EXHIBIT 10.4
CREDIT AGREEMENT
dated as of
March 3, 2004
between
WESTWOOD ONE, INC.
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
_______________
BANK OF AMERICA
as Syndication Agent
_______________
▇.▇. ▇▇▇▇▇▇ Securities Inc.
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Bookrunners
_______________
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC.
NATIONAL AUSTRALIA BANK LIMITED
as Co-Documentation Agents
_________________
$300,000,000
_________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.........................................1
SECTION 1.02. Terms Generally......................................19
SECTION 1.03. Definitions Apply to Notes, Etc......................20
SECTION 1.04. Accounting Terms.....................................20
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments......................................20
SECTION 2.02. Loans and Borrowings.................................20
SECTION 2.03. Requests for Borrowings..............................21
SECTION 2.04. Funding of Borrowings................................22
SECTION 2.05. Interest Elections...................................23
SECTION 2.06. Termination and Reduction of the Commitments.........24
SECTION 2.07. Repayment of Loans; Evidence of Debt.................25
SECTION 2.08. Prepayment of Loans..................................26
SECTION 2.09. Fees.................................................28
SECTION 2.10. Interest.............................................28
SECTION 2.11. Alternate Rate of Interest...........................29
SECTION 2.12. Increased Costs......................................30
SECTION 2.13. Break Funding Payments...............................31
SECTION 2.14. Taxes................................................31
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.............................................32
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.......34
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee........................................35
SECTION 3.02. Obligations Unconditional............................36
SECTION 3.03. Reinstatement........................................37
SECTION 3.04. Subrogation..........................................37
SECTION 3.05. Remedies.............................................37
SECTION 3.06. Instrument for the Payment of Money..................37
SECTION 3.07. Continuing Guarantee.................................38
SECTION 3.08. Rights of Contribution...............................38
SECTION 3.09. General Limitation on Guarantee Obligations..........38
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Financial Condition...................................39
SECTION 4.02. No Change.............................................40
SECTION 4.03. Corporate Existence; Compliance with Law..............40
SECTION 4.04. Corporate Power; Authorization; Enforceable
Obligations...........................................40
SECTION 4.05. No Legal Bar..........................................40
SECTION 4.06. No Material Litigation................................41
Section 4.07. No Default............................................41
Section 4.08. Ownership of Property; Liens..........................41
Section 4.09. Intellectual Property.................................41
Section 4.10. Taxes 41
Section 4.11. Federal Regulations...................................42
Section 4.12. ERISA 42.............................................42
Section 4.13. Investment Company Act; Other Regulations.............42
Section 4.14. Subsidiaries..........................................42
Section 4.15. Purpose of Loans......................................42
Section 4.16. Environmental Matters.................................42
Section 4.17. Certain Documents.....................................43
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date........................................43
SECTION 5.02. Each Credit Event.....................................45
ARTICLE VI
AFFIRMATIVE COVENANTS
SECTION 6.01. Financial Statements and Other Information............45
SECTION 6.02. Payment of Obligations................................46
SECTION 6.03. Conduct of Business and Maintenance of Existence......47
SECTION 6.04. Maintenance of Property; Insurance....................47
SECTION 6.05. Inspection of Property; Books and Records;
Discussions...........................................47
SECTION 6.06. Notices...............................................47
SECTION 6.07. Unrestricted Subsidiaries; Maintenance of Separate
Corporate Identity....................................48
SECTION 6.08. Certain Obligations Respecting Subsidiaries...........49
ARTICLE VII
NEGATIVE COVENANTS
SECTION 7.01. Financial Condition Covenants.........................50
SECTION 7.02. Limitation on Indebtedness............................50
SECTION 7.03. Limitation on Liens...................................51
SECTION 7.04. Limitation on Guarantee Obligations...................52
SECTION 7.05. Limitation on Fundamental Changes.....................53
SECTION 7.06. Limitation on Sale of Assets..........................53
SECTION 7.07. Limitation on Restricted Payments.....................54
SECTION 7.08. Limitation on Investments, Loans and Advances.........55
SECTION 7.09. Limitation on Modifications of the Management
Agreement.............................................56
SECTION 7.10. Limitation on Sale or Discount of Receivables.........56
SECTION 7.11. Limitation on Transactions with Affiliates............56
SECTION 7.12. Limitation on Changes in Fiscal Year..................56
SECTION 7.13. Limitation on Negative Pledge Clauses.................56
SECTION 7.14. Limitation on Lines of Business.......................57
SECTION 7.15. Repayments of Indebtedness............................57
SECTION 7.16. Hedging Agreements....................................57
ARTICLE VIII
EVENTS OF DEFAULT............................57
ARTICLE IX
THE ADMINISTRATIVE AGENT.........................60
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices..............................................63
SECTION 10.02. Waivers; Amendments..................................63
SECTION 10.03. Expenses; Indemnity; Damage Waiver...................65
SECTION 10.04. Successors and Assigns...............................66
SECTION 10.05. Survival.............................................70
SECTION 10.06. Counterparts; Integration; Effectiveness.............70
SECTION 10.07. Severability.........................................70
SECTION 10.08. Right of Set-off.....................................70
SECTION 10.09. Governing Law; Jurisdiction; Etc.....................71
SECTION 10.10. WAIVER OF JURY TRIAL.................................71
SECTION 10.11. Headings.............................................72
SECTION 10.12. Treatment of Certain Information; Confidentiality....72
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Guarantee Obligations
SCHEDULE IV - Subsidiaries and Investments
SCHEDULE V - Transactions With Affiliates
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Guarantee Assumption Agreement
EXHIBIT C - Form of Opinion of Counsel to the Obligors
EXHIBIT D - Form of Opinion of Special New York Counsel to JPMCB
EXHIBIT E - Form of Tax Allocation Agreement.
CREDIT AGREEMENT dated as of March 3, 2004, between WESTWOOD ONE, INC., the
SUBSIDIARY GUARANTORS party hereto, the LENDERS party hereto, and JPMORGAN CHASE
BANK, as Administrative Agent.
The Borrower (as hereinafter defined) has requested that the Lenders (as so
defined) make loans to it, under the guarantee of the Subsidiary Guarantors (as
so defined), in an aggregate principal amount not exceeding $300,000,000, to
finance the operations of the Obligors (as so defined), to refinance certain
existing indebtedness of the Obligors, and for other general corporate purposes
of the Obligors. The Lenders are prepared to make such loans upon the terms and
conditions hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, an interest rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied
by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means JPMCB, in its capacity as administrative agent
for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, as the case may be.
"Annualized Consolidated Corporate Overhead" means, for any period,
corporate general and administrative expenses of the Borrower and its Restricted
Subsidiaries for such period as shown on the consolidated financial statements
of the Borrower and its Restricted Subsidiaries for such period delivered to the
Administrative Agent pursuant to Section 6.01(a) or 6.01(b); provided that there
shall be excluded from "Annualized Consolidated Corporate Overhead" (a) all
non-cash charges and (b) all corporate general and administrative expenses of
the Borrower incurred on behalf of, or otherwise attributable to, Unrestricted
Subsidiaries or in connection with management and other services and activities
performed by the Borrower for Unrestricted Subsidiaries.
"Annualized Consolidated Operating Cash Flow" means, for any period, the
aggregate amount (determined on a consolidated basis without duplication in
accordance with GAAP), for the Borrower and its Restricted Subsidiaries, of
(a) the sum of (i) net revenues of the Borrower and its Restricted
Subsidiaries for such period (calculated before taxes and excluding (A) any
net gain or loss arising from the sale of capital assets during such
period; (B) any gain arising from any write-up of assets during such
period; (C) net earnings for such period of any Person in which the
Borrower or any of its Restricted Subsidiaries has an ownership interest
unless such net earnings shall have actually been received by the Borrower
or such Restricted Subsidiary in the form of cash distributions (other than
cash distributions received by the Borrower from an Unrestricted
Subsidiary); (D) any portion of the net earnings of any Restricted
Subsidiary of the Borrower or any of its Restricted Subsidiaries for such
period which for any reason is unavailable for payment of dividends to the
Borrower or any other such Restricted Subsidiary; (E) any gain realized
during such period arising from the acquisition of any securities of the
Borrower or any of its Restricted Subsidiaries; (F) any "extraordinary",
"unusual" or "non-recurring" earnings or "extraordinary", "unusual" or
"non-recurring" losses for such period as such terms are interpreted under
GAAP; and (G) any interest income of the Borrower and its Restricted
Subsidiaries realized during such period) minus (ii) operating expenses of
the Borrower and its Restricted Subsidiaries for such period (excluding
depreciation, amortization, interest expense and other non-cash charges
accrued, and income taxes paid or accrued (other than any such taxes
attributable to the revenues of Unrestricted Subsidiaries for which the
Borrower has not been or is not entitled to be reimbursed, or in respect of
which the Borrower has not received or is not entitled to receive a credit,
pursuant to the terms of any Tax Allocation Agreement), for such period by
the Borrower and its Restricted Subsidiaries) minus
(b) Annualized Consolidated Corporate Overhead for such period;
provided that for purposes of calculating Annualized Consolidated
Operating Cash Flow when such term is used in determining the Total Debt
Ratio, if the Borrower or any of its Restricted Subsidiaries shall have
acquired or disposed of one or more businesses (or any part thereof) during
such period, Annualized Consolidated Operating Cash Flow for such period
shall be computed as if (in the case of an acquisition) such business (or
part thereof) had been owned by the Borrower or such Restricted Subsidiary
for the whole of such period or (in the case of a disposition) such
business (or part thereof) had been disposed of prior to the first day of
such period.
