EXHIBIT 10.72
[EXECUTION COPY]
$100,000,000
TERM CREDIT AGREEMENT
dated as of
March 31, 1998
among
American Mobile Satellite Corporation,
The Banks Listed Herein,
Xxxxxx Guaranty Trust Company of New York,
as Documentation Agent,
and
Toronto Dominion (Texas), Inc.,
as Administrative Agent
PAGE
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Accounting Terms and Determinations..........................20
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend..........................................21
SECTION 2.02. Method of Borrowing..........................................21
SECTION 2.03. Notes........................................................22
SECTION 2.04. Maturity of Loans; Mandatory Prepayments.....................23
SECTION 2.05. Interest Rates...............................................24
SECTION 2.06. Method of Electing Interest Rates............................25
SECTION 2.07. Mandatory Termination and Reduction of Commitments...........27
SECTION 2.08. Optional Prepayments.........................................27
SECTION 2.09. General Provisions as to Payments............................28
SECTION 2.10. Funding Losses...............................................28
SECTION 2.11. Computation of Interest and Fees.............................29
SECTION 2.12. Extension of Maturity Date...................................29
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing......................................................29
SECTION 3.02. Borrowings...................................................32
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power................................33
SECTION 4.02. Corporate Authorization; No Contravention....................33
SECTION 4.03. Government Approvals.........................................33
SECTION 4.04. Binding Effect...............................................34
SECTION 4.05. Litigation...................................................34
SECTION 4.06. No Default...................................................34
i
PAGE
SECTION 4.07. ERISA Compliance.............................................34
SECTION 4.08. Title to Property............................................36
SECTION 4.09. Taxes........................................................36
SECTION 4.10. Financial Condition..........................................36
SECTION 4.11. Environmental Matters........................................37
SECTION 4.12. Regulated Entities...........................................37
SECTION 4.13. Subsidiaries.................................................37
SECTION 4.14. Insurance....................................................37
SECTION 4.15. Business.....................................................38
SECTION 4.16. Collateral; Property.........................................38
SECTION 4.17. Security and Pledge Agreement................................38
SECTION 4.18. Disclosure...................................................38
ARTICLE 5
COVENANTS
SECTION 5.01. Information..................................................39
SECTION 5.02. Certificates; Other Information..............................40
SECTION 5.03. Notices......................................................40
SECTION 5.04. Conduct of Business; Preservation of Corporate Existence.....42
SECTION 5.05. Maintenance of Property......................................42
SECTION 5.06. Maintenance of Insurance.....................................42
SECTION 5.07. Payment of Obligations.......................................43
SECTION 5.08. Compliance with Laws.........................................43
SECTION 5.09. Inspection of Property and Books and Records.................43
SECTION 5.10. Environmental Laws...........................................44
SECTION 5.11. Use of Proceeds..............................................44
SECTION 5.12. Security and Pledge Agreement................................44
SECTION 5.13. No Subsidiaries..............................................44
SECTION 5.14. FCC Approval.................................................44
SECTION 5.15. Government Approvals.........................................45
SECTION 5.16. Further Assurances...........................................45
SECTION 5.17. Limitation on Liens..........................................46
SECTION 5.18. Disposition of Assets, Consolidations and Mergers............47
SECTION 5.19. Employee Contracts and Arrangements..........................49
SECTION 5.20. Investments..................................................49
SECTION 5.21. Transactions with Affiliates.................................49
SECTION 5.22. Compliance with ERISA........................................49
SECTION 5.23. Restricted Payments..........................................50
ii
PAGE
SECTION 5.24. Accounting Changes...........................................50
SECTION 5.25. Limitation on Indebtedness...................................50
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default............................................51
SECTION 6.02. Notice of Default............................................56
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization................................56
SECTION 7.02. Agents and Affiliates........................................56
SECTION 7.03. Action by Agents.............................................56
SECTION 7.04. Consultation with Experts....................................56
SECTION 7.05. Liability of Agents..........................................57
SECTION 7.06. Indemnification..............................................57
SECTION 7.07. Credit Decision..............................................57
SECTION 7.08. Successor Agent..............................................57
SECTION 7.09. Agents' Fees.................................................58
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.....58
SECTION 8.02. Illegality...................................................59
SECTION 8.03. Increased Cost and Reduced Return............................59
SECTION 8.04. Taxes........................................................61
SECTION 8.05. Base Rate Loans Substituted for Affected Euro-Dollar
Loans........................................................63
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices......................................................63
SECTION 9.02. No Waivers...................................................64
SECTION 9.03. Expenses; Indemnification....................................64
SECTION 9.04. Sharing of Set-offs..........................................64
iii
PAGE
SECTION 9.05. Amendments and Waivers.......................................65
SECTION 9.06. Successors and Assigns.......................................65
SECTION 9.07. Collateral...................................................67
SECTION 9.08. Governing Law; Submission to Jurisdiction....................67
SECTION 9.09. Counterparts; Integration; Effectiveness.....................68
SECTION 9.10. Waiver of Jury Trial.........................................68
SECTION 9.11. Confidentiality..............................................68
COMMITMENT SCHEDULE
PRICING SCHEDULE
DISCLOSURE SCHEDULE
EXHIBIT A - Note
EXHIBIT B - Opinion of Counsel for the Borrower
EXHIBIT C - Opinion of Special Counsel for the Agents
EXHIBIT D - Assignment and Assumption Agreement
iv
TERM CREDIT AGREEMENT
AGREEMENT dated as of March 31, 1998 among AMERICAN MOBILE SATELLITE
CORPORATION, the BANKS listed on the signature pages hereof, XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as Documentation Agent, and TORONTO DOMINION (TEXAS),
INC., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"ACTEL" means African Continental Telecommunications Ltd.
"ACTEL Agreement" means the agreement among AMSC Subsidiary
Corporation, the Borrower and ACTEL, dated as of December 2, 1997, pursuant to
which AMSC Acquisition will lease its MSAT-2 Satellite to ACTEL, as in effect on
the Effective Date.
"Acquisition" means the acquisition by AMSC Acquisition Company of 100%
of the capital stock or other equity interests of XXXXX pursuant to the XXXXX
Purchase Agreement.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.05(b).
"Administrative Agent" means Toronto Dominion (Texas), Inc. in its
capacity as administrative agent for the Banks hereunder, and its successors in
such capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
1
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of 25% or more
of the equity of a Person shall, for the purposes of this Agreement, be deemed
to control the other Person, and each Shareholder Guarantor shall be deemed to
be an Affiliate.
"Agents" means the Administrative Agent and the Documentation Agent,
and "Agent" means either of the foregoing.
"AMRC Holdings" means AMRC Holdings, Inc., a Delaware corporation,
and its successors
"AMSC Acquisition Company" means AMSC Acquisition Company, Inc., a
Delaware corporation, and its successors.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"XXXXX" means, collectively, Motorola XXXXX Acquisition, Inc., a
Delaware corporation, Motorola XXXXX, Inc., a Delaware corporation, XXXXX
Holding Company, a New York general partnership, Radio Data Network Holding
Corporation, a Delaware corporation, and XXXXX Company, a New York general
partnership.
"XXXXX Purchase Agreement" means the Stock Purchase Agreement dated as
of December 31, 1997 among the Borrower, AMSC Acquisition Company, Motorola
Inc., Motorola XXXXX Acquisition, Inc. and Motorola XXXXX, Inc.
"Asset Sale" means any sale, lease or other disposition (including any
such transaction effected by way of merger or consolidation and the Satellite
Lease Arrangements) by the Borrower or any of its Subsidiaries of any asset,
including without limitation any sale-leaseback transaction, whether or not
involving a capital lease, but excluding (i) dispositions of inventory, cash,
cash equivalents and other cash management investments and obsolete, unused or
unnecessary equipment and undeveloped real estate, in each case in the ordinary
course of business and (ii) dispositions to the Borrower or a Subsidiary of the
Borrower.
2
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Baron Capital" means Baron Capital Partners, L.P., a Delaware limited
partnership.
"Baron Capital Guaranty" means the Guaranty, dated as of March 31,
1998, made by Baron Capital to the Administrative Agent for its own benefit and
the benefit of the Banks, as the same may be amended from time to time.
"Baron Capital Letter of Credit" means the Letter of Credit dated March
31, 1998 issued by The Bank of New York for the account of Baron Capital for the
benefit of the Administrative Agent on behalf of the Banks.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 5/8 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means (i) a Loan which bears interest at the Base Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the provisions of Article 8 or (ii) an overdue amount which was a
Base Rate Loan immediately before it became overdue.
"Borrower" means American Mobile Satellite Corporation, a Delaware
corporation, and its successors.
"Borrower Group" means the Borrower and its Consolidated Subsidiaries.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower on the same day pursuant to Article 2, all of which Loans are of the
same Type (subject to Article 8) and, except in the case of Base Rate Loans,
have the same initial Interest Period. A Borrowing is a "Base Rate Borrowing" if
such Loans are Base Rate Loans or a "Euro-Dollar Borrowing" if such Loans are
Euro-Dollar Loans.
"Capital Lease Obligations" means all monetary obligations of a Person
under any leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease.
"Cash Equivalents" means:
3
(a) securities issued or fully guaranteed or insured by the United
States Government or any agency thereof and backed by the full faith and credit
of the United States having maturities of not more than twelve months from the
date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time deposits,
or bankers' acceptances having in each case a tenor of not more than six months,
issued by any Bank, or by any U.S. commercial bank having combined capital and
surplus of not less than $500,000,000 whose short term securities are rated both
A-1 or higher by Standard & Poor's Corporation and P-1 or higher by Xxxxx'x
Investors Services, Inc.;
(c) commercial paper of an issuer rated either at least A-1 by
Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc. and/or P-1 by
Xxxxx'x Investors Service Inc. and in either case having a tenor of not more
than three months;
(d) repurchase agreements fully collateralized by securities issued by
United States Government agencies; and
(e) money market mutual funds invested in the instruments permitted by
clauses (a), (b), (c) and (d) above.
"CERCLA" has the meaning specified in the definition "Environmental
Laws".
"Change In Control" means (i) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) (other than any Shareholder Guarantor, AT&T Wireless Services, Inc. or
Motorola, Inc.) shall have beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
more than 25% of the outstanding capital stock of the Borrower, (ii) Xxxxxx
shall have beneficial ownership of less than 25% of the outstanding capital
stock of the Borrower, except solely as a result of the issuance of additional
capital stock by the Borrower to Persons other than Xxxxxx, in which case a
Change of Control under this clause (ii) shall not occur unless Xxxxxx shall
have beneficial ownership of less than 10% of the outstanding capital stock of
the Borrower, (iii) during any period of 24 consecutive calendar months,
individuals who were directors of the Borrower on the first day of such period
shall cease to constitute a majority of the board of directors of the Borrower
(ignoring for this purpose replacements of stockholder-designated directors by
successor directors designated by the same stockholder or group of stockholders)
or (iv) the Borrower shall cease to own all of the outstanding capital stock of
AMSC Acquisition Company.
4
"Closing Date" means the date on or after the Effective Date on which
the Documentation Agent shall have received the documents specified in or
pursuant to Section 3.01(a).
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Collateral" means all property with respect to which Liens are created
or purported to be created pursuant to the Security and Pledge Agreement.
"Commitment" means any Tranche A Commitment, Tranche B Commitment or
Tranche C Commitment, and "Commitments" means any or all of the foregoing, as
the context may require.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Communications Asset" means a terrestrial or satellite antenna,
licensed site, base station, communications ground segment, network operations
center or other telecommunications facility (other than a satellite).
"Consolidated Capital Expenditures" means, for any period, the
additions to property, plant and equipment of the Borrower and its Consolidated
Subsidiaries for such period, as determined in accordance with GAAP.
"Consolidated Current Assets" means at any date the consolidated
current assets of the Borrower and its Consolidated Subsidiaries determined as
of such date.
"Consolidated Current Liabilities" means at any date (i) the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries plus (ii) the Contingent Obligations of the Borrower and its
Consolidated Subsidiaries with respect to the current liabilities of any Person
(other than the Borrower and its Consolidated Subsidiaries), all determined as
of such date.
"Consolidated Net Working Investment" means at any date Consolidated
Current Assets (exclusive of cash and cash equivalents) minus Consolidated
Current Liabilities (exclusive of Indebtedness).
"Consolidated Subsidiary" means at any date and with respect to any
Person, any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date.
5
"Contingent Obligation" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including, without limitation, any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor, or (b) to advance or provide
funds (i) for the payment or discharge of any such primary obligation, or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, or (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof, or
(e) to purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of any Indebtedness. For purposes of this definition, the amount
of any Contingent Obligation shall be deemed to be an amount equal to the
maximum reasonably anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means the Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries pursuant to Section 414(b), (c), (m) or (o)
of the Code.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Disclosure Schedule" means the Disclosure Schedule of even date
herewith attached hereto and hereby made part of this Agreement.
"Documentation Agent" means Xxxxxx Guaranty Trust Company of New York
in its capacity as documentation agent for the Banks hereunder, and its
successors in such capacity.
"dollars" means United States dollars.
6
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 9.09.
"Environmental Claim" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for injury to the
environment or threat to public health, personal injury (including sickness,
disease or death), property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages (punitive or otherwise),
cleanup, removal, remedial or response costs, restitution, civil or criminal
penalties, injunctive relief, or other type of relief, resulting from or based
upon (a) the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placements, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in or from property,
whether or not owned by the Borrower, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all applicable federal, state, local and
foreign laws, statutes, common law duties, judicial decisions, rules,
regulations, ordinances, judgements and codes, together with all administrative
orders, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authorities, in each case relating to the environment, health
and safety or to emissions, discharges or releases, or the manufacture,
distribution, use, treatment, storage, disposal, transport or handling, of
pollutants, contaminants, wastes or toxic or hazardous substances; including, as
they may be amended from time to time, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air Act, the
Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the
Federal Resource Conservation and Recovery Act, the Toxic Substances Control Act
and the Emergency Planning and the Community Right-to-Know Act of 1986.
7
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by any member of the Controlled
Group from a Qualified Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section 4041
or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure
to make required contributions to a Qualified Plan or Multiemployer Plan; (f) an
event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group; (h) an application for a funding waiver or any extension of
any amortization period pursuant to Section 412 of the Code with respect to any
Qualified Plan; or (i) any member of the Controlled Group engages in or
otherwise becomes liable for a non-exempt prohibited transaction.
