Letter of Credit;
- 27 -
and the result of any of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any Eurodollar Rate Advance or issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement or under its Notes, then, within
30 days after demand by such Bank (with a copy to the Agent), the Borrowers shall pay to such Bank
such additional amount or amounts as will compensate such Bank for such increased cost or
reduction. Each Bank will promptly notify the Borrowers’ Agent and the Agent of any event of which
it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation
pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If any Bank fails to give such notice within 45 days after it
obtains knowledge of such an event, such Bank shall, with respect to compensation payable pursuant
to this Section, only be entitled to payment under this Section for costs incurred from and after
the date 45 days prior to the date that such Bank does give such notice. A certificate of any Bank
claiming compensation under this Section, setting forth the additional amount or amounts to be paid
to it hereunder and stating in reasonable detail the basis for the charge and the method of
computation, shall be conclusive in the absence of error. In determining such amount, such Bank
may use any reasonable averaging and attribution methods. Failure on the part of any Bank to
demand compensation for any increased costs or reduction in amounts received or receivable with
respect to any Interest Period shall not constitute a waiver of such Bank’s rights to demand
compensation for any increased costs or reduction in amounts received or receivable in any
subsequent Interest Period.
X. Illegality. If any Regulatory Change shall make it unlawful or impossible for
any Bank to make, maintain or fund any Eurodollar Rate Advances, such Bank shall notify the
Borrowers’ Agent and the Agent, whereupon the obligation of such Bank to make or continue, or to
convert any Advances to, Eurodollar Rate Advances, shall be suspended until such Bank notifies the
Borrowers’ Agent and the Agent that the circumstances giving rise to such suspension no longer
exist. Before giving any such notice, such Bank shall designate a different Applicable Lending
Office if such designation will avoid the need for giving such notice and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. If any Bank determines that it may not
lawfully continue to maintain any Eurodollar Rate Advances to the end of the applicable Interest
Periods, all of the affected Advances shall be automatically converted to Prime Rate Advances as of
the date of such Bank’s notice, and upon such conversion the Borrowers shall indemnify such Bank in
accordance with Section Z.
Y. Capital Adequacy. In the event that any Regulatory Change reduces or shall have
the effect of reducing the rate of return on any Bank’s capital or the capital of its parent
corporation (by an amount such Bank deems material) as a consequence of its Commitments and/or its
Loans and/or any Letters of Credit or any Bank’s obligations to make Advances to cover Letters of
Credit to a level below that which such Bank or its parent corporation could have achieved but for
such Regulatory Change (taking into account such Bank’s policies and the policies of its parent
corporation with respect to capital adequacy), then the Borrowers shall, within 30 days after
written notice and demand from such Bank (with a copy to the Agent), pay to such Bank additional
amounts sufficient to compensate such Bank or its parent corporation for such reduction. If any
Bank fails to give such notice within 45 days after it obtains knowledge of such an event, such
Bank shall, with respect to compensation payable pursuant to this Section, only be entitled to
payment under this Section for diminished returns as a result of such reduction for the period from
and after the date 45 days prior to the date that such Bank does give such notice. Any
determination by any Bank under this Section and any certificate as to the amount of such reduction
given to the Borrowers’ Agent by such Bank shall be final, conclusive and binding for all purposes,
absent error.
- 28 -
Z. Funding Losses; Eurodollar Rate Advances. The Borrowers shall compensate each
Bank, upon its written request, for all losses, expenses and liabilities (including any interest
paid by such Bank to lenders of funds borrowed by it to make or carry Eurodollar Rate Advances to
the extent not recovered by such Bank in connection with the re-employment of such funds, but
excluding loss of anticipated profits) which such Bank may sustain: (i)
if for any reason, other than a default by such Bank, a funding of a Eurodollar Rate Advance
does not occur on the date specified therefore in the Borrowers’ Agent’s request or notice as to
such Advance under Section 2.2 or 2.4, or (ii) if, for whatever reason (including, but not limited
to, acceleration of the maturity of Advances following an Event of Default), any repayment of a
Eurodollar Rate Advance, or a conversion pursuant to X, occurs on any day other than the last day
of the Interest Period applicable thereto. A Bank’s request for compensation shall set forth the
basis for the amount requested and shall be final, conclusive and binding, absent error.
AA. Discretion of Bank as to Manner of Funding. Each Bank shall be entitled to fund
and maintain its funding of Eurodollar Rate Advances in any manner it may elect, it being
understood, however, that for the purposes of this Agreement all determinations hereunder
(including, but not limited to, determinations under Section Z) shall be made as if such Bank had
actually funded and maintained each Eurodollar Rate Advances during the Interest Period for such
Advance through the purchase of deposits having a maturity corresponding to the last day of the
Interest Period and bearing an interest rate equal to the Eurodollar Rate for such Interest Period.
BB. Taxes.
1. Any and all payments by the Borrowers hereunder or under the Notes shall
be made free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges of withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, taxes imposed on its
overall net income and franchise taxes imposed on it in lieu of net income taxes (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to as
“Taxes”). Each Bank will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such taxes and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank.
2. The Borrowers agree to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that arise from any
payment made hereunder or under the Notes or from the execution, delivery or registration
of, performing under, or otherwise with respect to, this Agreement or the Notes (hereinafter
referred to as “Other Taxes”).
3. The Borrowers shall indemnify each Bank and the Agent for the full amount
of Taxes or Other Taxes imposed on or paid by such Bank and the Agent and any penalties,
interest and expenses with respect thereto. Payments on this indemnification shall be made
within 30 days from the date such Bank or the Agent the makes written demand therefore.
4. Within 30 days after the date of any payment of Taxes, the Borrowers shall
furnish to the Agent, at its address referred to on the signature page hereof a certified
copy of a receipt evidencing payment thereof. In the case of any payment hereunder or under
the Notes by or on behalf of the Borrowers through an account or branch outside the United
States or by or on behalf of the Borrowers by a payor that is not a United States person, if
the Borrowers determine that no Taxes are payable in respect thereof, the Borrowers shall
furnish or shall cause such payor to furnish, to the Agent, at such address, an opinion of
counsel acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d), the terms “United
- 29 -
States” and “United States person” shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
5. If any Borrower shall be required by law or regulation to make any
deduction, withholding or backup withholding of any taxes, levies, imposts, duties, fees,
liabilities or similar charges of the United States of America, any possession or territory
of the United States of America (including the Commonwealth of Puerto Rico) or any area
subject to the jurisdiction of the United States of America (“U.S. Taxes”) from any
payments to a Bank pursuant to any Loan Document in respect of the Obligations payable to
the then or thereafter outstanding, such Borrower shall make such withholdings or deductions
and pay the full amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
6. Each Bank that is not a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or under the
laws of the United States (or any jurisdiction thereof), or any estate or trust that is
subject to federal income taxation regardless of the source of its income (a “Non-U.S.
Bank”) shall deliver to the Borrower’s Agent and the Agent two copies of each U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or any subsequent versions thereof or
successors thereto, or, in the case of a Non-U.S. Bank claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Non-U.S. Bank delivers a Form W-8, a certificate representing that such
Non-U.S. Bank is not a “bank” for purposes of Section 881(c) of the Code, is not a ten
(10%) percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower’s Agent and is not a controlled foreign corporation related to the Borrower’s Agent
(within the meaning of Section 864(d)(4) of the Code)), properly completed and duly executed
by such Non-U.S. Bank claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrower’s Agent under this Agreement and the other
Loan Documents. Such forms shall be delivered by each Non-U.S. Bank on or before the date
it becomes a party to this Agreement. In addition, each Non-U.S. Bank shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Bank. Each Non-U.S. Bank shall promptly notify the Borrower’s Agent and the Agent
at any time it determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower’s Agent (or any other form of certification adopted by
the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this
subsection, a Non-U.S. Bank shall not be required to deliver any form pursuant to this
subsection that such Non-U.S. Bank is not legally able to deliver.
7. The Borrowers will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to Section 2.28 to any Bank for the
account of any Applicable Lending Office of such Bank:
a) if the obligation to pay such additional amounts would not have
arisen but for a failure by such Bank to comply with its obligations under
subsection 2.28(f) in respect of such Applicable Lending Office;
b) if such Bank shall have delivered to the Borrower’s Agent a Form
W-8BEN and/or Form W-8ECI (or any subsequent versions thereof or successors thereto)
in respect of such Applicable Lending Office pursuant to subsection 2.28(f), and
such Bank shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments by the
Borrower’s Agent hereunder for the account of such Lending Office for any reason
other than a change in United States
- 30 -
law, treaty or regulations or in the official interpretation of such law or
regulations by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after the date of
delivery of such Form W-8BEN and/or Form W-8ECI (or any subsequent versions thereof
or successors thereto); or
c) if such Bank shall have delivered to the Borrower’s Agent a Form
W-8 (or any subsequent versions thereof or successors thereto) in respect of such
Applicable Lending Office pursuant to subsection 2.28(f), and such Bank shall not at
any time be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower’s Agent hereunder for the
account of such Applicable Lending Office for any reason other than a change in the
United States law or regulations or any applicable tax treaty or regulations or in
the official interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of delivery of such Form W-8
(or subsequent versions thereof or successors thereto).
8. The Agent and the Banks agree to use commercially reasonable efforts, upon
request by a Borrower and at such Borrower’s sole cost and expense, to assist such Borrower
in obtaining a refund that is available to the Borrower of any Taxes paid by such Borrower
hereunder; provided that (i) the Agent or Bank of which such request is made determines in
its reasonable discretion, that such assistance would not be prejudicial and (ii) if any
such refund is subsequently disallowed, such Borrower shall indemnify the Agent and the
Banks for any liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto. In the event that the Agent or any Bank receives
a refund or tax credit when computing its tax payable in the jurisdiction in which the Agent
or such Bank, as the case may be, is organized or maintains an Applicable Lending Office, in
respect of Taxes paid by the Borrowers, the Agent or such Bank shall, to the extent it can
do so without jeopardizing its right to such refund or credit, pay over to the Borrower’s
Agent an amount that would leave the Agent or such Bank in the same position as if no such
Taxes had been imposed; provided that (i) nothing contained in this paragraph 2.28(h) shall
interfere with the right of the Agent or such Bank to arrange its tax affairs in whatever
manner it thinks fit, nor require them to disclose any information relating to their tax
affairs or any computations in respect thereof or to do anything that would prejudice their
ability to benefit from any other credits, relief, remissions or repayments to which any of
them may be entitled and (ii) if any such refund or tax credit is subsequently disallowed,
then each Borrower shall within thirty (30) days of receiving notice of any such
disallowance from the Agent or any Bank, return the amount paid to such Borrower under this
section 2.28(h) to the Agent or Banks and indemnify the Agent and Banks for any liability
(including penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto.
CC. Replacement of Bank in Respect of Increased Costs. Within forty-five (45) days
after receipt by a Borrower or the Borrowers’ Agent of written notice and demand from any Bank (an
“Affected Bank”) for payment of additional costs as provided in Sections 2.23, 2.25 or
2.28, the Borrowers’ Agent may, at its option, notify the Agent and such Affected Bank of the
Borrowers’ intention to obtain, at the Borrowers’ expense, a replacement Bank (“Replacement
Bank”) for such Affected Bank, which Replacement Bank shall be reasonably satisfactory to the
Agent. In the event the Borrowers obtain a Replacement Bank within ninety (90) days following
notice of its intention to do so, the Affected Bank shall sell and assign its Loans and Commitments
to such Replacement Bank in accordance with the provisions of Section 9.5 hereof, provided that the
Borrowers have reimbursed such Affected Bank for its increased costs and all other accrued but
unpaid
interest, fees and other amounts due to such Affected
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Bank hereunder or under any other Loan
Document for which it is entitled to reimbursement under this Agreement through the date of such
sale and assignment.
CONDITIONS PRECEDENT
DD. Conditions of Initial Transaction. The making of the Term Loans and the initial
Revolving Loans and the issuance of the initial Letter of Credit shall be subject to the prior or
simultaneous fulfillment of the following conditions:
1. Documents. The Agent shall have received the following:
a) A Revolving Note and a Term Note drawn to the order of each Bank
executed by a duly authorized officer (or officers) of the Borrowers and dated the
Closing Date.
b) The Security Documents duly executed by the respective parties
thereto.
c) A certificate of the Secretary or Assistant Secretary (or other
appropriate officer) of each Borrower dated as of the Closing Date and certifying to
the following:
(1) A true and accurate copy of the corporate (or other)
resolutions of such Borrower authorizing the execution, delivery and
performance of the Loan Documents to which such Borrower is a party
contemplated hereby and thereby;
(2) The incumbency, names, titles and signatures of the
officers of such Borrower authorized to execute the Loan Documents to which
such Borrower is a party and to request Advances;
(3) A true and accurate copy of the Articles of Incorporation
(or the equivalent) of such Borrower with all amendments thereto, certified
by the appropriate governmental official of the jurisdiction of organization
as of a date acceptable to the Agent; and
(4) A true and accurate copy of the bylaws (or other
constituent documents), including all amendments thereto, for such Borrower.
d) A certificate of good standing for each Borrower in the
jurisdiction of its incorporation or organization and in the jurisdictions where the
character of the properties owned or leased by such Borrower or the Business
conducted by such Borrower makes such qualification necessary, certified by the
appropriate governmental officials as of a date acceptable to the Agent.
e) Evidence, reasonably satisfactory to the Banks, that the Borrowers
have completed, or concurrently with the initial credit extension hereunder will
complete, the Related Transactions in accordance with the terms of the Related
Agreements and for cash consideration of approximately $40,000,000.