"Applicable Margin" means, with respect to Loans of any Type during
any Interest Accrual Period, the respective rates indicated below for such
Loans of such Type opposite the applicable Total Debt Ratio indicated below
for such Interest Accrual Period:
------------------------------ ---------------------------------------------------------
Applicable Margin
------------------------------ ---------------------------------------------------------
------------------------------ ---------------------------- ----------------------------
Total
Debt Ratio Eurodollar Loans Base Rate Loans
------------------------------ ---------------------------- ----------------------------
------------------------------ ---------------------------- ----------------------------
Greater than or equal to 1.125% 0.125%
3.00 to 1
------------------------------ ---------------------------- ----------------------------
------------------------------ ---------------------------- ----------------------------
Less than 3.00 to 1 and 0.875% 0.000%
------------------------------ ---------------------------- ----------------------------
------------------------------ ---------------------------- ----------------------------
Less than 2.00 to 1 0.625% 0.000%
------------------------------ ---------------------------- ----------------------------
The Total Debt Ratio for any Interest Accrual Period after the initial
Interest Accrual Period shall be determined on the basis of a certificate of a
Responsible Officer, or any other senior officer setting forth a calculation of
the Total Debt Ratio as at the last day of the fiscal quarter ending immediately
prior to the first day of such Interest Accrual Period, each of which
certificates shall be delivered together with the financial statements for the
fiscal quarter on which such calculation is based.
Anything in this Agreement to the contrary notwithstanding, the Applicable
Margin shall be, (i) 0.000% with respect to Base Rate Loans and 0.625% with
respect to Eurodollar Loans until the Interest Accrual Period commencing on the
third Business Day following the receipt by the Administrative Agent of the
certificate referred to in the immediately preceding paragraph setting forth the
calculation of the Total Debt Ratio as at the fiscal year ended December 31,
2003 and (ii) the highest rates set forth in the schedule above during any
period when an Event of Default shall have occurred and be continuing, or during
any period during which the Borrower shall be in default in the delivery of any
financial statements pursuant to Section 6.01(a) or 6.01(b).
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments or Loans of both Classes hereunder represented by the
aggregate amount of such Lender's Commitments or Loans of both Classes
hereunder.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Westwood One, Inc., a Delaware corporation.
"Borrowing" means (a) all ABR Loans of the same Class made, converted or
continued on the same date or (b) all Eurodollar Loans of the same Class that
have the same Interest Period.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed and (b) if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, a Eurodollar Borrowing, or to a notice by the
Borrower with respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" means, for any period, expenditures (including the
aggregate amount of obligations under Financing Leases (excluding any such
obligations relating to the acquisition of satellite time or capacity in an
aggregate amount not to exceed $20,000,000) incurred during such period) made by
the Borrower or any of its Restricted Subsidiaries to acquire or construct fixed
assets, plant and equipment (including renewals, improvements and replacements,
but excluding repairs) during such period computed in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents" means (a) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank having capital and surplus in excess of
$500,000,000, having a term of not more than 30 days with respect to securities
issued or fully guaranteed or insured by the United States Government,
(d) commercial paper of a domestic issuer rated at least A-2 by Standard and
Poor's Ratings Services ("S&P") or P-2 by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), (e) debt securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority
of any such state, commonwealth or territory or by any Person which are rated at
least A by S&P or A by Moody's, (f) debt securities with maturities of one year
or less from the date of acquisition backed by standby letters of credit issued
by any Lender or any commercial bank satisfying the requirements of clause (b)
of this definition, (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a) through
(f) of this definition or (h) securities similar in nature and maturity to those
described in the foregoing clauses (a) through (g) denominated in foreign
currencies and owned by a Foreign Subsidiary.
"Casualty Event" means, with respect to any property of any Person, any
loss of or damage to, or any condemnation or other taking of, such property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.12(b), by any lending office of such Lender or by such Lender's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are Revolving Credit Loans
or Term Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Credit Commitment or Term Loan Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means a Revolving Credit Commitment or Term Loan Commitment,
or any combination thereof (as the context requires).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States.
"Effective Date" means the date on which the conditions specified in
Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Materials of Environmental Concern, (c) exposure to any
Materials of Environmental Concern, (d) the release or threatened release of any
Materials of Environmental Concern into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Environmental Permits" means any and all permits, licenses, registrations,
notifications, exemptions and any other authorization required under any
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VIII.
"Excess Cash Flow" means, for any fiscal year, the amount (if any) by which
(a) the sum of (i) Annualized Consolidated Operating Cash Flow for such fiscal
year plus (ii) any interest income realized in cash of the Borrower and its
Restricted Subsidiaries during such fiscal year exceeds (b) the sum of (i) Total
Debt Service for such fiscal year plus (ii) the aggregate amount of Capital
Expenditures made by the Borrower and its Restricted Subsidiaries during such
fiscal year (net of long-term Indebtedness, if any, incurred by the Borrower and
its Restricted Subsidiaries during such fiscal year) plus (iii) the aggregate
amount of income taxes paid or payable by the Borrower (excluding any such taxes
attributable to the revenues of Unrestricted Subsidiaries for which the Borrower
has been or is entitled to be reimbursed, or has received or is entitled to
receive a credit, pursuant to the terms of any Tax Allocation Agreement) and its
Restricted Subsidiaries during such fiscal year.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.16(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender's failure or inability (other than as
a result of a Change in Law) to comply with Section 2.14(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.14(a).
"Existing Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of November 17, 2000 among the Borrower, the Lenders party
thereto, Fleet National Bank, Bank Of Montreal and Bank of America, N.A., as
co-agents for the Lenders thereunder, and JPMCB (as successor to The Chase
Manhattan Bank), as Administrative Agent.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financing Lease" means any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Borrower organized under
the laws of any jurisdiction outside the United States.
"GAAP" means generally accepted accounting principles in the United States
consistent with those utilized in preparing the audited financial statements
referred to in Section 4.01.
"Governmental Authority" means the government of the United States of
America, or of any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee Assumption Agreement" means a Guarantee Assumption Agreement
substantially in the form of Exhibit B by an entity that, pursuant to
Section 6.08, is required to become a "Subsidiary Guarantor" hereunder in favor
of the Administrative Agent.
"Guarantee Obligation" means as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) 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 (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person at any date means, without duplication,
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations of such Person
under Financing Leases, (d) all obligations of such Person contingent or
otherwise in respect of banker's acceptances or similar instruments issued or
created for the account of such Person, (e) all obligations, contingent or
otherwise, of such Person as an account party under acceptance, letter of credit
or similar facilities and (f) all liabilities of the type described in
clauses (a) through (e) above secured by any Lien on any property owned by such
Person (not to exceed the value of such property) even though such Person has
not assumed or otherwise become liable for the payment thereof.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Infinity" means Infinity Broadcasting Corporation, a Delaware corporation.
"INI" means (a) Infinity Network Inc., a Delaware corporation that, on the
date hereof, is a wholly owned Subsidiary of Infinity, or (b) any other wholly
owned Subsidiary of Infinity that owns Capital Stock or other ownership
interests of the Borrower; provided that Infinity shall have notified the
Administrative Agent of the name of such other Subsidiary and the amount of such
ownership interests owned by such Subsidiary.
"Insolvent" means pertaining to a condition of Insolvency.
"Interest Accrual Period" means the period commencing during any fiscal
quarter on the date (the "Change Date") that is the third Business Day following
the receipt by the Administrative Agent of the certificate referred to in the
next to the last paragraph in the definition of "Applicable Margin", to but not
including the Change Date in the immediately following fiscal quarter.
"Interest Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan, each
Quarterly Date and (b) with respect to any Eurodollar Loan, the last day of each
Interest Period therefor and, in the case of any Interest Period of more than
three months' duration, each day prior to the last day of such Interest Period
that occurs at three-month intervals after the first day of such Interest
Period.
"Interest Period" means, for any Eurodollar Loan or Borrowing, the period
commencing on the date of such Loan or Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as specified in the applicable Borrowing Request or Interest
Election Request; provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Loan, and the date of a
Borrowing comprising Loans that have been converted or continued shall be the
effective date of the most recent conversion or continuation of such Loans.
"Investment" has the meaning assigned to such term in Section 7.08.
"JPMCB" means JPMorgan Chase Bank.
"Lenders" means the Persons listed on Schedule I and any other Person that
shall have become a party hereto pursuant to an Assignment and Acceptance, other
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance.
"LIBO Rate" means, for the Interest Period for any Eurodollar Borrowing,
the rate appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
Dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the LIBO Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan Documents" means, collectively, this Agreement and the Notes.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Management Agreement" means the Management Agreement dated as of March 30,
1999, as amended by an amendment dated April 15, 2002, between the Borrower and
Infinity.
"Management Fees" means, for any period, fees and cash incentive bonuses
payable to Infinity under the Management Agreement during such period for
administrative, management and other services performed for the Borrower and its
Subsidiaries.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property, assets, liabilities or condition (financial or
otherwise) of the Borrower and its Restricted Subsidiaries taken as a whole or
(b) the validity or enforceability of this or any of the other Loan Documents or
the rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Environmental Amount" means an amount finally determined to be
payable by the Borrower and/or its Subsidiaries in excess of $1,000,000 for
remedial costs, compliance costs, compensatory damages, punitive damages, fines,
penalties or any combination thereof.
"Materials of Environmental Concern" means any gasoline or petroleum
(including, without limitation, crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes defined or
regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Notes" means the collective reference to any promissory notes evidencing
Loans of either Class pursuant to Section 2.07(f).
"Obligor" means the Borrower and each Subsidiary Guarantor.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Additional Indebtedness" means Indebtedness incurred by the
Borrower which is (i) unsecured, (ii) no portion of the principal of which is
required to be repaid, repurchased or retired prior to June 30, 2009 (other than
upon a change of control of the Borrower) and (iii) has other terms and
conditions (other than those relating to interest rate, fees and premiums)
which, taken as a whole, are no more restrictive on the Borrower (as determined
in good faith by the Board of Directors of the Borrower in the exercise of its
reasonable discretion) than the terms and conditions of this Agreement, as in
effect on the date of incurrence of such Indebtedness, provided, that, prior to
and after giving effect to such incurrence, there shall exist no Default or
Event of Default hereunder.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMCB as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.
