EXHIBIT 10.7
EXECUTION COPY
INTERCREDITOR AGREEMENT
Intercreditor Agreement dated as of September 8, 1999 among The
Xxxxxxxx Companies, Inc., a Delaware corporation (the "Parent"), Xxxxxxxx
Communications Group, Inc., a Delaware corporation and a direct subsidiary of
the Parent ("Holdings"), Xxxxxxxx Communications, Inc., a Delaware corporation
and wholly owned direct subsidiary of Holdings (the "Borrower") and Bank of
America, N.A., as Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, Holdings and the Borrower are parties to a Credit Agreement
(the "Credit Agreement") dated as of September 8, 1999 among themselves, the
Lenders party thereto, Bank of America, N.A., as Administrative Agent, and The
Chase Manhattan Bank, as Syndication Agent (the "Syndication Agent" and,
together with the Administrative Agent, the "Agents");
WHEREAS, Holdings and the Borrower may become parties to one or more
Incremental Credit Facilities (each, an "Incremental Facility" and,
collectively, the "Incremental Facilities") as permitted by Section 2.20 of the
Credit Agreement;
WHEREAS, the Borrower is the obligor on an intercompany promissory note
in favor of the Parent in an outstanding principal amount not to exceed at any
time $1,000,000,000 plus (i) accrued interest thereon added to the principal
amount thereof, if any, and (ii) unpaid amounts owing by the Borrower under
certain contracts with the Parent added to the principal amount thereof, if any,
in an aggregate amount not to exceed $25,000,000 in any year (the "Intercompany
Note");
WHEREAS, the Borrower is a party to the Participation Agreement and the
other Operative Documents governing the ADP and the ADP Obligations;
WHEREAS, the Parent, as successor to its wholly owned direct
subsidiary, Xxxxxxxx Holdings of Delaware, Inc. ("Delaware Holdings"), is a
party to the Amended and Restated Guaranty Agreement (the "ADP Guaranty") dated
as of September 2, 1998 between Delaware Holdings and State Street Bank and
Trust Company of Connecticut, National Association, as Trustee and Collateral
Agent, and Citibank, N.A., as Agent and APA Agent, pursuant to which Delaware
Holdings has guaranteed all of the ADP Obligations under the ADP; and
WHEREAS, in order to induce the Agents, the Lenders, the Swingline
Lenders, the Issuing Banks and the successors and assigns of any of them
(collectively, the "Benefitted Persons") to enter into the Credit Agreement and
any Incremental Credit Facilities, the Parent has agreed to enter into this
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms; References. Unless otherwise specifically
defined herein, each term defined in the Credit Agreement is used herein
(including the preamble and the recitals hereto) as therein defined. The
following additional terms, as used herein, have the meanings assigned to such
terms in Appendix A to the Participation Agreement:
"Completion Date"
"Environmental Trigger"
"Expiration Date"
"Item"
"Lease"
"Offer to Purchase"
"Property"
"Renewal Term"
"Termination Date"
"Termination Value"
"Unwind Event"
2
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Parent represents and warrants as follows:
SECTION 2.01. Organization; Powers. The Parent is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite power and authority to carry on its business
as now conducted, and except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a material adverse
effect on the business, assets, prospects or condition, financial or otherwise,
of the Parent and its subsidiaries, considered as a whole, is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 2.02. Authorization; Enforceability. The execution, delivery
and performance by the Parent of this Agreement are within the Parent's
corporate powers and have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by the Parent and
constitutes a legal, valid and binding obligation of the Parent, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 2.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance by the Parent of this Agreement (i) do not require any
consent or approval of, registration or filing with, or any other action by or
in respect of, any Governmental Authority, except such as have been obtained or
made and are in full force and effect, (ii) will not violate any applicable law
or regulation or the charter, by-laws or other organizational documents of the
Parent or any subsidiary of the Parent or any order or decree of any
Governmental Authority, (iii) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Parent or any
subsidiary of the Parent or any of their respective assets, or give rise to a
right thereunder to require any payment to be made by the Parent or any
subsidiary of the Parent and (iv) will not result in the creation or imposition
of any Lien on any asset of the Parent or any subsidiary of the Parent.