"Escrow Letter" means the letter agreement dated March 31, 1998 from
the Borrower to the Banks and the Agents.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means (i) a Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a Euro-Dollar Loan
immediately before it became overdue.
8
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.05(b) on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.05(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Cash Flow" means, for any fiscal year of the Borrower, (i) the
net income of the Borrower and its Consolidated Subsidiaries for such fiscal
year, determined on a consolidated basis for such fiscal year, plus (ii) to the
extent deducted in determining such net income, the aggregate amount of
depreciation and amortization and other similar non-cash charges for such fiscal
year, plus (iii) to the extent deducted in determining such net income, the
aggregate amount of income tax expense (other than cash taxes paid by the
Borrower and its Consolidated Subsidiaries during such fiscal year) plus (minus)
(iv) the amount, if any, of any decrease (increase) in Consolidated Net Working
Investment between the beginning and the end of such year minus (v) Consolidated
Capital Expenditures for such fiscal year minus (vi) the aggregate amount of
scheduled principal payments of Indebtedness of the Borrower and its
Consolidated Subsidiaries paid during such fiscal year by the Borrower or any of
its Consolidated Subsidiaries, determined on a consolidated basis and minus
(vii) the Excess Cash Flow for AMSC Acquisition Company and its Consolidated
Subsidiaries for such fiscal year, to the extent the Reduction Percentage (as
defined in the Revolving Credit Agreement) thereof is applied to the reduction
of the Commitments under the Revolving Credit Agreement.
"Existing Credit Facilities" means the $75,000,000 Credit Agreement
dated as of June 28, 1996 among AMSC Subsidiary Corporation, the Borrower, the
Banks listed therein, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent, and Toronto Dominion (Texas), Inc., as Administrative
Agent, together with the Loan Documents referred to therein, and the
$150,000,000 Credit Agreement dated as of June 28, 1996 among AMSC Subsidiary
Corporation, the Borrower, the Banks listed therein, Xxxxxx Guaranty Trust
Company of New York, as Documentation Agent, and Toronto Dominion (Texas), Inc.,
as Administrative Agent, together with the Loan Documents referred to therein.
"FCC" means the Federal Communications Commission or any successor
thereto.
9
"FCC Licenses" means the licenses identified in the Disclosure
Schedule, together with each other material FCC license obtained by the Borrower
or any Subsidiary of the Borrower.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to The Toronto-Dominion Bank on such day on
such transactions as determined by the Administrative Agent.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the accounting profession), or in such
other statements by such other entity as may be in general use by significant
segments of the U.S. accounting profession, which are applicable to the
circumstances as of the date of determination.
"Government Approvals" means any authorizations, consents, approvals,
licenses (including FCC licenses), leases, rulings, permits, tariffs, rates,
certifications, exemptions, filings or registrations by or with any Governmental
Authority required to be obtained or held by the Borrower.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Loans which are Base Rate Loans at such time or (ii) all Euro-Dollar Loans
having the same Interest Period at such time, provided that, if a Loan of any
particular Bank is
10
converted to or made as a Base Rate Loan pursuant to Article 8, such Loan shall
be included in the same Group or Groups of Loans from time to time as it would
have been in if it had not been so converted or made.
"Guaranty Issuance Agreement" means the Guaranty Issuance Agreement
dated as of March 31, 1998, among Xxxxxx, SingTel, Baron Capital, AMSC
Acquisition Company and the Borrower.
"Guaranty Issuance Agreement Event of Default" has the meaning set
forth in the Guaranty Issuance Agreement.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, waste, solid waste, hazardous material, hazardous substance or
toxic substance, including petroleum or any petroleum derived substance or
byproduct.
"Xxxxxx" means Xxxxxx Electronics Corporation, a Delaware corporation.
"Xxxxxx Bridge Loan Agreement" means the Bridge Loan Agreement dated as
of December 30, 1997 by and among AMSC Subsidiary Corporation, the Borrower and
Xxxxxx Communications Satellite Services, Inc.
"Xxxxxx Guaranty" means the Guaranty, dated as of March 31, 1998, made
by Xxxxxx to the Administrative Agent for its own benefit and the benefit of the
Banks, as the same may be amended from time to time.
"Indebtedness" of any Person means without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of capital assets; (c) all reimbursement
obligations with respect to surety bonds, letters of credit, bankers'
acceptances and similar instruments (in each case, whether or not matured),
excluding performance bonds, letters of credit and similar undertakings in the
ordinary course of business of the Borrower, to the extent that such
undertakings do not secure an obligation for borrowed money or the deferred
purchase price of a capital asset; (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses,
excluding performance bonds, letters of credit and similar undertakings in the
ordinary course of business of the Borrower, to the extent that such
undertakings do not secure an obligation for borrowed money or the deferred
purchase price of a capital asset; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
11
financing, in either case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property); (f) all
Capital Lease Obligations; (g) all net obligations with respect to Rate
Contracts; (h) sale-leaseback financings; (i) all Contingent Obligations; and
(j) all Indebtedness referred to in paragraphs (a) through (i) above secured by
any Lien upon or in property (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness. For purposes of this definition, (i) any
Indebtedness of the Borrower to a Subsidiary of the Borrower and (ii) any
Indebtedness of a Subsidiary of the Borrower to or from the Borrower or another
Subsidiary of the Borrower shall be excluded.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Period" means, with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period which would otherwise end after the Maturity
Date shall end on the Maturity Date.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, Contingent Obligation, time deposit
or otherwise (but not including any demand deposit).
"Joint Venture" means any corporation, association, partnership, joint
venture or other business entity of which more than 10% but of which 50% or less
12
of the voting stock or other equity interests is owned or controlled directly or
indirectly by the Borrower or any of its Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
those created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a Capital Lease
Obligation, any financing lease having substantially the same economic effect as
any of the foregoing, or the filing of any financing statement naming the owner
of the asset to which such lien relates as debtor, under the UCC or any
comparable law) and any contingent or other agreement to provide any of the
foregoing.
"Loan" means any Tranche A Loan, Tranche B Loan or Tranche C Loan, and
"Loans" means any or all of the foregoing, as the context may require.
"Loan Documents" means this Agreement, the Security and Pledge
Agreement, the Shareholder Guaranties, the Baron Capital Letter of Credit, all
Rate Contracts between the Borrower and any of the Banks and all agreements,
instruments and documents executed and delivered in connection herewith and
therewith, each as amended, supplemented, waived or otherwise modified from time
to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(b).
"Major Casualty Event" means any loss of or damage to property through
one or more related events for which the Borrower or any of its Subsidiaries
receives any insurance proceeds under any casualty insurance policy or any
condemnation of property (or any transfer or disposition of property in lieu of
condemnation) for which the Borrower or any of its Subsidiaries receives a
condemnation award or other compensation, with respect to which the aggregate
amount of such proceeds, award or other compensation exceeds $1,000,000.
"Major Contractual Obligations" means the obligations of the Borrower
or any Subsidiary thereof under the ACTEL Lease Agreement and the TMI Purchase
Agreement.
"Material Adverse Effect" means a material adverse change in, or a
material adverse effect upon, any of (a) the operations, business, properties,
condition (financial or otherwise) of the Borrower Group taken as a whole; (b)
the ability or prospective ability of the Borrower or any of its Subsidiaries to
13
perform under any Loan Document or any Major Contractual Obligation; (c) the
legality, validity, binding effect or enforceability of any Loan Document or (d)
the perfection or priority of any Lien granted to the Administrative Agent under
the Security and Pledge Agreement.
"Maturity Date" means March 31, 2003 (as such date may be extended
pursuant to Section 2.12), or, if such day is not a Euro-Dollar Business Day,
the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the Maturity Date shall be
the next preceding Euro-Dollar Business Day.
"MSAT-1" means the satellite that is the subject of the TMI Purchase
Agreement.
"MSAT-2" means the satellite that is the subject of the ACTEL Lease
Agreement.
"Multiemployer Plan" means a "multiemployer plan" (within the meaning
of Section 4001(a)(3) of ERISA) to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or has made, or been
obligated to make, contributions.
"Net Cash Proceeds" means, with respect to any Reduction Event, an
amount equal to the cash proceeds (including lease payments) received by the
Borrower or any of its Subsidiaries (excluding the proceeds received by AMSC
Acquisition Company and its Subsidiaries to the extent the Reduction Percentage
(as defined in the Revolving Credit Agreement) thereof is applied to the
reduction of the Commitments (as defined in the Revolving Credit Agreement) from
or in respect of such Reduction Event, less any out-of-pocket costs and expenses
(excluding administrative expenses and overhead) reasonably incurred by such
Person in respect of such Reduction Event; provided that Net Cash Proceeds shall
exclude any insurance proceeds received by the Borrower or any of its
Subsidiaries in respect of the loss of or damage to MSAT-2 and required to be
paid by the Borrower or such Subsidiary to ACTEL or its permitted assigns;
provided, further, that Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in respect of any period under the ACTEL Lease Agreement shall be
reduced by the amount paid by the Borrower or such Subsidiary during such period
under the TMI Purchase Agreement and, without duplication, the amount paid by
the Parent Guarantor or such Subsidiary during such period for up to $50,000,000
of insurance for MSAT-1 required to be obtained hereunder or required to be
obtained by the Shareholder Guarantors.
14
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.06(a).
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or Governmental Authority for the purpose of evidencing,
creating, perfecting or preserving the priority of a Lien securing obligations
owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness, advances, debts,
liabilities, and obligations, owing by the Borrower to any Bank, any Agent, or
any other Person required to be indemnified under any Loan Document, of any kind
or nature, present or future, whether or not evidenced by any note, guaranty or
other instrument, arising under this Agreement, under any other Loan Document,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired.
"Offering Memorandum" means the Preliminary Offering Memorandum dated
March 9, 1998 relating to units consisting of Senior Notes and warrants to
purchase common stock of the Borrower.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" has the meaning set forth in Section 5.17.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
15
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any member of the Controlled Group sponsors or maintains or to
which any member of the Controlled Group makes or is obligated to make
contributions and includes any Multiemployer Plan or Qualified Plan.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by The
Toronto-Dominion Bank in New York City from time to time as its Prime Rate.
"Principal Subsidiary" means at any time any Subsidiary of the
Borrower, except Subsidiaries which at such time have been designated by the
Borrower (by notice to the Administrative Agent, which may be amended from time
to time) as nonmaterial and which, if aggregated and considered as a single
subsidiary, would not meet the definition of a "significant subsidiary"
contained as of the date hereof in Regulation S-X of the Securities and Exchange
Commission.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions or has made contributions at any time during
the immediately preceding period covering at least five (5) plan years, but
excluding any Multiemployer Plan.
"Quarterly Date" means March 31, June 30, September 30 and December 31.
"Rate Contracts" means interest rate and currency swap agreements, cap,
floor and collar agreements, interest rate insurance, currency spot and forward
contracts and other agreements or arrangements designed to provide protection
against fluctuations in interest or currency exchange rates; provided that such
agreements or arrangements are documented under master netting agreements.
"Reduction Event" means (i) any Asset Sale, (ii) the issuance of any
equity securities by the Borrower or any of its Subsidiaries (other than equity
securities (x) issued pursuant to any stock option, stock purchase or other plan
intended to benefit or compensate the officers, directors or employees of the
Borrower or any Principal Subsidiary, but only to the extent that the Net Cash
Proceeds thereof in any fiscal year of the Borrower do not exceed the sum of (A)
$2,000,000 plus (B) the aggregate amount by which such Net Cash Proceeds were
less than $2,000,000 in each prior fiscal year of the Borrower after the date
16
hereof, (y) issued to the Borrower or any of its Subsidiaries or (z) issued by
AMRC Holdings or any of its Subsidiaries) or (iii) the occurrence of a Major
Casualty Event. The description of any transaction as falling within the above
definition does not affect any limitation on such transaction imposed by Article
5 of this Agreement.
"Reduction Percentage" means (i) in respect of an Asset Sale (other
than the Satellite Lease Arrangements) or a Major Casualty Event, 100%, (ii) in
respect of the Satellite Lease Arrangements, 100% for the first $25,000,000 of
Net Cash Proceeds with respect thereto and 75% for any such additional Net Cash
Proceeds, (iii) in respect of Excess Cash Flow, 100% or (iv) in respect of the
issuance of equity securities (other than (x) to a member of the Borrower Group
or (y) to a Shareholder Guarantor as part of a private placement to one or more
Shareholder Guarantors) by the Borrower or any Subsidiary thereof, 50%.
"Reference Banks" means the principal London offices of Xxxxxx Guaranty
Trust Company of New York, The Toronto-Dominion Bank and any other Bank which is
appointed a Reference Bank by the Agents after consultation with the Borrower,
and "Reference Bank" means any one of such Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA or the regulations thereunder, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject; in
any case, non-compliance with which by the Borrower or any of its Subsidiaries
could reasonably be expected to have a Material Adverse Effect.
"Responsible Officer" means, with respect to any Person, the Chief
Executive Officer, the President or a duly authorized Vice President or, with
respect to financial matters, the Chief Financial Officer or the Treasurer, of
such Person.
17
"Revolving Credit Agreement" means the Credit Agreement dated as of the
date hereof among the Borrower, AMSC Acquisition Company, the Agents and the
other banks party thereto, as the same may be amended, supplemented, restated or
otherwise modified from time to time.
"Sales Corporation" means American Mobile Satellite Sales Corporation,
a Delaware corporation.
"Satellite Lease Arrangements" means the sale or lease of MSAT-2
pursuant to the ACTEL Lease Agreement or a replacement agreement (an "MSAT-2
Lease Agreement") provided that any such replacement agreement shall be on
commercially reasonable terms, and provided that (A) the consideration received
by AMSC Acquisition in respect of such sale or lease (x) consists solely of cash
and (y) constitutes fair market value (as determined by the Board of Directors
of AMSC Acquisition set forth in a resolution thereof delivered to the
Administrative Agent, which determination shall be based upon an opinion or
appraisal issued by an appraisal or investment banking firm of national
standing); (B) AMSC Acquisition shall have acquired (through purchase or lease)
capacity on MSAT-1 or a reasonable substitute thereof either (x) pursuant to the
TMI Purchase Agreement or (y) any other agreement with a term not less than the
maximum term of the MSAT-2 Lease Agreement then in effect and otherwise on
commercially reasonable terms if (in the case of this clause (y)) in the opinion
of a nationally recognized independent expert (a) the capacity acquired pursuant
to such replacement agreement is sufficient to permit AMSC Acquisition to
conduct its operations as conducted and as contemplated to be conducted through
the term of the MSAT-2 Lease Agreement then in effect and (b) the total
consideration paid by AMSC Acquisition for such replacement satellite capacity
is no greater than the fair market value thereof.