"Properties" means the facilities and properties owned, leased or operated
by the Borrower or any of its Subsidiaries.
"Quarterly Dates" means the last Business Day of February, May, August and
November in each year, the first of which shall be the first such day after the
date hereof.
"Register" has the meaning set forth in Section 10.04.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, subject to the last paragraph of
Section 10.02(b), Lenders having Revolving Credit Exposures, outstanding Term
Loans and unused Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures, outstanding Term Loans and unused Commitments at
such time. The "Required Lenders" of a particular Class of Loans means Lenders
having Revolving Credit Exposures, outstanding Term Loans and unused Commitments
of such Class representing more than 50% of the total Revolving Credit
Exposures, outstanding Term Loans and unused Commitments of such Class at such
time.
"Requirement of Law" means as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" means the Chairman of the Board, the Co-Chairman of
the Board, the chief executive officer, the president, the chief financial
officer or the senior vice president of financial operations of the Borrower.
"Restricted Payment" shall have the meaning assigned to such term in
Section 7.07.
"Restricted Subsidiary" means each Subsidiary of the Borrower other than an
Unrestricted Subsidiary.
"Revolving Credit", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01(a).
"Revolving Credit Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Credit
Commitment Termination Date and the date of termination of the Revolving Credit
Commitments.
"Revolving Credit Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Credit Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Revolving Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.06 or 2.08(b) and
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Revolving
Credit Commitment is set forth on Schedule I, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving Credit
Commitment, as applicable. The initial aggregate amount of the Lenders'
Revolving Credit Commitments is $180,000,000.
"Revolving Credit Commitment Termination Date" means the Quarterly Date
falling on or nearest to February 28, 2009.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the aggregate outstanding principal amount of such Lender's Revolving Credit
Loans at such time.
"Revolving Credit Lender" means a Lender with a Revolving Credit Commitment
or, if the Revolving Credit Commitments have terminated or expired, a Lender
with Revolving Credit Exposure.
"Statutory Reserve Rate" means, for the Interest Period for any Eurodollar
Borrowing, a fraction (expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one minus the arithmetic
mean, taken over each day in such Interest Period, of the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject for eurocurrency funding (currently referred
to as "Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Subsidiary Guarantor" means each of the Subsidiaries of the Borrower
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto and each Subsidiary of the Borrower that becomes a "Subsidiary Guarantor"
after the date hereof pursuant to Section 6.08.
"Tax Allocation Agreements" means each Tax Allocation Agreement
substantially in the form of Exhibit E hereto, each between the Borrower and an
Unrestricted Subsidiary.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Term", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are made pursuant to
Section 2.01(b).
"Term Loan Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make one or more Term Loans hereunder on the Effective
Date, expressed as an amount representing the maximum aggregate principal amount
of the Term Loans to be made by such Lender hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.06 or 2.08(b) and
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan Commitments
is $120,000,000.
"Term Loan Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan Maturity Date" means the Quarterly Date falling on or nearest to
February 28, 2009.
"Total Debt" means the sum of, without duplication, (a) all Indebtedness
(other than Indebtedness in respect of the undrawn amount of any letters of
credit) of the Borrower and its Restricted Subsidiaries, determined on a
consolidated basis and (b) all Indebtedness (other than Indebtedness in respect
of the undrawn amount of any letters of credit) of others for which a Guarantee
Obligation has been given by the Borrower or any Restricted Subsidiary.
"Total Debt Ratio" means, as of any date of determination thereof, the
ratio of (a) Total Debt outstanding as of such date to (b) Annualized
Consolidated Operating Cash Flow for the period of the four fiscal quarters of
the Borrower ended on, or most recently ended prior to, such date for which
financial statements have been, or are required to have been, provided to the
Lenders pursuant to Section 6.01.
"Total Debt Service" means, as at the last day of any fiscal year of the
Borrower, the sum (calculated without duplication) of all payments of principal
of and interest on Indebtedness of the Borrower and its Restricted Subsidiaries
made or scheduled to be made during such fiscal year (other than payments of
principal which may be reborrowed), provided that, for any fiscal year ending on
or prior to the Revolving Credit Commitment Termination Date, "Total Debt
Service" shall include all mandatory reductions of the Revolving Credit
Commitments pursuant to Section 2.08(b) effected during such fiscal year.
"Total Interest" means, for any period, all interest, whether paid in cash
or accrued as a liability, on all Indebtedness (including imputed interest on
Financing Leases) of the Borrower and its Restricted Subsidiaries, determined on
a consolidated basis, during such period.
"Total Interest Coverage Ratio" means, as of any date of determination
thereof, the ratio of (a) Annualized Consolidated Operating Cash Flow for the
period of four fiscal quarters of the Borrower ended on, or most recently ended
prior to, such date to (b) Total Interest for such period.
"Transactions" means the execution, delivery and performance by each
Obligor of this Agreement and the other Loan Documents to which such Obligor is
intended to be a party, the borrowing of Loans and the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans constituting such Borrowing,
is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"2002 Notes" means the Borrower's Senior Guaranteed Notes, Series A, due
November 2009, and the Borrower's Senior Guaranteed Notes, Series B, due
November 2012 in an aggregate principal amount up to but not exceeding,
$200,000,000.
"2002 Notes Guarantee" means the guarantee by the Guarantors of the 2002
Notes pursuant to the 2002 Notes Note Purchase Agreement.
"2002 Notes Note Purchase Agreement" means the Note Purchase Agreement
dated as of December 3, 2002 among the Borrower and the Purchasers referred to
therein pursuant to which the 2002 Notes have been issued.
"Unrestricted Investment Basket" means, at any time, an amount equal to the
sum of the following:
(a) any Excess Cash Flow of the Borrower and its Restricted
Subsidiaries for any fiscal year commencing with the fiscal year ending on
December 31, 2002 plus
(b) the aggregate net cash proceeds received by the Borrower
subsequent to the Effective Date from the issuance of shares of its Capital
Stock.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower which has
been organized or acquired after the date hereof and designated by the Board of
Directors of the Borrower as an "Unrestricted Subsidiary", provided, in each
case, that at the time any such other Subsidiary is so organized or acquired and
at all times thereafter:
(a) none of the issued and outstanding capital stock of such
Subsidiary (or any Subsidiary of such Subsidiary) is owned by any
Restricted Subsidiary;
(b) except as permitted by Section 7.08(g), no proceeds of any Loan
hereunder are used to finance or pay any cost or expense related to the
organization of, or acquisition of the assets or properties of, such
Subsidiary (or any Subsidiary of such Subsidiary);
(c) except as permitted by Section 7.08(g), neither the Borrower nor
any Restricted Subsidiary is at the time such Subsidiary (or any Subsidiary
of such Subsidiary) is organized or acquired or at any time thereafter
(x) directly or indirectly liable (contingently or otherwise), or provides
or is obligated to provide any credit support, for any Indebtedness
(including, without limitation, any undertaking, agreement or instrument
evidencing such Indebtedness) or other obligation of such Subsidiary (or
any Subsidiary of such Subsidiary), (y) obligated to contribute any funds
or other property to such Subsidiary (or any Subsidiary of such Subsidiary)
or (z) otherwise directly or indirectly obligated to any other Person on
account of the Indebtedness, other obligations or financial condition of
such Subsidiary (or any Subsidiary of such Subsidiary) except to the extent
of a pledge or security interest in the Capital Stock owned by the Borrower
of such Subsidiary as collateral security for obligations of such
Subsidiary (or any Subsidiary of such Subsidiary);
(d) no agreements, instruments or other documents governing or
evidencing any Indebtedness of such Subsidiary (or any Subsidiary of such
Subsidiary) contains a cross-default or cross-acceleration clause or other
"event of default" or similar event the occurrence of which (with or
without notice or lapse of time or both) causes or would permit the
holder(s) thereof to cause such Indebtedness to become due or to be
required to be purchased or redeemed by such Subsidiary or any of its
Affiliates prior to its stated maturity or to take enforcement action
against such Subsidiary (or any Subsidiary of such Subsidiary) solely by
reason of (x) the occurrence of a Default or Event of Default hereunder,
(y) the occurrence of any default or other event or condition in respect of
any other Indebtedness of the Borrower or any of its Restricted
Subsidiaries (including, without limitation, subordinated debt) or (z) the
occurrence of any event or condition with respect to the Borrower or any of
its Restricted Subsidiaries other than any event or condition described in
Section 8(f) with respect to the Borrower;
(e) the Borrower and such Subsidiary (or another Unrestricted
Subsidiary of which such Subsidiary is a Subsidiary), acting on its own
behalf and on behalf of its Subsidiaries, have entered into a Tax
Allocation Agreement, which Agreement shall be in full force and effect at
the time such Subsidiary is organized or acquired and at all times
thereafter, and
(f) the Borrower has notified the Lenders as to the organization or
acquisition of such Subsidiary as required by Section 6.07 and the Borrower
is in compliance with its other obligations set forth in Section 6.07.
Notwithstanding the foregoing, no Subsidiary that is a Restricted Subsidiary
under the 2002 Notes Note Purchase Agreement may be an Unrestricted Subsidiary
hereunder.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.03. Definitions Apply to Notes, Etc. Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant
hereto.
SECTION 1.04. Accounting Terms. As used herein and in any Notes, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in Section 1.01
and accounting terms partly defined in Section 1.01, to the extent not defined,
shall have the respective meanings given to them under GAAP.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
(a) Revolving Credit Loans. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender agrees to make Revolving Credit Loans to
the Borrower from time to time during the Revolving Credit Availability Period
in an aggregate principal amount that will not result in (i) such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Credit Commitment or
(ii) the total Revolving Credit Exposures exceeding the total Revolving Credit
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Credit
Loans.
(b) Term Loans. Subject to the terms and conditions set forth herein, each
Term Loan Lender agrees to make one or more Term Loans to the Borrower on the
Effective Date in a principal amount not exceeding its Term Loan Commitment.