3
ARTICLE 3
COVENANTS IN RESPECT OF ADP
Until the Commitments shall have expired or been terminated, all
Obligations shall have been paid in full and all Letters of Credit shall have
expired or been terminated, the Parent unconditionally covenants and agrees with
the Administrative Agent, for the benefit of the Benefitted Persons, that:
SECTION 3.01. Payment of ADP Guaranteed Obligations. If the Borrower
elects, or is required, to make any payment (other than Fixed Rent) under the
Operative Documents (whether such payment is in respect of the Termination Value
or otherwise), the Parent, for the benefit of the Borrower and the Benefitted
Persons, will make such payment punctually in cash as and when the same shall
become due and payable, whether at maturity or by declaration or otherwise;
provided that this section shall not prevent the Borrower from making any such
payment or any portion thereof, in lieu of payment thereof by the Parent, if, on
the date of such payment, (x) the Borrower is permitted to make such payment
under Section 6.04(g) of the Credit Agreement and (y) no Default has occurred
and is continuing or would result therefrom.
SECTION 3.02. Default under Operative Documents. Upon the occurrence of
a Default (as defined in the Participation Agreement) (an "ADP Default"), an
Event of Default (as defined in the Participation Agreement) (an "ADP Event of
Default"), an Environmental Trigger or an Unwind Event under the Operative
Documents (or any other event under the Operative Documents which, with the
giving of notice or lapse of time or both, would permit any party to the
Operative Documents to exercise any remedy thereunder), the Parent will, unless
such ADP Default, ADP Event of Default, Environmental Trigger or Unwind Event
has been cured or waived by the Borrower, prior to any exercise of remedies by
any party to the Operative Documents, (i) pay the Termination Value of the
Property and any other amounts due under the Operative Documents punctually in
full in cash (or if such event is susceptible to cure, the Termination Value of
the Item or Items of Property necessary to cure such event) and (ii) take all
other actions as may be necessary, desirable or requested by the Administrative
Agent or the Required Lenders in order to prevent any retention by, or sale,
transfer or other disposition of the Property or any Item thereof to, any Person
other than the Borrower or the Parent; provided that this section shall not
prevent the Borrower from making any such payment or portion thereof in respect
of the Termination Value or any other such amount, in lieu of payment thereof by
the Parent, if, on the date of such payment, (x) the Borrower is permitted to
make such payment under Section 6.04(g) of the Credit Agreement and (y) no
Default has occurred and is continuing or would result therefrom.
4
SECTION 3.03. Election to Purchase the Property and Pay Termination
Value. (a) If the Borrower elects to exercise its option to purchase the
Property or any Item thereof at any time for any reason, the Parent will pay the
Termination Value of such Property and any other amounts due under the Operative
Documents punctually in full in cash; provided that this section shall not
prevent the Borrower from making any such payment or any portion thereof in
respect of the Termination Value or any such other amount, in lieu of payment
thereof by the Parent, if, on the date of such payment by the Borrower, (x) the
Borrower is permitted to make such payment under Section 6.04(g) of the Credit
Agreement and (y) no Default has occurred and is continuing or would result
therefrom.
(b) If, immediately prior to the occurrence of the Completion Date,
the Termination Date, the Expiration Date or any other date upon which the ADP
terminates, the Property would be included on the consolidated balance sheet of
the Borrower and its consolidated subsidiaries in accordance with GAAP, the
Borrower agrees to exercise its option to purchase the Property by delivering an
Offer to Purchase the Property in accordance with the Operative Documents. Upon
the exercise of such option, the Parent will pay the Termination Value of such
Property and any other amounts due under the Operative Documents punctually in
full in cash; provided that this section shall not prevent the Borrower from
making any such payment or any portion thereof in respect of the Termination
Value or any such other amount, in lieu of payment thereof by the Parent, if, on
the date of such payment by the Borrower, (x) the Borrower is permitted to make
such payment under Section 6.04(g) of the Credit Agreement and (y) no Default
has occurred and is continuing or would result therefrom.