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f) Copies of the Related Agreements certified by the Secretary or
Assistant Secretary (or other appropriate officer) of Xxxxx Media as being true,
correct and accurate.
g) Evidence of independent verification reasonably acceptable to the
Banks of the financial results of APC for the fiscal years ended December 31, 2003
and December 31, 2004, and financial results satisfactory to the Agent prepared by
APC for the fiscal years ended December 31, 2001, December 31, 2002 and December 31,
2005.
h) A consolidated pro forma balance sheet of the
Borrowers as at the Closing Date, adjusted to give effect to the consummation of the
Related Transactions, the Watchman Acquisition and the financings contemplated
hereby as if such transactions had occurred on such date, consistent in all material
respects with the sources and uses of cash as previously described to the Banks and
the forecasts previously provided to the Banks.
i) Unaudited consolidated financial statements of the Borrowers for
the fiscal year ended December 31, 2005 and audited consolidated financial
statements of the Borrowers for the prior two (2) fiscal years, in each case in form
and substance satisfactory to the Agent.
j) Evidence reasonably satisfactory to the Agent that upon the
redemption date for any outstanding Preferred Stock no redemption shall be permitted
so long as any Obligations remain outstanding and the Commitments have not been
terminated, and the remedies of the holders of the Preferred Stock during such
period shall otherwise be limited in a manner reasonably satisfactory to the Agent.
k) XXXXX 25 and 27 certificates of insurance with respect to each of
the businesses and real properties of the Borrowers in such amounts and with such
carriers as shall be reasonably acceptable to the Agent.
l) A certificate dated the Closing Date of the chief executive
officer or chief financial officer of each Borrower certifying on behalf of each
Borrower as to the matters set forth in Sections 3.2 (a) and (b) below.
m) The APC Side Letter, in form and substance satisfactory to the
Agent, duly executed by the parties thereto.
2. Opinion. The Agent shall have received a written legal opinion of
counsel to the Borrowers addressing the Loan Documents in form and substance satisfactory to
the Agent.
3. Compliance. Each Borrower shall have performed and complied with
all agreements, terms and conditions contained in this Agreement required to be performed or
complied with by such Borrower prior to or simultaneously with the Closing Date.
4. Security Documents. All Security Documents (or financing
statements with respect thereto) shall have been appropriately filed or recorded to the
satisfaction of the Agent; any pledged collateral shall have been duly delivered to the
Agent; and the priority and perfection of the Liens created by the Security Documents shall
have been established to the satisfaction of the Agent and its counsel.
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5. Other Matters. All corporate and legal proceedings relating to
the Borrowers and all instruments and agreements in connection with the transactions
contemplated by this Agreement shall be satisfactory in scope, form and substance to the
Agent, the Banks and the Agent’s special counsel, and the Agent shall have completed due
diligence with respect to the Borrowers to its and the Majority Banks’ satisfaction and
shall have received all information and copies of all documents, including records of
corporate proceedings, as any Bank or such special counsel may reasonably have requested in
connection therewith, such documents where appropriate to be certified by proper corporate
or governmental authorities.
6. Fees and Expenses. The Agent shall have received for itself and
for the account of the Banks all fees and other amounts due and payable by the Borrowers on
or prior to the Closing Date, including the reasonable fees and expenses of counsel to the
Agent payable pursuant to Section P.
EE. Conditions Precedent to all Loans and Letters of Credit. The obligation of the
Banks to make any Loans hereunder (including the Term Loans and the initial Revolving Loans) and of
the LC Bank to issue each Letter of Credit (including the initial Letter of Credit) shall be
subject to the fulfillment of the following conditions:
1. Representations and Warranties. The representations and
warranties contained in Article IV shall be true and correct on and as of the Closing Date
and on the date of each Revolving Loan or the date of issuance of each Letter of Credit with
the same force and effect as if made on such date.
2. No Default. No Default or Event of Default shall have occurred
and be continuing on the Closing Date and on the date of each Revolving Loan or the date of
issuance of each Letter of Credit or will exist after giving effect to the Revolving Loans
made on such date or the Letter of Credit so issued.
3. Notices and Requests. The Agent shall have received the
Borrowers’ Agent’s request for such Loans as required under Section 2.2 (or, with respect to
an Incremental Term Loan, Section 2.13(b)(i)) or its application for such Letters of Credit
specified under Section I.
XLI.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make Loans hereunder and to induce the
LC Bank to issue Letters of Credit, each Borrower represents and warrants to the Banks and the
Agent for itself and each other Borrower, both before and after giving effect to the Related
Transactions:
A. Organization, Standing, Etc. Each Borrower is a corporation or limited liability
company duly organized and validly existing and in good standing under the laws of the jurisdiction
of its organization. Each Borrower has all requisite corporate or limited liability company power
and authority to carry on its business as now conducted, to enter into this Agreement and to issue
the Notes and to perform its obligations under the Borrower Loan Documents. Each of the Borrowers
(a) holds all certificates of authority, licenses and permits necessary to carry on its business as
presently conducted in each jurisdiction in which it is carrying on such business, except where the
failure to hold such certificates, licenses or permits would not constitute a Material Adverse
Occurrence, and (b) is duly qualified and in good standing as a foreign
corporation (or other organization) in each jurisdiction in which the character of the
properties owned, leased or operated by it or the business conducted by it makes such qualification
necessary and the failure so to qualify would permanently preclude such
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Borrower from enforcing its
rights with respect to any assets or expose such Borrower to any Material Adverse Occurrence.
B. Authorization and Validity. The execution, delivery and performance by each
Borrower of the Borrower Loan Documents to which it is a party have been duly authorized by all
necessary corporate or limited liability company action by such Borrower. This Agreement
constitutes, and the Notes and other Borrower Loan Documents when executed will constitute, the
legal, valid and binding obligations of each Borrower, enforceable against such Borrower in
accordance with their respective terms, subject to limitations as to enforceability which might
result from bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights
generally and subject to limitations on the availability of equitable remedies.
C. No Conflict; No Default. The execution, delivery and performance by each
Borrower of the Borrower Loan Documents will not (a) violate in any material respect any provision
of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree,
determination or award of any court, governmental agency or arbitrator presently in effect having
applicability to such Borrower, (b) violate or contravene any provision of the Articles of
Incorporation, bylaws or limited liability company agreement of such Borrower, or (c) result in a
breach of or constitute a default under any indenture, loan or credit agreement or any other
agreement, lease or instrument to which such Borrower is a party or by which it or any of its
properties may be bound or result in the creation of any Lien thereunder which breach or default
could constitute a Material Adverse Occurrence. No Borrower is in default under or in violation of
any such law, statute, rule or regulation, order, writ, judgment, injunction, decree, determination
or award or any such indenture, loan or credit agreement or other agreement, lease or instrument in
any case in which the consequences of such default or violation could constitute a Material Adverse
Occurrence.
D. Government Consent. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, any governmental or
public body or authority is required on the part of any Borrower to authorize, or is required in
connection with the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, the Borrower Loan Documents, except for any necessary filing or
recordation of or with respect to any of the Security Documents.
E. Financial Statements and Condition. The audited consolidated financial
statements for Xxxxx Media and its Subsidiaries as at December 31, 2004 and the unaudited interim
consolidated financial statements for Xxxxx Media and its Subsidiaries as at December 31, 2005, as
heretofore furnished to the Banks, have been prepared in accordance with GAAP on a consistent basis
(except for the absence of footnotes and subject to year-end audit adjustments as to the interim
statements) and fairly present the financial condition of the Borrowers as at such date and the
results of its operations and changes in financial position for the period then ended. As of the
dates of such financial statements, no Borrower had any material obligation, contingent liability,
liability for taxes or long-term lease obligation which is not reflected in such financial
statements or in the notes thereto. Since December 31, 2004, there has been no Material Adverse
Occurrence.
F. Litigation. Except as set forth on Schedule 4.6 hereto, there are no actions, suits or
proceedings pending or, to the knowledge of any Borrower, threatened against or affecting any
Borrower or any of their properties before any court or arbitrator, or any governmental department,
board, agency or other instrumentality which could reasonably be expected to constitute a Material
Adverse Occurrence, and there are no unsatisfied judgments against any Borrower, the satisfaction
or payment of which would constitute a Material Adverse Occurrence.
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G. Environmental, Health and Safety Laws. There does not exist any violation by any
Borrower of any applicable federal, state or local law, rule or regulation or order of any
government, governmental department, board, agency or other instrumentality relating to
environmental, pollution, health or safety matters which has, will or threatens to impose a
material liability on a Borrower or which has required or would require a material expenditure by a
Borrower to cure. No Borrower has received any notice to the effect that any part of its
operations or properties is not in material compliance with any such law, rule, regulation or order
or notice that it or its property is the subject of any governmental investigation evaluating
whether any remedial action is needed to respond to any release of any toxic or hazardous waste or
substance into the environment, which non-compliance or remedial action could reasonably be
expected to constitute a Material Adverse Occurrence. Except as set out on Schedule 4.7 attached
hereto, no Borrower has knowledge that it or its property will become subject to environmental laws
or regulations during the term of this Agreement, compliance with which could reasonably be
expected to require Capital Expenditures which would constitute a Material Adverse Occurrence.
H. ERISA. Each Plan is in substantial compliance with all applicable requirements
of ERISA and the Code and with all material applicable rulings and regulations issued under the
provisions of ERISA and the Code setting forth those requirements. No Reportable Event has
occurred and is continuing with respect to any Plan. All of the minimum funding standards
applicable to such Plans have been satisfied and there exists no event or condition which would
reasonably be expected to result in the institution of proceedings to terminate any Plan under
Section 4042 of ERISA. With respect to each Plan subject to Title IV of ERISA, as of the most
recent valuation date for such Plan prior to the Closing Date, the present value (determined on the
basis of reasonable assumptions employed by the independent actuary for such Plan and previously
furnished in writing to the Banks) of such Plan’s projected benefit obligations did not exceed the
fair market value of such Plan’s assets.
I. Federal Reserve Regulations. No Borrower is engaged principally or as one of its
important activities in the business of extending credit for the purpose of purchasing or carrying
margin stock (as defined in Regulation U of the Board). The value of all margin stock owned by
each Borrower does not constitute more than 25% of the value of the assets of such Borrower.
J. Title to Property; Leases; Liens; Subordination. Each Borrower has (a) good and
marketable title to its real properties and (b) good and sufficient title to, or valid, subsisting
and enforceable leasehold interest in, its other material properties, including all real
properties, other properties and assets, referred to as owned by a Borrower in the most recent
financial statement referred to in Section 5.1 (other than property disposed of since the date of
such financial statements in the ordinary course of business). None of such properties is subject
to a Lien,
except as allowed under UU. No Borrower has subordinated any of its rights under any
obligation owing to it to the rights of any other person.
K. Taxes. Each Borrower has filed all federal, state and local tax returns required
to be filed and has paid or made provision for the payment of all taxes due and payable pursuant to
such returns and pursuant to any assessments made against it or any of its property and all other
taxes, fees and other charges imposed on it or any of its property by any governmental authority
(other than taxes, fees or charges the amount or validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP
have been provided on the books of such Borrower). No material tax Liens have been filed and no
material claims are being asserted with respect to any such taxes, fees or charges. The charges,
accruals and reserves on the books of the Borrowers in respect of taxes and other governmental
charges are adequate in all material respects and the Borrowers know of no proposed material tax
assessment against it.
- 36 -
L. Trademarks, Patents. Each Borrower possesses or has the right to use all of the
patents, trademarks, trade names, service marks and copyrights, and applications therefor, and all
technology, know-how, processes, methods and designs used in the conduct of its business, without
known conflict with the rights of others.
M. Force Majeure. Since the date of the most recent financial statement referred to
in Section 5.1, the business, properties and other assets of the Borrowers have not been materially
and adversely affected in any way as the result of any fire or other casualty, strike, lockout, or
other labor trouble, embargo, sabotage, confiscation, condemnation, riot, civil disturbance,
activity of armed forces or act of God.
N. Investment Company Act. No Borrower is an “investment company” or a company
“controlled” by an investment company within the meaning of the Investment Company Act of 1940, as
amended.
O. [Intentially Omitted.]
P. Retirement Benefits. Except as set forth on Schedule 4.16 and except as
required under Section 4980B of the Code, Section 601 of ERISA or applicable state law, no Borrower
is obligated to provide post-retirement medical or insurance benefits with respect to employees or
former employees.