Amounts prepaid or repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing
consisting of Loans of the same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.11, each Borrowing shall be
constituted entirely of ABR Loans or of Eurodollar Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each Eurodollar
Borrowing shall be in an aggregate amount of $5,000,000 or a larger multiple of
$1,000,000. Each ABR Borrowing shall be in an aggregate amount equal to
$2,000,000 or a larger multiple of $500,000; provided that an ABR Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the
total Commitments of the applicable Class. Borrowings of more than one Class and
Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of six Eurodollar Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other provision of
this Agreement, the Borrower shall not be entitled to request (or to elect to
convert to or continue as a Eurodollar Borrowing): (i) any Revolving Credit
Borrowing if the Interest Period requested therefor would end after the
Revolving Credit Commitment Termination Date; or (ii) any Term Borrowing if the
Interest Period requested therefor would end after the Term Loan Maturity Date.
SECTION 2.03. Requests for Borrowings.
(a) Notice by the Borrower. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (i) in the case of
a Eurodollar Borrowing, not later than 10:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (ii) in the case of
an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of
the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Credit
Borrowing or Term Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.04.
(c) Notice by the Administrative Agent to the Lenders. Promptly
following receipt of a Borrowing Request in accordance with this Section,
the Administrative Agent shall advise each Lender of the details thereof
and of the amount of such Lender's Loan to be made as part of the requested
Borrowing.
(d) Failure to Elect. If no election as to the Type of a Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the requested Borrowing shall be made instead as an
ABR Borrowing.
SECTION 2.04. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 1:00 p.m., New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.05. Interest Elections.
(a) Elections by the Borrower. The Loans constituting each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have the Interest Period
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a Borrowing of a different Type or to continue such
Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar
Borrowing, may elect the Interest Period therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Content of Interest Election Requests. Each telephonic and written
Interest Election Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) of this paragraph shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which shall
be a period contemplated by the definition of the term "Interest Period"
and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise
each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails to deliver a
timely and complete Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and
(ii) unless repaid, each Eurodollar Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period therefor.
SECTION 2.06. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, (i) the Term Loan
Commitments shall terminate at 5:00 p.m., New York City time, on the Effective
Date, and (ii) the Revolving Credit Commitments shall terminate on the Revolving
Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments of any Class; provided
that (i) each reduction of the Commitments of any Class pursuant to this Section
shall be in an amount that is $5,000,000 or a larger multiple of $1,000,000 and
(ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments
if, after giving effect to any concurrent prepayment of the Revolving Credit
Loans in accordance with Section 2.08, the total Revolving Credit Exposures
would exceed the total Revolving Credit Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall notify
the Administrative Agent of any election to terminate or reduce the Commitments
of any Class under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving Credit
Commitments delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction of the
Commitments of either Class shall be permanent. Each reduction of the
Commitments of either Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay the
Loans as follows:
(i) to the Administrative Agent for account of the Revolving Credit
Lenders the outstanding principal amount of the Revolving Credit Loans on
the Revolving Credit Commitment Termination Date, and
(ii) to the Administrative Agent for account of the Term Loan Lenders
the outstanding principal amount of the Term Loans on the Term Loan
Maturity Date.
(b) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings of either Class hereunder, the Borrower shall select the Borrowing or
Borrowings of the applicable Class to be paid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment; provided that each repayment of Borrowings of
either Class shall be applied to repay any outstanding ABR Borrowings of such
Class before any other Borrowings of such Class. If the Borrower fails to make a
timely selection of the Borrowing or Borrowings to be repaid or prepaid, such
payment shall be applied, first, to pay any outstanding ABR Borrowings of the
applicable Class and, second, to other Borrowings of such Class in the order of
the remaining duration of their respective Interest Periods (the Borrowing with
the shortest remaining Interest Period to be repaid first). Each payment of a
Borrowing shall be applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The Administrative
Agent shall maintain records in which it shall record (i) the amount of each
Loan made hereunder, the Class and Type thereof and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for account of
the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the records maintained pursuant
to paragraph (c) or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such records or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans of either Class
made by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.08. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at any time and
from time to time to prepay any Borrowing in whole or in part, subject to the
requirements of this Section.
(b) Mandatory Prepayments. The Borrower will prepay the Loans, and/or the
Commitments shall be subject to automatic reduction, as follows:
(i) Dispositions. If the Borrower or any of its Restricted
Subsidiaries shall receive any net cash proceeds from the sale or other
disposition of property, businesses or assets (except for (i) sales or
other dispositions of obsolete or worn out property and (ii) sales of
inventory or other property in the ordinary course of business) and such
proceeds are not used to purchase other assets within 12 months of receipt
thereof, the Borrower shall apply an amount equal to 100% of the portion of
such net cash proceeds not so used to the prepayment of the Loans and to
the permanent reduction of the Revolving Credit Commitments in the manner
and to the extent specified in clause (iii) of this paragraph.
(ii) Casualty Events. If the Borrower or any of its Restricted
Subsidiaries shall receive any proceeds from any insurance on the property
of the Borrower or its Restricted Subsidiaries (other than business
interruption insurance), then the Borrower shall apply 100% of such
proceeds, to the extent they are not reasonably promptly applied to the
repair or replacement of the affected property to which such proceeds
relate (or to the payment of taxes or other expenses related to such
property or the repayment of any Indebtedness secured thereby), to the
prepayment of the Loans and to the permanent reduction of the Revolving
Credit Commitments in the manner and to the extent specified in
clause (iii) of this paragraph.
(iii) Application. Prepayments and/or reductions of Commitments
pursuant to this paragraph shall be applied as follows:
first, (A) if such prepayment and/or reduction of Commitments is
required to be made before the Term Loan Commitments have terminated,
to reduce the aggregate amount of the Term Loan Commitments, and
(B) if such prepayment and/or reduction of Commitments is required to
be made after the Term Loan Commitments have terminated, to prepay the
Term Loans, and
second, after the payment in full of the Term Loans and the
termination of the Term Loan Commitments, to reduce the aggregate
amount of the Revolving Credit Commitments (and to the extent that,
after giving effect to such reduction, the total Revolving Credit
Exposures would exceed the Revolving Credit Commitments, the Borrower
shall prepay Loans in an aggregate amount equal to such excess).
(c) Notices, Etc. The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Revolving Credit Commitments as
contemplated by Section 2.06, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.06. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the relevant Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the
case of a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.10 and shall be made in the manner specified in
Section 2.07(b).
SECTION 2.09. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent
for account of each Lender a commitment fee, which shall accrue at a rate per
annum equal to 1/4 of 1% on the average daily unused amount of the Revolving
Credit Commitment of such Lender during the period from and including the date
hereof to but excluding the earlier of the date such Revolving Credit Commitment
terminates and the Revolving Credit Commitment Termination Date. Accrued
commitment fees shall be payable on each Quarterly Date and on the earlier of
the date the Revolving Credit Commitments terminate and the Revolving Credit
Commitment Termination Date, commencing on the first such date to occur after
the date hereof. All commitment fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the
last day).
(b) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(c) Payment of Fees. All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.10. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(b) Eurodollar Loans. The Loans constituting each Eurodollar Borrowing
shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the
Interest Period for such Borrowing plus the Applicable Margin.
(c) Default Interest. Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of
Revolving Credit Loans, upon termination of the Revolving Credit Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of a Revolving Credit Loan that is an ABR Loan
prior to the Revolving Credit Commitment Termination Date), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Borrowing prior to the end of the Interest Period therefor, accrued
interest on such Borrowing shall be payable on the effective date of such
conversion.
(e) Computation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the commencement of
the Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) if such Borrowing is of a particular Class of Loans, the
Administrative Agent is advised by the Required Lenders of such Class that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
respective Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and such Borrowing (unless prepaid) shall be continued as, or converted to, an
ABR Borrowing and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for account of, or
credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy), then from time to time the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice is permitted to be revocable under Section 2.08(c) and is
revoked in accordance herewith), or (d) the assignment as a result of a request
by the Borrower pursuant to Section 2.16(b) of any Eurodollar Loan other than on
the last day of an Interest Period therefor, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate for such Interest Period, over (ii) the amount
of interest that such Lender would earn on such principal amount for such period
if such Lender were to invest such principal amount for such period at the
interest rate that would be bid by such Lender (or an affiliate of such Lender)
for Dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.14. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(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
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the Borrower shall
pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative Agent and such
Lender, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each payment required
to be made by it hereunder (whether of principal, interest or fees, or under
Section 2.12, 2.13 or 2.14, or otherwise) or under any other Loan Document
(except to the extent otherwise provided therein) prior to 12:00 noon, New York
City time, on the date when due, in immediately available funds, without set-off
or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇, except as otherwise expressly provided in
the relevant Loan Document and except payments pursuant to Sections 2.12, 2.13,
2.14 and 10.03, which shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder or
under any other Loan Document (except to the extent otherwise provided therein)
shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time insufficient funds
are received by and available to the Administrative Agent to pay fully all
amounts of principal, interest and fees then due hereunder, such funds shall be
applied (i) first, to pay interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, to pay principal and then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein:
(i) each Borrowing of a particular Class shall be made from the relevant
Lenders, each payment of commitment fee under Section 2.09 shall be made for
account of the relevant Lenders, and each termination or reduction of the amount
of the Commitments of a particular Class under Section 2.06 shall be applied to
the respective Commitments of such Class of the relevant Lenders, pro rata
according to the amounts of their respective Commitments of such Class;
(ii) each Borrowing of any Class shall be allocated pro rata among the relevant
Lenders according to the amounts of their respective Commitments of such Class
(in the case of the making of Loans) or their respective Loans of such Class
that are to be included in such Borrowing (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of
Revolving Credit Loans and Term Loans by the Borrower shall be made for account
of the relevant Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans of such Class held by them; and (iv) each payment
of interest on Revolving Credit Loans and Term Loans by the Borrower shall be
made for account of the relevant Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon then due than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Obligor pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Obligor
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Obligor rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Obligor in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender shall
fail to make any payment required to be made by it pursuant to Section 2.04(b)
or 2.15(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.12, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.14, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.12, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.14, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to the Borrower and all other amounts
from time to time owing to the Lenders or the Administrative Agent by the
Borrower under this Agreement and by any Obligor under any of the other Loan
Documents, and all obligations of the Borrower or any of its Subsidiaries to any
Lender (or any affiliate of any Lender) in respect of any Hedging Agreement, in
each case strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Guaranteed Obligations"). The Subsidiary
Guarantors hereby further jointly and severally agree that if the Borrower shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Subsidiary Guarantors will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
For purposes hereof, it is understood that any Guaranteed Obligations to
any Person arising under a Hedging Agreement entered into at a time such Person
(or an affiliate thereof) is party hereto as a Lender (to the extent the same
has been designated as a "Hedging Agreement" for purposes of this Article III in
a written notice delivered from the Borrower to the Administrative Agent) shall
continue to constitute Guaranteed Obligations, notwithstanding that such Person
(or its affiliate) has ceased to be a Lender party hereto (by assigning all of
its Commitments, Loans and other interests herein) at the time a claim is to be
made in respect of such Guaranteed Obligations.