SECTION 3.04. Contribution of Property. At any time when the Parent has
a right to acquire and acts to exercise such right, or otherwise acquires, any
of the Property (whether by payment of all, or a portion of, the Termination
Value or otherwise), the Parent will immediately contribute such Property (and
any right to acquire such Property) to Holdings and Holdings will immediately
contribute all such Property (and any such right) to the Borrower, in each case
as a capital contribution to Holdings or the Borrower, as the case may be.
SECTION 3.05. No Subrogation; Contributions to Holdings's Capital. The
Parent and Holdings, for the benefit of the Benefitted Persons, hereby waive any
right to be subrogated to the rights of any obligee under the Operative
Documents or any other Person against the Borrower with respect to any payment
made under Section 3.01, 3.02 or 3.03 above or any contribution of Property to
Holdings or the Borrower pursuant to Section 3.04 above, whether such right
arises by operation of law or otherwise. The Parent and Holdings acknowledge and
agree that their only right in respect of any such payment or contribution of
Property shall be the right to treat such payment or contribution of Property as
(i)
5
in the case of the Parent, (A) a contribution to the capital of Holdings, in
return for which the Parent may acquire Qualifying Equity Interests of Holdings
in an aggregate amount equal to such payment or the Termination Value of the
contributed Property, as the case may be, or (B) a contribution to Holdings in
return for which the Parent may acquire Qualifying Holdings Debt in an aggregate
principal amount equal to such payment or the Termination Value of the
contributed Property, as the case may be, or (ii) in the case of Holdings, a
contribution to the capital of the Borrower, in return for which Holdings may
acquire Qualifying Equity Interests of the Borrower in an aggregate amount equal
to such payment or the Termination Value of the contributed Property, as the
case may be.
SECTION 3.06. Further Assurances. Each of the Parent, Holdings and the
Borrower will, and will cause each subsidiary of the Parent to, execute any and
all documents, agreements and instruments, and take all such further actions
which may be necessary, desirable or requested by the Administrative Agent or
the Required Lenders to (i) effectuate the foregoing provisions relating to the
Property and the acquisition by, or contribution to, the Borrower of all such
Property and (ii) prevent any retention by, or sale, transfer or other
disposition of the Property or any Item thereof to, any Person other than the
Borrower or the Parent.
ARTICLE 4
INTERCREDITOR ARRANGEMENTS IN RESPECT OF INTERCOMPANY NOTE
Until the Commitments shall have expired or been terminated, the
Obligations shall have been paid in full and all Letters of Credit shall have
expired or been terminated, the Parent, Holdings and the Borrower
unconditionally covenant and agree with the Administrative Agent, for the
benefit of the Benefitted Persons, as follows:
SECTION 4.01. Intercompany Note. The Parent, Holdings and the Borrower
agree that the Intercompany Note shall be subject to the provisions of this
Article 4. The Parent accepts and agrees that all payments of principal of, and
interest on, and all other obligations in respect of, the Intercompany Note,
shall, to the extent and in the manner set forth in this Article 4, be
subordinated in right of payment to the prior payment in full in cash of all
Obligations.
SECTION 4.02. Borrower Not to Make Payments under the Intercompany
Note in Certain Circumstances. Upon the occurrence and during the continuation
of any Default or Event of Default (other than any Default or Event of Default
referred to in Section 7.01(e) of the Credit Agreement) (each such non-excluded
6
Default or Event of Default being referred to in this Agreement as a "Facility
Default"):
(a) no payment shall be made by Holdings, the Borrower or any other
Subsidiary on or with respect to the principal of, or interest on, or other
obligations in respect of, the Intercompany Note or to acquire the Intercompany
Note or any portion thereof unless and until such Facility Default shall have
been cured or waived, nor shall any such payment be made if after giving effect,
as if paid, to such payment, any Facility Default would exist;
(b) the Parent shall not demand, accept or receive, or attempt to
collect or commence any legal proceedings to collect, any direct or indirect
payment (in cash or property or by setoff, exercise of contractual or statutory
rights or otherwise) of or on account of any amount payable on or with respect
to the Intercompany Note; and
(c) the Parent will not commence or maintain any action, suit or any
other legal or equitable proceeding against Holdings, the Borrower or any other
Subsidiary, or join with any creditor in any such proceeding, under any
insolvency, bankruptcy, receivership, liquidation, reorganization or other
similar law, unless the Benefitted Persons shall also join in bringing such
proceeding, provided that this Section 4.02 shall not prohibit the Parent from
filing a proof of claim or otherwise participating in any such proceeding not
commenced by it.
SECTION 4.03. Intercompany Note Subordinated to Prior Payment of all
Obligations on Dissolution, Liquidation or Reorganization of the Borrower. In
the event of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings in connection
therewith, relative to the Borrower or to its creditors, in their capacity as
creditors of the Borrower, or to substantially all of the Borrower's property,
and in the event of any proceedings for voluntary liquidation, dissolution or
other winding up of the Borrower, whether or not involving insolvency or
bankruptcy:
(a) the Benefitted Persons shall first be entitled to receive payment
in full of the principal of, all interest (including Post-Petition Interest) on,
and all other amounts payable that constitute or relate to the Obligations
before the Parent shall be entitled to receive any payment on account of the
principal of, or interest on, or other obligations in respect of, the
Intercompany Note;
(b) the Intercompany Note shall forthwith (notwithstanding any other
provision contained in this Article 4) become due and payable and any payment or
distribution of assets of the Borrower of any kind or character, whether in
cash, property or securities, to which the Parent would be entitled, but for the
provisions
7
of this Article 4, shall be paid or distributed by the liquidating trustee or
agent or other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other trustee or agent,
directly to the Administrative Agent or any other representative on behalf of
the Benefitted Persons, to the extent necessary to make payment in full of all
Obligations remaining unpaid, after giving effect to any concurrent payment or
distribution to the Befitted Persons;
(c) the Parent irrevocably authorizes and empowers (without imposing
any obligation on) each Benefitted Person, the Administrative Agent and any
other representative on behalf of the Benefitted Persons to demand, xxx for,
collect and receive such Benefitted Person's ratable share of all such payments
and distributions in respect of the Intercompany Note and to receipt therefor,
and to file and prove all claims therefor and take all such other action not
inconsistent with the foregoing (including the right to vote such Benefitted
Person's ratable share of the Intercompany Note) in the name of the Parent, as
such Benefitted Person, the Administrative Agent or any other representative on
behalf of the Benefitted Persons may determine to be necessary or appropriate
for the enforcement of the provisions of this Article 4; and
(d) the Parent shall execute and deliver to the Administrative Agent
all such further instruments confirming the above authorization, and all such
powers of attorney, proofs of claim, assignments of claim and other instruments,
and shall take all such other action as may be requested by any Benefitted
Person, in order to enable the Administrative Agent or such other Benefitted
Person to enforce all claims upon or in respect of each Benefitted Person's
ratable share of the Intercompany Note.
SECTION 4.04. Rights of Holders of Obligations; Subrogation. (a) Should
any payment or distribution or security or the proceeds of any distribution
thereof be collected or received by the Parent in respect of the Intercompany
Note, and such collection or receipt is prohibited hereunder prior to the
payment in full of the Obligations, the Parent will forthwith deliver the same
to the Administrative Agent for the equal and ratable benefit of the Benefitted
Persons in precisely the form received (except for the endorsement or the
assignment of or by the Parent where necessary) for application to payment of
all Obligations in full, after giving effect to any concurrent payment or
distribution to the Benefitted Persons and, until so delivered, the same shall
be held in trust by the Parent as the property of the Benefitted Persons.
(b) All payments and distributions received by the Administrative
Agent in respect of the Intercompany Note, to the extent received in or
converted into cash, may be applied by the Administrative Agent first to the
payment of any and
8
all reasonable out-of-pocket expenses (including attorney's fees and legal
expenses) paid or incurred by the Administrative Agent or such representative in
enforcing the provisions hereof or in endeavoring to collect or realize upon the
Intercompany Note, and any balance thereof shall, solely as between the Parent,
on the one hand, and the Benefitted Persons, on the other hand, be applied by
the Administrative Agent in such order of application as the Administrative
Agent may from time to time select, toward the payment of the Obligations
remaining unpaid.
(c) The Parent shall not be subrogated to the rights of the Benefitted
Persons to receive payments or distributions of assets of the Borrower until all
amounts payable with respect to the Obligations shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the Parent of
any cash, property or securities to which the Parent would be entitled except
for these provisions shall, as between the Borrower, its creditors, other than
the Benefitted Persons, and the Parent, be deemed to be a payment by the
Borrower to or on account of the Obligations. The provisions of this Agreement
are and are intended solely for the purpose of defining the relative rights of
the Parent, on the one hand, and the holders of the Obligations, on the other
hand.
(d) Subject to the payment in full of all Obligations, the termination
of the Commitments and the expiration or termination of all Letters of Credit,
the Parent shall be subrogated to the rights of the holders of the Obligations
to receive payments or distributions of cash, property or securities of the
Borrower applicable to the Obligations until all amounts owing on the
Intercompany Note shall be paid in full. For purposes of such subrogation, no
payments or distributions to the Parent of cash, property, securities or other
assets by virtue of the subrogation herein provided which otherwise would have
been made to the Benefitted Persons shall, as between the Borrower, its
creditors other than the Benefitted Persons and the Parent, be deemed to be a
payment to or on account of the Intercompany Note. The Parent agrees that, in
the event that all or any part of any payment made on account of the Obligations
is recovered from the Benefitted Persons as a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law, any payment or
distribution received by the Parent on account of the Intercompany Note at any
time after the date of the payment so recovered, whether pursuant to the right
of subrogation provided for in this Section 4.04(d) or otherwise, shall be
deemed to have been received by the Parent in trust as the property of the
Benefitted Persons and the Parent shall forthwith deliver the same to the
Administrative Agent for the equal and ratable benefit of the Benefitted
Persons for application to payment of all Obligations in full.
SECTION 4.05. Renewals, Extensions and Increases of the Obligations.
The Parent hereby waives any and all notice of renewal, extension, accrual or
9
increase in the amount of any of the Obligations, present or future, and agrees
and consents that without notice to or assent by the Parent:
(a) the obligation and liabilities of the Borrower, Holdings, any Loan
Party or any other party or parties for or upon the Obligations (or any Loan
Document or any other document evidencing, securing, or relating to the same)
may, from time to time, in whole or in part, be renewed, extended, increased,
modified, amended, accelerated, compromised, supplemented, terminated, sold,
exchanged, waived or released;
(b) the Administrative Agent or any other representative acting on
behalf of the Benefitted Persons, and the Benefitted Persons themselves, may
exercise or refrain from exercising any right, remedy or power granted by or in
connection with any agreements relating to the Obligations;
(c) any balance or balances of funds with any Benefitted Persons at
any time standing to the credit of the Borrower may, from time to time, in whole
or in part, be surrendered or released;
all as the Administrative Agent or any other representative or representatives
acting on behalf of the Benefitted Persons, and the Benefitted Persons
themselves, may deem advisable and all without impairing, abridging,
diminishing, releasing or affecting the subordination of the Intercompany Note
to the Obligations provided for herein.
SECTION 4.06. Obligation of Borrower Unconditional. Nothing contained
in this Article 4 or in the Intercompany Note is intended to or shall impair, as
between the Borrower, its creditors other than Benefitted Persons, and the
Parent, the obligation of the Borrower, which is absolute and unconditional, to
pay to the Parent the principal of, and interest on, the Intercompany Note, as
and when the same shall become due and payable (except as provided in this
Article 4), by lapse of time, acceleration or otherwise, in accordance with its
terms, or is intended to or shall affect the relative rights of the Parent and
other creditors of the Borrower other than the Benefitted Persons, nor shall
anything herein or therein prevent the Parent (i) from taking all appropriate
actions to preserve its rights under the Intercompany Note not inconsistent with
the rights of the Benefitted Persons under this Article 4, or (ii) from
exercising all remedies otherwise permitted by applicable law upon default under
the Intercompany Note, subject to the rights, if any, under this Article 4 of
the Benefitted Persons in respect of cash, property or securities of the
Borrower otherwise payable or delivered to such holders upon the exercise of
any such remedy.
10
SECTION 4.07. Intercompany Note Not to be Transferred. Unless and until
all Obligations shall have been paid in full, the Commitments shall have been
terminated and all Letters of Credit shall have expired or been terminated, the
Parent will not sell, transfer, assign, pledge, hypothecate or otherwise dispose
of the Intercompany Note, or enter into any transaction having the economic
effect of any of the foregoing, and any such attempted sale, transfer,
assignment, pledge, hypothecation or other disposition or transaction shall be
null and void.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Notices. All notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to Holdings, the Borrower, either Agent or any Benefitted
Person, as provided in the Credit Agreement; and
(b) if to the Parent, to it at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx,
00000, Attention of Treasurer (Telecopy No. 918-573-2065).
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 5.02. Reliance. The Parent hereby acknowledges and agrees that
the Benefitted Persons have relied upon and will continue to rely upon the
provisions hereof in entering into the Credit Agreement and any Incremental
Facility relating to the Obligations and in extending credit to the Borrower
pursuant thereto.
SECTION 5.03. Waiver; Amendment. (a) No failure or delay by the
Administrative Agent, any representative or representatives of the Benefitted
Persons or any Benefitted Person in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent, any representative or representatives of the Benefitted
Persons and the Benefitted
11
Persons hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No present
or future Benefitted Person shall be prejudiced in its right to enforce the
provisions contained herein in accordance with the terms hereof by any act or
failure to act on the part of the Parent, Holdings, the Borrower or any
Subsidiary.
(b) The provisions contained herein are for the benefit of the
Benefitted Persons from time to time and, so long as any Commitment, Obligation
or Letter of Credit is outstanding, may not be waived, rescinded, canceled or
modified in any way without the prior written consent thereto of the
Administrative Agent and the Required Lenders.
SECTION 5.04. Loan Document. Each of the parties hereto agrees that
this Agreement is a Loan Document for all purposes under the Facilities,
including without limitation, Article 7 of the Credit Agreement.
SECTION 5.05. Termination. The obligations of the Parent, Holdings and
the Borrower under this Agreement shall remain in full force and effect until
the date upon which all outstanding Obligations shall have been paid in full,
all Commitments shall have terminated and all Letters of Credit and Specified
Hedging Agreements shall have expired or been terminated. If at any time any
amount paid or payable under any Loan Document or Specified Hedging Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Loan Party or otherwise, the obligations of
the Parent, Holdings and the Borrower under this Agreement shall be reinstated
at such time.
SECTION 5.06. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, the Benefitted Persons and their respective successors and
assigns) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
SECTION 5.07. Survival. All covenants, agreements, representations and
warranties made by the Parent, Holdings and the Borrower in or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of
this Agreement.
SECTION 5.08. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be
12
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 5.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Parent, Holdings and the Borrower hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or any Benefitted
Person may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Parent, Holdings, the Borrower
or their respective properties in the courts of any jurisdiction.
(c) Each of the Parent, Holdings and the Borrower hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in Section 5.08(b). Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY
13
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 5.11. Headings. Article and Section headings used herein are
for convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 5.12. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE XXXXXXXX COMPANIES, INC.
By: /s/ XXXXX X. XXXX
--------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
XXXXXXXX COMMUNICATIONS
GROUP, INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President &
Chief Financial Officer
XXXXXXXX COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President &
Chief Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
15