Q. Full Disclosure. Subject to the following sentence, neither the financial
statements referred to in Section 5.1 nor any other certificate, written statement, exhibit or
report furnished by or on behalf of the Borrowers in connection with or pursuant to this Agreement
contains any untrue statement of a material fact or omits to state any material fact necessary in
order to make the statements contained therein not misleading. Certificates or statements
furnished by or on behalf of the Borrowers to the Banks consisting of projections or forecasts of
future results or events have been prepared in good faith and based on good
faith estimates and assumptions of the management of the Borrowers, and, as of the Closing
Date, the Borrowers have no reason to believe that such projections or forecasts are not
reasonable.
R. Subsidiaries. As of the date of this Agreement, each Subsidiary of the
Borrowers’ Agent is a Borrower and the Borrowers have no Subsidiaries other than those listed on
Schedule 4.18, which sets forth the number and percentage of the shares of each class of Equity
Interests owned beneficially or of record by the Borrowers, and the jurisdiction of organization of
each Borrower.
S. Labor Matters. To the knowledge of any Borrower, there are no pending or
threatened strikes, lockouts or slowdowns against the Borrowers. No Borrower has been or is in
violation in any material respect of the Fair Labor Standards Act or any other applicable federal,
state, local or foreign law dealing with such matters, which violation would cause a Material
Adverse Occurrence. All payments due from any Borrower on account of wages and employee health and
welfare insurance and other benefits (in each case, except for de minimus amounts), have been paid
or accrued as a liability on the books of such Borrower. The consummation of the transactions
contemplated under the Loan Documents will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement to which any
Borrower is bound.
T. Solvency. After the making of any Loan and after giving effect thereto, (a) the
fair value of the assets of each Borrower, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the
property of each Borrower will be greater than the amount that will be required to pay the probable
liability of its debts and other liabilities,
- 37 -
subordinated, contingent or otherwise, as such debts
and other liabilities become absolute and matured; (c) each Borrower will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) no Borrower will have unreasonably small capital with which to
conduct the business in which it is engaged as such business is proposed to be conducted following
the Closing Date.
U. Related Agreements, etc.
1. The Borrowers have heretofore furnished the Agent a true and correct copy
of each of the Related Agreements.
2. Each Borrower and, to the Borrowers’ knowledge as of the Closing Date,
each other party to the Related Agreements, has duly taken all necessary corporate,
partnership or other organizational action to authorize the execution, delivery and
performance of the Related Agreements and the consummation of transactions contemplated
thereby.
3. The Related Transactions will comply with all applicable legal
requirements, and all material governmental, regulatory, creditor, shareholder, partner and
other material consents, approvals and exemptions required to be obtained by each Borrower
and, to the Borrowers’ knowledge as of the Closing Date, each other party to the Related
Agreements in connection with the Related Transactions will be, prior to consummation of the
Related Transactions, duly obtained and will be in full force and effect. As of the date of
the Related Agreements, all applicable waiting periods with respect to the Related
Transactions will have expired without any
action being taken by any competent governmental authority which restrains, prevents or
imposes material adverse conditions upon the consummation of the Related Transactions.
4. The execution and delivery of the Related Agreements did not, and the
consummation of the Related Transactions will not, violate any statute or regulation of the
United States (including any securities law) or of any state or other applicable
jurisdiction, or any order, judgment or decree of any court or governmental body binding on
any Borrower or, to the Borrowers’ knowledge as of the Closing Date, any other party to the
Related Agreements, or result in a breach of, or constitute a default under, any material
agreement, indenture, instrument or other document, or any judgment, order or decree, to
which any Borrower is a party or by which any Borrower is bound or, to the Borrowers’
knowledge as of the Closing Date, to which any other party to the Related Agreements is a
party or by which any such party is bound, which violation, breach or default could
constitute a Material Adverse Occurrence.
5. No statement or representation made in the Related Agreements by any
Borrower or, to the Borrowers’ knowledge as of the Closing Date, any other Person, contains
any untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in light of the
circumstances under which they are made, not misleading.
V. Anti-Terrorism Law Compliance. None of the Borrowers is subject to or in
violation of any law, regulation or list of any government agency including, without limitation,
the U.S. Office of Foreign Asset Control list, Executive Order 13224 or the USA Patriot Act) that
prohibits or limits the conduct of business with or receiving of funds, goods or services to or for
the benefit of certain Persons specified therein or that prohibits or limits any Bank from making
any Advance or extension of credit to any Borrower or from otherwise conducting business with any
Borrower.
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AFFIRMATIVE COVENANTS
Until any obligation of the Banks hereunder to make the Term Loans and Revolving Loans and of
the LC Bank to issue Letters of Credit shall have expired or been terminated and the Notes and all
of the other Obligations have been paid in full and all outstanding Letters of Credit shall have
expired or the liability of the LC Bank thereon shall have otherwise been discharged or otherwise
collateralized pursuant to Section 2.10, unless the Agent and the Majority Banks shall otherwise
consent in writing:
W. Financial Statements and Reports. The Borrowers’ Agent will furnish to the
Agent, on behalf of the Banks:
1. As soon as available and in any event within 90 days after the end of each
fiscal year of the Borrowers, the consolidated financial statements of the Borrowers
consisting of at least statements of income, cash flow and changes in stockholders’ equity,
and a consolidated balance sheet as at the end of such year, setting forth in each case in
comparative form corresponding figures from the previous annual audit, and the consolidating
financial statements of the Borrowers consisting of at least statements of income and
balance sheets as at the end of such year, certified without qualification by McGladrey &
Xxxxxx, LLP or other independent certified public accountants of recognized national
standing selected by the Borrowers and acceptable to the Agent, together with any management
letters, management reports or other
reasonably supplementary comments or reports to the Borrowers’ Agent or its board of
directors furnished by such accountants.
2. Together with the audited financial statements required under Section
5.1(a), a statement by the accounting firm performing such audit to the effect that it has
reviewed this Agreement and that in the course of performing its examination nothing came to
its attention that caused it to believe that any Default or Event of Default exists, or, if
such Default or Event of Default exists, describing its nature.
3. As soon as available and in any event within 45 days after the end of each
fiscal quarter, unaudited consolidated statements of income for the Borrowers for such
quarter and for the period from the beginning of such fiscal year to the end of such
quarter, a consolidated balance sheet of the Borrowers as at the end of such quarter,
setting forth in each case in comparative form figures for the corresponding period for the
preceding fiscal year, and a comparison of actual and budgeted revenue and EBITDA for each
business unit of the Borrowers for such quarter and the period from the beginning of such
fiscal year to the end of such quarter, with corresponding figures for the prior fiscal
year, together with an unaudited consolidated statement of cash flow for the Borrowers for
such quarter and for the period from the beginning of such fiscal year to the end of such
quarter, setting forth in comparative form figures for the corresponding period for the
preceding fiscal year, accompanied by a certificate signed by the chief financial officer of
the Borrowers’ Agent, on behalf of the Borrowers, stating that such financial statements
present fairly the financial condition and cash flow of the Borrowers and that the same have
been prepared in accordance with GAAP (except for the absence of footnotes and subject to
year-end audit adjustments as to the interim statements).
4. As soon as practicable and in any event within 45 days after the end of
each fiscal quarter, a Compliance Certificate in the form attached hereto as Exhibit
D signed by the chief financial officer of the Borrowers’ Agent on behalf of the
Borrowers demonstrating in reasonable detail compliance (or noncompliance, as the case may
be) with Sections and YY, as at the end of such quarter and stating that as at the end of
such quarter there did not exist any
- 39 -
Default or Event of Default or, if such Default or
Event of Default existed, specifying the nature and period of existence thereof and what
action the Borrowers proposes to take with respect thereto.
5. As soon as practicable and in any event within 90 days after the beginning
of each fiscal year of the Borrowers, statements of forecasted consolidated and
consolidating income for the Borrowers for each fiscal quarter in such fiscal year and a
forecasted consolidated balance sheet of the Borrowers as at the end of such fiscal year,
together with supporting assumptions, consistent with the financial statements for prior
reporting periods, all in reasonable detail and reasonably satisfactory in scope to Majority
Banks.
6. Immediately upon any officer of any Borrower becoming aware of any Default
or Event of Default, a notice describing the nature thereof and what action Borrowers
propose to take with respect thereto.
7. Immediately upon any officer of any Borrower becoming aware of the
occurrence, with respect to any Plan, of any Reportable Event or any Prohibited Transaction,
a notice specifying the nature thereof and what action the Borrowers propose to take with
respect thereto, and, when received, copies of any notice from PBGC of intention to
terminate or have a trustee appointed for any Plan.
8. Immediately upon any officer of a Borrower becoming aware of any matter
that has resulted or is reasonably likely to result in a Material Adverse Occurrence, a
notice from the Borrowers’ Agent describing the nature thereof and what action Borrowers
propose to take with respect thereto.
9. Immediately upon any officer of a Borrower becoming aware of (i) the
commencement of any action, suit, investigation, proceeding or arbitration before any court
or arbitrator or any governmental department, board, agency or other instrumentality
affecting a Borrower or any property of such Person, or to which a Borrower is a party
(other than litigation where the insurance insures against the damages claimed and the
insurer has assumed defense of the litigation without reservation) and in which an adverse
determination or result could constitute a Material Adverse Occurrence; or (ii) any adverse
development which occurs in any litigation, arbitration or governmental investigation or
proceeding previously disclosed by a Borrower which, if determined adversely to a Borrower
would constitute a Material Adverse Occurrence, a notice from the Borrowers’ Agent
describing the nature and status thereof and what action the Borrowers propose to take with
respect thereto.
10. Promptly upon the mailing or filing thereof, copies of all financial
statements, reports and proxy statements mailed to any Borrower’s shareholders, and copies
of all registration statements, periodic reports and other documents filed with the
Securities and Exchange Commission (or any successor thereto) or any national securities
exchange.
11. From time to time, such other information regarding the business,
operation and financial condition of any Borrower as any Bank may reasonably request.
X. Existence. Each Borrower will maintain its existence as a corporation or other
entity, as applicable, in good standing under the laws of its jurisdiction of incorporation or
formation and its qualification to transact business in each jurisdiction where failure so to
qualify would permanently preclude such Borrower from enforcing its rights with respect to any
material asset or would expose such
- 40 -
Borrower to any material liability; provided, however, that
nothing herein shall prohibit the merger or liquidation of any Subsidiary allowed under Section
6.1.
Y. Insurance. Each Borrower shall maintain with financially sound and reputable
insurance companies such insurance as may be required by law and such other insurance in such
amounts and against such hazards as is customary in the case of reputable firms engaged in the same
or similar business and similarly situated.
Z. Payment of Taxes and Claims. Each Borrower shall file all tax returns and
reports which are required by law to be filed by it and will pay before they become delinquent all
taxes, assessments and governmental charges and levies imposed upon it or its property and all
claims or demands of any kind (including but not limited to those of suppliers, mechanics,
carriers, warehouses, landlords and other like Persons) which, if unpaid, might result in the
creation of a Lien upon its property; provided that the foregoing items need not be paid if they
are being contested in good faith by appropriate proceedings, and as long as such Borrower’s title
to its property is not materially adversely affected, its use of such property in the ordinary
course of its
business is not materially interfered with and adequate reserves with respect thereto have
been set aside on Borrowers’ books in accordance with GAAP.
AA. Inspection. Each Borrower shall permit any Person designated by the Agent or
the Majority Banks to visit and inspect any of the properties, books and financial records of such
Borrower to examine and to make copies of the books of accounts and other financial records of such
Borrower and to discuss the affairs, finances and accounts of such Borrower with, and to be advised
as to the same by, its officers at such reasonable times and intervals as the Agent or the Majority
Banks may designate. So long as no Event of Default exists, the expenses of the Agent or the Banks
for such visits, inspections and examinations shall be at the expense of the Agent and the Banks,
but any such visits, inspections and examinations made while any Event of Default is continuing
shall be at the expense of such Borrower.
BB. Maintenance of Properties. Each Borrower will maintain to maintain its
properties used or useful in the conduct of its business in good condition, repair and working
order, and supplied with all necessary equipment, and make all necessary repairs, renewals,
replacements, betterments and improvements thereto, all as may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted at all times.
CC. Books and Records. Each Borrower will keep adequate and proper records and
books of account in which full and correct entries will be made of its dealings, business and
affairs.
DD. Compliance. Each Borrower will comply in all material respects with all laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be
subject; provided, however, that failure so to comply shall not be a breach of this covenant if
such failure does not constitute a Material Adverse Occurrence and such Borrower is acting in good
faith to cure such noncompliance. Without limiting the foregoing sentence, each Borrower will
ensure that no person who owns a controlling interest in or otherwise controls such Borrower is or
shall be (i) listed on the Specially Designated Nationals and Blocked Person List maintained by the
Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any other
similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation
or (ii) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September
23, 2001), any related enabling legislation or any other similar Executive Orders, and (c) without
limiting clause (a) above, each Borrower shall comply with all applicable Bank Secrecy Act
(“BSA”) and anti-money laundering laws and regulations.