SECTION 3.02. Obligations Unconditional. The obligations of the Subsidiary
Guarantors under Section 3.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Borrower under this Agreement or any other agreement
or instrument referred to herein, or any substitution, release or exchange of
any other guarantee of or security for any of the Guaranteed Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section that the obligations of the Subsidiary Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Subsidiary Guarantors hereunder, which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to the Subsidiary
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein shall be
done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein shall be waived or
any other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or otherwise
dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or any other agreement or instrument
referred to herein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary Guarantors
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Subsidiary Guarantors jointly
and severally agree that they will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including fees of
counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
SECTION 3.04. Subrogation. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 3.01,
whether by subrogation or otherwise, against the Borrower or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
SECTION 3.05. Remedies. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the circumstances provided in Article VIII) for
purposes of Section 3.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Article constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by such
Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the
right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section shall be subordinate and subject
in right of payment to the prior payment in full of the obligations of such
Subsidiary Guarantor under the other provisions of this Article and such Excess
Funding Guarantor shall not exercise any right or remedy with respect to such
excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor" means, in
respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Borrower and
the Subsidiary Guarantors hereunder and under the other Loan Documents) of all
of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the Effective Date, as of the Effective
Date, and (B) with respect to any other Subsidiary Guarantor, as of the date
such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise, taking into account the provisions of
Section 3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 4.01. Financial Condition. The audited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at December 31, 2002 and
the related audited consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by PricewaterhouseCoopers LLP,
copies of which have heretofore been furnished to each Lender, present fairly in
all material respects the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at September 30, 2003 and the related unaudited
consolidated statements of income and of cash flows for the nine-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the nine-month period then
ended (subject to normal year-end audit adjustments and footnote disclosure).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither the
Borrower nor any of its consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the notes thereto.
SECTION 4.02. No Change. Since December 31, 2002 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 4.03. Corporate Existence; Compliance with Law. Each of the
Borrower and its Restricted Subsidiaries (a) is duly organized and validly
existing under the laws of the jurisdiction of its organization, (b) has the
requisite corporate or other power and authority and the legal right to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation 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 to
the extent that the inaccuracy of any of the statements set forth in this
subsection could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 4.04. Corporate Power; Authorization; Enforceable Obligations. The
Borrower has the corporate power and authority and the legal right to make,
deliver and perform the Loan Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Borrower is a party, except
for filings of appropriate counterparts of this Agreement and other information
with the Securities and Exchange Commission as required by applicable law. This
Agreement has been, and each other Loan Document to which it is a party will be,
duly executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document to which it is a party when executed
and delivered will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
SECTION 4.05. No Legal Bar. The execution, delivery and performance of the
Loan Documents to which the Borrower is a party, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the Borrower or of any of its Restricted Subsidiaries,
except for any such violation that could not reasonably be expected to have a
Material Adverse Effect, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation.
SECTION 4.06. No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Restricted Subsidiaries or against any of its or their respective
properties or revenues (a) which is pending or threatened prior to the Effective
Date with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
Section 4.07. No Default. Neither the Borrower nor any of its Restricted
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
Section 4.08. Ownership of Property; Liens. Each of the Borrower and its
Restricted Subsidiaries has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such property
is subject to any Lien except as permitted by Section 7.03.
Section 4.09. Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property which could
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrower, the use of such Intellectual Property by the Borrower and its
Restricted Subsidiaries does not infringe on the rights of any Person, except
for such claims and infringements that, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
Section 4.10. Taxes. Each of the Borrower and its Restricted Subsidiaries
has filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any taxes, fees or other
charges the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Restricted Subsidiaries, as the case may be); no tax Lien has been filed, and,
to the knowledge of the Borrower, no claim is being asserted, with respect to
any such tax, fee or other charge.
Section 4.11. Federal Regulations. No part of the proceeds of any Loans
will be used for any purpose that would result in a violation of Regulation U of
the Board of Governors of the Federal Reserve System as now and from time to
time hereafter
in effect.
Section 4.12. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. Each of (i) the present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) and (ii) the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87), did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plans by an amount that could reasonably be expected to result in a
Material Adverse Effect.
Section 4.13. Investment Company Act; Other Regulations. The Borrower is
not an "investment company", or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
Section 4.14. Subsidiaries. All of the Restricted Subsidiaries of the
Borrower in existence on the date hereof are listed on Part A-1 of Schedule IV,
and all of the Unrestricted Subsidiaries of the Borrower in existence on the
date hereof are listed on Part A-2 of Schedule IV.
Section 4.15. Purpose of Loans. The proceeds of the Term Loans shall be
used by the Borrower to refinance Indebtedness under the Existing Credit
Agreement and for general corporate purposes. The proceeds of the Revolving
Credit Loans shall be used for general corporate purposes of the Borrower and
its Subsidiaries in the ordinary course of business.
Section 4.16. Environmental Matters. Other than exceptions to any of the
following that could not, individually or in any aggregation, reasonably be
expected to give rise to a Material Adverse Effect: the Borrower and its
Restricted Subsidiaries comply and have complied with all applicable
Environmental Laws, and possess and comply with and have possessed and complied
with all Environmental Permits required under such laws; there are no past,
present or anticipated future events, conditions, circumstances, practices,
plans or legal requirements that, to its knowledge, could prevent or materially
increase the burden on the Borrower and its Restricted Subsidiaries of
compliance with applicable Environmental Laws or of obtaining, renewing or
complying with all Environmental Permits required under such laws; the Borrower
and its Restricted Subsidiaries have received no notice of any violation of, or
potential liability under, any Environmental Law; and there are and have been no
Materials of Environmental Concern or other conditions at any property owned,
operated, or otherwise used by the Borrower or any of its Restricted
Subsidiaries now or, to its knowledge, in the past, or at any other location,
that could give rise to liability of the Borrower or any of its Restricted
Subsidiaries under any Environmental Law.
Section 4.17. Certain Documents. The Borrower has delivered to each Lender
a complete, correct and current copy of the Management Agreement, the 2002 Notes
Note Purchase Agreement, the 2002 Notes Guarantee and any other document the
Administrative Agent shall reasonably request.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which the Administrative
Agent shall have received each of the following documents, each of which shall
be satisfactory to the Administrative Agent (and to the extent specified below,
to each Lender) in form and substance (or such condition shall have been waived
in accordance with Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this Agreement)
that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Obligors,
substantially in the form of Exhibit C, and covering such other matters
relating to the Borrower, this Agreement or the Transactions as the
Administrative Agent shall reasonably request (and each Obligor hereby
instructs such counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(c) Opinion of Special New York Counsel to JPMCB. An opinion, dated
the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, special New
York counsel to JPMCB, substantially in the form of Exhibit D (and JPMCB
hereby instructs such counsel to deliver such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating to
the Obligors, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date and
signed by a Responsible Officer of the Borrower, confirming compliance with
the conditions set forth in the lettered clauses of the first sentence of
Section 5.02.
(f) Repayment of Existing Credit Agreement. Evidence that the
principal of and interest on, and all other amounts owing in respect of,
the Loans outstanding under the Existing Credit Agreement shall have been
(or shall be simultaneously) paid in full, that any commitments to extend
credit under the Existing Credit Agreement shall have been canceled or
terminated and that all guarantees in respect of, and all Liens securing,
any obligations under the Existing Credit Agreement shall have been
released (or arrangements for such release satisfactory to the
Administrative Agent shall have been made).
(g) Other Documents. Such other documents as the Administrative Agent
or any Lender or special New York counsel to JPMCB may reasonably request.
The obligation of each Lender to make its initial Loan hereunder is also
subject to the payment by the Borrower of such fees as the Borrower shall have
agreed to pay to any Lender or the Administrative Agent in connection herewith,
including the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
LLP, special New York counsel to JPMCB, in connection with the negotiation,
preparation, execution and delivery of this Agreement and the other Loan
Documents and the Loans hereunder (to the extent that statements for such fees
and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) on or prior to 3:00 p.m., New York City time, on
March 3, 2004 (and, in the event such conditions are not so satisfied or waived,
the Commitments shall terminate
at such time).