"Secured Parties" means the Agents and the Banks.
"Security and Pledge Agreement" means the Security and Pledge Agreement
dated as of March 31, 1998 between the Borrower and the Administrative Agent.
"Senior Notes" means AMSC Acquisition Company's 12 1/4% Senior Notes
due 2008.
"Shareholder Guarantor Security Agreement" means the Reimbursement
Security and Pledge Agreement dated as of March 31, 1998 between the Borrower
and Xxxxxx.
18
"Shareholder Guarantors" means Xxxxxx, SingTel and Baron Capital.
"Shareholder Guaranties" means the Xxxxxx Guaranty, the SingTel
Guaranty and the Baron Capital Guaranty.
"SingTel" means Singapore Telecommunications Ltd., a corporation
organized under the laws of Singapore.
"SingTel Guaranty" means the Guaranty, dated as of March 31, 1998, made
by SingTel to the Administrative Agent for its own benefit and the benefit of
the Banks, as the same may be amended from time to time.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"TMI Purchase Agreement" means the Satellite Purchase Agreement dated
as of December 4, 1997 between TMI Communications and Company, Limited
Partnership and the Borrower.
"Tranche A Commitment" means (i) with respect to each Bank listed on
the Commitment Schedule, the amount set forth opposite its name under the
heading "Tranche A Commitments" in the Commitment Schedule and (ii) with respect
to any Assignee, the amount of the transferor Bank's Tranche A Commitment
assigned to such Assignee pursuant to Section 10.06, in each case as such amount
may be changed as a result of an assignment pursuant to Section 10.06.
"Tranche B Commitment" means (i) with respect to each Bank listed on
the Commitment Schedule, the amount set forth opposite its name under the
heading "Tranche B Commitments" in the Commitment Schedule and (ii) with respect
to any Assignee, the amount of the transferor Bank's Tranche B Commitment
assigned to such Assignee pursuant to Section 10.06, in each case as such amount
may be changed as a result of an assignment pursuant to Section 10.06.
"Tranche C Commitment" means (i) with respect to each Bank listed on
the Commitment Schedule, the amount set forth opposite its name under the
heading "Tranche C Commitments" in the Commitment Schedule and (ii) with respect
to any Assignee, the amount of the transferor Bank's Tranche C Commitment
assigned to such Assignee pursuant to Section 10.06, in each case as such amount
may be changed as a result of an assignment pursuant to Section 10.06.
19
"Tranche A Loan" means a loan made by a Bank pursuant to Section 2.01
as a Tranche A Loan.
"Tranche B Loan" means a loan made by a Bank pursuant to Section 2.01
as a Tranche B Loan.
"Tranche C Loan" means a loan made by a Bank pursuant to Section 2.01
as a Tranche C Loan.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans compromising the
Borrowing, is determined by reference to the Euro-Dollar Rate or the Base Rate.
"UCC" means the Uniform Commercial Code as in effect in any
jurisdiction.
"Unfunded Pension Liabilities" means the excess of a Plan's accrued
benefits, as defined in Section 3(23) of ERISA, over the current value of that
Plan's assets, as defined in Section 3(26) of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Vendor Financing Indebtedness" means Indebtedness incurred by a member
of the Parent Guarantor Group the proceeds of which are utilized solely to
acquire ground-based Communications Assets.
"Withdrawal Liabilities" means, as of any determination date, the
aggregate amount of the liabilities, if any, pursuant to Section 4201 of ERISA
if the Controlled Group made a complete withdrawal from all Multiemployer Plans
and any increase in contributions pursuant to Section 4243 of ERISA.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the most
recent audited consolidated or combined financial statements of the Borrower and
its Consolidated Subsidiaries, delivered to the Banks; provided that, if the
Borrower notifies the Administrative Agent that it wishes to amend the
definition of "Excess Cash Flow" in Section 1.01 or any covenant in Article 5 to
20
eliminate the effect of any change in GAAP on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Banks wish
to amend Section 1.01 or Article 5 for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Banks.
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to lend to the Borrower on the
Closing Date an amount not to exceed the amount of its Commitments. The
Borrowing under this Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000, shall be made from the several
Banks ratably in proportion to their respective Commitments and shall be made by
each Bank as Tranche A Loans, Tranche B Loans and Tranche C Loans ratably in
proportion to its Tranche A Commitment, Tranche B Commitment and Tranche C
Commitment. The Commitments are not revolving in nature, and amounts repaid or
prepaid may not be reborrowed.
SECTION 2.02. Method of Borrowing. (a) The Borrower shall give the
Administrative Agent irrevocable telephonic notice, confirmed immediately in
writing (a "Notice of Borrowing"), not later than 10:30 A.M. (New York City
time) on (x) the Domestic Business Day before the Borrowing, if it is a Base
Rate Borrowing, and (y) the third Euro-Dollar Business Day before the Borrowing,
if it is a Euro-Dollar Borrowing, specifying:
(i) the date of the Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of the Borrowing;
(iii) whether the Loans comprising the Borrowing are to bear interest
initially at the Base Rate or a Euro-Dollar Rate; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
21
(b) Upon receipt of the Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank of the contents thereof, of such Bank's ratable
share of the Borrowing and of the portion thereof which shall be made as a
Tranche A Loan, a Tranche B Loan and a Tranche C Loan.
(c) Not later than 12:00 Noon (New York City time) on the date of the
Borrowing, each Bank shall make available its ratable share of the Borrowing, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 5.03. Unless the
Administrative Agent determines that any applicable condition specified in
Article 3 has not been satisfied, the Administrative Agent will make the funds
so received from the Banks available to the Borrower at the Administrative
Agent's aforesaid address.
(d) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of the Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of the Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of the Borrowing in accordance with
subsection (c) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.05 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in the Borrowing for purposes of this Agreement.
SECTION 2.03. Notes. (a) The Tranche A Loans, Tranche B Loans and
Tranche C Loans of each Bank shall each be evidenced by a single Note payable to
the order of such Bank for the account of its Applicable Lending Office in an
amount equal to the aggregate unpaid principal amount of such Bank's Tranche A
Loans, Tranche B Loans and Tranche C Loans, as the case may be. Each reference
in this Agreement to the "Notes" of a Bank shall be deemed to refer to and
include any or all of the Notes of such Bank described in this Section, as the
context may require.
22
(b) Each Bank may, by notice to the Borrower and the Administrative
Agent, request that its Tranche A Loans, Tranche B Loans and Tranche C Loans of
a particular Type be evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant Type.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01(a), the
Documentation Agent shall forward such Notes to such Bank. Each Bank shall
record the date, amount and Type of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto on the
appropriate Note, and may, if such Bank so elects in connection with any
transfer or enforcement of any of its Notes, endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing information with
respect to each Loan then outstanding thereunder; provided that the failure of
any Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Notes and to attach to
and make a part of its Notes a continuation of any such schedule as and when
required.
SECTION 2.04. Maturity of Loans; Mandatory Prepayments. (a) Any Loans
outstanding on the Maturity Date (together with accrued interest thereon) shall
be due and payable on such date.
(b) In addition the Loans shall be prepaid in the following amounts:
(i) in the event that the Borrower or any of its Subsidiaries shall at
any time, or from time to time, receive after the date hereof any Net
Cash Proceeds of any Reduction Event, an amount equal to the Reduction
Percentage of such Net Cash Proceeds on the date of receipt of such
Net Cash Proceeds; and
(ii) on each date on which the Borrower is required to notify the
Administrative Agent of the Excess Cash Flow for any fiscal year
pursuant to Section 5.02(b), an amount equal to the Reduction
Percentage of Excess Cash Flow for such fiscal year.
(c) Each prepayment of Loans pursuant to subsection (b) above shall be
applied ratably to the respective Tranche A Loans, Tranche B Loans and Tranche C
Loans of the Banks.
23
SECTION 2.05. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Date and, with respect to the principal amount of any Base Rate Loan
converted to a Euro-Dollar Loan, on each date a Base Rate Loan is so converted.
Any overdue principal of or interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the sum
of 2% plus the rate otherwise applicable to Base Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/10,000 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
24
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the quotient obtained (rounded upward, if necessary, to the next higher
1/10,000 of 1%) by dividing (x) the average (rounded upward, if necessary, to
the next higher 1/16 of 1%) of the respective rates per annum at which one day
(or, if such amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than six months as the
Administrative Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the Reference Banks are offered to
such Reference Bank in the London interbank market for the applicable period
determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day) and (ii) the sum of 2% plus the
Euro-Dollar Margin for such day plus the Adjusted London Interbank Offered Rate
applicable to such Loan at the date such payment was due.
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(e) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.06. Method of Electing Interest Rates. (a) The Loans included
in the Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the Notice of Borrowing. Thereafter, the Borrower may from time
to time elect to change or continue the type of interest rate borne by each
Group of Loans (subject in each case to the provisions of Article 8), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day and
25
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, subject to
Section 2.10 in the case of any such conversion or continuation
effective on any day other than the last day of the then current
Interest Period applicable to such Loans.
Each such election shall be made by giving irrevocable telephonic notice,
confirmed immediately in writing (a "Notice of Interest Rate Election") to the
Administrative Agent not later than 10:30 A.M. (New York City time) on the third
Euro-Dollar Business Day before the conversion or continuation selected in such
notice is to be effective. A Notice of Interest Rate Election may, if it so
specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each
$5,000,000 or any larger multiple of $1,000,000. In no event shall the total
number of Groups of Loans at any one time outstanding exceed ten, and each Group
of Loans shall at all times consist of Tranche A Loans, Tranche B Loans and
Tranche C Loans of the Banks ratably in proportion to their respective Tranche A
Commitments, Tranche B Commitments and Tranche C Commitments.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or, subject to the last sentence of Section
2.02(a), portion thereof) to which such notice applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
Type of Loans and, if the Loans being converted are to be Euro-Dollar
Loans, the duration of the next succeeding Interest Period applicable
thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period set forth in
Section 1.01.
26
(c) If, upon the expiration of any Interest Period applicable to any
Eurodollar Loan, the Borrower has not given a timely Notice of Interest Rate
Election with respect to such Loan, the Administrative Agent shall be deemed to
have received a Notice of Interest Rate Election from the Borrower with respect
to such Loan requesting that such Loan be converted into a Base Rate Loan on the
last day of the Interest Period applicable to such Loan.
(d) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above or a deemed receipt of a Notice of
Interest Rate Election pursuant to subsection (c) above, the Administrative
Agent shall promptly notify each Bank of the contents thereof and such notice
shall not thereafter be revocable by the Borrower.
(e) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 3.02.
SECTION 2.07. Mandatory Termination and Reduction of Commitments.
The Commitments shall terminate on the Closing Date.
SECTION 2.08. Optional Prepayments. (a) Subject in the case of any
Euro-Dollar Borrowing to Section 2.12, the Borrower may, upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any Group of
Base Rate Loans, or upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Tranche A
Loans, Tranche B Loans and Tranche C Loans of the several Banks included in such
Group.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.09. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 5.03. The
27
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks to be applied ratably to the Tranche A Loans, the Tranche B Loans and
Tranche C Loans of the Banks. Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.10. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted (pursuant to Article 2, 6 or 8 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.05(c), or if the Borrower fails to
borrow or prepay any Euro-Dollar Loans after notice has been given to any Bank
in accordance with Section 2.02(a), 2.04 or 2.08, the Borrower shall reimburse
each Bank within 15 days after demand for any resulting loss or expense incurred
by it (or by an existing or prospective Participant in the related Loan),
including (without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or conversion or failure to borrow or prepay,
provided that such Bank shall have delivered to the Borrower a certificate as to
the amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error.
SECTION 2.11. Computation of Interest and Fees. Interest based on the
Prime Rate and commitment fees hereunder shall be computed on the basis of a
28
year of 365 days (or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last day). All other
interest shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.12. Extension of Maturity Date. If the Borrower wishes to
extend the Maturity Date then in effect, the Borrower shall give written notice
to the Administrative Agent not less than 13 months nor more than 18 months
prior to the Maturity Date then in effect, whereupon the Administrative Agent
shall promptly notify each Bank of such notice. Each Bank will use its
reasonable efforts to respond to such request in writing, whether affirmatively
or negatively, as it may elect in its sole discretion, within 30 days after it
receives such notice from the Administrative Agent. If the Administrative Agent
receives an affirmative response in writing from each Bank within such 30 day
period, the Maturity Date then in effect shall be extended for one year (but in
no event later than March 31, 2006) and the Administrative Agent shall notify
the Borrower (with a copy to the Shareholder Guarantors, it being understood
that the consent of the Shareholder Guarantors is not required for any such
extension and any failure to give any such notice shall not affect any
Shareholder Guarantor's obligations under its Shareholder Guaranty) and the
Banks of such extension.