EE. ERISA. Each Borrower will maintain each Plan in compliance with all material
applicable requirements of ERISA and of the Code and with all applicable rulings and regulations
issued
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under the provisions of ERISA and of the Code and will not, and will not permit any of the
ERISA Affiliates to (a) engage in any transaction in connection with which such Borrower or any of
the ERISA Affiliates would be subject to either a civil penalty assessed pursuant to Section 502(i)
of ERISA or a tax imposed by Section 4975 of the Code, in either case in an amount exceeding
$50,000, (b) fail to make full payment when due of all amounts which, under the provisions of any
Plan, such Borrower or any ERISA Affiliate is required to
pay as contributions thereto, or permit to exist any accumulated funding deficiency (as such
term is defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, with
respect to any Plan in an aggregate amount exceeding $50,000 or (c) fail to make any payments in an
aggregate amount exceeding $50,000 to any Multiemployer Plan that such Borrower or any of the ERISA
Affiliates may be required to make under any agreement relating to such Multiemployer Plan or any
law pertaining thereto.
FF. Environmental Matters; Reporting. Each Borrower will observe and comply with
all laws, rules, regulations and orders of any government or government agency relating to health,
safety, pollution, hazardous materials or other environmental matters to the extent non-compliance
could result in a material liability or otherwise constitute a Material Adverse Occurrence. The
Borrowers’ Agent will give the Agent prompt written notice of any violation as to any environmental
matter by any Borrower and of the commencement of any judicial or administrative proceeding
relating to health, safety or environmental matters (a) in which an adverse determination or result
could result in the revocation of or have a material adverse effect on any operating permits, air
emission permits, water discharge permits, hazardous waste permits or other permits held by any
Borrower which are material to the operations of such Borrower, or (b) which will or threatens to
impose a material liability on such Borrower to any Person or which will require a material
expenditure by the Borrower to cure any alleged problem or violation.
GG. Further Assurances. Each Borrower shall promptly correct any defect or error
that may be discovered in any Loan Document or in the execution, acknowledgment or recordation
thereof. Promptly upon request by the Agent or the Majority Banks, each Borrower also shall
execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register, any and
all deeds, conveyances, mortgages, deeds of trust, trust deeds, assignments, estoppel certificates,
financing statements and continuations thereof, notices of assignment, transfers, certificates,
assurances and other instruments as the Agent or the Majority Banks may reasonable require from
time to time in order: (a) to carry out more effectively the purposes of the Loan Documents; (b) to
perfect and maintain the validity, effectiveness and priority of any security interests intended to
be created by the Loan Documents including, without limitation, the delivery of a landlord waiver
from any landlord required by the Agent or the Majority Banks; and (c) to better assure, convey,
grant, assign, transfer, preserve, protect and confirm unto the Banks the rights granted now or
hereafter intended to be granted to the Banks under any Loan Document or under any other instrument
executed in connection with any Loan Document or that any Borrower may be or become bound to
convey, mortgage or assign to the Agent for the benefit of the Banks in order to carry out the
intention or facilitate the performance of the provisions of any Loan Document. The Borrowers’
Agent shall furnish to the Banks evidence satisfactory to the Majority Banks of every such
recording, filing or registration.
NEGATIVE COVENANTS
Until any obligation of the Banks hereunder to make the Term Loans and Revolving Loans and of
the LC Bank to issue Letters of Credit shall have expired or been terminated and the Notes and all
of the other Obligations have been paid in full and all outstanding Letters of Credit shall have
expired or the liability of the LC Bank thereon shall have otherwise been discharged or otherwise
collateralized pursuant to Section 2.10, unless the Majority Banks shall otherwise consent in
writing:
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HH. Merger. No Borrower will merge or consolidate or enter into any analogous reorganization or
transaction with any Person or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided, however, any Borrower may be merged with or liquidated into
Xxxxx Media or any other Borrower that is a wholly-owned Subsidiary (in each case, if Xxxxx Media
or such Borrower that is a wholly-owned Subsidiary is the surviving entity).
II. Disposition of Assets. No Borrower will directly or indirectly, sell, assign,
lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of related
transactions) any property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
1. dispositions of inventory, or used, worn-out or surplus equipment, all in
the ordinary course of business;
2. the sale of equipment to the extent that such equipment is exchanged for
credit against the purchase price of similar replacement equipment, or the proceeds of such
sale are applied with reasonable promptness to the purchase price of such replacement
equipment;
3. sales or transfers of any property of a Borrower to another Borrower; and
4. other dispositions of property that is not material to the operation of
any Borrower and with an aggregate net book value not exceeding $500,000 per fiscal year.
JJ. Plans. No Borrower will permit any event to occur or condition to exist which
would permit any Plan to terminate under any circumstances which would cause the Lien provided for
in Section 4068 of ERISA to attach to any assets of any Borrower; and no Borrower will permit, as
of the most recent valuation date for any Plan subject to Title IV of ERISA, the present value
(determined on the basis of reasonable assumptions employed by the independent actuary for such
Plan and previously furnished in writing to the Banks) of such Plan’s projected benefit obligations
to exceed the fair market value of such Plan’s assets by more than $50,000.
KK. Change in Nature of Business. No Borrower will make any material change in the
nature of the business of such Borrower, as carried on at the date hereof.
LL. Acquisitions; Subsidiaries, Partnerships and Joint Ventures and Ownership. No
Borrower will do any of the following: (a) purchase or lease or otherwise acquire all or
substantially all of the assets of any Person, except for purchases by, or other transfers to, any
of the other Borrowers, and except for Permitted Acquisitions; (b) form or enter into any
partnership as a limited or general partner or into any joint venture, except for Permitted
Acquisitions; (c) take any action which would result in a decrease in a Borrower’s ownership in any
Subsidiary including, without limitation, a decrease in the percentage of the shares of any class
of Equity Interest owned; (d) form or acquire any Person that would thereby become a Subsidiary
unless, immediately upon the closing of such formation or acquisition, such Person fulfills the
requirements of clause (ii) below; (e) without the prior written consent of the Agent, appoint,
consent to the appointment of, or otherwise elect a manager of APC other than Xxxxx APC LLC, Xxxxx
Media or another wholly-owned Subsidiary of Xxxxx Media; or (f) without
the prior written consent of the Agent, consent to an encumbrance, lien or security interest
on all or any part of the Equity Interests in APC (other than a lien in favor of the Agent for the
benefit of the Banks). Unless otherwise agreed by the Agent, immediately upon the closing of a
Permitted Acquisition (i) the Equity Interests of the acquired Person (or the Person acquiring such
assets) shall, to the extent owned, directly or indirectly, by a Borrower, be pledged to the Agent,
and (ii) such Person, to the extent it is or becomes a Subsidiary,
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shall enter into documents
requested by the Agent to provide that such Person shall be obligated to repay the Loans and other
amounts payable under the Loan Documents, and to grant to the Agent a first priority security
interest (and to perfect such interest) subject to no other Liens, except for Liens permitted
pursuant to Section 6.14 hereof, for the benefit of the Banks, in the assets of such Person.
MM. Negative Pledges. No Borrower will enter into any agreement, bond, note or
other instrument with or for the benefit of any Person other than the Banks which would (i)
prohibit such Borrower from granting, or otherwise limit the ability of such Borrower to grant, to
the Banks any Lien on any assets or properties of such Borrower, or (ii) require such Borrower to
xxxxx x Xxxx to any other Person if such Borrower grants any Lien to the Banks. At the request of
a Borrower, the Agent shall release its Lien on any property subject to a Lien permitted pursuant
to Section 6.14(i).
NN. Restricted Payments. No Borrower will make any Restricted Payments, other than
(a) payments made under Acquisition Services Agreements, (b) Restricted Payments made to repurchase
stock of any Borrower owned by an officer, director, consultant or employee of any Borrower in
connection with the termination of such officer’s, director’s, consultant’s or employee’s
employment, provided the aggregate amount of such Restricted Payments under this Section 6.7(b)
made by the Borrowers in any fiscal year does not exceed $500,000, (c) Restricted Payments made
from one Borrower to another Borrower, and (d) Restricted Payments consisting of dividends payable
to members of APC other than a Borrower pursuant to the terms of the APC LLC Agreement.
OO. Transactions with Affiliates. No Borrower will (i) enter into any transaction
with any Affiliate of such Borrower, except (a) for those transactions described on Schedule
6.8, (b) for overhead expenses and similar items shared among the Borrowers in a manner
consistent with past practice, and (c) upon fair and reasonable terms no less favorable than such
Borrower would obtain in a comparable arm’s-length transaction with a Person not an Affiliate, or
(ii) without the prior written consent of the Majority Banks, amend, modify, supplement or waive,
or consent to the amendment, modification, supplement or waiver of, the terms of the APC LLC
Agreement relating to (A) dividends or other distributions on account of the Equity Interests of
APC (including those set forth in Article IV thereof), (B) restrictions and conditions on
encumbrances, liens or security interests on the Equity Interests in APC (including those set forth
in Section 7.3 and 7.4 thereof and the definition of Permitted Transferee therein), and (C) the
drag-along and tag-along rights with respect to sale of the Equity Interests in, and assets of, APC
(including those set forth in Section 7.5 and 7.6 thereof).
PP. Accounting Changes. No Borrower will make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change its fiscal year from a year
end of each December 31.
QQ. [Intentionally Omitted.]
RR. Subordinated Debt. No Borrower will (a) make any scheduled payment of the
principal of or interest on any Subordinated Debt which would be prohibited by the terms of such
Subordinated Debt and any related subordination agreement; (b) directly or indirectly make any
prepayment on or purchase, redeem or defease any Subordinated Debt or offer to do so (whether such
prepayment, purchase or redemption, or offer with respect thereto, is voluntary or mandatory); (c)
amend or cancel the subordination provisions applicable to any Subordinated Debt; (d) take or omit
to take any action if as a result of such action or omission the subordination of such Subordinated
Debt, or any part thereof, to the Obligations might be terminated, impaired or adversely affected;
or (e) omit to give the Agent prompt notice of any notice received from any holder of Subordinated
Debt, or any trustee therefor, or of any default under any agreement or instrument relating to any
Subordinated Debt by reason whereof such Subordinated Debt might become or be declared to be due or
payable.
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SS. Investments. No Borrower will acquire for value, make, have or hold any
Investments, except:
1. Investments existing on the date of this Agreement and described on
Schedule 6.12.
2. Travel advances to management personnel and employees in the ordinary
course of business.
3. Investments in readily marketable direct obligations issued or guaranteed
by the United States or any agency thereof and supported by the full faith and credit of the
United States.
4. Certificates of deposit or bankers’ acceptances issued by any commercial
bank organized under the laws of the United States or any State thereof which has (i)
combined capital and surplus of at least $100,000,000, and (ii) a credit rating with respect
to its unsecured indebtedness from a nationally recognized rating service that is
satisfactory to the Agent.
5. Commercial paper given the highest rating by a nationally recognized
rating service.
6. Repurchase agreements relating to securities issued or guaranteed as to
principal and interest by the United States of America with a term of not more than seven
(7) days; provided all such agreements shall require physical delivery of the
securities securing such repurchase agreement, except those delivered through the Federal
Reserve Book Entry System.
7. Other readily marketable Investments that are reasonably acceptable to the
Agent.
8. Extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale of goods and services in the ordinary course of business.
9. Shares of stock, obligations or other securities received in settlement of
claims arising in the ordinary course of business.
10. Investments outstanding on the date hereof in Subsidiaries by the
Borrowers, and additional Investments in Borrowers in an amount not to exceed $1,000,000 in
the aggregate.
11. Unsecured loans made from time to time from one Borrower to another
Borrower; provided, that in no event shall the aggregate amount of loans outstanding
from the Borrowers to APC exceed $1,000,000 at any one time.
12. Permitted Acquisitions.
13. Any other Investments if the aggregate consideration therefor does not
exceed $3,000,000.
Any Investments under clauses (c), (d), (e) or (f) above must mature within one year of the
acquisition thereof by such Borrower.
TT. Indebtedness. The Borrowers will not incur, create, issue, assume or suffer to
exist any Indebtedness, except:
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1. The Obligations.
2. Current Liabilities, other than for borrowed money, incurred in the
ordinary course of business.
3. Indebtedness existing on the date of this Agreement and disclosed on
Schedule 6.13 hereto, but not including any extension or refinancing thereof.
4. Indebtedness secured by Liens permitted under UU hereof, not to exceed
$1,000,000 in the aggregate in any fiscal year.
5. Indebtedness, including that under Acquisition Services Agreements,
incurred as seller financing of Permitted Acquisitions, provided, that rates of interest on
such Indebtedness shall not exceed the rates applicable to Prime Rate Advances by more than
2.00% per annum (including deferred interest).
6. Indebtedness consisting of endorsements for collection, deposit or
negotiation and warranties of products or services, in each case incurred in the ordinary
course of business.
7. The Rate Protection Obligations.
8. Unsecured loans made from one Borrower to another Borrower;
provided, that in no event shall the aggregate amount of loans outstanding from the
Borrowers to APC $1,000,000 at any one time.
9. Unsecured Indebtedness not in excess of $1,000,000 at any one time
outstanding.
UU. Liens. No Borrower will create, incur, assume or suffer to exist any Lien, or
enter into, or make any commitment to enter into, any arrangement for the acquisition of any
property through conditional sale, lease-purchase or other title retention agreements, with respect
to any property now owned or hereafter acquired by the Borrower, except:
1. Liens granted to the Agent and the Banks under the Security Documents to
secure the Obligations.
2. Liens existing on the date of this Agreement and disclosed on Schedule
6.14 hereto.
3. Deposits or pledges to secure payment of workers’ compensation,
unemployment insurance, old age pensions or other social security obligations, in the
ordinary course of business of the Borrower.
4. Liens for taxes, fees, assessments and governmental charges not delinquent
or to the extent that payment therefor shall not at the time be required to be made in
accordance with the provisions of Z.
5. Liens of carriers, warehousemen, mechanics and materialmen, and other like
Liens arising in the ordinary course of business, for sums not due or to the extent that
payment therefor shall not at the time be required to be made in accordance with the
provisions of Z.
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6. Liens incurred or deposits or pledges made or given in connection with, or
to secure payment of, indemnity, performance or other similar bonds.
7. Liens arising solely by virtue of any statutory or common law provision
relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution; provided
that (i) such deposit account is not a dedicated cash collateral account and is not
subject to restriction against access by a Borrower in excess of those set forth by
regulations promulgated by the Board, and (ii) such deposit account is not intended by the
Borrower to provide collateral to the depository institution.
8. Encumbrances in the nature of zoning restrictions, easements and rights or
restrictions of record on the use of real property and landlord’s Liens under leases on the
premises rented, which do not materially detract from the value of such property or impair
the use thereof in the business of a Borrower.
9. The interest of any lessor under any Capitalized Lease entered into after
the Closing Date or purchase money Liens on property acquired after the Closing Date;
provided, that, (i) the Indebtedness secured thereby is otherwise permitted
by this Agreement and (ii) such Liens are limited to the property acquired and do not secure
Indebtedness other than the related Capitalized Lease Obligations or the purchase price of
such property.
VV. Contingent Liabilities. No Borrower will: (i) other than guarantees of
obligations of other Borrowers, and Contingent Obligations for the benefit of the Banks or any Rate
Protection Provider, endorse, guarantee, contingently agree to purchase or to provide funds for the
payment of, or otherwise become contingently liable upon, any obligation of any other Person,
except by the endorsement of negotiable instruments for deposit or collection (or similar
transactions) in the ordinary course of business, (ii) agree to maintain the net worth or working
capital of, or provide funds to satisfy any other financial test applicable to, any other Person,
or (iii) enter into or be a party to any contract for the purchase or lease of materials, supplies
or other property or services if such contract requires that payment be made by it regardless of
whether or not delivery is ever made of such materials, supplies or other property or services;
except Contingent Obligations existing on the date of this Agreement and described on Schedule 6.15
and Contingent Obligations for the benefit of the Banks.
WW. [Intentionally Omitted].
XX. Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed Charge
Coverage Ratio, as of the last day of any fiscal quarter for the four consecutive fiscal quarters
ending on that date, to be less than 1.20 to 1.00.
YY. Senior Leverage Ratio. Commencing with the fiscal quarter ending March 31,
2006, the Borrowers will not permit the Senior Leverage Ratio, as of the last day of any fiscal
quarter, to be more than the ratios specified for the periods specified below:
Maximum Senior | ||
Period | Leverage Ratio | |
Closing Date through December 30, 2006
|
4.50 to 1.00 | |
December 31, 2006 through December 30, 2007
|
4.00 to 1.00 | |
December 31, 2007 through December 30, 2008
|
3.75 to 1.00 | |
December 31, 2008 through Term Loan
Termination Date
|
3.50 to 1.00 |
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ZZ. Loan Proceeds. No Borrower will use any part of the proceeds of any Loan or
Advances directly or indirectly, and whether immediately, incidentally or ultimately, (a) to
purchase or carry margin stock (as defined in Regulation U of the Board) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally
incurred for such purpose or (b) for any purpose which entails a violation of, or which is
inconsistent with, the provisions of Regulations U or X of the Board.
AAA. Sale and Leaseback Transactions. No Borrower will enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or personal, and
thereafter lease such property for the same or a substantially similar purpose or purposes as the
property sold or transferred.
BBB. Hedging Agreements. No Borrower will enter into any hedging arrangements other
than with a Rate Protection Provider.
EVENTS OF DEFAULT AND REMEDIES
CCC. Events of Default. The occurrence of any one or more of the following events
shall constitute an Event of Default:
1. The Borrowers shall fail to make when due, whether by acceleration or
otherwise, any payment of interest on the Note, any fee or other amount required to be made
to the Agent, the LC Bank or any Bank pursuant to the Loan Documents or any payment on any
Rate Protection Obligation, and such failure shall continue for five (5) or more days, or
the Borrowers shall fail to make when due, whether by acceleration or otherwise, any payment
of principal on the Note.
2. Any representation or warranty made by or on behalf of any Borrower in
this Agreement or any other Loan Document or by or on behalf of any Borrower in any
certificate, statement, report or document herewith or hereafter furnished to any Bank, the
LC Bank or the Agent pursuant to this Agreement or any other Loan Document shall prove to
have been false or misleading in any material respect on the date as of which the facts set
forth are stated or certified.
3. Any Borrower shall fail to comply with Sections 5.2 or 5.3 hereof or any
Section of Article VI hereof.
4. Any Borrower shall fail to comply with any other agreement, covenant,
condition, provision or term contained in this Agreement (other than those hereinabove set
forth in this Section 7.1) and such failure to comply shall continue for 30 calendar days
after whichever of the following dates is the earliest: (i) the date any Borrower or the
Borrowers’ Agent gives notice of such failure to the Banks, (ii) the date any Borrower
should have given notice of such failure to the Agent pursuant to Section 5.1, or (iii) the
date the Agent or any Bank gives notice of such failure to the Borrower.
5. Any default (however denominated or defined) shall occur under any
Security Document.
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6. Any Borrower shall become insolvent or shall generally not pay its debts
as they mature or shall apply for, shall consent to, or shall acquiesce in the appointment
of a custodian, trustee or receiver of such Borrower or for a substantial part of the
property thereof or, in the absence of such application, consent or acquiescence, a
custodian, trustee or receiver shall be appointed for any Borrower or for a substantial part
of the property thereof and shall not be discharged within 30 days, or any Borrower shall
make an assignment for the benefit of creditors.
7. Any bankruptcy, reorganization, debt arrangement or other proceedings
under any bankruptcy or insolvency law shall be instituted by or against any Borrower, and,
if instituted against any Borrower, shall have been consented to or acquiesced in by such
Borrower, or shall remain undismissed for 30 days, or an order for relief shall have been
entered against such Borrower.
8. Any dissolution or liquidation proceeding not permitted by Section 6.1
shall be instituted by or against any Borrower, and, if instituted against any Borrower,
shall be consented to or acquiesced in by such Borrower or shall remain for 30 days
undismissed.
9. A judgment or judgments for the payment of money in excess of the sum of
$200,000 in the aggregate shall be rendered against any Borrower and either (i) the judgment
creditor executes on such judgment or (ii) such judgment remains unpaid or undischarged for
more than 30 days from the date of entry thereof or such longer period during which
execution of such judgment shall be stayed during an appeal from such judgment.
10. The maturity of any material Indebtedness of any Borrower (other than
Indebtedness under this Agreement) shall be accelerated, or any Borrower shall fail to pay
any such material Indebtedness when due (after the lapse of any applicable grace period) or,
in the case of such Indebtedness payable on demand, when demanded (after the lapse of any
applicable grace period), or any event shall occur or condition shall exist and shall
continue for more than the period of grace, if any, applicable thereto and shall have the
effect of causing, or permitting the holder of any such Indebtedness or any trustee or other
Person acting on behalf of such holder to cause, such material Indebtedness to become due
prior to its stated maturity or to realize upon any collateral given as security therefor.
For purposes of this Section, Indebtedness of any Borrower shall be deemed “material” if it
exceeds $200,000 as to any item of Indebtedness or in the aggregate for all items of
Indebtedness with respect to which any of the events described in this Section 7.110 has
occurred.
11. Any execution or attachment shall be issued whereby any substantial part
of the property of any Borrower shall be taken or attempted to be taken and the same shall
not have been vacated or stayed within 30 days after the issuance thereof.
12. Any Security Document shall, at any time, cease to be in full force and
effect or shall be judicially declared null and void, or the validity or enforceability
thereof shall be contested by any Borrower, or the Agent or the Banks shall cease to have a
valid and perfected first priority security interest in any of the collateral described
therein.
13. Any Change of Control shall occur.
14. The Borrowers fail to the deliver to the Agent (i) within 15 days of the
Closing Date, the audited financial results of APC for the fiscal years ended December 31,
2003 and December 31, 2004, or (ii) on or before April 30, 2006, the audited financial
results of APC for
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the fiscal year ended December 31, 2005, or there is a material change in such audited
financial results compared to the preliminary audited financial results for such fiscal
years delivered to the Agent pursuant to Section 3.1(a)(vii).
15. A Triggering Event described in Section 7A(i) and (ii) of the Series B&C
Certificate has occurred and has not been cured (or waived in writing in accordance with the
terms of the Series B&C Certificate) within 365 days.
DDD. Remedies. If (a) any Event of Default described in Sections 7.1 (f), (g) or
(h) shall occur with respect to any Borrower, the Commitments shall automatically terminate and the
Notes and all other Obligations shall automatically become immediately due and payable, and the
Borrowers shall without demand pay into the Holding Account an amount equal to the aggregate face
amount of all outstanding Letters of Credit; or (b) any other Event of Default shall occur and be
continuing, then, upon receipt by the Agent of a request in writing from the Majority Banks, the
Agent shall take any of the following actions so requested: (i) declare the Commitments
terminated, whereupon the Commitments shall immediately terminate, (ii) declare the outstanding
unpaid principal balance of the Notes, the accrued and unpaid interest thereon and all other
Obligations to be forthwith due and payable, whereupon the Notes, all accrued and unpaid interest
thereon and all such Obligations shall immediately become due and payable, in each case without
presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived,
anything in this Agreement or in the Notes to the contrary notwithstanding, and (iii) demand that
the Borrowers pay into the Holding Account an amount equal to the aggregate face amount of all
outstanding Letters of Credit. Upon the occurrence of any of the events described in clause (a) of
the preceding sentence, or upon the occurrence of any of the events described in clause (b) of the
preceding sentence when so requested by the Majority Banks, the Agent may exercise all rights and
remedies under any of the Loan Documents, and enforce all rights and remedies under any applicable
law.
o Offset. In addition to the remedies set forth in Section 7.2, upon the
occurrence of any Event of Default and thereafter while the same be continuing, each Borrower
hereby irrevocably authorizes each Bank to set off any Obligations owed to such Bank against all
deposits and credits of such Borrower with, and any and all claims of such Borrower against, such
Bank. Such right shall exist whether or not such Bank shall have made any demand hereunder or
under any other Loan Document, whether or not the Obligations, or any part thereof, or deposits and
credits held for the account of the Borrowers is or are matured or unmatured, and regardless of the
existence or adequacy of any collateral, guaranty or any other security, right or remedy available
to such Bank or the Banks. Each Bank agrees that, as promptly as is reasonably possible after the
exercise of any such setoff right, it shall notify the Borrowers’ Agent of its exercise of such
setoff right; provided, however, that the failure of any Bank to provide such notice shall not
affect the validity of the exercise of such setoff rights. Nothing in this Agreement shall be
deemed a waiver or prohibition of or restriction on any Bank to all rights of banker’s Lien, setoff
and counterclaim available pursuant to law.
XLII.
THE AGENT
THE AGENT
The following provisions shall govern the relationship of the Agent with the Banks.
A. Appointment and Authorization. Each Bank appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such respective powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. Neither the Agent nor any of its directors, officers or employees
shall be liable for any action taken or omitted to be taken by it under or in connection with the
Loan Documents, except for any such Person’s own gross negligence or willful misconduct. The Agent
shall act as an
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independent contractor in performing its obligations as Agent hereunder. The duties of the Agent
shall be mechanical and administrative in nature, and nothing herein contained shall be deemed to
create any fiduciary relationship among or between the Agent, any Borrower or the Banks.
B. Note Holders. The Agent may treat the payee of any Note as the holder thereof
until written notice of transfer shall have been filed with it, signed by such payee and in form
satisfactory to the Agent.
C. Consultation With Counsel. The Agent may consult with legal counsel selected by
it and shall not be liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
D. Loan Documents. The Agent shall not be responsible to any Bank for any recitals,
statements, representations or warranties in any Loan Document or be under a duty to examine or
pass upon the validity, effectiveness, genuineness or value of any of the Loan Documents or any
other instrument or document furnished pursuant thereto, and the Agent shall be entitled to assume
that the same are valid, effective and genuine and what they purport to be.
E. USBNA and Affiliates. With respect to its Commitments and the Loans made by it,
USBNA shall have the same rights and powers under the Loan Documents as any other Bank and may
exercise the same as though it were not the Agent consistent with the terms thereof, and USBNA and
its Affiliates may accept deposits from, lend money to and generally engage in any kind of business
with the Borrowers as if it were not the Agent.
F. Action by Agent. Except as may otherwise be expressly stated in this Agreement,
the Agent shall be entitled to use its discretion with respect to exercising or refraining from
exercising any rights which may be vested in it by, or with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect of, the Loan
Documents. The Agent shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the Majority Banks, and
such instructions shall be binding upon all holders of Notes; provided, however, that the Agent
shall not be required to take any action which exposes the Agent to personal liability or which is
contrary to the Loan Documents or applicable law. The Agent shall incur no liability under or in
respect of any of the Loan Documents by acting upon any notice, consent, certificate, warranty or
other paper or instrument believed by it to be genuine or authentic or to be signed by the proper
party or parties and to be consistent with the terms of this Agreement.
G. Credit Analysis. Each Bank has made, and shall continue to make, its own
independent investigation or evaluation of the operations, business, property and condition,
financial and otherwise, of any Borrower in connection with entering into this Agreement and has
made its own appraisal of the creditworthiness of each Borrower. Except as explicitly provided
herein, the Agent has no duty or responsibility, either initially or on a continuing basis, to
provide any Bank with any credit or other information with respect to such operations, business,
property, condition or creditworthiness, whether such information comes into its possession on or
before the first Event of Default or at any time thereafter.
H. Notices of Event of Default, Etc. In the event that the Agent shall have
acquired actual knowledge of any Event of Default or Default, the Agent shall promptly give notice
thereof to the Banks. The Agent shall not be deemed to have knowledge or notice of any Default or
Event of Default, except with respect to actual defaults in the payment of principal, interest and
fees required to be paid to the Agent for its own account or for the account of the Banks, unless
the Agent shall have received
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written notice from a Bank or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of default”.
I. Indemnification. Each Bank agrees to indemnify the Agent, as Agent (to the
extent not reimbursed by the Borrowers), ratably according to such Bank’s share of the aggregate
Commitments from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on or incurred by the Agent in any way relating to or arising out of the Loan
Documents or any action taken or omitted by the Agent under the Loan Documents, provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s or any of
its director’s, officer’s or employee’s gross negligence or willful misconduct. No payment by any
Bank under this Section shall relieve any Borrower of any of its obligations under this Agreement.
J. Payments and Collections. All funds received by the Agent in respect of any
payments made by any Borrower on the Term Notes shall be distributed promptly on the date of
receipt thereof by the Agent among the Banks, in like currency and funds as received, ratably
according to each Bank’s Term Loan Percentage. All funds received by the Agent in respect of any
payments made by any Borrower on the Revolving Notes, Revolving Commitment Fees or Letter of Credit
Fees shall be distributed promptly on the date of receipt thereof by the Agent among the Banks, in
like currency and funds as received, ratably according to each Bank’s Revolving Percentage. After
any Event of Default has occurred, all funds received by the Agent, whether as payments by the
Borrowers or as realization on collateral or on any guaranties, shall (except as may otherwise be
required by law) be distributed by the Agent in the following order: (a) first to the Agent or any
Bank that has incurred unreimbursed costs of collection with respect to any Obligations hereunder,
ratably to the Agent and each Bank in the proportion that the costs incurred by the Agent or such
Bank bear to the total of all such costs incurred by the Agent and all Banks; (b) next to the Agent
for the pro rata account of (i) the Banks (in accordance with their respective Total Percentages)
for application on the Notes and (ii) the Rate Protection Providers (in accordance with their
outstanding and owed Rate Protection Obligations) for application on the Rate Protection
Agreements; (c) next to the Agent for the account of the Banks (in accordance with their respective
Revolving Percentages) for any unpaid Revolving Commitment Fees or Letter of Credit Fees owing by
the Borrowers hereunder; and (d) last to the Agent to be held in the Holding Account to cover any
outstanding Letters of Credit.
K. Sharing of Payments. If any Bank shall receive and retain any payment, voluntary
or involuntary, whether by setoff, application of deposit balance or security, or otherwise, in
respect of Indebtedness under this Agreement or the Notes in excess of such Bank’s share thereof as
determined under this Agreement, then such Bank shall purchase from the other Banks for cash and at
face value and without recourse, such participation in the Notes held by such other Banks as shall
be necessary to cause such excess payment to be shared ratably as aforesaid with such other Banks;
provided, that if such excess payment or part thereof is thereafter recovered from such purchasing
Bank, the related purchases from the other Banks shall be rescinded ratably and the purchase price
restored as to the portion of such excess payment so recovered, but without interest. Subject to
the participation purchase obligation above, each Bank agrees to exercise any and all rights of
setoff, counterclaim or banker’s lien first fully against any Notes and participations therein held
by such Bank, next to any other Indebtedness of the Borrowers to such Bank arising under or
pursuant to this Agreement and to any participations held by such Bank in Indebtedness of the
Borrowers arising under or pursuant to this Agreement, and only then to any other Indebtedness of
any Borrower to such Bank.
L. Advice to Banks. The Agent shall promptly forward to the Banks copies of all notices,
financial reports and other communications received hereunder from the Borrowers by it as
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Agent, excluding, however, notices, reports and communications which by the terms hereof are to be
furnished by the Borrowers directly to each Bank.
M. Defaulting Bank.
1. Remedies Against a Defaulting Bank. In addition to the rights and
remedies that may be available to the Agent or the Borrowers’ Agent under this Agreement or
applicable law, if at any time a Bank is a Defaulting Bank such Defaulting Bank’s right to
participate in the administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or to direct
any action or inaction of the Agent or to be taken into account in the calculation of the
Majority Banks, shall be suspended while such Bank remains a Defaulting Bank. If a Bank is
a Defaulting Bank because it has failed to make timely payment to the Agent of any amount
required to be paid to the Agent hereunder (without giving effect to any notice or cure
periods), in addition to other rights and remedies which the Agent or the Borrowers may have
under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to
collect interest from such Defaulting Bank on such delinquent payment for the period from
the date on which the payment was due until the date on which the payment is made at the
overnight Federal Funds rate, (ii) to withhold or setoff and to apply in satisfaction of the
defaulted payment and any related interest, any amounts otherwise payable to such Defaulting
Bank under this Agreement or any other Loan Document until such defaulted payment and
related interest has been paid in full and such default no longer exists and (iii) to bring
an action or suit against such Defaulting Bank in a court of competent jurisdiction to
recover the defaulted amount and any related interest. Any amounts received by the Agent in
respect of a Defaulting Bank’s Loans shall not be paid to such Defaulting Bank and shall be
held uninvested by the Agent and either applied against the purchase price of such Loans
under the following subsection (b) or paid to such Defaulting Bank upon the default of such
Defaulting Bank being cured.
2. Purchase from Defaulting Bank. Any Bank that is not a Defaulting
Bank shall have the right, but not the obligation, in its sole discretion, to acquire all of
a Defaulting Bank’s Commitments. If more than one Bank exercises such right, each such Bank
shall have the right to acquire such proportion of such Defaulting Bank’s Commitments on a
pro rata basis. Upon any such purchase, the Defaulting Bank’s interest in its Loans and its
rights hereunder (but not its liability in respect thereof or under the Loan Documents or
this Agreement to the extent the same relate to the period prior to the effective date of
the purchase) shall terminate on the date of purchase, and the Defaulting Bank shall
promptly execute all documents reasonably requested to surrender and transfer such interest
to the purchaser thereof subject to and in accordance with the requirements set forth in S,
including an Assignment in form acceptable to the Agent. The purchase price for the
Commitments of a Defaulting Bank shall be equal to the amount of the principal balance of
the Loans outstanding and owed by the Borrowers to the Defaulting Bank. The purchaser shall
pay to the Defaulting Bank in Immediately Available Funds on the date of such purchase the
principal of and accrued and unpaid interest and fees on the Loans made by such Defaulting
Bank hereunder (it being understood that such accrued and unpaid interest and fees may be
paid pro rata to the purchasing Bank and the Defaulting Bank by the Agent at a subsequent
date upon receipt of payment of such amounts from the Borrowers). Prior to payment of such
purchase price to a Defaulting Bank, the Agent shall apply against such purchase price any
amounts retained by the Agent pursuant to the last sentence of the immediately preceding
subsection (a). The Defaulting Bank shall be entitled to receive amounts owed to it by the
Borrowers under the Loan Documents which accrued prior to the date of the default by the
Defaulting Bank, to the extent the same are received by the Agent from or on behalf of the
Borrowers. There shall be no recourse against any Bank or the Agent for the payment of such
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sums except to the extent of the receipt of payments from any other party or in respect
of the Loans.
N. Resignation. If at any time USBNA shall deem it advisable, in its sole
discretion, it may submit to each of the Banks and the Borrowers’ Agent a written notification of
its resignation as Agent under this Agreement, such resignation to be effective upon the
appointment of a successor Agent, but in no event later than 30 days from the date of such notice.
Upon submission of such notice, the Majority Banks may appoint a successor Agent. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term “Agent” shall mean such
successor agent, and the retiring Agent’s appointment, powers and duties as Agent shall be
terminated. If no successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Banks appoint a successor agent as provided for
above.
MISCELLANEOUS
O. Modifications. Notwithstanding any provisions to the contrary herein, any term
of this Agreement may be amended with the written consent of the Borrowers’ Agent; provided that no
amendment, modification or waiver of any provision of this Agreement or consent to any departure by
any Borrower therefrom shall in any event be effective unless the same shall be in writing and
signed by the Majority Banks, and then such amendment, modification, waiver or consent shall be
effective only in the specific instance and for the purpose for which given. (The Agent may enter
into amendments or modifications of, and grant consents and waivers to departure from the
provisions of, those Loan Documents to which the Banks are not signatories without the Banks
joining therein, provided the Agent has first obtained the separate prior written consent to such
amendment, modification, consent or waiver from the Majority Banks.) Notwithstanding the forgoing,
no such amendment, modification, waiver or consent shall:
a) reduce the rate or extend the time of payment of interest on any
Loan, or reduce the amount of the principal thereof, or modify any of the provisions
of any Note with respect to the payment or repayment thereof, without the consent of
all the Banks; or
b) increase the amount or extend the time of any Commitment of any
Bank, without the consent of all the Banks; or
c) reduce the rate or extend the time of payment of any fee payable
to a Bank, without the consent of all the Banks; or
d) except as may otherwise be expressly provided in any of the other
Loan Documents, release any material portion of collateral securing, or any
guaranties for, all or any part of the Obligations without the consent of all the
Banks; or
e) amend or modify the definition of Majority Banks or otherwise
reduce the percentage of the Banks required to approve or effectuate any such
amendment, modification, waiver, or consent, without the consent of all the Banks;
or
f) amend, modify or waive any of the foregoing Section 9.1(i) through
Section 9.1(v) or this Section 9.1(vi) without the consent of all the Banks; or
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g) amend, modify or waive any provision of this Agreement relating to
the Agent in its capacity as Agent without the consent of the Agent; or
h) amend or modify clause (f) of the definition of Permitted
Acquisitions without the consent of all of the Banks; or
i) amend or modify any of Sections 2.13(b)(ii), 2.13(b)(iii)(A) or
(B), or Section 2.13(b)(v); or
j) amend, modify or waive any provision of this Agreement relating to
the issuance of Letters of Credit without the consent of the Majority Banks and the
LC Bank.
P. Expenses. Whether or not the transactions contemplated hereby are consummated,
the Borrowers agree to reimburse the Agent upon demand for all reasonable out-of-pocket expenses
paid or incurred by the Agent (including filing and recording costs and fees and expenses of Xxxxxx
& Xxxxxxx LLP, counsel to the Agent) in connection with the syndication, negotiation, preparation,
approval, review, execution, delivery, administration, amendment, modification and interpretation
of this Agreement and the other Loan Documents and any commitment letters relating thereto. The
Borrowers shall also reimburse the Agent and each Bank upon demand for all reasonable out-of-pocket
expenses (including expenses of legal counsel) paid or incurred by the Agent or any Bank in
connection with the collection and enforcement of this Agreement and any other Loan Document. The
obligations of the Borrowers under this Section shall survive any termination of this Agreement.
Q. Waivers, etc. No failure on the part of the Agent or the holder of a Note to
exercise and no delay in exercising any power or right hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of any power or right
preclude any other or further exercise thereof or the exercise of any other power or right. The
remedies herein and in the other Loan Documents provided are cumulative and not exclusive of any
remedies provided by law.
R. Notices. Except when telephonic notice is expressly authorized by this
Agreement, any notice or other communication to any party in connection with this Agreement shall
be in writing and shall be sent by manual delivery, facsimile transmission, overnight courier or
United States mail (postage prepaid) addressed to such party at the address specified on the
signature page hereof, or at such other address as such party shall have specified to the other
party hereto in writing. All periods of notice shall be measured from the date of delivery thereof
if manually delivered, from the date of sending thereof if sent by facsimile transmission, from the
first Business Day after the date of sending if sent by overnight courier, or from four days after
the date of mailing if mailed; provided, however, that any notice to the Agent or any Bank under
Article II hereof shall be deemed to have been given only when received by the Agent or such Bank.
S. Successors and Assigns; Participations; Purchasing Banks.
1. This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Agent, the Banks, all future holders of the Notes, and their respective
successors and assigns, except that the Borrowers may not assign or transfer any of their
rights or obligations under this Agreement without the prior written consent of the Majority
Banks.
2. Any Bank may, in the ordinary course of its commercial banking business
and in accordance with applicable law, at any time sell to one or more banks or other
financial institutions (“Participants”) participating interests in a minimum amount
of $5,000,000 in any
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Revolving Loan or any Term Loan or other Obligation owing to such Bank, any Revolving Note
or any Term Note held by such Bank, and any Commitment of such Bank, or any other interest
of such Bank hereunder. In the event of any such sale by any Bank of participating
interests to a Participant, (i) such Bank’s obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, (ii) such Bank shall remain solely
responsible for the performance thereof, (iii) such Bank shall remain the holder of any such
Revolving Note or any such Term Note for all purposes under this Agreement, (iv) the
Borrowers, the Borrowers’ Agent and the Agent shall continue to deal solely and directly
with such Bank in connection with such Bank’s rights and obligations under this Agreement
and (v) the agreement pursuant to which such Participant acquires its participating interest
herein shall provide that such Bank shall retain the sole right and responsibility to
enforce the Obligations, including, without limitation the right to consent or agree to any
amendment, modification, consent or waiver with respect to this Agreement or any other Loan
Document, provided that such agreement may provide that such Bank will not consent
or agree to any such amendment, modification, consent or waiver without the prior consent of
such Participant; provided, however, that each Participant shall be bound by
Section 9.6 as if it was a Bank. Each Borrower agrees that if amounts outstanding under
this Agreement, the Revolving Notes, the Term Notes and the Loan Documents are due and
unpaid, or shall have been declared or shall have become due and payable upon the occurrence
of an Event of Default, each Participant shall be deemed to have, to the extent permitted by
applicable law, the right of setoff in respect of its participating interest in amounts
owing under this Agreement and any Revolving Note, any Term Note or other Loan Document to
the same extent as if the amount of its participating interest were owing directly to it as
a Bank under this Agreement or any Revolving Note, any Term Note or other Loan Document;
provided, that such right of setoff shall be subject to the obligation of such
Participant to share with the Banks, and the Banks agree to share with such Participant, as
provided in Section 9.11. Each Borrower also agrees that each Participant shall be entitled
to the benefits of Sections W, X, Y and Z (and subject to the provisions of Section 2.29)
with respect to its participation in the Commitments and Loans; provided, that no
Participant shall be entitled to receive any greater amount pursuant to such subsections
than the transferor Bank would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Bank to such Participant had no such transfer
occurred.
3. Each Bank may, from time to time, with the consent of the Agent and the
Borrowers’ Agent (neither of which consents shall be unreasonably withheld or delayed; and
if an Event of Default shall have occurred and be continuing, then consent of the Borrowers’
Agent shall not be required), assign to other lenders (“Assignees”) all or part of
its rights or obligations hereunder or under any Loan Document in a minimum amount of
$5,000,000 evidenced by any Revolving Note then held by that Bank, together with equivalent
proportions of its Revolving Commitment, any Term Note then held by that Bank, its Term Loan
Commitment or Incremental Term Loan Commitment, as applicable, pursuant to written
agreements executed by such assigning Bank, such Assignee(s), the Borrowers and the Agent in
substantially the form of Exhibit C, which agreements shall specify in each instance
the portion of the Obligations evidenced by the Revolving Notes and Term Notes which is to
be assigned to each Assignee and the portion of the Commitments of such Bank to be assumed
by each Assignee (each, an “Assignment Agreement”); provided,
however, that, except in the case of an assignment by a Bank to one of its
Affiliates, the assigning Bank or the Assignee must pay to the Agent a processing and
recordation fee of $3,500 per assignment. Upon the execution of each Assignment Agreement
by the assigning Bank, the relevant Assignee, the Borrowers and the Agent, payment to the
assigning Bank by such Assignee of the purchase price for the portion of the Obligations
being acquired by it and receipt by the Borrowers’ Agent of a copy of the relevant
Assignment Agreement, (x) such Assignee lender shall thereupon become a “Bank” for all
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purposes of this Agreement with a pro rata share of the Commitments in the amount set forth
in such Assignment Agreement and with all the rights, powers and obligations afforded a Bank
under this Agreement, (y) such assigning Bank shall have no further liability for funding
the portion of its Commitment assumed by such Assignee and (z) the address for notices to
such Assignee shall be as specified in the Assignment Agreement executed by it.
Concurrently with the execution and delivery of each Assignment Agreement, the assigning
Bank shall surrender to the Agent the Revolving Note and Term Note a portion of which is
being assigned, and the Borrowers shall execute and deliver a Revolving Note and Term Note
to the Assignee in the amount of its Revolving Commitment, Term Loan Commitment or
Incremental Term Loan Commitment, respectively and as applicable, and a new Revolving Note
and Term Note to the assigning Bank in the amount of its Revolving Commitment, Term Loan
Commitment or Incremental Term Loan Commitment, respectively and as applicable, after giving
effect to the reduction occasioned by such assignment, all such Notes to constitute
“Revolving Notes” and “Term Notes” for all purposes of this Agreement and of the other Loan
Documents.
4. The Borrowers shall not be liable for any costs incurred by any Bank in
effecting any participation or assignment under subparagraph (b) or (c) of this subsection.
5. Each Bank may disclose to any Assignee or Participant and to any
prospective Assignee or Participant any and all financial information in such Bank’s
possession concerning the Borrowers which has been delivered to such Bank by or on behalf of
the Borrowers pursuant to this Agreement or which has been delivered to such Bank by or on
behalf of the Borrowers in connection with such Bank’s credit evaluation of such Borrower
prior to entering into this Agreement, provided that prior to disclosing such
information, such Bank shall first obtain the agreement of such prospective Assignee or
Participant to comply with the provisions of Section T.
6. Notwithstanding any other provision in this Agreement, any Bank may at any
time create a security interest in, or pledge, all or any portion of its rights under and
interest in this Agreement and any note held by it in favor of any federal reserve bank in
accordance with Regulation A of the Board or U. S. Treasury Regulation 31 CFR § 203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law; provided, however, that the creation of such
security interest or pledge shall not by itself relieve such Banks from its obligations
hereunder.
T. Confidentiality of Information. The Agent and each Bank shall use reasonable efforts
to assure that information about the Borrowers and their operations, affairs and financial
condition, not generally disclosed to the public or to trade and other creditors, which is
furnished to or obtained by the Agent or such Bank pursuant to the provisions hereof is used only
for the purposes of this Agreement and any other relationship between such Bank and any Borrower
and shall not be divulged to any Person other than the Banks, their Affiliates and their respective
officers, directors, employees and agents, except: (a) to their attorneys and accountants, (b) in
connection with the enforcement of the rights of the Agent and the Banks hereunder and under the
Loan Documents or otherwise in connection with applicable litigation, (c) in connection with
assignments and participations and the solicitation of prospective assignees and participants
referred to in the immediately preceding Section, (d) if such information is generally available to
the public other than as a result of disclosure by the Agent or any Bank, (e) to any direct or
indirect contractual counterparty in any hedging arrangement or such contractual counterparty’s
professional advisor, (f) to any nationally recognized rating agency that requires information
about any Bank’s investment portfolio in connection with ratings issued with respect to such Bank,
and (g) as may otherwise be required or requested by any regulatory authority having jurisdiction
over the Agent or any Bank or by any applicable law, rule, regulation or judicial process, the
opinion of any Bank’s counsel
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concerning the making of such disclosure to be binding on the parties hereto. No Bank shall incur
any liability to the Borrowers by reason of any disclosure permitted by this Section.
Notwithstanding anything herein to the contrary, confidential information shall not include, and
the Agent and each Bank may disclose to any and all Persons, without limitation of any kind, any
information with respect to the “tax treatment” and “tax structure” (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are provided to the Agent or
such Bank relating to such tax treatment and tax structure; provided that with respect to any
document or similar item that in either case contains information concerning the tax treatment or
tax structure of the transaction as well as other information, this sentence shall only apply to
such portions of the document or similar item that related to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby.
U. Governing Law and Construction. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT
GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE
UNITED STATES APPLICABLE TO NATIONAL BANKS. Whenever possible, each provision of this Agreement
and the other Loan Documents and any other statement, instrument or transaction contemplated
hereby or thereby or relating hereto or thereto shall be interpreted in such manner as to be
effective and valid under such applicable law, but, if any provision of this Agreement, the other
Loan Documents or any other statement, instrument or transaction contemplated hereby or thereby or
relating hereto or thereto shall be held to be prohibited or invalid under such applicable law,
such provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement, the
other Loan Documents or any other statement, instrument or transaction contemplated hereby or
thereby or relating hereto or thereto.
V. Consent to Jurisdiction. AT THE OPTION OF THE AGENT, THIS AGREEMENT AND THE
OTHER BORROWER LOAN DOCUMENTS MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING
IN HENNEPIN COUNTY; AND EACH BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND
WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ANY BORROWER
COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING
DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE AGENT AT ITS OPTION
SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES
ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE
DISMISSED WITHOUT PREJUDICE.
W. Waiver of Jury Trial. EACH BORROWER, THE AGENT AND EACH BANK IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
X. Survival of Agreement. All representations, warranties, covenants and agreement
made by each Borrower herein or in the other Borrower Loan Documents and in the certificates or
other instruments prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be deemed to have been relied upon by the Banks and shall survive the
making of the Loans by the Banks and the execution and delivery to the Banks by the Borrowers of
the Notes, regardless of any investigation made by or on behalf
of the Banks, and shall continue in full force and effect as long as any Obligation is
outstanding and unpaid and so long as the Commitments have not been
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terminated; provided, however, that the obligations of the Borrowers under Sections P, and Y shall
survive payment in full of the Obligations and the termination of the Commitments.
Y. Indemnification. The Borrowers hereby agree to defend, protect, indemnify and hold
harmless the Agent, the Banks and their respective Affiliates and the directors, officers,
employees, attorneys and agents of the Agent, the Banks and their respective Affiliates (each of
the foregoing being an “Indemnitee” and all of the foregoing being collectively the “Indemnitees”)
from and against any and all claims, actions, damages, liabilities, judgments, costs and expenses
(including all reasonable fees and disbursements of counsel which may be incurred in the
investigation or defense of any matter) imposed upon, incurred by or asserted against any
Indemnitee, whether direct, indirect or consequential and whether based on any federal, state,
local or foreign laws or regulations (including securities laws, environmental laws, commercial
laws and regulations), under common law or on equitable cause, or on contract or otherwise:
1. by reason of, relating to or in connection with the execution, delivery,
performance or enforcement of any Loan Document, any commitments relating thereto, or any
transaction contemplated by any Loan Document; or
2. by reason of, relating to or in connection with any credit extended or
used under the Loan Documents or any act done or omitted by any Person, or the exercise of
any rights or remedies thereunder, including the acquisition of any collateral by the Banks
by way of foreclosure of the Lien thereon, deed or xxxx of sale in lieu of such foreclosure
or otherwise;
provided, however, that the Borrowers shall not be liable to any Indemnitee for any
portion of such claims, damages, liabilities and expenses resulting from such Indemnitee’s (or any
of such Indemnitee’s directors’, officers’, employees’, attorneys’ or agents’) gross negligence or
willful misconduct. In the event this indemnity is unenforceable as a matter of law as to a
particular matter or consequence referred to herein, it shall be enforceable to the full extent
permitted by law.
This indemnification applies, without limitation, to any act, omission, event or circumstance
existing or occurring on or prior to the later of the Term Loan Termination Date or the date of
payment in full of the Obligations, including specifically Obligations arising under clause (b) of
this Section. The indemnification provisions set forth above shall be in addition to any liability
the Borrowers may otherwise have. Without prejudice to the survival of any other obligation of the
Borrowers hereunder the indemnities and obligations of the Borrowers contained in this Section
shall survive the payment in full of the other Obligations.
Z. Captions. The captions or headings herein and any table of contents hereto are
for convenience only and in no way define, limit or describe the scope or intent of any provision
of this Agreement.
AA. Entire Agreement. This Agreement and the other Borrower Loan Documents embody
the entire agreement and understanding between the Borrowers, the Agent and the Banks with respect
to the subject matter hereof and thereof. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof (including, without limitation, any term sheet
relating to the financing provided herein). Nothing contained in this Agreement or in any other
Loan Document, expressed or implied, is intended to confer upon any Persons other than the parties
hereto any rights, remedies, obligations or liabilities hereunder or thereunder.
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BB. Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of the parties hereto
may execute this Agreement by signing any such counterpart.
CC. Borrower Acknowledgements. Each Borrower hereby acknowledges that (a) it has been
advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan
Documents, (b) neither the Agent nor any Bank has any fiduciary relationship to such Borrower, the
relationship being solely that of debtor and creditor, (c) no joint venture exists between such
Borrower and the Agent or any Bank, and (d) neither the Agent nor any Bank undertakes any
responsibility to such Borrower to review or inform such Borrower of any matter in connection with
any phase of the business or operations of such Borrower and such Borrower shall rely entirely upon
its own judgment with respect to its business, and any review, inspection or supervision of, or
information supplied to, the Borrowers by the Agent or any Bank is for the protection of the Banks
and neither such Borrower nor any third party is entitled to rely thereon.
DD. Appointment of and Acceptance by Borrowers’ Agent. Each Borrower hereby appoints and
authorizes the Borrowers’ Agent to take such action as its agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Borrowers’ Agent by the terms thereof,
together with such power that are reasonably incidental thereto, and Xxxxx Media Company hereby
accepts such appointment.
EE. Automatic Debit of Fees. Each Borrower hereby authorizes the Agent to automatically
debit any operating account held by such Borrower at USBNA for any interest, fees or charges due
and payable by any Borrower from time to time hereunder or any other Loan Document.
FF. Relationship Among Borrowers.
1. JOINT AND SEVERAL LIABILITY. EACH BORROWER AGREES THAT IT IS
LIABLE, JOINTLY AND SEVERALLY WITH EACH OTHER BORROWER, FOR THE PAYMENT OF ALL OBLIGATIONS
OF THE BORROWERS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THAT THE BANKS AND
THE AGENT CAN ENFORCE SUCH OBLIGATIONS AGAINST ANY OR ALL BORROWERS, IN THE BANKS’ AND THE
AGENT’S SOLE AND UNLIMITED DISCRETION.
2. Waivers of Defenses. The obligations of the Borrowers hereunder
shall not be released, in whole or in part, by any action or thing which might, but for this
provision of this Agreement, be deemed a legal or equitable discharge of a surety or
guarantor, other than irrevocable payment and performance in full of the Obligations (except
for contingent indemnity and other contingent Obligations not yet due and payable) at a time
after any obligation of the Banks hereunder to make the Term Loans and Revolving Loans and
of the Agent to issue Letters of Credit shall have expired or been terminated and all
outstanding Letters of Credit shall have expired or the liability of the Agent thereon shall
have otherwise been discharged. The purpose and intent of this Agreement is that the
Obligations constitute the direct and primary obligations of each Borrower and that the
covenants, agreements and all obligations of each Borrower hereunder be absolute,
unconditional and irrevocable. Each Borrower shall be and remain liable for any deficiency
remaining after foreclosure of any mortgage, deed of trust or security agreement securing
all or any part of the Obligations, whether or not the liability of any other Person for
such deficiency is discharged pursuant to statute, judicial decision or otherwise.
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3. Other Transactions. The Banks and the Agent are expressly
authorized to exchange, surrender or release with or without consideration any or all
collateral and security which may at any time be placed with it by the Borrowers or by any
other Person on behalf of the Borrowers, or to forward or deliver any or all such collateral
and security directly to the Borrowers for collection and remittance or for credit. No
invalidity, irregularity or unenforceability of any security for the Obligations or other
recourse with respect thereto shall affect, impair or be a defense to the Borrowers’
obligations under this Agreement. The liabilities of each Borrower hereunder shall not be
affected or impaired by any failure, delay, neglect or omission on the part of any Bank or
the Agent to realize upon any of the Obligations of any other Borrower to the Banks or the
Agent, or upon any collateral or security for any or all of the Obligations, nor by the
taking by any Bank or the Agent of (or the failure to take) any guaranty or guaranties to
secure the Obligations, nor by the taking by any Bank or the Agent of (or the failure to
take or the failure to perfect its security interest in or other lien on) collateral or
security of any kind. No act or omission of any Bank or the Agent, whether or not such
action or failure to act varies or increases the risk of, or affects the rights or remedies
of a Borrower, shall affect or impair the obligations of the Borrowers hereunder.
4. Actions Not Required. Each Borrower, to the extent permitted by
applicable law, hereby waives any and all right to cause a marshaling of the assets of any
other Borrower or any other action by any court or other governmental body with respect
thereto or to cause any Bank or the Agent to proceed against any security for the
Obligations or any other recourse which any Bank or the Agent may have with respect thereto
and further waives any and all requirements that any Bank or the Agent institute any action
or proceeding at law or in equity, or obtain any judgment, against any other Borrower or any
other Person, or with respect to any collateral security for the Obligations, as a condition
precedent to making demand on or bringing an action or obtaining and/or enforcing a
judgment against, such Borrower under this Agreement.
5. No Subrogation. Notwithstanding any payment or payments made by
any Borrower hereunder or any setoff or application of funds of any Borrower by any Bank or
the Agent, such Borrower shall not be entitled to be subrogated to any of the rights of any
Bank or the Agent against any other Borrower or any other guarantor or any collateral
security or guaranty or right of offset held by any Bank or the Agent for the payment of the
Obligations, nor shall such Borrower seek or be entitled to seek any contribution or
reimbursement from any other Borrower or any other guarantor in respect of payments made by
such Borrower hereunder, until all amounts owing to the Banks and the Agent by the Borrowers
on account of the Obligations are irrevocably paid in full. If any amount shall be paid to
a Borrower on account of such subrogation rights at any time when all of the Obligations
shall not have been irrevocably paid in full, such amount shall be held by that Borrower in
trust for the Banks and the Agent, segregated from other funds of that Borrower, and shall,
forthwith upon receipt by the Borrower, be turned over to the Agent in the exact form
received by the Borrower (duly indorsed by the Borrower to the Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as the Agent
may determine.
6. Application of Payments. Any and all payments upon the
Obligations made by the Borrowers or by any other Person, and/or the proceeds of any or all
collateral or security for any of the Obligations, may be applied by the Banks on such items
of the Obligations as the Banks may elect.
7. Recovery of Payment. If any payment received by the Banks or the
Agent and applied to the Obligations is subsequently set aside, recovered, rescinded or
required to be returned for any reason (including, without limitation, the bankruptcy,
insolvency or
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reorganization of a Borrower or any other obligor), the Obligations to which such payment
was applied shall, to the extent permitted by applicable law, be deemed to have continued in
existence, notwithstanding such application, and each Borrower shall be jointly and
severally liable for such Obligations as fully as if such application had never been made.
References in this Agreement to amounts “irrevocably paid” or to “irrevocable payment” refer
to payments that cannot be set aside, recovered, rescinded or required to be returned for
any reason.
8. Borrowers’ Financial Condition. Each Borrower is familiar with
the financial condition of the other Borrowers, and each Borrower has executed and delivered
this Agreement based on that Borrower’s own judgment and not in reliance upon any statement
or representation of the Banks or the Agent. The Banks and the Agent shall have no
obligation to provide any Borrower with any advice whatsoever or to inform any Borrower at
any time of any Bank’s actions, evaluations or conclusions on the financial condition or any
other matter concerning the Borrowers.
9. Bankruptcy of the Borrowers. Each Borrower expressly agrees that,
to the extent permitted by applicable law, the liabilities and obligations of that Borrower
under this Agreement shall not in any way be impaired or otherwise affected by the
institution by or against any other Borrower or any other Person of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or any other similar
proceedings for relief under any bankruptcy law or similar law for the relief of debtors and
that any discharge of any of the Obligations pursuant to any such bankruptcy or similar law
or other law shall not diminish, discharge or otherwise affect in any way the obligations of
that Borrower under this Agreement, and that upon the institution of any of the above
actions, such obligations shall be enforceable against that Borrower.
10. Limitation; Insolvency Laws. As used in this Section 9.18(j):
(a) the term “Applicable Insolvency Laws” means the laws of the United States of America or
of any State, province, nation or other governmental unit relating to bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution,
insolvency, fraudulent transfers or conveyances or other similar laws (including, without
limitation, 11 U. S. C. §547, §548, §550 and other “avoidance” provisions of Title 11 of the
United Stated Code) as applicable in any proceeding in which the validity and/or
enforceability of this Agreement against any Borrower, or any Specified Lien is in issue;
and (b) “Specified Lien” means any security interest, mortgage, lien or encumbrance granted
by any Borrower securing the Obligations, in whole or in part. Notwithstanding any other
provision of this Agreement, if, in any proceeding, a court of competent jurisdiction
determines that with respect to any Borrower, this Agreement or any Specified Lien would,
but for the operation of this Section, be subject to avoidance and/or recovery or be
unenforceable by reason of Applicable Insolvency Laws, this Agreement and each such
Specified Lien shall be valid and enforceable against such Borrower, only to the maximum
extent that would not cause this Agreement or such Specified Lien to be subject to
avoidance, recovery or unenforceability. To the extent that any payment to, or realization
by, the Banks or the Agent on the Obligations exceeds the limitations of this Section and is
otherwise subject to avoidance and recovery in any such proceeding, the amount subject to
avoidance shall in all events be limited to the amount by which such actual payment or
realization exceeds such limitation, and this Agreement as limited shall in all events
remain in full force and effect and be fully enforceable against such Borrower. This
Section is intended solely to reserve the rights of the Banks and the Agent hereunder
against each Borrower, in such proceeding to the maximum extent permitted by Applicable
Insolvency Laws and neither the Borrowers, any guarantor of the Obligations nor any other
Person shall have any right, claim or defense under this Section that would not otherwise be
available under Applicable Insolvency Laws in such proceeding.
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GG. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with all fees, charges and other amounts
that are treated as interest on such Loan under applicable law (collectively, the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by the Bank holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Bank in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of repayment, shall have been received by such Bank.
HH. Effect of Existing Credit Agreement and Existing Security Documents.
1. Existing Credit Agreement. This Agreement amends and restates the
Existing Credit Agreement in its entirety, provided that the obligations of the Borrowers
incurred under the Existing Credit Agreement shall continue under this Agreement, and shall
not in any circumstances be terminated, extinguished or discharged hereby or thereby but
shall hereafter be governed by the terms of this Agreement.
2. Existing Security Documents. The Obligations hereunder are and
continue to be secured by the security interest granted by the Borrowers in favor of the
Agent and the Banks under the Existing Security Documents, and all terms, conditions,
provisions, agreements, requirements, premises, obligations, duties, covenants and
representations of the Borrowers under such documents are hereby ratified and affirmed in
all respects.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first above written.
XXXXX MEDIA COMPANY, as a Borrower and as Borrowers’ Agent |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Xxxxx Xxxxxx | ||||
Executive Vice President and Chief Financial Officer |
||||
XXXXX FINANCE COMPANY XXXXX PUBLISHING COMPANY XXXXX PUBLISHING FINANCE COMPANY XXXXX X. XXXXXX & ASSOCIATES, INC. LONG ISLAND COMMERCIAL REVIEW, INC. DAILY JOURNAL OF COMMERCE, INC. LAWYER’S WEEKLY, INC. LEGAL LEDGER, INC. THE JOURNAL RECORD PUBLISHING CO. DAILY REPORTER PUBLISHING COMPANY NEW ORLEANS PUBLISHING GROUP, INC. NOPG, L.L.C. WISCONSIN PUBLISHING COMPANY LEGAL COM OF DELAWARE, INC. LEGAL COMMUNICATIONS CORPORATION THE DAILY RECORD COMPANY IDAHO BUSINESS REVIEW, INC. FINANCE AND COMMERCE, INC. COUNSEL PRESS, LLC ARIZONA NEWS SERVICE, LLC XXXXX DLN, LLC XXXXX APC LLC |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Xxxxx Xxxxxx | ||||
Vice President | ||||
Address for all Borrowers
for purposes of notice:
1200 Xxxxx Building
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
for purposes of notice:
1200 Xxxxx Building
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
S-1
Commitment Amount | ||||||||
Revolving | Term | |||||||
$ | 11,250,000 | $ | 63,750,000 |
U.S. BANK NATIONAL ASSOCIATION, as Agent and as a Bank |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Xxxxxxx X. Xxxxxxx, | ||||
Senior Vice President | ||||
Address:
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx (BC-MN-HO3P)
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx (BC-MN-HO3P)
Commitment Amount | ||||||||
Revolving | Term | |||||||
$ | 3,750,000 | $ | 21,250,000 |
LASALLE BANK NATIONAL ASSOCIATION, as a Bank |
||||
By: | /s/ Xxxxx Pricro | |||
Name: | Xxxxx Pricro | |||
Title: | Vice President | |||
Address:
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
S-2