SECTION 5.02. Each Credit Event. The obligation of each Lender to make any
Loan, is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in
this Agreement, and of each Obligor in each of the other Loan Documents to
which it is a party, shall be true and correct on and as of the date of
such Loan; and
(b) at the time of and immediately after giving effect to such Loan,
no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, until the Commitments have expired or been
terminated and the principal and interest on each Loan and all fees payable
hereunder shall have been paid in full, the Borrower shall, and shall cause each
of its Restricted Subsidiaries to:
SECTION 6.01. Financial Statements and Other Information. Furnish to the
Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Borrower and its
Subsidiaries as of the end of and for such year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported
on by PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each fiscal quarter of each fiscal
year of the Borrower, the unaudited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the
Borrower and its Subsidiaries as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for (or, in the case of the balance sheet,
as of the end of) the corresponding period or periods of the previous
fiscal year, all certified by a Responsible Officer of the Borrower as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Responsible Officer
of the Borrower (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 7.01, 7.02,
7.03, 7.04, 7.06 and 7.07 and (iii) stating whether any change in GAAP or
in the application thereof has occurred since the date of the audited
financial statements referred to in Section 4.01 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) not later than sixty days after the end of each fiscal year of the
Borrower, a copy of the operating budget and cash flow budget of the
Borrower and its Restricted Subsidiaries for the succeeding fiscal year;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally or to holders of
its Indebtedness generally, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or any
Lender may reasonably request.
SECTION 6.02. Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its obligations of whatever nature, except where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be, or except where
the failure to pay, discharge or otherwise satisfy such obligations could not be
reasonably expected to have a Material Adverse Effect.
SECTION 6.03. Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by the Borrower and
its Restricted Subsidiaries and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to maintain all
material rights, privileges and franchises necessary or desirable in the normal
conduct of its business except as otherwise permitted pursuant to Section 7.05;
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
SECTION 6.04. Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition (ordinary wear
and tear expected); maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each Lender,
upon written request, full information as to the insurance carried.
SECTION 6.05. Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and upon reasonable advance notice and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries.
SECTION 6.06. Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries of which the Borrower
or such Subsidiary has knowledge or (ii) litigation, investigation or
proceeding which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority, which in either case, if not
cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect;
(d) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $1,000,000;
(e) the assertion of any environmental matter by any Person against,
or with respect to the activities of, the Borrower or any of its
Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than
any environmental matter or alleged violation that, if adversely
determined, would not (either individually or in the aggregate) have a
Material Adverse Effect; and
(f) any Person becoming a Restricted Subsidiary; and
(g) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
SECTION 6.07. Unrestricted Subsidiaries; Maintenance of Separate
Corporate Identity.
(a) Acquisition or Formation of Unrestricted Subsidiaries. The Borrower
will deliver to the Administrative Agent (with sufficient copies for each of the
Lenders) a notice as to the organization or acquisition of each Unrestricted
Subsidiary promptly following such organization or acquisition together with a
certificate of a Responsible Officer of the Borrower certifying that attached
thereto are true copies of (i) the resolutions duly adopted by the Board of
Directors of the Borrower designating such Subsidiary as an Unrestricted
Subsidiary and (ii) all agreements, instruments and other documents relating to
the organization or acquisition of such Unrestricted Subsidiary.
(b) Indebtedness of Unrestricted Subsidiaries. The Borrower will, promptly
upon receipt thereof by the Borrower or any of its Subsidiaries, deliver to the
Administrative Agent (with sufficient copies for each of the Lenders) a true and
complete copy of each agreement, instrument or other document evidencing
Indebtedness or other material obligations of each Unrestricted Subsidiary and
each other material agreement, instrument or other document (including, without
limitation, agreements, instruments and other documents in respect of
acquisitions) entered into by each Unrestricted Subsidiary.
(c) Transactions with Unrestricted Subsidiaries. The Borrower will cause
the management, business and affairs of each of the Borrower and its
Subsidiaries to be conducted in such a manner so that each of the Borrower and
its Subsidiaries will be perceived and treated as a legal entity separate and
distinct from each other. Without in any way limiting the other provisions of
this subsection, the Borrower will not permit any Restricted Subsidiary to,
directly or indirectly: (i) make any Investment in an Unrestricted Subsidiary,
(ii) dispose of any of its Properties to an Unrestricted Subsidiary, (iii) merge
into or consolidate with or purchase or acquire any Properties from an
Unrestricted Subsidiary or (iv) enter into any other transaction directly or
indirectly with or for the benefit of an Unrestricted Subsidiary (including,
without limitation, guarantees and assumptions of obligations of an Unrestricted
Subsidiary); provided that it is understood that the Borrower as the "common
parent" of its Restricted Subsidiaries and Unrestricted Subsidiaries may file a
consolidated tax return on behalf of itself and its Subsidiaries and such filing
shall not be deemed to violate the provisions of this subsection.
(d) Treatment of Certain Overhead Expenses, Etc. The Borrower will allocate
corporate general and administrative expenses between it, the Restricted
Subsidiaries and the Unrestricted Subsidiaries in accordance with customary and
reasonable business practices and GAAP consistently applied. Without in any way
limiting the other provisions of this subsection, the Borrower will not permit
any Restricted Subsidiary to, directly or indirectly, pay or incur any corporate
general and administrative expenses on behalf of any Unrestricted Subsidiary.
SECTION 6.08. Certain Obligations with respect to Subsidiaries. The
Borrower will take such action, and will cause each of its Restricted
Subsidiaries to take such action, from time to time as shall be necessary to
ensure that all Restricted Subsidiaries of the Borrower (other than Foreign
Subsidiaries) are "Subsidiary Guarantors" hereunder. Without limiting the
generality of the foregoing, in the event that the Borrower or any of its
Subsidiaries shall form or acquire any new Subsidiary that shall constitute a
Restricted Subsidiary hereunder, the Borrower and its Subsidiaries will cause
such new Restricted Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder pursuant to a Guarantee
Assumption Agreement, and
(ii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by each Obligor pursuant to Section 5.01 on the Effective Date or
as the Administrative Agent shall have requested.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby agrees that, until the Commitments have expired or been
terminated and the principal and interest on each Loan, the Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
SECTION 7.01. Financial Condition Covenants.
(a) Maintenance of Total Debt Ratio. Permit the Total Debt Ratio at any
time to be greater than 3.50 to 1.
(b) Maintenance of Total Interest Coverage Ratio. Permit the Total Interest
Coverage Ratio at any time to be less than 2.00 to 1.
SECTION 7.02. Limitation on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower to any Restricted Subsidiary and of
any Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary;
(c) Indebtedness of the Borrower and any of its Restricted
Subsidiaries incurred to finance the acquisition of fixed or capital assets
(whether pursuant to a loan, a Financing Lease or otherwise) not exceeding
$25,000,000 in aggregate principal amount at any one time outstanding and
any refinancings, refundings, renewals or extensions thereof (provided that
the principal amount of such Indebtedness shall at no time exceed 100% of
the original acquisition cost of such assets plus any costs associated with
the financing or refinancing thereof);
(d) Indebtedness outstanding on the date hereof and listed on
Schedule II and any refinancings, refundings, renewals or extensions
thereof (provided that the principal amount of such Indebtedness is not
increased by an amount greater than costs associated with any such
refinancing, refundings, renewals or extensions);
(e) Indebtedness of a Person which becomes a Restricted Subsidiary
after the date hereof and any refinancings, refundings, renewals or
extensions thereof, provided that (i) such Indebtedness existed at the time
such Person became a Restricted Subsidiary (or, if later, at the time it
acquired the assets of a business pursuant to Section 7.08(c)) and was not
created in anticipation thereof and (ii) immediately after giving effect to
the acquisition of such Person by the Borrower no Default or Event of
Default shall have occurred and be continuing;
(f) Permitted Additional Indebtedness; and
(g) additional Indebtedness not exceeding $35,000,000 in aggregate
principal amount at any one time outstanding.
SECTION 7.03. Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet subject to penalties for non-payment or
which are being contested in good faith by appropriate proceedings,
provided that, if contested, adequate reserves with respect thereto are
maintained on the books of the Borrower or its Restricted Subsidiaries, as
the case may be, in conformity with GAAP (or, in the case of Foreign
Subsidiaries, generally accepted accounting principles in effect from time
to time in their respective jurisdictions of incorporation);
(b) Liens imposed by law, such as landlords', carriers',
warehousemen's, materialmen's and mechanics' liens, or Liens arising out of
judgments or awards against the Borrower or any of its Restricted
Subsidiaries with respect to which the Borrower or such Restricted
Subsidiary at the time shall currently be prosecuting an appeal or
proceedings for review in good faith and by proper proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) 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
materially interfere with the ordinary conduct of the business taken as a
whole of the Borrower or such Restricted Subsidiary;
(f) Liens securing Indebtedness of the Borrower and its Restricted
Subsidiaries permitted by Section 7.02(c) incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed 100% of
the original purchase price of such property at the time it was acquired
plus any financing or refinancing costs;
(g) Liens in existence on the date hereof listed on Schedule II,
securing Indebtedness permitted by Section 7.02(d), provided that no such
Lien is spread to cover any additional property after the Effective Date
and that the amount of Indebtedness secured thereby is not increased except
as permitted by Section 7.02(d);
(h) Liens on assets acquired by a Restricted Subsidiary after the date
hereof or on the property or assets of a Person which becomes a Restricted
Subsidiary after the date hereof securing Indebtedness permitted by
Section 7.02(c) or 7.02(e), respectively, provided that (i) such Liens
exist at the time such assets are acquired or at the time such Person
becomes a Restricted Subsidiary, as the case may be, and are not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such Person after the time such Person becomes a
Restricted Subsidiary or such assets are acquired, and (iii) the amount of
Indebtedness secured thereby is not increased;
(i) Liens on the Capital Stock of Unrestricted Subsidiaries securing
obligations of Unrestricted Subsidiaries; and
(j) Liens (not otherwise permitted hereunder) so long as the greater
of (i) the aggregate outstanding principal amount of the obligations
secured thereby and (ii) the aggregate fair market value of the assets
subject thereto does not exceed $5,000,000 at any one time.