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing. The closing hereunder shall occur upon
satisfaction of the following conditions:
(a) the Documentation Agent shall have received all of the following,
in form and substance satisfactory to the Documentation Agent and in sufficient
copies for each Bank:
(i) duly executed Notes for the account of each Bank dated on or
before the Closing Date complying with the provisions of Section 2.03;
(ii) the Security and Pledge Agreement duly executed by the Borrower;
(iii) the articles or certificate of incorporation of each of the
Borrower and the Shareholder Guarantors (other than Baron Capital) as
in effect on the Closing Date, certified by the Secretary of State or
29
equivalent official of the jurisdiction of incorporation of such
Person as of a recent date and by the Secretary or Assistant Secretary
of such Person as of the Closing Date, and the bylaws of such Person
as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of such Person as of the Closing Date;
(iv) a good standing certificate for the Borrower from the Secretary
of State of its state of incorporation and each state where the
Borrower is qualified to do business as a foreign corporation as of a
recent date, together with a bring-down certificate by telex or
telecopy, dated the Closing Date;
(v) copies of the resolutions of the board of directors of (x) the
Borrower approving and authorizing the execution, delivery and
performance by the Borrower of this Agreement and the other Loan
Documents to be delivered by it and authorizing the borrowing of the
Loans, certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Borrower, and (y) each of the Shareholder
Guarantors (other than Baron Capital) approving and authorizing the
execution, delivery and performance by such Person of all Loan
Documents to be delivered by it, certified as of the Closing Date by
the Secretary or an Assistant Secretary of such Person;
(vi) a certificate of the Secretary or an Assistant Secretary of each
of the Borrower and each Shareholder Guarantor (other than Baron
Capital) certifying the names and true signatures of its officers
authorized to execute, deliver and perform, as applicable, all Loan
Documents to be delivered by it hereunder;
(vii) a certificate signed by a Responsible Officer of the Borrower,
dated as of the Closing Date, stating that each of the conditions set
forth in Sections 3.01(b) through (e) is satisfied as of such date;
(viii) written advice relating to such Lien and judgment searches as
either Agent shall have requested of the Borrower, and such
termination statements or other documents as may be necessary to
release any Lien in favor of any third party not otherwise permitted
by Section 5.17;
(ix) evidence (A) that all filings, recordations, registrations and
other actions necessary or, in the opinion of either Agent, desirable
to perfect and protect a first priority (except for Permitted Liens
arising by operation of law) security interest in and Lien on the
Collateral in favor of the Administrative Agent have been duly
effected or taken; (B) that each Lien created by the Security and
30
Pledge Agreement in the Collateral constitutes a perfected Lien on or
in all right, title, estate and interest of the Borrower in such
Collateral prior and superior to all Liens other than Permitted Liens
arising by operation of law; and (C) that all necessary and
appropriate consents to the creation and perfection of such Liens will
have been obtained;
(x) an opinion of (w) Xxxxx X. Xxxxx, counsel to the Borrower,
substantially in the form of Exhibit B hereto, (x) counsel reasonably
satisfactory to the Agents to each Shareholder Guarantor, in form and
substance satisfactory to the Documentation Agent, and (y) Xxxxx Xxxx
& Xxxxxxxx, special counsel to the Agents, substantially in the form
of Exhibit C hereto;
(xi) a copy of the financial statements of the Borrower referred to in
Section 4.10(a) and (b), certified by a Responsible Officer of the
Borrower;
(xii) a Shareholder Guaranty duly executed by each Shareholder
Guarantor, the Baron Capital Letter of Credit and the Escrow Letter;
and
(xiii) all documents the Documentation Agent may reasonably request
relating to the existence of the Borrower, any of the Borrower's
Subsidiaries or any Shareholder Guarantor, the corporate authority for
and the validity of this Agreement, the Notes, the Security and Pledge
Agreement or the Shareholder Guaranties, and any other matters
relevant hereto, all in form and substance satisfactory to the
Documentation Agent;
(b) all costs, accrued and unpaid fees and expenses (including,
without limitation, upfront fees, participation fees and legal fees and
expenses) to the extent then due and payable on the Closing Date by the Borrower
hereunder shall have been paid;
(c) AMSC Acquisition Company and the Borrower shall have received
proceeds (net of fees and interest reserves) of not less than $140,000,000 from
the issuance of its Senior Notes, all conditions to the Acquisition (including
receipt of any approvals of the FCC) shall have been satisfied and the
Acquisition shall have been consummated;
(d) The Borrower shall have entered into a Rate Contract to fix its
interest rate obligations under this Agreement for three years and shall have
prefunded its interest obligations thereunder;
(e) the Xxxxxx Bridge Loan Agreement shall have been terminated and
all amounts payable thereunder shall have paid in full; and
31
(f) the Existing Credit Facilities shall have been terminated and all
amounts payable thereunder shall have been paid in full.
The Documentation Agent shall promptly notify the Borrower and the Banks of the
Closing Date, and such notice shall be conclusive and binding on all parties
hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan on
the occasion of the Borrowing is subject to the satisfaction of the following
conditions:
(a) the fact that the Closing Date shall have occurred on or prior to
March 31, 1998;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02(a);
(c) the fact that, immediately after the Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate amount
of the Commitments;
(d) the fact that, immediately before and after the Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of the Borrower
contained in the Loan Documents shall be true on and as of the date of the
Borrowing.
The Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of the Borrowing as to the facts specified in clauses
(b) through (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants (in each case after giving effect
to the Acquisition; provided that for periods prior to the Effective Date, the
representations and warranties with respect to XXXXX are made to the Borrower's
best knowledge in reliance on the representations and warranties in the XXXXX
Purchase Agreement) that, except as set forth in the section (if any) of the
Disclosure Schedule corresponding to the Section heading below:
32
SECTION 4.01. Corporate Existence and Power. Each of the Borrower and
its Principal Subsidiaries (a) is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; (b) has the power and authority and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted; (c) is duly qualified as a foreign corporation,
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification; and (d) is in compliance with all Requirements of
Law except, in the case of clauses (c) and (d), where the failure to be so
qualified or in compliance could not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.02. Corporate Authorization; No Contravention. The execution,
delivery and performance by each of the Borrower and its Subsidiaries of any
Loan Document to which it is a party have been duly authorized by all necessary
corporate action and do not and will not: (a) contravene the terms of such
Person's certificate of incorporation, bylaws or other organization document;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, any indenture, agreement, lease, instrument, Contractual
Obligation, injunction, order, decree or undertaking to which such Person is a
party; or (c) violate any Requirement of Law.
SECTION 4.03. Government Approvals. All material Government Approvals
heretofore required to be obtained have been duly obtained, were validly issued,
are in full force and effect, are not subject to appeal and are held in the name
of, or for the benefit of, the appropriate Persons. There is no proceeding
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries, or any property of the Borrower or any of
its Subsidiaries, which seeks, or may reasonably be expected, to rescind,
terminate, materially adversely modify or suspend any of the FCC Licenses. There
has not occurred any event that would make unlikely the delivery or issuance as
anticipated of, and when and as needed all such Government Approvals. No such
Government Approval already obtained is subject to any restriction, condition,
limitation or other provision that would have a Material Adverse Effect. The
information set forth in each application submitted by the Borrower or any of
its Subsidiaries in connection with each such Government Approval is accurate
and complete in all material respects taken as a whole, except for statements or
omissions which could not reasonably be expected to affect adversely the
validity of such Government Approvals. No other material consent, approval or
authorization of, or declaration or filing with, any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement or any other Loan Document.
33
SECTION 4.04. Binding Effect. This Agreement and each other Loan
Document to which the Borrower or any of its Subsidiaries is a party constitute
the legal, valid and binding obligations of such Person, enforceable against
such Person in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
SECTION 4.05. Litigation. Except for matters arising after the
Effective Date which could not reasonably be expected to have a Material Adverse
Effect, there are no actions, suits, proceedings, claims or disputes pending, or
to the best knowledge of the Borrower, threatened or contemplated at law, in
equity, in arbitration or before any Governmental Authority, against the
Borrower or any of its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement, or any Loan Document, or any
of the transactions contemplated hereby or thereby; or (b) if determined
adversely to the Borrower or any of its Subsidiaries, could have a Material
Adverse Effect. No injunction, writ, temporary restraining order or any order of
any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery and performance of this
Agreement or any other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein or therein provided.
SECTION 4.06. No Default. No Default or Event of Default exists or
would result from the incurring of Obligations by the Borrower or any of its
Subsidiaries under any Loan Document. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such defaults, could
have a Material Adverse Effect.
SECTION 4.07. ERISA Compliance. (a) Section 4.07 of the Disclosure
Schedule lists all Plans maintained or sponsored by the Borrower or to which
either of them is obligated to contribute, and separately identifies Plans
intended to be Qualified Plans and Multiemployer Plans. All written descriptions
thereof provided to the Agents are true and complete in all material respects.
Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state law, including all
requirements under the Code or ERISA for filing reports (which are true and
correct in all material respects as of the date filed), and benefits have been
paid in accordance with the provisions of the Plan. Each Qualified Plan has been
determined by the IRS to qualify under Section 401 of the Code, and to the best
knowledge of the Borrower nothing has occurred which would cause the loss of
such qualification.
34
(b) There is no outstanding liability under Title IV of ERISA with
respect to any Plan maintained or sponsored by any member of the Controlled
Group (as to which the Borrower is or may be liable), nor with respect to any
Plan to which any member of the Controlled Group contributes or is obligated to
contribute (wherein the Borrower is or may be liable). No Plan maintained or
sponsored by the Borrower provides medical or other welfare benefits or extends
coverage relating to such benefits beyond the date of a participant's
termination of employment with the Borrower, except to the extent required by
Section 4980B of the Code and at the sole expense of the participant or the
beneficiary of the participant to the fullest extent permissible under such
Section of the Code. The Borrower has complied in all material respects with the
notice and continuation coverage requirements of Section 4980B of the Code.
(c) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan maintained or sponsored by the Borrower or to which the
Borrower is obligated to contribute. There are no pending or, to the best
knowledge of the Borrower, threatened claims, actions or lawsuits, other than
routine claims for benefits in the usual and ordinary course, asserted or
instituted against (i) any Plan maintained or sponsored by the Borrower or its
assets, (ii) any member of the Controlled Group with respect to any Qualified
Plan of the Borrower, or (iii) any fiduciary with respect to any Plan for which
the Borrower may be directly or indirectly liable, through indemnification
obligations or otherwise. The Borrower has not incurred and does not reasonably
expect to incur (i) any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 of ERISA with respect to a Multiemployer Plan or (ii) any
liability under Title IV of ERISA (other than premiums due and not delinquent
under Section 4007 of ERISA) with respect to a Plan. The Borrower has not
transferred any Unfunded Pension Liability outside of the Controlled Group or
otherwise engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
(d) The Borrower has not engaged, directly or indirectly, in a
non-exempt prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) in connection with any Plan, which transaction could have
a Material Adverse Effect.
SECTION 4.08. Title to Property. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to or valid
leasehold interests in all real property used in its business, except for such
defects in title as could not, individually or in the aggregate, have a Material
Adverse Effect. Such real property is free and clear of all Liens or rights of
others, except Permitted Liens.
35
SECTION 4.09. Taxes. Each of the Borrower and its Subsidiaries has
filed all Federal and other material tax returns and reports required to be
filed and have paid all Federal and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable except those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP and no Notice of Lien has
been filed or recorded. There is no proposed tax assessment against the Borrower
or any of its Subsidiaries which would, if the assessment were made, have a
Material Adverse Effect.
SECTION 4.10. Financial Condition.
(a) The audited consolidated statements of financial position of the
Borrower and its Subsidiaries dated December 31, 1996, and the related
consolidated statements of loss, stockholders' equity and cash flows for the
fiscal year ended on that date: (i) were prepared in accordance with GAAP
consistently applied throughout the periods covered thereby, except as otherwise
expressly noted therein, (ii) fairly present, in all material respects, the
financial condition of the Borrower and its Subsidiaries as of the date thereof
and results of operations for the period covered thereby and (iii) show all
material Indebtedness and other liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the date thereof (including
liabilities for taxes and material commitments).
(b) The unaudited pro forma summary consolidated condensed balance
sheet of the Borrower and its Subsidiaries as of September 30, 1997 together
with the related pro forma summary condensed statement of operations data for
the nine months then ended fairly present, in conformity with GAAP applied on a
basis consistent with the financial statements referred to in subsection (a)
above, the consolidated financial position of the Borrower and its Subsidiaries
as of such date, based on the assumptions set forth therein. As of such date and
the Closing Date, the Borrower and its Subsidiaries had and have no material
liabilities, contingent or otherwise, which are not properly reflected on such
balance sheet (including liabilities for taxes and material commitments).
(c) Since September 30, 1997, there has been no Material Adverse
Effect.
SECTION 4.11. Environmental Matters. The operations of the Borrower and
each of its Subsidiaries comply in all material respects with all Environmental
Laws. The Borrower and each of its Subsidiaries have obtained all licenses,
permits, authorizations and registrations required under any Environmental Law
("Environmental Permits") necessary for its operations to comply in all material
36
respects with Environmental Laws, and all such Environmental Permits are in full
force and effect, and the Borrower and each of its Subsidiaries are in material
compliance with all terms and conditions of such Environmental Permits. None of
the Borrower, any of its Subsidiaries or any of their present or, to the
knowledge of the Borrower, past property or operations is subject to any
outstanding written order from or agreement with any Governmental Authority or
other Person, nor subject to any judicial or administrative proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous Material.
There are no conditions or circumstances which may give rise to any
Environmental Claim arising from the operations of the Borrower or its
Subsidiaries, including Environmental Claims associated with any operations of
the Borrower or its Subsidiaries, with a potential liability in excess of
$5,000,000 in the aggregate. Without limiting the generality of the foregoing,
the Borrower and its Subsidiaries have met all notification requirements under
Title III of the Superfund Amendments and Reauthorization Act of 1986 or any
other Environmental Law.
SECTION 4.12. Regulated Entities. None of the Borrower, any Person
controlling the Borrower, or any Subsidiary thereof, is (a) an "Investment
Company" within the meaning of the Investment Company Act of 1940; or (b)
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public utilities code
or any other Federal or state statute or regulation limiting its ability to
incur Indebtedness.
SECTION 4.13. Subsidiaries. As of the Closing Date, the Borrower does
not have any Subsidiaries and has no equity investments in any other corporation
or entity.
SECTION 4.14. Insurance. The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts, with such deductibles and covering such risks as is
customarily carried on by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or such Subsidiary operates.
SECTION 4.15. Business. The Borrower and its Subsidiaries have not
conducted any business other than as described in the Offering Memorandum.
Neither the business nor the properties of the Borrower and its Subsidiaries are
or have been affected by any fire, explosion, accident, strike, lockout or other
labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by insurance) which has
had a Material Adverse Effect.
SECTION 4.16. Collateral; Property. All contracts and all property now
owned by the Borrower are held by it free and clear of all Liens other than
37
Permitted Liens. The Borrower has good, marketable and valid title in and to all
of the Collateral now owned by it, in each case free and clear of all Liens
other than Permitted Liens.
SECTION 4.17. Security and Pledge Agreement. The Security and Pledge
Agreement creates in favor of the Administrative Agent, for the equal and
ratable (except as expressly provided therein) benefit of the Secured Parties,
legal, valid and enforceable Liens on or in all of the Collateral to the extent
that such Liens may legally be given and be effective and enforceable. All
filings, recordations, registrations and other actions necessary to perfect such
Liens have been duly effected, and, to the extent that such Liens may legally be
given and be effective and enforceable, each Lien created by the Security and
Pledge Agreement constitutes a perfected Lien on or in all right, title, estate
and interest of the Borrower in the Collateral covered thereby, prior and
superior to all other Liens except Permitted Liens arising by operation of law,
and all necessary and appropriate consents to the creation and perfection of
such Liens have been obtained.
SECTION 4.18. Disclosure. The information (including, without
limitation, the information in the Offering Memorandum) furnished in writing at
or prior to the Closing Date by the Borrower to any Agent or Bank in connection
with this Agreement and the transactions contemplated hereby is true, complete
and accurate in every material respect or based on reasonable estimates on the
date as of which such information is stated or certified and is not incomplete
by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading in light of the circumstances under which such
information was made. The pro forma financial projections contained in the
Offering Memorandum were made in good faith and the assumptions on the basis of
which such projections were made were (when made) and are (as of the date of
this Agreement) reasonable. There is no fact known to the Borrower on the date
as of which this representation and warranty is made that has not been disclosed
in writing to the Agent which could reasonably be expected to have a Material
Adverse Effect.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
38
(a) as soon as available, but not later than 90 days after the end of
each fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 1997, a copy of the audited consolidated balance sheets of the
Borrower as at the end of such year and the related audited consolidated
statements of income, stockholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
year, and accompanied by the opinion of Xxxxxx Xxxxxxxx LLP or another
nationally-recognized independent public accounting firm which report shall
state that such consolidated financial statements present fairly, in all
material respects, the financial position, results of operations and cash flows
for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years;
(b) as soon as available, but not later than 45 days after the end of
each of the first three fiscal quarters of each year, commencing with the first
such fiscal quarter to end after the Effective Date, a copy of the unaudited
consolidated balance sheets of the Borrower as of the end of such quarter and
the related consolidated statements of income, stockholders' equity and cash
flows for the period commencing on the first day and ending on the last day of
such quarter, and certified by an appropriate Responsible Officer as fairly
presenting, in all material respects, in accordance with GAAP (except for the
absence of footnote disclosure), the financial position and the results of
operations of the Borrower; and
(c) as soon as available, any other interim financial statements of
the Borrower and its Subsidiaries reasonably requested by the Administrative
Agent at the direction of the Required Banks.
SECTION 5.02. Certificates; Other Information. The Borrower will
deliver to each of the Banks:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.01(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Section 5.01(a) above, a certificate of a Responsible Officer of
the Borrower (i) stating that, to the best of such officer's knowledge, the
Borrower, during such period, has observed or performed all of its covenants and
other agreements, and satisfied every condition contained in this Agreement to
be observed, performed or satisfied by it, and that such officer has obtained no
knowledge of any Default or Event of Default except as specified in such
39
certificate, (ii) when applicable, showing in detail the calculations supporting
such statement in respect of Article 5 and (iii) setting forth the Excess Cash
Flow for such period, together with the calculation thereof in reasonable
detail;
(c) promptly after the same are filed, copies of (if, in the case of
reports to the FCC, such reports are material) all financial statements and
regular, periodical or special reports which the Borrower or any Subsidiary of
the Borrower may make to, or file with, the Securities and Exchange Commission,
the FCC or any successor or similar Governmental Authorities; and
(d) promptly, such additional financial and other information as the
Administrative Agent, at the request of any Bank, may from time to time
reasonably request.
SECTION 5.03. Notices. The Borrower shall promptly notify the Agents
and each Bank of:
(a) the occurrence of any Default or Event of Default, and of the
occurrence or existence of any event or circumstance that could reasonably be
expected to become a Default or Event of Default;
(b) any (i) breach or non-performance of, or any default under any
Contractual Obligation which could reasonably be expected to result in a
Material Adverse Effect; or (ii) dispute, litigation, investigation, proceeding
or suspension which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority and which, if determined adversely
to the Borrower or any of its Subsidiaries, could reasonably be expected to
result in a Material Adverse Effect;
(c) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary (i) in which
the amount of damages claimed is $5,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, could have a Material Adverse Effect,
or (iii) in which the relief sought is an injunction or other stay of the
performance of any Loan Document or the operations of the Borrower or any of its
Subsidiaries;
(d) upon, but in no event later than ten days after, becoming aware of
(i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Borrower or
any Subsidiary or any of their properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims or (iii) any
environmental or similar condition on any real property adjoining or in the
40
vicinity of the property of the Borrower or any of its Subsidiaries that could
reasonably be anticipated to cause such property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of such property under any Environmental Laws;
(e) any other litigation or proceeding affecting the Borrower or any
of its Subsidiaries which the Borrower would be required to report to the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, within four days after reporting the same to the Securities and Exchange
Commission;
(f) any ERISA Event affecting the Borrower or any member of its
Controlled Group (but in no event more than ten days after such ERISA Event)
together with (i) a copy of any notice with respect to such ERISA Event filed
with the PBGC and (ii) any notice delivered by the PBGC to the Borrower or any
member or its Controlled Group with respect to such ERISA Event;
(g) any Material Adverse Effect subsequent to the date of the most
recent audited financial statements of the Borrower delivered to the Banks
pursuant to Section 5.01(a);
(h) any material change in accounting policies or financial reporting
practices;
(i) any labor controversy resulting in or threatening to result in any
strike, work stoppage, boycott, shutdown or other labor disruption against or
involving the Borrower or any Subsidiary;
(j) any material revision of the Borrower's business plan;
(k) the adoption of each capital expenditures budget by the Borrower;
(l) any event that could reasonably be expected to result in Net Cash
Proceeds requiring a mandatory prepayment pursuant to Section 2.04; and
(m) the delivery of, or receipt of, any notice of (i) a reduction in
coverage of any insurance required to be maintained by Section 5.06 or otherwise
procured by the Borrower covering loss or damage to any material property of the
Borrower (other than a reduction in coverage or amount resulting from a payment
thereunder) or (ii) the cancellation or non-renewal of any such insurance
policy.
Each notice pursuant to this Section shall be delivered promptly after a
Responsible Officer becomes aware of the subject matter of such notice and shall
be accompanied by a written statement by a Responsible Officer of the Borrower
41
setting forth details and effective date of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
SECTION 5.04. Conduct of Business; Preservation of Corporate Existence.
The Borrower shall, and shall cause each of its Subsidiaries: (a) to engage in
business of the same general type as now conducted by the Borrower and its
Subsidiaries (including XXXXX and AMRC Holdings and Subsidiaries of AMRC
Holdings); (b) to preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its State or jurisdiction of
incorporation; (c) to preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business; (d) to use its reasonable
efforts, in the ordinary course and consistent with past practice, to preserve
its business organization and preserve the goodwill and business of the
customers, suppliers and others having business relations with it; and (e) to
preserve or renew all of its registered trademarks, trade names and service
marks, the non-preservation of which could have a Material Adverse Effect.
SECTION 5.05. Maintenance of Property. The Borrower shall maintain, and
shall cause each of its Principal Subsidiaries and Subsidiaries, respectively,
to maintain, and preserve all its property which is used or useful in its
business in good working order and condition, ordinary wear and tear excepted.
SECTION 5.06. Maintenance of Insurance. The Borrower shall, and shall
cause each of its Subsidiaries (other than AMRC Holdings and Subsidiaries of
AMRC Holdings) to, maintain in full force and effect at all times on and after
the Effective Date property insurance with financially sound and reputable
insurance companies, in such amounts, with such deductibles and covering such
risks as is customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Borrower or such Subsidiary
operates:
SECTION 5.07. Payment of Obligations. The Borrower shall, and shall
cause each of its Principal Subsidiaries and Subsidiaries, respectively, to, pay
and discharge as the same shall become due and payable, all its obligations and
liabilities, including: (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by such Person; (b) all lawful claims
which, if unpaid, might by law become a Lien upon its property (excluding claims
being contested in good faith by the Borrower, and for which adequate reserves
have been made or as to which the corresponding liens have been bonded); and (c)
42
all Indebtedness as and when due and payable but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
SECTION 5.08. Compliance with Laws. The Borrower shall comply, and
shall cause each of its Subsidiaries to comply, in all material respects with
all Requirements of Law of any Governmental Authority having jurisdiction over
it or its business (including the Federal Fair Labor Standards Act and ERISA),
except such as may be contested in good faith or as to which a bona fide dispute
may exist.
SECTION 5.09. Inspection of Property and Books and Records. The
Borrower shall maintain, and shall cause each of its Subsidiaries, respectively,
to maintain, proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower and such Subsidiaries. The Borrower will permit, and will cause each of
its Subsidiaries to permit, representatives of any Agent or Bank to visit and
inspect any of its properties, to examine its corporate, financial and operating
records and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, employees and
independent public accountants at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Borrower; provided that when an Event of Default exists representatives
from the United States offices of any Agent or Bank may visit and inspect at the
expense of the Borrower such properties at any time during business hours and
without advance notice. The Borrower shall reimburse the Agents and the Banks
for their reasonable expenses incurred in conducting such visits and
examinations when an Event of Default exists.
SECTION 5.10. Environmental Laws. (a) The Borrower shall, and shall
cause each of its Subsidiaries to, conduct its operations and keep and maintain
its property in compliance with all Environmental Laws.
(b) Upon written request of any Agent or Bank, the Borrower shall
submit and cause each of its Subsidiaries to submit, to such Agent or Bank, at
the Borrower's sole cost and expense at reasonable intervals, a report providing
an update of the status of and any environmental, health or safety compliance
obligation, remedial obligation or liability, that could, individually or in the
aggregate, result in liability in excess of $5,000,000.
SECTION 5.11. Use of Proceeds. The Borrower shall use the proceeds of
the Loans only to refinance obligations under the Xxxxxx Bridge Loan Agreement
and the Existing Credit Facilities. No portion of the Loans will be used,
43
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U. No proceeds of any Loans will be used to acquire any security in
any transaction which is subject to Section 13 or 14 of the Securities Exchange
Act of 1934, as amended.
SECTION 5.12. Security and Pledge Agreement. The Borrower shall at all
times ensure that (i) the Security and Pledge Agreement creates in favor of the
Administrative Agent, for the equal and ratable benefit of the Secured Parties,
legal, valid and enforceable Liens on or in all Collateral covered thereby; (ii)
all filings, recordations, registrations and other actions necessary or
desirable to perfect the Liens created or purported to be created by the
Security and Pledge Agreement have been duly effected; (iii) each Lien created
by the Security and Pledge Agreement constitutes a perfected Lien on or in all
right, title, estate and interest of the Borrower, as applicable, in the
Collateral, prior and superior to all Liens other than Permitted Liens arising
by operation of law; and (iv) all necessary and appropriate consents to the
creation and perfection of the Liens created or purported to be created by the
Security and Pledge Agreement have been obtained.
SECTION 5.13. No Subsidiaries. The Borrower shall not have any
Subsidiaries or equity investments in any other corporation or entity except as
set forth on Schedule 4.13.
SECTION 5.14. FCC Approval. The Borrower shall take any action that the
Administrative Agent may reasonably request in order to obtain from the FCC such
approval (other than relief from the FCC's alien ownership restrictions) as may
be necessary to enable the Administrative Agent to exercise and enjoy the full
rights and benefits granted to the Administrative Agent by the Security and
Pledge Agreement and each other agreement, instrument and document delivered to
the Administrative Agent in connection therewith. The Borrower shall, without
limitation, also use diligent efforts, at the expense of the Borrower, (a) to
assist the Administrative Agent in obtaining approval of the FCC for any action
or transaction contemplated by the Borrower's business plan included in the
Offering Memorandum for which such approval is or shall be required by law, and
(b) upon request of the Administrative Agent, to prepare, sign and file with the
FCC the assignor's or transferor's portion of any application or applications
for consent to the assignment of any license or transfer or control necessary or
appropriate under the FCC's rules and regulations for approval of any sale or
sales of any Collateral or any assumption by the Administrative Agent of voting
rights relating thereto effected in accordance with the terms of the Security
and Pledge Agreement.
SECTION 5.15. Government Approvals. The Borrower shall, and shall
cause each of its Subsidiaries to, comply with the terms of and maintain in full
44
force and effect the FCC Licenses, and all amendments thereto, and shall, and
shall cause each of its Subsidiaries to, obtain, maintain and comply with the
terms of all other Government Approvals which are necessary under applicable
laws and regulations in connection with the Borrower's or such Subsidiary's
business. No such Government Approval shall be subject to any restriction,
condition, limitation or other provision that would have a Material Adverse
Effect.
SECTION 5.16. Further Assurances.
(a) The Borrower shall ensure that all written information, exhibits
and reports furnished to the Banks do not and will not contain any untrue
statement of a material fact and do not and will not omit to state any material
fact or any fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made, and will promptly
disclose to the Agents and the Banks and correct any defect or error that may be
discovered therein or in any Loan Document or in the execution, acknowledgement
or recordation thereof.
(b) Promptly upon written request by the Administrative Agent or the
Required Banks, the Borrower shall (and shall cause any of its Subsidiaries to)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register
and re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as the Administrative
Agent or such Banks may reasonably require from time to time in order (i) to
carry out more effectively the purposes of this Agreement or any other Loan
Document, (ii) to subject to the Liens created by the Security and Pledge
Agreement any of the properties, rights or interests covered thereby, (iii) to
perfect and maintain the validity, effectiveness and priority of the Security
and Pledge Agreement and the Liens intended to be created thereby, and (iv) to
better assure, convey, grant, assign, transfer, preserve, protect and confirm to
the Administrative Agent and Banks the rights granted or now or hereafter
intended to be granted to the Banks under any Loan Document or under any other
instrument executed in connection therewith.
SECTION 5.17. Limitation on Liens. The Borrower shall not, and shall
not permit any other member of the Borrower Group to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or with respect to
any part of its property or assets, whether now owned or hereafter acquired, or
offer or agree to do so, other than the following ("Permitted Liens"):
45
(a) any Lien existing on the Effective Date securing Indebtedness
existing on the Effective Date and identified on Schedule 5.17;
(b) any Lien in favor of the Administrative Agent created under any
Loan Document and any Lien in favor of the Shareholder Guarantors pursuant to
the Shareholder Guarantor Security Agreement;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 5.07, provided that no Notice
of Lien has been filed or recorded;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which do not secure Indebtedness and are not delinquent or remain payable
without penalty;
(e) Liens (other than any Lien imposed by ERISA) on the property of
any member of the Borrower Group incurred, or pledges or deposits required, in
connection with workmen's compensation, unemployment insurance and other social
security legislation;
(f) Liens on the property of any member of the Borrower Group securing
(i) the performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, and (ii) obligations on surety and appeal bonds,
and (iii) other obligations of a like nature incurred in the ordinary course of
business which do not secure Indebtedness, provided that all such Liens in the
aggregate could not cause a Material Adverse Effect;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Borrower Group;
(h) Liens on any asset which is the subject of a capital lease
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such asset, provided that (x) such Lien
attaches concurrently with or within 30 days after the acquisition thereof, and
(y) the sum of the aggregate principal amount of such Indebtedness secured by
such Liens shall not exceed $15,000,000;
46
(i) Liens on contract rights under subscriber equipment leases sold,
pledged or otherwise transferred pursuant to any bona fide financing of such
leases;
(j) Liens on property and assets of AMRC Holdings and its
Subsidiaries; and
(k) Liens to secure Vendor Financing Indebtedness permitted by Section
5.25(k) provided that such Liens cover only the assets acquired with such Vendor
Financing Indebtedness.
SECTION 5.18. Disposition of Assets, Consolidations and Mergers. The
Borrower shall not, and shall not permit any Subsidiary (other than AMRC
Holdings and Subsidiaries of AMRC Holdings) to, directly or indirectly, (i)
sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or
a series of transactions) any of its assets, business or property (including
accounts and notes receivable (with or without recourse) and equipment
sale-leaseback transactions) or (ii) merge or consolidate with any other Person,
or enter into any agreement to do any of the foregoing described in clauses (i)
or (ii) except for the following; provided that immediately after giving effect
to any of the following, no Default or Event of Default would exist:
(a) sales, transfers, or other dispositions of inventory, or used,
worn-out or surplus property, or property of no further use to the Borrower and
its Subsidiaries, all in the ordinary course of business;
(b) sales, transfers, or other dispositions of equipment in the
ordinary course of business 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 reasonably promptly applied to the purchase price of
such replacement equipment;
(c) sales, transfers, or other dispositions of communications
services, capacity or equipment pursuant to the customer contracts providing for
the sale of communications services, capacity or equipment in the ordinary
course of business;
(d) sales, transfers or other dispositions pursuant to bona fide
sale-leaseback financings in which the lease gives rise solely to Capital Lease
Obligations; provided, however, that any such sales, transfers or other
dispositions are not permitted with any assets of the communications network;
(e) sales, transfers, or other dispositions of assets in the ordinary
course of business having a fair market value not exceeding $500,000 per item or
47
$1,000,000 in the aggregate in any fiscal year (excluding sales, transfers and
dispositions theretofore approved in accordance with the terms hereof in such
fiscal year);
(f) sales, transfers or other dispositions of assets to Sales
Corporation to be used in connection with the sales and marketing of services of
AMSC Acquisition Company and having a fair market value not exceeding $5,000,000
in the aggregate during the term of this Agreement;
(g) sales, transfers or other dispositions of contract rights under
subscriber equipment leases pursuant to any bona fide financing of such leases;
(h) non-exclusive licenses of technology and other intangible assets;
(i) sales of mobile earth terminals and related equipment, and other
inventory;
(j) any Subsidiary of the Borrower may merge, consolidate or combine
with or into, or transfer assets to the Borrower or one or more Subsidiaries of
the Borrower; provided that with respect to any such transaction involving the
Borrower, the Borrower shall be the continuing or surviving corporation and if
any such transaction shall be between a Subsidiary and a wholly-owned
Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving
corporation;
(k) any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise), to the Borrower or another wholly-owned Subsidiary of the Borrower;
(l) the Borrower or any Subsidiary may merge, consolidate or combine
with another entity if the Borrower or the Subsidiary, respectively, is the
corporation surviving the merger; and
(m) the Satellite Lease Arrangements.
SECTION 5.19. Employee Contracts and Arrangements. Neither the Borrower
nor any of its Subsidiaries will enter into any employment contracts or
arrangements whose terms, including salaries, benefits and other compensation,
are not normal and customary and commercially reasonable for companies of like
size and circumstances.
SECTION 5.20. Investments. Neither the Borrower nor any other member
of the Borrower Group will make or acquire any Investment in any Person other
than:
48
(a) Investments in Persons which are Subsidiaries on the date hereof;
(b) Cash Equivalents; and
(c) any Investment not otherwise permitted by the foregoing clauses of
this Section if, immediately after such Investment is made or acquired, the
aggregate net book value of all Investments permitted by this clause (c) does
not exceed $10,000,000.
SECTION 5.21. Transactions with Affiliates. Except where such Affiliate
is a member of the Borrower Group, the Borrower will not, and will not permit
any Subsidiary to, directly or indirectly, (i) pay any funds to or for the
account of any Affiliate, (ii) make any investment in any Affiliate (whether by
acquisition of stock or indebtedness, by loan, advance, transfer of property,
guarantee or other agreement to pay, purchase or service, directly or
indirectly, any Indebtedness, or otherwise), (iii) lease, sell, transfer or
otherwise dispose of any assets, tangible or intangible, to any Affiliate, or
(iv) participate in, or effect, any transaction with any Affiliate, except in
each case on an arm's-length basis on terms at least as favorable to the
Borrower or such Subsidiary as could have been obtained from a third party that
was not an Affiliate or as otherwise expressly approved in writing by the
Required Banks.
SECTION 5.22. Compliance with ERISA. The Borrower shall not directly or
indirectly, and shall not permit any member of the Controlled Group directly or
indirectly (i) to terminate, any Qualified Plan subject to Title IV of ERISA, so
as to result in any material (in the opinion of the Required Banks) liability to
the Borrower or any member of the Controlled Group, (ii) to permit to exist any
ERISA Event, which presents the risk of a material (in the opinion of the
Required Banks) liability of any member of the Controlled Group, or (iii) to
make a complete or partial withdrawal (within the meaning of ERISA Section 4201)
from any Multiemployer Plan so as to result in any material (in the opinion of
the Required Banks) liability to any member of the Controlled Group or (iv)
permit the present value of all nonforfeitable accrued benefits under each
Qualified Plan (using the actuarial assumptions utilized by the PBGC upon
termination of a Qualified Plan) materially (in the opinion of the Required
Banks) to exceed the fair market value of Qualified Plan assets allocable to
such benefits, all determined as of the most recent valuation date for each such
Qualified Plan.
SECTION 5.23. Restricted Payments. The Borrower will not declare or
make any dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any class of its
capital stock or purchase, redeem or otherwise acquire for value (or permit any
49
member of the Borrower Group to do so) any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or hereafter
outstanding.
SECTION 5.24. Accounting Changes. The Borrower will not, and will not
permit any Subsidiary to, make any significant change in accounting treatment
and reporting practices, except as required by GAAP, or change the fiscal year
of the Borrower or any of its Subsidiaries.
SECTION 5.25. Limitation on Indebtedness. The Borrower shall not, and
shall not permit any Subsidiary (other than AMRC Holdings and Subsidiaries of
AMRC Holdings) to, create, incur, assume, guaranty, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except for:
(a) accounts payable to trade creditors for goods and services and
current operating liabilities (not the result of the borrowing of money)
incurred in the ordinary course of the Borrower's or the Subsidiary's business,
as the case may be, in accordance with customary terms and paid within the
specified time, unless contested in good faith by appropriate proceedings and
reserved for in accordance with GAAP;
(b) Indebtedness represented by Rate Contracts;
(c) income taxes payable and deferred taxes;
(d) accrued expenses and deferred income;
(e) Indebtedness under the Senior Notes in an aggregate principal
amount not to exceed $335,000,000 and Contingent Obligations of the Borrower and
of AMSC Acquisition Company's Subsidiaries in respect thereof (such Contingent
Obligations of the Borrower to be subordinated as described in the Offering
Memorandum);
(f) Indebtedness under the Revolving Credit Agreement;
(g) Contingent Obligations incurred in connection with any lease
financing of mobile communications terminals, not exceeding $5,000,000 in the
aggregate in principal amount;
(h) Indebtedness outstanding on the Effective Date and identified on
Schedule 5.25;
50
(i) Indebtedness under the Financial Management Account Line of Credit
of the Borrower payable to the order of Wachovia Bank of North Carolina, N.A.,
in an aggregate principal amount at any time not exceeding $2,500,000; and
(j) Indebtedness incurred to finance in-orbit insurance in an
aggregate amount outstanding at any time not to exceed $6,000,000;
(k) Vendor Financing Indebtedness in an aggregate amount outstanding
at any time not to exceed $10,000,000; and
(l) any other Indebtedness incurred after the Effective Date; provided
that the aggregate outstanding principal amount of all such Indebtedness shall
not at any time exceed $15,000,000.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due
or any interest, any fees or any other amount payable hereunder within two
Business Days of the date when due, or one or more Shareholder Guarantors shall
have made more than two capital contributions or Investments in the Borrower or
any Subsidiary thereof (or more than one during any twelve-month period) for the
principal purpose of permitting the Borrower to pay any principal, interest,
fees or other amounts payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Article 5, other than those contained in Sections 5.01 through
5.05, 5.07 through 5.10 and 5.16;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 20 days after notice thereof has been given to the Borrower by
the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Borrower or a Subsidiary of the Borrower in this Agreement or any other Loan
Document or in any certificate, financial statement or other document delivered
51
pursuant to this Agreement shall prove to have been incorrect in any material
respect when made (or deemed made);
(e) the Borrower or any Subsidiary of the Borrower shall fail to make
any payment in respect of (x) any obligation under the Revolving Credit
Agreement or (y) any other Indebtedness or Contingent Obligation having an
aggregate principal and face amount of more than $5,000,000, in each case when
due (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure continues after the applicable grace period or
notice period, if any, specified in the document relating thereto;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Indebtedness or Contingent Obligation (x)
under the Revolving Credit Agreement or (y) any other Indebtedness or Contingent
Obligation of the Borrower or any Subsidiary of the Borrower having an aggregate
principal or face amount of more than $5,000,000 or enables (or, with the giving
of notice or lapse of time or both, would enable) the holder of any such
Indebtedness or Contingent Obligation or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(g) the Borrower or any Principal Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Principal Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Principal Subsidiary under
the federal bankruptcy laws as now or hereafter in effect;
(i) (1) any member of the Controlled Group shall fail to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under a Multiemployer Plan; (2) any
52
member of the Controlled Group shall fail to satisfy its contribution
requirements under Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (3) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as defined in
Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension Liabilities is more than
$5,000,000 or 10% of its net worth, if greater; (4) in the case of an ERISA
Event involving the complete or partial withdrawal from a Multiemployer Plan,
the withdrawing employer has incurred a withdrawal liability in an aggregate
amount exceeding $5,000,000 or 10% of its net worth, if greater; (5) in the case
of an ERISA Event not described in clause (3) or (4), the Unfunded Pension
Liabilities of the relevant Plan or Plans exceed $5,000,000 or 10% of its net
worth, if greater; (6) a Plan that is intended to be qualified under Section
401(a) of the Code shall lose its qualification, and the loss can reasonably be
expected to impose on any member of the Controlled Group liability (for
additional taxes, to Plan participants, or otherwise) in the aggregate amount of
$5,000,000 or 10% of its net worth, if greater or more; (7) the commencement or
increase of contributions to, the adoption of, or the amendment of a Plan by,
any member of the Controlled Group shall result in a net increase in unfunded
liabilities to the Borrower or an ERISA Affiliate in excess of $5,000,000 or 10%
of net worth, if greater; or (8) the occurrence of any combination of events
listed in clauses (3) through (7) that involves a net increase in aggregate
Unfunded Pension Liabilities and unfunded liabilities in excess of $5,000,000 or
10% of its net worth, if greater;
(j) one or more final judgments, orders or decrees shall be entered
against the Borrower or any member of the Borrower Group involving in the
aggregate a liability (not fully covered by insurance and as to which the
insurer has not acknowledged liability) more than an amount equal to the greater
of (i) $5,000,000 and (ii) 10% of the Borrower's net worth, and the same shall
remain unvacated, undischarged, unstayed or unbonded pending appeal for a period
of 60 days after the entry thereof; or
(k) any non-monetary judgment, order or decree shall be rendered
against the Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect, and enforcement proceedings shall
have been commenced by any Person upon such judgment or order which shall remain
unstayed for any period of 10 consecutive days or more; or
(l) (i) any provision of the Security and Pledge Agreement shall for
any reason cease to be valid and binding on or enforceable against the Borrower,
if the effect thereof may materially deprive the Banks and the Agents of the
benefits of the Collateral covered thereby, or the Borrower shall so state in
writing or bring an action to limit its obligations or liabilities thereunder;
53
(ii) the Security and Pledge Agreement shall for any reason (other than pursuant
to, or contemplated by, the terms thereof) cease to create a valid security
interest in the Collateral purported to be covered thereby or such security
interest shall for any reason cease to be a perfected and (except for Permitted
Liens arising by operation of law) first priority security interest; (iii) any
of the outstanding Obligations of the Borrower hereunder shall not be Secured
Obligations (as defined in the Security and Pledge Agreement); or (iv) there
shall occur an event of loss which, together with all other events of loss since
the Effective Date, results in a reduction in the value (as determined in the
reasonable opinion of the Required Banks) of the Collateral of $2,500,000 net of
any cash proceeds received by the Borrower in respect of such event or events of
loss; or
(m) the FCC or any other Governmental Authority shall revoke or fail
to renew any FCC License or any other material license, permit or franchise of
the Borrower or any of its Subsidiaries; the Borrower or any Subsidiary shall
for any reason lose any FCC License or any other material license, permit or
franchise; or the Borrower or any Subsidiary shall suffer the imposition of any
restraining order, escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any FCC License or any
other material license, permit or franchise;
(n) there shall occur and be continuing a Material Adverse Effect;
(o) the Borrower shall breach or default under any Rate Contract to
which any Bank is a party, if the effect of such breach or default is to allow
the Bank to proceed against the Borrower to satisfy any claim of the Bank
against the Borrower in respect of such Rate Contract;
(p) there shall occur a Change in Control;
(q) any Shareholder Guarantor (other than Baron Capital, so long as,
with respect to any failure to make a payment described in clause (ii) below, an
amount equal to such payment is paid under the Baron Capital Letter of Credit)
shall fail to make any payment (i) in respect of any Indebtedness or Contingent
Obligation having an aggregate principal or face amount of more than $75,000,000
or (ii) under its Shareholder Guaranty when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure
continues after the applicable grace period or notice period, if any, specified
in the document relating thereto;
(r) any event or condition shall occur which results in the
acceleration of the maturity of any Indebtedness or Contingent Obligation of any
Shareholder Guarantor (other than Baron Capital) having an aggregate principal
54
or face amount of more than $75,000,000 or enables the holder of such
Indebtedness or Contingent Obligation or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(s) any Shareholder Guaranty or the Baron Capital Letter of Credit
shall for any reason be revoked or invalidated or otherwise cease to be in full
force and effect (other than in accordance with its terms as the result of
performance in full of the relevant Shareholder Guarantor's obligations
thereunder) or any Shareholder Guarantor (other than Baron Capital) shall so
assert in writing or any Shareholder Guarantor shall bring an action to limit
its liabilities thereunder;
(t) Xxxxxx' senior unsecured long-term securities (without third-party
credit enhancement) shall not be rated Baa3 or above by Xxxxx'x and BBB- or
above by S&P; or
(u) Xxxxxx and either other Shareholder Guarantor shall have notified
any of the Agents and the banks of the existence of a Guaranty Issuance
Agreement Event of Default;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Borrower terminate the Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding more than 50% of the aggregate principal
amount of the Loans, by notice to the Borrower declare the Loans (together with
accrued interest thereon) to be, and the Loans shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that in
the case of any of the Events of Default specified in clause (g) or (h) above
with respect to the Borrower, without any notice to the Borrower or any other
act by the Administrative Agent or the Banks, the Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower. If any amount
payable under this Agreement shall not be paid when due, then the Administrative
Agent shall, if requested by Banks holding more than 50% of the aggregate
principal amount (excluding any Loans held by the Borrower or any Shareholder
Guarantor or any Affiliate of the foregoing) of the Tranche A Loans, Tranche B
Loans or Tranche C Loans, as the case may be, demand payment therefor under the
relevant Shareholder Guaranty.
SECTION 6.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
55
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement, the Notes and each other Loan
Document as are delegated to such Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Xxxxxx Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
an Agent, and each of Toronto Dominion (Texas), Inc. and Xxxxxx Guaranty Trust
Company of New York and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not an Agent.
SECTION 7.03. Action by Agents. The obligations of the Agents hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agents shall not be required to take any action with respect
to any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. Either Agent may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. No Agent or any of its affiliates or
any of their respective directors, officers, agents or employees shall be liable
for any action taken or not taken by it in connection herewith (i) with the
consent or at the request of the Required Banks or (ii) in the absence of its
own gross negligence or willful misconduct. No Agent or any of its affiliates or
any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
the Borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower; (iii) the satisfaction of any condition
specified in Article 3, except receipt of items required to be delivered to the
Documentation Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in connection
herewith. No Agent shall incur any liability by acting in reliance upon any
56
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex, facsimile transmission or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify each Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitee's gross negligence or willful misconduct) that such indemnitee may
suffer or incur in connection with this Agreement or any action taken or omitted
by such indemnitee hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon either Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon either Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. Either Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agents' Fees. The Borrower shall pay to each Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and such Agent.
57
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Loan:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Banks in the London interbank market for such Interest Period, or
(b) Banks having 50% or more of the aggregate principal amount of the
affected Loans advise the Administrative Agent that the Adjusted London
Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding their
Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-Dollar Loans or to continue or convert
outstanding Loans as or into Euro-Dollar Loans shall be suspended and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Administrative Agent at least two Domestic Business Days
before the date of the Borrowing, if it is to be a Euro-Dollar Borrowing, for
which the Notice of Borrowing has previously been given that it elects not to
borrow on such date, the Borrowing shall instead be made as a Base Rate
Borrowing. The Administrative Agent shall notify the Borrower as soon as
reasonably possible upon learning that the circumstances giving rise to such
suspension no longer exist.
SECTION 8.02. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
58
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans, or to convert outstanding
Loans into Euro-Dollar Loans, shall be suspended. Before giving any notice to
the Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar 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 such notice is given, each Euro-Dollar Loan of
such Bank then outstanding shall be converted to a Base Rate Loan either (a) on
the last day of the then current Interest Period applicable to such Euro-Dollar
Loan if such Bank may lawfully continue to maintain and fund such Loan to such
day or (b) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day. Each Bank shall notify the
Administrative Agent and the Borrower as soon as reasonably possible after the
circumstances giving rise to any suspension by such Bank described in this
Section 8.02 no longer exist.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
any such requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) or the London interbank market any other condition affecting its
Euro-Dollar Loans, its Note or its obligation to make Euro-Dollar Loans 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 Euro-Dollar Loan, 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 Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction; provided, however,
that in the case of an increase referred to above resulting from the published
interpretation by a governmental authority, such Bank shall be entitled to make
demand on the Borrower in respect thereof only within 180 days of the
publication of such interpretation.
59
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Administrative Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank (or
its Parent) for such reduction; provided, however, that in the case of an
increase referred to above resulting from the published interpretation by a
governmental authority, such Bank shall be entitled to make demand on the
Borrower in respect thereof only within 180 days of the publication of such
interpretation.
(c) Each Bank will promptly notify the Borrower and the Administrative
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 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. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods. Each Bank will notify the Administrative
Agent and the Borrower as soon as reasonably possible after any circumstance
entitling such Bank to compensation pursuant to this Section 8.03(c) no longer
exists.
SECTION 8.04. Taxes. (a) For the purposes of this Section 8.04 , the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower, as the case may be, pursuant to this Agreement or under any Note, and
all liabilities with respect thereto, excluding (i) in the case of each Bank and
Agent, taxes imposed on its income, and franchise or similar taxes imposed on
it, by a jurisdiction under the laws of which such Bank or Agent (as the case
60
may be) is organized or in which its principal executive office is located or,
in the case of each Bank, in which its Applicable Lending Office is located and
(ii) in the case of each Bank, any United States withholding tax imposed on such
payments but only to the extent that such Bank is subject to United States
withholding tax at the time such Bank first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or from
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note.
(b) Any and all payments by the Borrower to or for the account of any
Bank or Agent hereunder or under any Note shall be made without deduction for
any Taxes or Other Taxes; provided that, if the Borrower shall be required by
law to deduct any Taxes or Other Taxes from any such payments, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Bank or Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.01 , the original
or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by such Bank or Agent (as the case may be) and any liability
(including penalties, interest and expenses, other than those resulting from any
act or failure to act by such Bank) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Bank or Agent (as
the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower and the Administrative Agent with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Bank is entitled to benefits under an income tax
treaty to which the United States is a party which exempts the Bank from United
61
States withholding tax or reduces the rate of withholding tax on payments of
interest for the account of such Bank or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States.
(e) For any period with respect to which a Bank has failed to provide
the Borrower or the Administrative Agent with the appropriate form pursuant to
Section 8.04(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form originally was
required to be provided), such Bank shall not be entitled to indemnification
under Section 8.04(b) or 8.04(c) with respect to Taxes imposed by the United
States; provided that if a Bank, which is otherwise exempt from or subject to a
reduced rate of withholding tax, becomes subject to Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section, then such Bank will change the
jurisdiction of its Applicable Lending Office if, in the judgment of such Bank,
such change (i) will eliminate or reduce any such additional payment which may
thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03 or 8.04 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) Euro-Dollar Loans shall instead be Base Rate
Loans (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Banks); and
(b) after each of its Euro-Dollar Loans has been repaid (or converted
to a Base Rate Loan), all payments of principal which would otherwise be applied
to repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
62
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (a) in the
case of the Borrower or either Agent, at its address or facsimile number set
forth on the signature pages hereof, (b) in the case of any Bank, at its address
or facsimile number set forth in its Administrative Questionnaire or (c) in the
case of any party, such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agents and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Administrative Agent under Article 2 or Article 8 shall not be effective
until received.
SECTION 9.02. No Waivers. No failure or delay by either Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all out-of-pocket expenses of the Agents, including reasonable fees and
disbursements of special counsel for the Agents, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
each Agent and Bank, including (without duplication) the fees and disbursements
of outside counsel and the allocated cost of inside counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
63
(b) The Borrower agrees to indemnify each Agent and Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that no Indemnitee shall have the right to
be indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
SECTION 9.04. Sharing of Set-offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise (other than any
such right against a Shareholder Guarantor), receive payment of a proportion of
the aggregate amount of principal and interest due with respect to any Note held
by it which is greater than the proportion received by any other Bank in respect
of the aggregate amount of principal and interest due with respect to any Note
held by such other Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes held by the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
shall be shared by the Banks pro rata; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness hereunder.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of an Agent are affected thereby, by such Agent); provided that
no such amendment or waiver shall, unless signed by all the Banks, (a) increase
or decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any additional obligation, (b)
reduce the principal of or rate of interest on any Loan, or any fees hereunder,
(c) postpone the date fixed for any payment of principal of or interest on any
Loan, or any fees hereunder or for any scheduled reduction or termination of any
64
Commitment, (d) release the Borrower from its obligations hereunder or the
Shareholder Guarantors from their obligations under the Shareholders Guaranties,
(e) release all or substantially all of the Collateral, or (f) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section or any other provision of this
Agreement.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agents, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agents shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (a),
(b), (c), (d) or (e) of the proviso to Section 9.05 without the consent of the
Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
8 with respect to its participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time, upon five Business Days' written notice
to each of the Agents, assign to one or more banks or other institutions (each
an "Assignee") all, or a proportionate part (equivalent to an initial Commitment
of not less than $2,500,000) of all, of its rights and obligations under this
Agreement and the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit D hereto executed by such Assignee and such transferor Bank,
with (and subject to) the subscribed consent of the Borrower and the
Administrative Agent, which consent shall in each case not be unreasonably
withheld; provided that (x) if an Assignee is an affiliate of such transferor
Bank or was a Bank immediately prior to such assignment or
65
if the Assignee is a Shareholder Guarantor purchasing Notes pursuant to Section
1(e) of a Shareholder Guaranty, no such consent shall be required and (y) such
Bank shall contemporaneously assign to such Assignee an equivalent percentage of
loans under the Revolving Credit Agreement. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to the Assignee, and the transferor Bank shall provide prompt
written notice of such assignment to the Documentation Agent. In connection with
any such assignment, the transferor Bank shall pay to the Administrative Agent
an administrative fee for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrower and the Administrative
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Each Bank shall, upon receipt from a Shareholder Guarantor of an
amount equal to all of such Bank's Guaranteed Obligations (as defined in the
relevant Shareholder Guaranty) (the "Transfer Payment"), assign to such
Shareholder Guarantor the corresponding portion of its rights and obligations
under this Agreement and the Notes in accordance with paragraph (c) of this
Section 9.06; provided that (i) the consent of the Borrower and the
Administrative Agent shall not be required for such assignment and (ii) no such
assignment shall be effective until each Bank has received its Transfer Payment
from the applicable Shareholder Guarantor.
66
SECTION 9.07. Collateral. Each of the Banks represents to the Agents
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 9.09. Counterparts; Integration; Effectiveness. 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. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Documentation Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Documentation Agent in form satisfactory to it of telegraphic, telex,
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 9.10. Waiver of Jury Trial. EACH OF THE BORROWER, THE AGENTS
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Confidentiality. Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all non-public information provided to it by the Borrower or any of its
Subsidiaries by the Agents on the Borrower's or such Subsidiary's behalf in
connection with this Agreement or any other Loan Document and neither it nor any
of its Affiliates shall use any such information for any purpose or in any
67
manner other than pursuant to the terms contemplated by this Agreement, except
to the extent such information (a) was or becomes generally available to the
public other than as a result of a disclosure by the Bank, or (b) was or becomes
available on a non-confidential basis from a source other than the Borrower,
provided that such source is not bound by a confidentiality agreement with the
Borrower known to the Bank; provided, further, that any Bank may disclose such
information (A) to any other Bank or to the Agents, (B) at the request of any
regulatory authority or in connection with an examination of such Bank by any
such authority; (C) pursuant to subpoena or other court process; (D) when
required to do so in accordance with the provisions of any applicable law; (E)
at the express direction of any other agency of any State of the United States
of America or of any other jurisdiction in which such Bank conducts its
business; and (F) to such Bank's independent auditors and legal counsel.
Notwithstanding the foregoing, the Company authorizes each Bank to disclose to
any Participant or Assignee (each, a "Transferee") and any prospective
Transferee such financial and other information in such Bank's possession
concerning the Borrower or any of its Subsidiaries which has been delivered to
the Banks pursuant to this Agreement or which has been delivered to the Banks by
the Borrower or any of its Subsidiaries in connection with the Banks' credit
evaluation of the Borrower and its Subsidiaries prior to entering into this
Agreement; provided that such Transferee agrees in writing to such Bank to keep
such information confidential to the same extent required of the Banks
hereunder.
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN MOBILE SATELLITE
CORPORATION
By /s/Xxxx X. Xxxxxxx
------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
Address: 00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
00
XXXXXXX XXXXXXXX (XXXXX), INC.
By /s/Xxxx Xxxx
------------
Name: Xxxx Xxxx
Title: Vice President
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/Xxxx X. Xxxxxxx
------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By /s/Xxxxxx X. Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
70
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Documentation Agent
By /s/Xxxx X. Xxxxxxx
------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: 000-000-0000
TORONTO DOMINION (TEXAS),
INC., as Administrative Agent
By /s/Xxxx Xxxx
------------
Name: Xxxx Xxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Facsimile: 000-000-0000
71
COMMITMENT SCHEDULE
Bank Tranche A Tranche B Tranche C
Commitment Commitment Commitment
Toronto Dominion (Texas), $37,500,000 $0 $6,250,000
Inc.
Xxxxxx Guaranty Trust 37,500,000 $0 $6,250,000
Company of New York
Bank of America National $0 $12,500,000 $0
Trust and Savings
Association
1
PRICING SCHEDULE
"Euro-Dollar Margin" means for any date the rate set forth below in the
column corresponding to the "Pricing Level" that applies at such date:
Level I Level II Level III
Euro-Dollar Margin 0.50% 0.75% 1.00%
------------------- ----------- ------------- ------------
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" applies at any date if, as of such date, Xxxxxx'
long-term debt is rated A3 or higher by Moody's and A- or higher by S&P
"Level II Pricing" applies at any date if, as of such date, (i) Xxxxxx'
long-term debt is rated Baa2 or higher by Moody's and BBB or higher by S&P and
(ii) Level I Pricing does not apply.
"Level III Pricing" applies at any date if neither Level I nor Level II
Pricing applies.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I, Level
II or Level III applies at any date.
"S&P" means Standard & Poor's Rating Service.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of Xxxxxx
without third-party credit enhancement, and any rating assigned to any other
debt security of Xxxxxx shall be disregarded. The ratings in effect for any day
are those in effect at the close of business on such day.
1
DISCLOSURE SCHEDULE
Section 1.01 -- FCC Licenses.
Section 4.03 -- Government Approvals.
Section 4.05 -- Litigation.
Section 4.07 -- Plans.
Section 4.10(c) -- Material Adverse Effect.
Section 4.13 -- Subsidiaries and Equity Investments.
Section 5.17 -- Existing Liens.
Section 5.25 -- Existing Indebtedness.
1
EXHIBIT A -- Note
TERM NOTE
New York, New York
[DATE]
For value received, American Mobile Satellite Corporation, a Delaware
corporation (the "Borrower"), promises to pay to the order of
______________________ (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Term Credit Agreement referred to below on the maturity
date provided for in the Term Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Term Credit Agreement. All such payments
of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of The
Toronto-Dominion Bank, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective Types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, if the
Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Term Credit Agreement.
This note is one of the Notes referred to in the Term Credit Agreement
dated as of March 31, 1998 among American Mobile Satellite Corporation, the
banks party thereto, Xxxxxx Guaranty Trust Company of New York, as Documentation
Agent and Toronto Dominion (Texas), Inc. as Administrative Agent (as the same
may be amended from time to time, the "Term Credit Agreement"). Terms defined in
the Term Credit Agreement are used herein with the same meanings. Reference is
made to the Term Credit Agreement for provisions for the prepayment hereof and
the acceleration of the maturity hereof.
AMERICAN MOBILE SATELLITE
CORPORATION
By ----------------------------------------------
Name:
Title:
1
LOANS AND PAYMENTS OF PRINCIPAL
-------------------------------------------------------------------------
Amount Type Amount of
of of Principal Notation
Date Loan Loan Repaid Made By
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
3
EXHIBIT B -- Opinion of Counsel for the Borrower
OPINION OF
COUNSEL FOR THE BORROWER
March __, 1998
To the Banks, Shareholder Guarantors and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Documentation Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I am Vice President, Secretary and General Counsel of American Mobile
Satellite Corporation, a Delaware corporation ("AMSC"). In such capacity I have
become familiar with the $100,000,000 Term Credit Agreement (the "Term Credit
Agreement") dated as of March 31, 1998 among AMSC, the banks listed on the
signature pages thereof, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent, and Toronto Dominion (Texas), Inc., as Administrative
Agent. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Term Credit Agreement. This opinion is being rendered to you
pursuant to Section 3.1(a) of the Term Credit Agreement.
In rendering this opinion, I have examined originals or copies of:
1. the Term Credit Agreement, the Notes and the Security and Pledge
Agreement (collectively, the "Loan Documents");
2. the certificate of incorporation, as amended, of AMSC;
3. the bylaws, as amended, of AMSC;
4. the Certificate of Good Standing with respect to AMSC issued by the
Secretary of State of the State of Delaware not earlier than March 20,
1998;
1
5. the Certificate of Good Standing as a Foreign Corporation with respect
to AMSC issued by the State Corporation Commission of the Commonwealth
of Virginia dated March 20, 1998; and
6. certain resolutions adopted by the Board of Directors of AMSC at a
meeting of the Board held on March 19, 1998;
upon all of which I have relied. I have not independently verified any factual
matters in connection with or apart from my review of the documents referred to
above and, accordingly, I do not express any opinion as to matters that might
have been disclosed by independent verification.
In arriving at the opinions expressed below, I have assumed, and not
verified, the authenticity of all documents submitted to me as originals and the
conformity to original documents of all documents submitted to me as copies, as
well as the due and valid authorization, execution and delivery of all such
documents by the appropriate party or parties (other than the Loan Parties), and
that each such party (other than the applicable Loan Parties) has adequate
power, authority and legal right to enter into such documents to which it is a
party and to perform its obligations under such documents to which it is a
party.
Based solely upon the foregoing and in reliance thereon, and subject to
the qualifications, limitations and assumptions set forth herein, it is my
opinion that:
1. AMSC is a corporation duly incorporated, validly existing and in
good standing under the laws of Delaware, has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted, and is duly qualified as a foreign
corporation, licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business require such qualification except where the failure to be so qualified
would not reasonably be expected to result in a Material Adverse Effect.
2. The execution, delivery and performance by AMSC of the Term Credit
Agreement, the Notes and each other Loan Document are within its corporate
powers, have been duly authorized by all necessary corporate action and do not
and will not: (a) contravene the terms of its certificate of incorporation,
bylaws or other organization documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any indenture,
agreement, lease, instrument, Contractual Obligation, injunction, order, decree
or undertaking to which such Person is a party (other than Liens under the
Security and Pledge Agreement); or (c) violate any Requirement of Law.
2
3. Each Loan Document constitutes the legal, valid and binding
obligations or agreements of AMSC, enforceable against it in accordance with its
terms.
4. Except as set forth in Section 4.05 of the Disclosure Schedule and
for matters arising after the Effective Date which could not reasonably be
expected to have a Material Adverse Effect, there are no actions, suits,
proceedings, claims or disputes pending, or to the best of our knowledge,
threatened or contemplated at law, in equity, in arbitration or before any
Governmental Authority, against AMSC or any of its Subsidiaries or any of their
respective properties which: (a) purport to affect or pertain to any Loan
Document, or any of the transactions contemplated thereby; or (b) if determined
adversely to AMSC or any of its Subsidiaries, could have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery and performance of any Loan
Document, or directing that the transactions provided for therein not be
consummated as therein provided.
5. None of AMSC, any Person controlling AMSC, or any Subsidiary
thereof, is (a) an "Investment Company" within the meaning of the Investment
Company Act of 1940; or (b) subject to regulation under the Public Utility
Holding Company Act of 1935, or, to the best of our knowledge, the Federal Power
Act, the Interstate Commerce Act, any state public utilities code or any other
Federal or state statute or regulation limiting its ability to incur
Indebtedness.
6. Assuming the Agents and the Banks have no knowledge of any adverse
claim thereto, the Security and Pledge Agreement, together with possession and
retention in the State of New York by the Administrative Agent of stock
certificates evidencing the Pledged Stock (as defined in the Security and Pledge
Agreement), together with the related duly executed and completed stock powers,
creates a valid and perfected security interest in the Pledged Stock under the
New York Uniform Commercial Code in favor of the Administrative Agent for the
benefit of the Secured Parties (as defined in the Security and Pledge
Agreement), subject to the following: the perfection and the continuation of
perfection of the Administrative Agent's security interest in proceeds is
limited to the extent set forth in Section 9-306 of the New York Uniform
Commercial Code.
7. The Security and Pledge Agreement is in acceptable legal form for
the creation of enforceable security interests under the Uniform Commercial Code
of the State of New York. The financing statements attached hereto are in
appropriate form for filing with the filing offices specified thereon. To the
extent that a security interest in the Collateral (as defined in the Security
and Pledge Agreement) may be perfected by the filing of a financing statement,
the security interest in such Collateral will be perfected upon the filing of
such financing statements in such filing offices.
3
The opinions set forth in this paragraph 7 are subject to the further
qualification that I express no opinion as to (i) AMSC's rights in or title to
any Collateral; and (ii) the priority of the Administrative Agent's security
interest in the Collateral, and the opinions set forth in paragraphs 6 and 7 are
subject to the further qualification that I express no opinion as to (i) the
enforceability of provisions in the Security and Pledge Agreement as to
self-help and non-judicial remedies, (ii) whether the procedures relating to the
sale or disposition of the Collateral in the Security and Pledge Agreement would
meet applicable requirements for a commercially reasonable disposition, and
(iii) the enforceability of the provisions in the Security and Pledge Agreement
relating to or purporting to limit the Administrative Agent's duty with respect
to the Collateral.
The foregoing opinions are subject to the following assumptions and
qualifications:
(a) The opinions set forth in paragraph 3 are subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and to the possible judicial
application of foreign laws or governmental action affecting the enforcement of
creditors' rights.
(b) The opinions set forth in paragraph 3 are subject to the further
qualification that the enforceability of the obligations of AMSC under the Loan
Documents are subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). Such
principles of equity are of general application and, in applying such
principles, a court, among other things, might not allow a creditor to
accelerate the maturity of a debt upon the occurrence of a default deemed
immaterial or might decline to order that a covenant be performed. Such
principles applied by a court might include, among other things, a requirement
that creditors act with reasonableness and good faith. Such a requirement might
be applied, among other situations, to the provisions of any Loan Document
requiring the payment of an indemnity or compensation to any party thereto or
purporting to authorize conclusive determinations by any party thereto.
(c) With respect to my opinion in paragraph 3 hereof, I express no
opinion as to whether the courts of a jurisdiction other than the State of New
York would give effect to the choice of New York law as governing the agreements
as to which I express an opinion in paragraph 3.
(d) The foregoing opinions are limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware, the laws of the
Commonwealth of Virginia and the Federal law of the United States (except as
noted below), and I do not express any opinion herein concerning any other law
(including, without limitation, any such other law of any jurisdiction wherein
4
any party to any of Loan Document may be located or deemed located or wherein
enforcement of any such documents may be sought). I do not express any opinion
as to any matters arising under the Communications Act of 1934, as amended, or
any rules or regulations of the Federal Communications Commission. I do not
express any opinion as to any matters (including Governmental Approvals)
relating to international law, including compliance by any Loan Party with
treaties involving the International Maritime Satellite Organization, the
International Telecommunications Satellite Organization and the International
Telecommunication Union. I am not a member of the Bar of the State of Delaware
and insofar as the opinions expressed herein relate to matters of the General
Corporation Law of the State of Delaware, I have relied on the latest standard
compilations of statutes available to me.
The opinions herein are rendered as of the date of this opinion, and I
assume no obligation to revise or supplement this opinion at any date subsequent
hereto.
The opinions set forth above relate solely to the matters as to which
my opinion has been requested by you, and you must judge whether the matters
addressed herein are sufficient for your purposes. I do not express any opinion
as to any other matters.
This opinion is rendered to the Documentation Agent and is solely for
its benefit, for the benefit of the Shareholder Guarantors, and for the benefit
of any Bank party to the Term Credit Agreement in connection with the above
transaction. This opinion may not be relied upon by the Documentation Agent for
any other purpose, or furnished to, quoted to or relied upon by any other Person
other than any Bank or Shareholder Guarantor referred to in the immediately
preceding sentence, for any purpose without my prior written consent. It is not
to be filed with or furnished to any Governmental Authority or other Person in
either case without my prior written consent.
Very truly yours,
/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
General Counsel
5
EXHIBIT C -- Opinion of Special Counsel for the Agents
OPINION OF
XXXXX XXXX & XXXXXXXX,
SPECIAL COUNSEL FOR THE AGENTS
March __, 1998
To the Banks and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Documentation Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the $100,000,000 Term Credit
Agreement (the "Term Credit Agreement") dated as of March 31, 1998 among
American Mobile Satellite Corporation, a Delaware corporation ("AMSC"), the
banks listed on the signature pages thereof (the "Banks"), Xxxxxx Guaranty Trust
Company of New York, as Documentation Agent, and Toronto Dominion (Texas), Inc.,
as Administrative Agent (collectively, the "Agents"), and have acted as special
counsel for the Agents for the purpose of rendering this opinion pursuant to
Section 3.01 of the Term Credit Agreement. Terms defined in the Term Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that assuming
that the execution, delivery and performance by AMSC of the Term Credit
Agreement and the Notes are within its corporate powers and have been duly
authorized by all necessary corporate action, the Term Credit Agreement
constitutes a valid and binding agreement of AMSC and each Note constitutes a
valid and binding obligation of AMSC, in each case enforceable in accordance
1
with its terms except as may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
EXHIBIT D -- Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [NAME OF ASSIGNOR] (the
"Assignor"), [NAME OF ASSIGNEE] (the "Assignee"), AMERICAN MOBILE SATELLITE
CORPORATION (the "Borrower") and TORONTO DOMINION (TEXAS), INC., as
Administrative Agent (the "Agent").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the $100,000,000 Term Credit Agreement dated as of March 31, 1998
among the Borrower, the Assignor and the other Banks party thereto, as Banks,
Morgan Guaranty Trust Company of New York, as Documentation Agent, and the Agent
(the "Credit Agreement");
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
outstanding Loans in a principal amount equal to $__________ (the "Assigned
Amount"), and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
2. Assignment. The Assignor hereby assigns and sells to the Assignee
all of the rights of the Assignor under the Credit Agreement to the extent of
the Assigned Amount, and the Assignee hereby accepts such assignment from the
Assignor and assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, including the purchase from the
Assignor of the corresponding portion of the principal amount of the Loans made
by the Assignor outstanding at the date hereof. Upon the execution and delivery
hereof by the Assignor, the Assignee, [the Borrower and the Agent] and the
1
payment of the amounts specified in Section 3 required to be paid on the date
hereof (i) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
3. Payments. As consideration for the assignment and sale contemplated
in Section 2 hereof, the Assignee shall pay to the Assignor on the date hereof
in Federal funds the amount heretofore agreed between them.1 It is understood
that commitment and/or facility fees accrued to the date hereof are for the
account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
[4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agents pursuant to Section
9.06 of the Credit Agreement. The execution of this Agreement by the Borrower
and the Agents is evidence of this consent. Pursuant to Section 2.03, the
Borrower agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.]
5. Non-Reliance on Assignor. The Assignor makes no representation or
warranty in connection with, and shall have no responsibility with respect to,
the solvency, financial condition, or statements of the Borrower or the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
--------
1 Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
7. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By --------------------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By --------------------------------------------
Name:
Title:
AMERICAN MOBILE SATELLITE
CORPORATION
By --------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By --------------------------------------------
Name:
Title:
3