SECTION 7.04. Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule III;
(b) Guarantee Obligations of a Person which becomes a Restricted
Subsidiary after the date hereof, provided that such Guarantee Obligations
exist at the time such Person becomes a Restricted Subsidiary (or, if
later, at the time it acquired the assets of a business pursuant to
Section 7.08(c)) and are not created in anticipation thereof,
(c) Guarantee Obligations entered into in the ordinary course of its
business by the Borrower or any Restricted Subsidiary of obligations of any
of the Borrower or its Restricted Subsidiaries, which obligations are not
prohibited by this Agreement;
(d) the obligations of the Subsidiary Guarantors under Article III and
the 2002 Notes Guarantee; and
(e) additional Guarantee Obligations in respect of obligations not
exceeding $10,000,000 in aggregate principal amount at any one time
outstanding.
SECTION 7.05. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Restricted Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be
the continuing or surviving corporation) or with or into any one or more
wholly owned Restricted Subsidiaries of the Borrower (provided that the
wholly owned Restricted Subsidiary or Restricted Subsidiaries shall be the
continuing or surviving Person);
(b) any Restricted Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any wholly owned Restricted Subsidiary of the
Borrower;
(c) the Borrower or any of its Restricted Subsidiaries may enter into
a merger with any Person engaged in the commercial radio business (which
shall be deemed to include, without limitation, programming, production and
distribution) or any other business related to the foregoing, provided that
the Borrower or a Restricted Subsidiary, as the case may be, shall be the
surviving corporation and that both prior to and after giving effect to
such merger there shall exist no Default or Event of Default hereunder and
the Borrower shall have delivered a certificate (with such supporting
detail and calculations as may be reasonably requested by the
Administrative Agent) from a Responsible Officer so stating to the
Administrative Agent; and
(d) as permitted by Section 7.06.
SECTION 7.06. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Restricted Subsidiary,
issue or sell any shares of such Restricted Subsidiary's Capital Stock to any
Person other than the Borrower or any wholly owned Restricted Subsidiary,
except:
(a) the sale or other disposition of any property in the ordinary
course of business;
(b) any sale, assignment, transfer or other disposition of Capital
Stock of any Unrestricted Subsidiary;
(c) the sale or other disposition of any other property, business or
asset with an aggregate fair market value not to exceed $5,000,000 so long
as (i) the consideration received shall be an amount at least equal to the
fair market value thereof; (ii) at least 90% of the consideration received
shall be cash; (iii) the proceeds of such sale or other disposition are
applied as required by Section 2.08(b); and (iv) no Default or Event of
Default shall have occurred and be continuing or would result therefrom;
and
(d) as permitted by Section 7.05(b).
SECTION 7.07. Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in Capital Stock of the Borrower)
on, or make any payment or prepayment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any Restricted Subsidiary or any warrants or options to purchase
any such Capital Stock, or make any payment of management or similar fees
(including, without limitation, Management Fees, but excluding all expenses
payable to Infinity, in its capacity as "Manager", under Section 1.6 of the
Management Agreement) to Infinity or any other Affiliate of the Borrower (other
than to any employee, officer or director of the Borrower or its Subsidiaries in
connection with the performance of such employee's, officer's or director's
duties in such capacity), whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in
cash or property or in obligations of the Borrower or any Restricted Subsidiary
(such declarations, payments, setting apart, purchases, redemptions,
defeasances, retirements, acquisitions and distributions being herein called
"Restricted Payments"), except that:
(a) any Restricted Subsidiary may make Restricted Payments to the
Borrower,
(b) the Borrower may make Restricted Payments for the purpose of
cashing out any fractional shares of Capital Stock following the payment of
a dividend payable in Capital Stock of the Borrower,
(c) provided that, both prior to and after giving effect to each such
payment, no Event of Default pursuant to Sections 8(a), (c) (solely in the
case of an Event of Default pursuant to Section 7.01, and, in such case,
only if the Required Lenders following such an Event of Default shall
determine in their sole discretion to prohibit any payment provided for in
clause (x) or (y) below) or (f) shall have occurred and be continuing, the
Borrower may (x) make cash payments of Management Fees to Infinity at the
times and in the amounts provided for by Section 2.1 of the Management
Agreement in respect of each fiscal year and (y) make a cash payment of
Management Fees to Infinity at the times and in the amounts provided for by
Section 2.2 of the Management Agreement; and
(d) the Borrower and its Restricted Subsidiaries may make Restricted
Payments of the type described, and in addition to those permitted, in the
foregoing clauses (a) and (b); provided that prior to and after giving
effect to each such Restricted Payment, there shall exist no Default or
Event of Default hereunder (it being understood that, in no event, shall
this clause (d) be applicable to Restricted Payments of the type described
in the foregoing clause (c)).
SECTION 7.08. Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in (each, an
"Investment") any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) purchases of shares of the Capital Stock of any Person engaged in
the commercial radio business (which shall be deemed to include, without
limitation, programming, production and distribution) or any other business
related to the foregoing or purchases of the assets constituting all or any
portion of any such business owned by any other Person, provided that,
prior to and after giving effect to such purchase, there shall exist no
Default or Event of Default and the Borrower shall have delivered a
certificate (with such supporting detail and calculations as may be
reasonably requested by the Administrative Agent) from a Responsible
Officer so stating and provided further, that any such Person which shall
constitute a Subsidiary following such Investment shall be a Restricted
Subsidiary or, as the case may be, the assets so purchased shall be owned
by a Restricted Subsidiary;
(d) loans and advances to officers and employees of the Borrower or
its Restricted Subsidiaries for travel, entertainment and relocation
expenses and other purposes in the ordinary course of business;
(e) Investments by the Borrower in its Restricted Subsidiaries and
Investments by such Restricted Subsidiaries in the Borrower and in other
Restricted Subsidiaries;
(f) Investments set forth on Schedule IV; and
(g) (i) Investments in Unrestricted Subsidiaries as of the Effective
Date, (ii) Investments in Unrestricted Subsidiaries the consideration for
which shall consist solely of shares of the Capital Stock of the Borrower
and (iii) additional Investments in Unrestricted Subsidiaries during the
period from and including December 31, 2002 to and including the Revolving
Credit Commitment Termination Date in an aggregate amount which is not in
excess of the Unrestricted Investment Basket.
SECTION 7.09. Limitation on Modifications of the Management Agreement.
Amend, modify or change, or consent or agree to any amendment, modification or
change to any of the terms of the Management Agreement (in any manner that could
have a material adverse effect on the Lenders, provided that the Borrower shall
inform the Lenders of any material amendment, modification or change to the
Management Agreement within 30 days after the Borrower agrees to such amendment,
modification or change).
SECTION 7.10. Limitation on Sale or Discount of Receivables. The Borrower
shall not and shall not permit any of its Restricted Subsidiaries to, discount
or sell with recourse, or sell for less than the greater of the face value or
market value thereof, any of its notes receivable or accounts receivable.
SECTION 7.11. Limitation on Transactions with Affiliates. Except as set
forth on Schedule V, enter into any transaction, including, without limitation,
any purchase, sale, lease or exchange of property or the rendering of any
service, with any Affiliate unless such transaction is (a) otherwise permitted
or not prohibited under this Agreement and (b) upon fair and reasonable terms no
less favorable to the Borrower or such Restricted Subsidiary, as the case may
be, than it would obtain in a comparable arm's-length transaction with a Person
which is not an Affiliate.
SECTION 7.12. Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Borrower to end on a day other than December 31.
SECTION 7.13. Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Borrower or any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired unless the prohibitions or limitations contained
in such agreement would only restrict such Liens if they were not also made to
secure the obligations of the Borrower or a Restricted Subsidiary under such
agreement or a related agreement equally and ratably with the obligations which
such Liens were created to secure. Notwithstanding the foregoing, the Borrower
and its Restricted Subsidiaries may enter into the 2002 Notes Note Purchase
Agreement, and the 2002 Notes Note Purchase Agreement may prohibit or limit the
ability of the Borrower or any of its Restricted Subsidiaries from creating,
incurring, assuming or suffering to exist any Lien upon any of its property,
assets or revenues, so long as such prohibition or limitation, as applied to
Liens in favor of the Administrative Agent and the Lenders hereunder, shall
prohibit or limit such Liens in favor of the Administrative Agent and the
Lenders only to the extent that such Liens do not effectively provide that the
2002 Notes are equally and ratably secured thereby.
SECTION 7.14. Limitation on Lines of Business. Enter into any business,
either directly or through any Restricted Subsidiary, except for the commercial
broadcast business (which shall be deemed to include, without limitation,
programming, production and distribution) and businesses related thereto.
SECTION 7.15. Repayments of Indebtedness. The Borrower will not, nor will
it permit any of its Subsidiaries to, purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or other
analogous fund for the purchase, redemption, retirement or other acquisition of,
or make any voluntary payment or prepayment of the principal of or interest on,
or any other amount owing in respect of, the 2002 Notes or any Permitted
Additional Indebtedness incurred after the date hereof, except for regularly
scheduled payments, prepayments or redemptions of principal and interest in
respect thereof required pursuant to the instruments evidencing the 2002 Notes
or such Permitted Additional Indebtedness.
SECTION 7.16. Hedging Agreements. Enter into any Hedging Agreement unless
such Hedging Agreement is entered into in the ordinary course of business and
not for speculative purposes.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within five
days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) any representation or warranty made or deemed made by the Borrower
or any other Obligor herein or in any other Loan Document or which is
contained in any certificate furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) the Borrower shall default in the observance or performance of any
agreement contained in Article 7 (except that defaults under Sections 7.03
shall not become Events of Default unless they have been unremedied for a
period of 15 days); or
(d) the Borrower or any other Obligor shall default in the observance
or performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Article), and such default shall continue unremedied for a
period of 30 days after the Borrower or such Obligor, as the case may be,
obtains actual knowledge thereof or after notice thereof to the Borrower by
the Administrative Agent or any Lender (through the Administrative Agent);
or
(e) the Borrower or any of its Restricted Subsidiaries shall
(i) default in any payment of principal of or interest on any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation,
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or the obligations that are the subject of
such Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
of Default shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any default
or other event or condition referred to in this paragraph shall have
occurred shall be equal to at least $1,000,000; or
(f) (i) the Borrower or any of its Restricted Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or
any of its Restricted Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Borrower or any of its Restricted Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Borrower or any of its
Restricted Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Restricted
Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii) or (iii) above; or (v) the Borrower or any of its
Restricted Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or
(g) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect; or
(h) one or more judgments or decrees shall be entered against the
Borrower or any of its Restricted Subsidiaries involving in the aggregate a
liability (to the extent not paid or covered by insurance) of $1,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) the obligations of the Subsidiary Guarantors under Article III
shall cease, for any reason, to be in full force and effect with respect to
any Guarantor or any Guarantor shall so assert; or
(j) the Management Agreement shall be terminated or otherwise cease to
be in full force and effect, or the Borrower is or becomes entitled to
terminate the Management Agreement under Section 3.2(b)(ii) thereof; or
(k) (i) any Person or group (within the meaning of the Exchange Act
and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), other than INI or any of its Subsidiaries shall
(x) acquire or own, directly or indirectly, beneficially or of record,
shares representing more than 35% of the ordinary voting power represented
by the issued and outstanding voting capital stock of the Borrower, or
(y) acquire direct or indirect control of the Borrower; or (ii) a majority
of the seats (other than vacant seats) on the board of directors of the
Borrower shall be occupied by Persons who were neither (x) nominated by the
board of directors of the Borrower nor (y) appointed by directors so
nominated; or
(l) a Default of the type described in paragraph (e) above shall have
occurred and be continuing with respect to the Indebtedness of an
Unrestricted Subsidiary and as a result thereof the Borrower or any of its
Restricted Subsidiaries shall become liable for such Indebtedness, in each
case, whether by operation of law, pursuant to contract or otherwise, or
any holder or holders of such Indebtedness shall so assert in writing in
any proceeding before a court or other adjudicatory body of competent
jurisdiction and the Required Lenders shall determine, in the exercise of
their reasonable judgment, that the Borrower and/or any of its Restricted
Subsidiaries is reasonably likely to incur a liability as a result thereof
which would constitute a Material Adverse Effect; or
(m) the Borrower or any of its Restricted Subsidiaries shall incur any
liability (not paid or fully covered by insurance) under any Environmental
Law in an amount which constitutes a Material Environmental Amount;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Article with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Article, to the extent permitted
by applicable law, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such
Person 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 other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for an Obligor), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent's
resignation shall nonetheless become effective and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
Except as otherwise provided in Section 10.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or any Subsidiary Guarantor, to it at ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy
Attention of ▇▇▇▇ ▇▇▇▇, Esq. (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone
No.(▇▇▇) ▇▇▇-▇▇▇▇), with an additional copy to ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇,
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.;
(b) if to the Administrative Agent, to JPMorgan Chase Bank, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall
(i) increase any Commitment of any Lender without the written consent
of such Lender,
(ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent
of each Lender affected thereby,
(iv) change Section 2.15(d) without the consent of each Lender
affected thereby,
(v) change any of the provisions of this Section or the percentage in
the definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender, or
(vi) release all or substantially all of the Guarantors from their
guarantee obligations under Article III without the written consent of each
Lender;
and provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent, and (y) that any modification
or supplement of Article III shall require the consent of each Subsidiary
Guarantor.
Anything in this Agreement to the contrary notwithstanding, no waiver or
modification of any provision of this Agreement that has the effect (either
immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class for purposes of the Commitments of such Class
unless the Required Lenders of such Class shall have concurred with such waiver
or modification, and no waiver or modification of any provision of this
Agreement or any other Loan Document that could reasonably be expected to
adversely affect the Lenders of any Class in a manner that does not affect all
Classes equally shall be effective against the Lenders of such Class unless the
Required Lenders of such Class shall have concurred with such waiver or
modification.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket
expenses incurred by the Administrative Agent or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent or any
Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or in connection with the Loans made hereunder,
including in connection with any workout, restructuring or negotiations in
respect thereof.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Materials of
Environmental Concern on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails to pay
any amount required to be paid by it to the Administrative Agent under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or the
use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that (i) the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the affiliates, directors,
officers, employees, attorneys and agents of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in
clause (ii) below, any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment, and the Loans, at the time held by
it) with the prior written consent (such consent not to be unreasonably withheld
or delayed) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default shall have occurred and is
continuing, any other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for (x) an assignment of any Term
Loans or (y) an assignment of any Revolving Credit Loans or Revolving
Credit Commitments to an assignee that is a Lender with a Revolving Credit
Commitment immediately prior to giving effect to such assignment.
(ii) Certain Conditions to Assignments. Assignments shall be subject to the
following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender, or an assignment of the entire remaining amount of the assigning
Lender's Revolving Credit Commitment (together with all Revolving Credit
Loans) or Term Loans, the amount of the Revolving Credit Commitment or Term
Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
U.S. $5,000,000 (or less than $1,000,000 in the case of any assignment of
Term Loans) unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;
(B) each partial assignment of any Revolving Credit Commitment or Term
Loans shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement in respect
of such Commitment (together with a proportionate part of the outstanding
Revolving Credit Loans) and Term Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance in substantially the form
of Exhibit A, together with a processing and recordation fee of U.S.
$3,500; and
(D) the assignee, if it shall not already be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and recording
thereof pursuant to paragraph (c) below, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
rights referred to in Sections 2.12, 2.13, 2.14 and 10.05). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) below.
(c) Maintenance of Register by the Administrative Agent. The Administrative
Agent, acting for this purpose as an agent of the Borrower, shall maintain at
one of its offices in New York City a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Revolving Credit Commitment of, and principal amount of the
Loans held by, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance of Assignments by Administrative Agent. Upon its receipt of
a duly completed Assignment and Acceptance executed by an assigning Lender and
an assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and any written consent to such
assignment required by said paragraph (b), the Administrative Agent shall accept
such Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph (d).
(e) Participations. Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents (including all or
a portion of its Revolving Credit Commitments and the Loans held by it);
provided that (i) such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph (f) below,
the Borrower agrees that each Participant shall be entitled to the benefits of
Section 2.12, 2.13 and 2.14 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) above. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 2.15(d) as though it were a Lender, provided such Participant agrees
to be subject to Section 2.15(d) as though it were a Lender hereunder.
(f) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.12 or 2.14 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.14 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.14(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(h) Disclosure of Certain Information. A Lender may furnish any information
concerning the Borrower or any of its Subsidiaries in the possession of such
Lender from time to time to assignees and participants (including prospective
assignees and participants), subject, however, to the provisions of
Section 10.12(b).
(i) No Assignments to the Borrower or Affiliates. Anything in this Section
to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan held by it hereunder to the Borrower or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.12, 2.13, 2.14, 3.03 and 10.03 and Article IX shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract between and among the parties relating to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
to this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Set-off. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of any Obligor against any of and all the obligations of
any Obligor now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of set-off) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Obligor or its properties in
the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Service of Process. Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Section 10.01.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrower acknowledges that from
time to time financial advisory, investment banking and other services may be
offered or provided to the Borrower or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and the Borrower hereby authorizes
each Lender to share any information delivered to such Lender by the Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of paragraph (b) of this
Section as if it were a Lender hereunder. Such authorization shall survive the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower or
any of its Subsidiaries, provided that, in the case of information received from
the Borrower or any of its Subsidiaries after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
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.
WESTWOOD ONE, INC.
By_________________________
Name:
Title:
SUBSIDIARY GUARANTORS
METRO NETWORKS COMMUNICATIONS,
INC.
By_________________________
Name:
Title:
METRO NETWORKS COMMUNICATIONS,
LIMITED PARTNERSHIP
By: METRO NETWORKS
COMMUNICATIONS, INC., as General Partner
By_________________________
Name:
Title:
METRO NETWORKS, INC.
By_________________________
Name:
Title:
METRO NETWORKS SERVICES, INC.
By_________________________
Name:
Title:
SMARTROUTE SYSTEMS, INC.
By_________________________
Name:
Title:
WESTWOOD NATIONAL RADIO
CORPORATION
By_________________________
Name:
Title:
WESTWOOD ONE PROPERTIES, INC.
By_________________________
Name:
Title:
WESTWOOD ONE RADIO, INC.
By_________________________
Name:
Title:
WESTWOOD ONE RADIO
NETWORKS, INC.
By_________________________
Name:
Title:
WESTWOOD ONE STATIONS-NYC,
INC.
By_________________________
Name:
Title:
LENDERS
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By_________________________
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By_________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
individually and as Co-Documentation Agent
By_________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC.,
individually and as Co-Documentation Agent
By_________________________
Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED,
individually and as Co-Documentation Agent
By_________________________
Name:
Title:
FIRST COMMERCIAL BANK, NEW YORK AGENCY
By_________________________
Name:
Title:
SUMITOMO MITSUI BANKING
CORPORATION
By_________________________
Name:
Title:
SUNTRUST BANK
By_________________________
Name:
Title:
E.SUN COMMERCIAL BANK, LTD., LOS
ANGELES BRANCH
By_________________________
Name:
Title:
FLEET NATIONAL BANK
By_________________________
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By_________________________
Name:
Title:
THE BANK OF NEW YORK
By_________________________
Name:
Title:
THE NORINCHUKIN BANK
By_________________________
Name:
Title:
UNION BANK OF CALIFORNIA
By_________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇ BANK CO. LTD. NEW YORK AGENCY
By_________________________
Name:
Title:
▇▇▇ ▇▇▇ COMMERCIAL BANK, LTD., NEW
YORK AGENCY
By_________________________
Name:
Title:
THE INTERNATIONAL COMMERCIAL BANK
OF CHINA NEW YORK AGENCY
By_________________________
Name:
Title:
BANK OF COMMUNICATIONS, NEW YORK BRANCH
By_________________________
Name:
Title: