EXHIBIT 10.13
WSP&R
DRAFT
4/27/98
$1,350,000,000
SECURED GUARANTEED CREDIT AGREEMENT
Dated as of May [4], 1998
Among
▇▇▇▇-▇▇▇▇▇ INC.,
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Syndication Agent,
THE CHASE MANHATTAN BANK and
DLJ CAPITAL FUNDING, INC.,
as Co-Documentation Agents,
THE BANK OF NEW YORK,
as Administrative Agent
and
THE GUARANTORS
BNY Capital Markets, Inc.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.,
as Lead Arrangers
TABLE OF CONTENTS
Page
----
ARTICLE 1
CREDIT FACILITY
Section 1.01 Commitment to Lend.......................................................................1
(a) Term Loans........................................................................1
(b) RC Loans..........................................................................1
(c) Swing Loans.......................................................................1
(d) Type of Loans.....................................................................2
Section 1.02 Manner of Borrowing......................................................................2
(a) RC Loans..........................................................................2
(b) Swing Loans.......................................................................3
Section 1.03 Interest.................................................................................4
(a) Rates.............................................................................4
(b) Payment...........................................................................4
(c) Conversion and Continuation.......................................................5
(d) Maximum Interest Rate.............................................................6
Section 1.04 Repayment................................................................................6
(a) Terms Loans........................................................................6
(b) RC Loans..........................................................................6
(c) Swing Loans.......................................................................6
Section 1.05 Prepayments..............................................................................7
(a) Optional Prepayments..............................................................7
(b) Default Mandatory Prepayments and Fundings........................................7
(c) Application to Types of Loans.....................................................9
(d) Application to Installments.......................................................9
(e) Reborrowing.......................................................................9
Section 1.06 Limitation on Types of Loans............................................................9
Section 1.07 Commitment to Issue Letters of Credit....................................................9
(a) Amounts of Letters of Credit.....................................................10
(b) Terms of Letters of Credit.......................................................10
(c) Uniform Customs..................................................................10
(d) Limitation on Obligation to Issue Letters of Credit..............................10
Section 1.08 Manner of Issuance or Amendment of Letters of Credit....................................11
Section 1.09 Obligation of Borrower to Reimburse Issuing Bank for Drawings...........................11
Section 1.10 Obligations of Participating Banks......................................................12
(a) Acquisition by Participating Banks of LC Participations in Letters of Credit.....12
(b) Funding by Participating Banks of LC Participations..............................12
Section 1.11 Absolute, Unconditional and Irrevocable Obligation......................................13
i
Section 1.12 Limited Liability of the Issuing and Participating Banks................................14
Section 1.13 Provisions Not Exclusive; Conflict......................................................15
Section 1.14 Reduction or Increase of Commitments....................................................15
(a) Optional Reduction of RC Commitments.............................................15
(b) Mandatory Reduction of RC Commitments............................................15
(c) Optional Increase of RC Commitments..............................................16
Section 1.15 Fees....................................................................................16
(a) RC Commitment Fee................................................................16
(b) Letter of Credit Fees............................................................17
Section 1.16 Computation of Interest and Fees........................................................18
Section 1.17 Evidence of Indebtedness................................................................18
Section 1.18 Payments by the Borrower................................................................18
(a) Time, Place and Manner............................................................18
(b) No Reductions....................................................................19
(c) Extension of Payment Dates.......................................................19
Section 1.19 Distribution of Payments by the Administrative Agent....................................20
Section 1.20 Taxes...................................................................................20
(a) Taxes Payable by the Borrower.....................................................20
(b) Taxes Payable by the Administrative Agent, the Issuing Bank or any Bank..........21
(c) Exemption from U.S. Withholding Taxes............................................21
(d) Limitations......................................................................22
Section 1.21 Pro Rata Treatment......................................................................22
ARTICLE 2
CONDITIONS TO CREDIT EXTENSIONS
Section 2.01 Conditions to Initial Credit Extension..................................................22
Section 2.02 Conditions to Each Loan.................................................................25
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Power; Qualification......................................................26
Section 3.02 Subsidiaries............................................................................26
Section 3.03 Authorization; Enforceability; Required Consents; Absence of Conflicts..................26
Section 3.04 Affiliate Indebtedness and Investments..................................................27
Section 3.05 Taxes...................................................................................27
Section 3.06 Litigation..............................................................................27
Section 3.07 Burdensome Provisions...................................................................28
Section 3.08 No Adverse Change or Event..............................................................28
Section 3.09 Guarantors..............................................................................28
Section 3.10 Investment Company Act..................................................................28
Section 3.11 Registration Statement..................................................................28
ii
ARTICLE 4
CERTAIN COVENANTS
Section 4.01 Preservation of Existence and Properties, Scope of Business, Compliance with Law,
Payment of Taxes and Claims, Preservation of Enforceability.............................29
Section 4.02 Insurance...............................................................................29
Section 4.03 Use of Proceeds.........................................................................29
Section 4.04 Subsidiaries and Wholly Owned Subsidiaries..............................................30
(a) Subsidiaries.....................................................................30
(b) Wholly Owned Subsidiaries........................................................30
Section 4.05 Indebtedness............................................................................30
Section 4.06 Guaranties..............................................................................31
Section 4.07 Liens...................................................................................31
Section 4.08 Restricted Payments.....................................................................31
Section 4.09 Merger or Consolidation.................................................................32
Section 4.10 Disposition of Assets...................................................................32
Section 4.11 Investments.............................................................................33
Section 4.12 Benefit Plans...........................................................................34
Section 4.13 Transactions with Affiliates............................................................34
Section 4.14 Subordinated Indebtedness...............................................................34
Section 4.15 Issuance of Capital Securities..........................................................35
Section 4.16 Limitation on Restrictive Covenants.....................................................36
Section 4.17 Leverage Ratio..........................................................................36
Section 4.18 Senior Leverage Ratio...................................................................36
Section 4.19 Ratio of Consolidated EBITDA to Consolidated Interest Expense...........................36
Section 4.20 Fixed Charge Coverage...................................................................36
Section 4.21 [License and Services Agreement]........................................................37
Section 4.22 Interest Rate Protection Agreements.....................................................37
ARTICLE 5
INFORMATION
Section 5.01 Information to Be Furnished.............................................................37
(a) Quarterly Financial Statements...................................................37
(b) Year-End Financial Statements; Accountants' Certificate..........................37
(c) Officer's Certificate as to Financial Statements and Defaults....................38
(d) Requested Information............................................................38
(e) Notice of Defaults, Material Adverse Changes and Other Matters...................38
Section 5.02 Accuracy of Financial Statements and Information........................................39
(a) Financial Statements..............................................................39
(b) Other Information................................................................39
Section 5.03 Additional Covenants Relating to Disclosure.............................................39
(a) Accounting Methods and Financial Records.........................................40
(b) Visits, Inspections and Discussions..............................................40
Section 5.04 Authorization of Third Parties to Deliver Information and Discuss Affairs...............40
iii
ARTICLE 6
DEFAULT
Section 6.01 Events of Default.......................................................................40
Section 6.02 Remedies upon Event of Default..........................................................43
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 Mandatory Suspension and Conversion of Eurodollar Rate Loans............................44
Section 7.02 Regulatory Changes......................................................................45
Section 7.03 Capital Requirements....................................................................46
Section 7.04 Funding Losses..........................................................................46
Section 7.05 Certain Determinations..................................................................47
Section 7.06 Change of Lending Office................................................................47
ARTICLE 8
THE ADMINISTRATIVE AGENT
Section 8.01 Appointment and Powers..................................................................48
Section 8.02 Limitation on Administrative Agent's Liability..........................................48
Section 8.03 Defaults................................................................................48
Section 8.04 Rights as a Bank........................................................................49
Section 8.05 Indemnification.........................................................................49
Section 8.06 Non-Reliance on Administrative Agent and Other Banks....................................49
Section 8.07 Execution and Amendment of Loan Documents on Behalf of the Banks........................50
Section 8.08 Resignation of the Administrative Agent.................................................50
ARTICLE 9
GUARANTEES
Section 9.01 Guaranty of Payment.....................................................................51
Section 9.02 Limitation on Guaranty..................................................................51
Section 9.03 Continuance and Acceleration of Guaranteed Obligations upon Certain Events..............51
Section 9.04 Recovered Payments......................................................................52
Section 9.05 Evidence of Guaranteed Obligations......................................................52
Section 9.06 Binding Nature of Certain Adjudications.................................................52
Section 9.07 Nature of Guarantor's Obligations.......................................................52
Section 9.08 No Release of Guarantor.................................................................53
Section 9.09 Certain Waivers.........................................................................53
iv
ARTICLE 10
MISCELLANEOUS
Section 10.01 Notices and Deliveries..................................................................53
(a) Manner of Delivery................................................................53
(b) Addresses........................................................................53
(c) Effectiveness....................................................................55
(d) Reasonable Notice................................................................56
(e) Collateral.......................................................................56
Section 10.02 Expenses; Indemnification...............................................................56
Section 10.03 Amounts Payable Due upon Request for Payment............................................57
Section 10.04 Remedies of the Essence.................................................................57
Section 10.05 Rights Cumulative.......................................................................57
Section 10.06 Confidentiality.........................................................................58
Section 10.07 Amendments; Waivers.....................................................................58
Section 10.08 Set-Off; Suspension of Payment and Performance..........................................59
Section 10.09 Sharing of Recoveries...................................................................59
Section 10.10 Assignments and Participations..........................................................60
(a) Assignments......................................................................60
(b) Participation....................................................................61
Section 10.11 Governing Law...........................................................................62
Section 10.12 Judicial Proceedings; Waiver of Jury Trial..............................................62
Section 10.13 LIMITATION OF LIABILITY.................................................................62
Section 10.14 Severability of Provisions..............................................................63
Section 10.15 Counterparts............................................................................63
Section 10.16 Survival of Obligations.................................................................63
Section 10.17 Entire Agreement........................................................................63
Section 10.18 Successors and Assigns..................................................................63
Section 10.19 Cash Collateral.........................................................................63
Section 10.20 Registered Notes........................................................................64
Section 10.21 Foreign Currency Conversion.............................................................64
ARTICLE 11
INTERPRETATION
Section 11.01 Defined Terms...........................................................................65
Section 11.02 Other Interpretive Provisions...........................................................90
Section 11.03 Accounting Matters......................................................................91
Section 11.04 Representations and Warranties..........................................................92
Section 11.05 Captions................................................................................92
Section 11.06 Interpretation of Related Documents.....................................................92
v
ANNEX A BANKS, LENDING OFFICES AND NOTICE ADDRESSES
Schedule 1.02(a) NOTICE OF BORROWING
Schedule 1.03(c) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05 NOTICE OF PREPAYMENT
Schedule 1.20(c) NON-US BANK CERTIFICATE
Schedule 2.01(a)(i) CERTIFICATE AS TO RESOLUTIONS, ETC.
Annex A RESOLUTIONS OF BOARD OF DIRECTORS
Annex A-1 RESOLUTIONS OF SHAREHOLDERS
Annex A-2 MINUTES AND BY-LAWS/ARTICLES OF INCORPORATION
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS, GOVERNMENTAL APPROVALS
AND GOVERNMENTAL REGISTRATIONS
Schedule 3.06 SCHEDULE OF MATERIAL LITIGATION
Schedule 4.05 SCHEDULE OF INDEBTEDNESS
Schedule 4.06 SCHEDULE OF EXISTING GUARANTIES
Schedule 4.07 SCHEDULE OF EXISTING LIENS
Schedule 4.11 SCHEDULE OF EXISTING INVESTMENTS
Schedule 4.12 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 5.01(b) CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL STATEMENTS
Schedule 9.01 SCHEDULE OF GUARANTORS
Schedule 10.10(a) NOTICE OF ASSIGNMENT
EXHIBIT A-I TERM A NOTE
EXHIBIT A-II TERM B NOTE
EXHIBIT A-III RC NOTE
EXHIBIT A-IV SWING LOAN NOTE
EXHIBIT B FORM OF SUBORDINATION AGREEMENT
EXHIBIT C COMMITMENT INCREASE SUPPLEMENT
EXHIBIT D TERMS OF COMMITMENT INCREASE ASSIGNMENTS
EXHIBIT E FORM OF PLEDGE AGREEMENT
EXHIBIT F GUARANTOR SUPPLEMENT
vi
SECURED GUARANTEED CREDIT AGREEMENT
Dated as of May [4], 1998
▇▇▇▇-▇▇▇▇▇ INC., a Delaware corporation, the GUARANTORS listed on the
signature pages hereof, the ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as
Syndication Agent, THE CHASE MANHATTAN BANK and DLJ CAPITAL FUNDING, INC., as
Co-Documentation Agents, and THE BANK OF NEW YORK, as Administrative Agent,
agree as follows (with certain terms used herein being defined in Article 11):
ARTICLE 1
---------
CREDIT FACILITY
---------------
Section 1.01 Commitment to Lend. (a) Term A Loans. Upon the terms and
------------------ ------------
subject to the conditions of this Agreement, each Bank agrees to make, on the
Agreement Date, a Term A Loan to the Borrower in an aggregate principal amount
not exceeding such Bank's Term A Commitment. The aggregate amount of the Term A
Commitments on the Agreement Date is $450,000,000.
(b) Term B Loans. Upon the terms and subject to the conditions of
------------
this Agreement, each Bank agrees to make, on the Agreement Date, a Term B Loan
to the Borrower in an aggregate principal amount not exceeding such Bank's Term
B Commitment. The aggregate amount of the Term B Commitments on the Agreement
Date is $400,000,000.
(c) RC Loans. Upon the terms and subject to the conditions of this
--------
Agreement, each Bank agrees to make, from time to time during the period from
the Agreement Date through the RC Termination Date, one or more RC Loans to the
Borrower in an aggregate unpaid principal amount not exceeding at any time such
Bank's RC Commitment at such time; provided that no such RC Loan shall be made
--------
if, after giving effect to the making of such RC Loan and the simultaneous
application of the proceeds thereof, (i) the aggregate amount of the Exposure of
such Bank would exceed the RC Commitment of such Bank or (ii) the aggregate
amount of the Exposures of all of the Banks would exceed the aggregate amount of
the RC Commitments. The aggregate amount of the RC Commitments on the Agreement
Date is $500,000,000.
(d) Swing Loans. Upon the terms and subject to the conditions of this
Agreement, the Swing Line Bank shall, for its own account, make one or more
Swing Loans to the Borrower; provided that no Swing Loan shall be made if, after
--------
giving effect to the making of such Swing Loan and the simultaneous application
of the proceeds thereof (i) the aggregate principal amount of outstanding Swing
Loans would exceed the Swing Line Sublimit or (ii) the aggregate amount of the
Exposures of all of the Banks would exceed the aggregate amount of the RC
Commitments. Swing Loans may only be made and continued as Base Rate Loans or
Agreed Rate Loans.
(e) Type of Loans.
-------------
Subject to Section 1.06 and the other terms and conditions of this
Agreement, the Loans (other than Swing Loans) may, at the option of the
Borrower, be made as, and from time to time continued as or converted into, Base
Rate or Eurodollar Rate Loans of any permitted Type, or any combination thereof.
Section 1.02 Manner of Borrowing.
-------------------
(a) RC Loans. With respect to RC Loans:
--------
(i) The Borrower shall give the Administrative Agent notice (which
shall be irrevocable) no later than, in the case of a Base Rate Loan, 11:00 a.m.
on the Business Day before the requested date for the making of such RC Loan
and, in the case of a Eurodollar Rate RC Loan, 11:00 a.m. on the third
Eurodollar Business Day before the requested date for the making of such RC
Loan. Each such notice shall be substantially in the form of Schedule 1.02(a)
----------------
and shall specify (A) the requested date for the making of the requested RC
Loan, which shall be, in the case of a Base Rate RC Loan, a Business Day and, in
the case of a Eurodollar Rate RC Loan, a Eurodollar Business Day, (B) the Type
or Types of RC Loans requested and (C) the amount of each such Type of RC Loan,
the aggregate of which amounts for each Type of RC Loans requested shall,
subject to Section 1.10(b)(ii), be not less than (1) in the case of Eurodollar
Rate RC Loans, the lesser of (aa) $10,000,000 or any integral multiple of
$1,000,000 in excess thereof and (bb) the aggregate amount of unused RC
Commitments and (2) in the case of Base Rate RC Loans, the lesser of (aa)
$1,000,000 or any integral multiple of $500,000 in excess thereof, and (bb) the
aggregate amount of the unused RC Commitments. Upon receipt of any such notice,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and the amount and Type of RC Loan to be made by such Bank.
(ii) On each requested date for the making of RC Loans, each Bank
shall, if it has received the notice contemplated by Section 1.02(a)(i) on or
prior to (A) in the case of Eurodollar Rate Loans, its close of business on the
third Eurodollar Business Day before such requested date and (B) in the case of
Base Rate Loans, its close of business on the Business Day before such requested
date, make available to the Administrative Agent, not later than 11:00 a.m., in
Dollars in funds immediately available to the Administrative Agent at the
Administrative Agent's Office, the RC Loans to be made by such Bank on such
requested date. Any Bank's failure to make any RC Loan to be made by it on the
requested date therefor shall not relieve any other Bank of its obligation to
make any RC Loan to be made by such other Bank on such date, but such other Bank
shall not be liable for such failure.
(iii) Unless the Administrative Agent shall have received notice from
a Bank prior to 10:00 a.m., on the requested date for the making of any RC Loans
that such Bank will not make available to the Administrative Agent the RC Loans
requested to be made by such Bank on such date, the Administrative Agent may
assume that such Bank has made such RC Loans available to the Administrative
Agent on such date in accordance with Section 1.02(a)(ii) and the Administrative
Agent in its sole discretion may, in reliance upon such assumption, make
available to the Borrower (or, in the case of RC Loans requested pursuant to
Section 1.04(d) or Section 1.05(b)(i), to the Swing Line Bank) on such date a
corresponding amount on behalf of such Bank. If and to the extent such Bank
shall not have so made available to the Administrative Agent the RC Loans
requested to be made by such Bank on such date and the Administrative Agent
shall have so made available to the Borrower a corresponding amount on behalf of
such Bank, such Bank shall, on demand, pay to the Administrative Agent such
corresponding amount
2
together with interest thereon, for each day from the date such amount shall
have been so made available by the Administrative Agent to the Borrower until
the date such amount shall have been repaid to the Administrative Agent, at the
Federal Funds Rate until (and including) the third Business Day after demand is
made and thereafter at the Base Rate. If such Bank does not pay such
corresponding amount promptly upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately repay such corresponding amount to the Administrative Agent
together with accrued interest thereon at the applicable rate or rates
provided in Section 1.03(a); provided that no such repayment by the Borrower
--------
shall affect the rights of the Borrower with respect to any Bank's wrongful
refusal to lend.
(iv) All RC Loans made available to the Administrative Agent in
accordance with Section 1.02(a)(ii) shall be disbursed by the Administrative
Agent not later than 2:00 p.m. on the requested date therefor in Dollars in
funds immediately available to the Borrower by credit to an account of the
Borrower at the Administrative Agent's Office or in such other manner as may
have been specified in the applicable notice and as shall be acceptable to the
Administrative Agent.
(b) Swing Loans.
-----------
With respect to Swing Loans:
(i) The Borrower shall give the Administrative Agent and, if the Swing
Line Bank is a Bank that is not the Administrative Agent, the Swing Line Bank,
notice (which shall be irrevocable) no later than 1:00 p.m. on the requested
date for the making of a Swing Loan. Each such notice shall specify (A) the
amount of the requested Swing Loan, which amount shall be not less than the
lesser of (1) $100,000 or any integral multiple of $100,000 in excess thereof
and (2) the Swing Line Availability on the requested date for the making of such
Swing Loan, (B) whether such Swing Loan shall be an Agreed Rate Loan or a Base
Rate Loan and (C) if such Swing Loan shall be an Agreed Rate Loan, the number of
days (which shall not be more than five Business Days) that the Agreed Rate for
such Swing Loan is to apply (the "Agreed Rate Interest Period"). Such notice
---------------------------
may be by telephone, confirmed by telecopy on the date of the making of the
requested Swing Loan. If the Borrower and the Swing Line Bank do not agree upon
a requested Agreed Rate, the requested Swing Loan shall be made as a Base Rate
Loan, unless the Borrower withdraws the request for such Swing Loan. Upon the
expiration of an Agreed Rate Interest Period, the Swing Loan in question shall
be continued, subject to Section 1.04(d), as a Base Rate Loan.
(ii) Swing Loans shall be disbursed by the Swing Line Bank not later
than 4:30 p.m. on the requested date therefor in Dollars in funds immediately
available to the Borrower by credit to an account of the Borrower at the Swing
Line Bank's Office, or in such other manner as may have been specified in the
applicable notice and as shall be acceptable to the Swing Line Bank.
Section 1.03 Interest.
--------
(a) Rates. (i) Term A Loans, Term B Loans and RC Loans.
----- ---------------------------------------
Subject to Section 1.03(a)(iii), each Term A Loans, Term B Loan and
each RC Loan shall bear interest on the outstanding principal amount thereof at
a rate per annum equal to (A) so long as it is a Base Rate Loan, the Base Rate
as in effect from time to time plus the
3
applicable Base Rate Margin and (B) so long as it is a Eurodollar Rate Loan, the
applicable Adjusted Eurodollar Rate plus the applicable Eurodollar Rate Margin.
(ii) Swing Loans.
-----------
Subject to Section 1.03(a)(iii), each Swing Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal to the
Base Rate as in effect from time to time plus the applicable Base Rate Margin
or, if the Borrower and the Swing Line Bank shall have agreed upon an Agreed
Rate with respect to such Swing Loan, such Agreed Rate; provided that upon the
--------
earliest of (A) the fifth Business Day after the date such Swing Loan was made,
(B) the expiration of the Agreed Rate Interest Period with respect to such Swing
Loan and (C) the date of occurrence of a Bankruptcy Default, any such Swing Loan
shall cease to bear interest at the Agreed Rate and shall bear interest at the
Base Rate as in effect from time to time plus the applicable Base Rate Margin.
(iii) Post-Default Rate.
-----------------
During an Event of Default (which is such by virtue of clause (a) of
Section 6.01, and whether before or after judgment), each Loan (whether or not
due) and, to the maximum extent permitted by Applicable Law, all other amounts
in respect of interest and fees due and payable under the Borrower Loan
Documents, shall bear interest at a rate per annum equal to the applicable Post-
Default Rate.
(b) Payment.
-------
Interest shall be payable, (i) in the case of Base Rate Loans that are
Term A Loans, Term B Loans or RC Loans, on each Payment Date, (ii) in the case
of Eurodollar Rate Loans, on the last day of each applicable Interest Period
(and, if an Interest Period is longer than three months, at intervals of three
months after the first day of such Interest Period) and (iii) in the case of any
Loan, when such Loan shall be due (whether at maturity, by reason of notice of
prepayment or acceleration or otherwise) or converted, but only to the extent
then accrued and unpaid on the amount then so due or converted. Interest at the
Post-Default Rate shall be payable on demand.
(c) Conversion and Continuation.
---------------------------
(i) All or any part of the principal amount of Term A Loans, Term B
Loans and RC Loans of any Type may, on any Business Day, be converted into any
other Type or Types of Term A Loans, Term B Loans and RC Loans, except that (A)
Eurodollar Rate Loans may be converted only on the last day of an applicable
Interest Period and (B) Base Rate Loans may be converted into Eurodollar Rate
Loans only on a Eurodollar Business Day.
(ii) Each Term A Loans, Term B Loan and RC Loan that is a Base Rate
Loan shall continue as a Base Rate Loan unless and until such Loan is converted
into a Term A Loans, Term B Loan or an RC Loan, as the case may be, of another
Type. Each Term A Loans, Term B Loan and RC Loan that is a Eurodollar Rate Loan
of any Type shall continue as a Term A Loans, Term B Loan or an RC Loan, as the
case may be, of such Type until the end of the then current Interest Period
therefor, at which time it shall be automatically converted into a Base Rate
Loan unless the Borrower shall have given the Administrative Agent notice in
accordance with Section 1.03(c) requesting either that such Loan continue as a
Loan of such Type or that such Loan be converted into a Term A Loans, Term B
Loan or an RC Loan, as the case may be, of another Type at the end of such
Interest Period.
4
(iii) Notwithstanding anything to the contrary contained in Section
1.03(c)(i) or (ii), during a Default, the Administrative Agent may notify the
Borrower that Term A Loans, Term B Loans and RC Loans may only be converted into
or continued as Term A Loans, Term B Loans and RC Loans, as the case may be, of
certain specified Types and, thereafter, until no Default shall continue to
exist, Term A Loans, Term B Loans and RC Loans may not be converted into or
continued as Term A Loans, Term B Loans or RC Loans of any Type other than one
or more of such specified Types.
(iv) The Borrower shall give the Administrative Agent notice (which
shall be irrevocable) of each conversion of a Term A Loans, Term B Loan or an RC
Loan or continuation of a Term A Loans, Term B Loan or an RC Loan that is a
Eurodollar Rate Loan no later than, in the case of a conversion into a Base Rate
Loan, 11:00 a.m. on the Business Day before, and, in the case of a conversion
into or continuation of a Term A Loans, Term B Loan or an RC Loan that is a
Eurodollar Rate Loan, 11:00 a.m. on the third Eurodollar Business Day before,
the requested date of such conversion or continuation. Each notice of
conversion or continuation shall be in the form of Schedule 1.03(c) and shall
----------------
specify (A) whether the Loans to be converted or continued are Term A Loans,
Term B Loans or RC Loans, (B) the requested date of such conversion or
continuation, (C) the amount and Type and, in the case of Eurodollar Rate Loans,
the last day of the applicable Interest Period of each Loan to be converted or
continued and (D) the amount and Type or Types of Loans into which such Loans
are to be converted or as to which such Loans are to be continued. Upon receipt
of any such notice, the Administrative Agent shall promptly notify each Bank of
(x) the contents thereof, (y) the amount and Type and, in the case of Eurodollar
Rate Loans, the last day of the applicable Interest Period of, each Loan to be
converted or continued by such Bank and (z) the amount and Type or Types of
Loans into which such Loans are to be converted or as which such Loans are to be
continued.
(d) Maximum Interest Rate.
---------------------
Nothing contained in the Loan Documents shall require the Borrower at
any time to pay interest at a rate exceeding the Maximum Permissible Rate. If
interest payable by the Borrower on any date would exceed the maximum amount
permitted by the Maximum Permissible Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for such
period by the Maximum Permissible Rate, shall be increased by the unpaid amount
of such reduction. Any interest actually received for any period in excess of
such maximum amount permitted for such period shall be deemed to have been
applied as a prepayment of the Loans, the Drawings or the other amounts in
respect of which such interest was paid, as the case may be.
Section 1.04 Repayment.
---------
(a) Term A Loans.
------------
The Term A Loans shall mature and become due and payable and shall be
repaid by the Borrower, in eighteen (18) consecutive quarterly installments,
payable on successive Payment Dates commencing on September 30, 2000 and with
the ▇▇▇▇▇
▇
installment payable on the Term A Termination Date. Each such installment shall
be in the amount equal to $22,500,000; provided that the final such installment
--------
shall be in an amount equal to the amount of the Term A Loans then outstanding.
(b) Term B Loans.
------------
The Term B Loans shall mature and become due and payable and shall be
repaid by the Borrower, in twenty-two (22) consecutive quarterly installments,
payable on successive Payment Dates commencing on September 30, 2000 and with
the final installment payable on the Term B Termination Date. Each such
installment shall be in the amount equal to $1,000,000; provided that the final
--------
such installment shall be in an amount equal to the amount of the Term B Loans
then outstanding.
(c) RC Loans.
--------
The RC Loans shall mature and become due and payable, and shall be
repaid by the Borrower, in full on the RC Termination Date.
(d) Swing Loans.
-----------
Each Swing Loan shall become due and payable, and shall be repaid by
the Borrower, in full on the earlier of (i) the date that is five Business Days
after the date that such Swing Loan was made and (ii) the RC Termination Date.
Except in the case of a Swing Loan maturing on the RC Termination Date, if, on
or prior to the maturity of a Swing Loan, the Borrower shall not have requested
either an RC Loan pursuant to Section 1.02(a) hereof or a Swing Loan pursuant to
Section 1.02(b) hereof, the maturity of such Swing Loan pursuant to this Section
1.04(d) shall (i) be deemed to constitute a notice under Section 1.02(a)
requesting RC Loans in an amount equal to such Swing Loan be made by the Banks
(including the Swing Line Bank) and that such Loans be Base Rate Loans, (ii)
have the same force and effect as a notice from the Borrower under such Section
and (iii) be subject to all the terms and conditions of Section 1.02(a), except
that (A) the requirement (1) to deliver a notice in the form of Schedule 1.02(a)
----------------
and (2) that the aggregate amount of Loans be not less than $1,000,000 shall not
apply and (B) the conditions to borrowing specified in Section 2.02 (other than
the absence of any continuing Bankruptcy Default) shall not apply.
Section 1.05 Prepayments.
-----------
(a) Optional Prepayments.
--------------------
The Borrower may, at any time and from time to time, prepay the Loans
in whole or in part, without premium or penalty, except that any partial
prepayment shall be in an aggregate principal amount of at least (i) in the case
of Eurodollar Rate Loans, $10,000,000 or any integral multiple of $1,000,000 in
excess thereof, (ii) in the case of Base Rate Loans that are not Swing Loans,
$1,000,000 or any integral multiple of $500,000 in excess thereof and (iii) in
the case of Swing Loans $100,000 or any integral multiple of $100,000 in excess
thereof, and any prepayment of a Eurodollar Rate Loan or a Swing Loan that is an
Agreed Rate Loan shall be subject to Section 7.04. The Borrower shall give the
Administrative Agent and, in the case of prepayments of Swing Loans, if the
Swing Line Bank is not the Administrative Agent, the Swing Line Bank, notice of
each prepayment of a Loan no later than 10:00 a.m. on, in the case of a
prepayment of Base Rate Loans and Swing Loans, the Business Day, and, in the
case of a prepayment of Eurodollar Rate Loans, the third Eurodollar Business
Day, before the date of such prepayment. Each notice of prepayment of a Loan
shall be substantially in the form of Schedule 1.05 and shall specify (i)
-------------
whether the Loans to be prepaid are Term A Loans, Term B Loans, RC Loans or
Swing Loans, (ii) the date such prepayment is to be made, (iii) in the case of
Term A Loans, Term B Loans and RC Loans, the amount and Type and, in the case of
Eurodollar Rate Loans, the last day of the applicable Interest Period of each
Loan to be prepaid and (iv) in the case of Swing Loans, the amount and, in the
case of Agreed Rate Loans, the last day of its applicable Agreed Rate Interest
Period of such Swing Loan to be prepaid. Upon receipt of any such notice, other
than a notice of prepayment of Swing Loans, the Administrative Agent shall
promptly notify each Bank of the contents thereof and the amount and Type and,
in the case of a Eurodollar Rate Loan, the last day of the applicable Interest
Period of each Loan of such Bank to be prepaid. Amounts to be prepaid shall
irrevocably be due and payable on the date specified in the applicable notice of
prepayment, together with interest thereon as provided in Section 1.03(b).
6
(b) Default Mandatory Prepayments and Fundings.
------------------------------------------
(i) Default Mandatory Prepayments of Swing Loans.
--------------------------------------------
If any Default exists, other than a Bankruptcy Default, the Swing Line
Bank may request that outstanding Swing Loans be refunded by delivering to the
Administrative Agent and the Borrower on any Business Day a request to that
effect, specifying the principal amount of outstanding Swing Loans. Such a
request shall (A) be deemed to constitute a notice under Section 1.02(a)
requesting that RC Loans in an amount equal to the outstanding Swing Loans be
made by the Banks (including the Swing Line Bank, in its capacity as a Bank) and
that such RC Loans be Base Rate Loans, (B) have the same force and effect as a
notice from the Borrower under such Section and (C) be subject to all the terms
and conditions of Section 1.02(a), except that (1) the requirement (aa) to
deliver a notice in the form of Schedule 1.02(a) and (bb) that the aggregate
----------------
amount of RC Loans be not less than the amount specified in Section 1.02(a) for
the applicable Type of RC Loan shall not apply and (2) the conditions to
borrowing specified in Section 2.02 (other than the absence of any continuing
Bankruptcy Default) shall not apply.
(ii) Default Mandatory Fundings of Participations in Swing Loans.
-----------------------------------------------------------
(A) During a Bankruptcy Default, upon request (which shall relate to all
Swing Loans then outstanding) by the Swing Line Bank on any Business Day, each
Bank (including the Swing Line Bank in its capacity as a Bank) shall purchase
from the Swing Line Bank, without recourse or warranty (except that such
outstanding Swing Loans in fact were made in accordance with Section 1.01(d)(i),
and are not subject to any Liens arising out of any act of the Swing Line Bank),
a participation in the Swing Loans then outstanding (each such participation a
"Swing Loan Participation") by paying to the Swing Line Bank, in Dollars
-------------------------
immediately available to the Swing Line Bank at the Swing Line Bank's Office, an
amount equal to such Bank's Pro Rata Share of the principal amount of such Swing
Loans, with such payment being due on the day such request is made, if such
request is made prior to 2:00 p.m. on such day, or if such request is made after
2:00 p.m. on the next Business Day (the "Participation Payment Date"). Each
--------------------------
Swing Loan Participation shall constitute an undivided interest and
participation in the principal amount of Swing Loans then outstanding and in
interest that accrues thereon after the Participation Payment Date. The Swing
Line Bank shall, upon the request of a Bank, furnish to such Bank a
participation certificate evidencing any Swing Loan Participation purchased by
such Bank pursuant to this Section 1.05. If any Bank does not pay when due any
amount which it is required to pay to the Swing Line Bank pursuant to this
Section 1.05(b)(ii)(A) in respect of its Swing Loan Participation in any Swing
Loan, the Swing Line Bank shall be entitled to recover such amount from such
Bank, together with interest thereon for each day from the Participation Payment
Date until the date such amount shall be paid to the Swing Line Bank, at the
Federal Funds Rate until (and including) the third Business Day after the
Participation Payment Date and thereafter at the Base Rate. Until payment in
full is made by such Bank of all amounts to be paid to the Swing Line Bank by
such Bank in respect of such Swing Loan Participation, the Swing Line Bank shall
hold such Bank's Pro Rata Share of any amount paid by the Borrower after the
Participation Payment Date to the Swing Line Bank in respect of the Swing Loan
to which such Swing Loan Participation relates as security for such Bank's
obligation to make such payment.
(B) Subject to the final sentence of Section 1.05 (b)(ii)(A), the
Swing Line Bank shall promptly distribute to each Bank its Pro Rata Share of
each payment received (whether directly from the Borrower or otherwise,
including proceeds of any collateral) by the Swing Line Bank after the
Participation Payment Date on account of the principal amount of any Swing
7
Loan and interest accrued thereon after the Participation Payment Date; provided
--------
that in the event that any such payment received by the Swing Line Bank shall be
required to be returned by the Swing Line Bank, for any reason, such Bank shall
return to the Swing Line Bank the portion thereof previously distributed by the
Swing Line Bank to it, but without interest thereon (unless the Swing Line Bank
is required to pay interest on the amount so returned, in which case such Bank
shall be required to pay interest at a like rate). Payments received after the
Participation Payment Date by the Swing Line Bank on account of Swing Loans
shall be applied first to the payment of interest accrued thereon through the
Participation Payment Date.
(iii) Obligations of Banks Absolute and Unconditional.
-----------------------------------------------
The obligation of each Bank to make an RC Loan to repay Swing Loans as
contemplated by Section 1.05(b)(i) and to purchase Swing Loan Participations in,
and to make payments to the Swing Line Bank with respect thereto, as
contemplated in Section 1.05(b)(ii), shall be absolute, unconditional and
irrevocable.
(c) Application to Types of Loans.
-----------------------------
Amounts prepaid pursuant to Section 1.03(d) shall be applied to
prepay, first, Swing Loans, second, RC Loans, and third, Term A Loans, and Term
----- ------ -----
B Loans, pro rata in accordance with the amounts outstanding at the time of such
prepayment, and such amounts shall be applied, first, to the payment of such
-----
Loans that are Base Rate Loans and, second, to such loans that are Eurodollar
------
Rate Loans or Agreed Rate Loans in the order that the Interest Periods or Agreed
Rate Interest Periods, as applicable, for such Loans ends.
(d) Application to Installments.
---------------------------
Prepayments of the Term A Loans, Term B Loans made (or deemed to have
been made pursuant to Section 1.03(d)) shall be applied to installments of the
Term A Loans, Term B Loans, as the case may be, in the direct order of their
maturities.
(e) Reborrowing.
-----------
Any amounts of Term A Loans, Term B Loans repaid or prepaid may not be
reborrowed.
Section 1.06 Limitation on Types of Loans.
-----------------------------
Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall borrow, prepay, convert and continue Loans in a manner such that
(a) the aggregate principal amount of Eurodollar Rate Loans of the same Type and
having the same Interest Period shall at all times be not less than $10,000,000,
(b) there shall not be, at any one time, more than fifteen Interest Periods in
effect with respect to Eurodollar Rate Loans of all Types and (c) no payment of
a Eurodollar Rate Loan will have to be made prior to the last day of an
applicable Interest Period in order to repay the Loans on (subject to Section
1.18(c)), in the case of RC Loans, the RC Termination Date, in the case of Term
A Loans, the Term A Termination Date, and in the case of Term B Loans, the Term
B Termination Date.
Section 1.07 Commitment to Issue Letters of Credit.
-------------------------------------
(a) Amounts of Letters of Credit.
----------------------------
Upon the terms and subject to the conditions of this Agreement, the
Issuing Bank agrees to issue, from time to time during the period from the
Agreement Date through the RC Termination Date, one or more (and to amend
outstanding) Letters of Credit for the account of the Borrower; provided that no
--------
Letter of Credit shall be issued or amended if, after giving effect
8
to the issuance or amendment of such Letter of Credit, (i) the aggregate of all
Letter of Credit Amounts would exceed the LC Sublimit, (ii) the aggregate amount
of the Exposures of all of the Banks would exceed the aggregate amount of the RC
Commitments or (iii) in the case of a Participating Bank, the Exposure of such
Participating Bank would exceed the RC Commitment of such Participating Bank;
and provided, further, that not more than ten Letters of Credit (or such greater
-------- -------
number that may be acceptable to the Issuing Bank) shall be outstanding at any
time.
(b) Terms of Letters of Credit.
--------------------------
Each Letter of Credit: (i) may be either (A) a documentary Letter of
Credit in support of trade obligations of the Borrower or a Consolidated
Subsidiary or (B) a standby Letter of Credit in support of other Liabilities of
the Borrower or a Consolidated Subsidiary, that in the case of either (A) or
(B), arise in the ordinary course of business of the Borrower or such
Consolidated Subsidiary, as the case may be, or in connection with any
acquisition or disposition of assets not prohibited by the terms of this
Agreement; (ii) shall be (A) denominated only in Dollars and (B) in a stated
amount of not less than $25,000; (iii) shall have an expiration date occurring
not later than the earlier of (A) five Business Days before the RC Termination
Date and (B)(1) in the case of a documentary Letter of Credit, six months after
the issuance thereof and (2) in the case of a standby Letter of Credit one year
after the issuance thereof; provided that standby Letters of Credit may provide
--------
that, absent notice to the contrary from the Issuing Bank to the Borrower and
the beneficiary thereof, the expiration date shall be automatically extended
for successive one-year periods, but not beyond that date that is five Business
Days before the RC Termination Date; and (iv) may contain such other terms and
conditions as may be approved by the Issuing Bank.
(c) Uniform Customs.
---------------
Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of New York.
(d) Limitation on Obligation to Issue Letters of Credit.
---------------------------------------------------
The Issuing Bank shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Bank or any Participating Bank to exceed any limits imposed by, any
Applicable Law; provided that the Issuing Bank and each Participating Bank
--------
hereby agrees to use reasonable efforts to permit such Letter of Credit to be
issued within the restrictions of such Applicable Law; and provided, further,
-------- -------
that the Issuing Bank shall not be deemed to have knowledge that the issuance of
any Letter of Credit would exceed any limits imposed by Applicable Law on any
Participating Bank unless the Issuing Bank shall have received not less than two
and not more than ten Business Days' notice of such fact from such Participating
Bank.
Section 1.08 Manner of Issuance or Amendment of Letters of Credit.
----------------------------------------------------
(a) The Borrower shall request the issuance or amendment of a Letter of
Credit by delivering to the Issuing Bank (with a copy to the Administrative
Agent), no later than 10:00 a.m. (New York time) at least five Business Days
before the requested date (which shall be a Business Day) of such issuance or
amendment, (A) in the case of any such issuance or amendment, a duly completed
and executed Application (which shall be irrevocable) for the issuance or
amendment of such Letter of Credit; provided that if such Application is
--------
transmitted to the Issuing Bank by telecopy, the original of such Application
shall be provided to the Issuing Bank as soon as practicable thereafter but in
any event prior to 10:00 a.m. (New York time) on the requested date of issuance
or amendment of such Letter of Credit and (B) in the case of any such issuance,
if the
9
desired form of Letter of Credit is different from the Issuing Bank's standard
form, a copy of such desired form of Letter of Credit.
(b) Upon receipt by the Issuing Bank of any duly completed and
executed Application, and subject to the terms and conditions hereof, the
Issuing Bank will process such Application in accordance with its customary
procedures and shall issue the Letter of Credit requested thereby on the date
requested in such Application by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the Issuing Bank and
the Borrower.
(c) The Issuing Bank may provide the Borrower with a copy of any
proposed Letter of Credit, as well as any other instruments and documents the
Issuing Bank deems desirable from time to time, which the Borrower shall
promptly examine and, in the event the Borrower has any claim of noncompliance
with its instructions or of any discrepancy or other irregularity, the Borrower
shall immediately and, in any event no later than, in the case of a proposed
Letter of Credit, three Business Days before the requested date of the issuance
of such Letter of Credit, and, in the case of any other instruments and
documents, the date specified by the Issuing Bank, notify the Issuing Bank
thereof in writing, and the Borrower will be conclusively deemed to have waived
any such claim against the Issuing Bank and its correspondents unless such
immediate notice is given.
(d) The Issuing Bank shall, on the date of each issuance of a Letter
of Credit, give the Administrative Agent, each Participating Bank and the
Borrower notice of such issuance, accompanied by a copy to the Administrative
Agent and the Borrower of such Letter of Credit.
Section 1.09 Obligation of Borrower to Reimburse Issuing Bank for
----------------------------------------------------
Drawings.
(a) The Issuing Bank shall promptly notify (i) the Borrower, the
Administrative Agent and each Participating Bank having an LC Participation in
any Letter of Credit of its receipt of a drawing request with respect to such
Letter of Credit, stating the date and amount of the Drawing requested and, in
the case of a Participating Bank, the amount of such Participating Bank's
Participating Bank Percentage of such Drawing and (ii) the Borrower of the date
and amount of each Drawing made pursuant to such request. The Issuing Bank's
failure to give, or delay in giving, any such notice shall not release or
diminish the obligations hereunder of the Borrower and each such Participating
Bank in respect of such Drawing.
(b) (i) Drawings shall mature and become due and payable, and shall
be repaid to the Issuing Bank by the Borrower in full, together with all amounts
payable pursuant to Section 1.09(b)(ii) that are due to the Issuing Bank in
connection with such Drawing, no later than 3:00 p.m. on the date the Issuing
Bank notifies the Borrower of such Drawing, if such notice is given at or before
11:00 a.m. on such date and, if not, no later than 1:00 p.m. on the next
Business Day.
(ii) Each Drawing shall bear interest on the outstanding principal
amount thereof at a rate per annum equal to the Base Rate as in effect from time
to time plus the applicable Base Rate Margin from the date such Drawing is
disbursed by the Issuing Bank to the
10
date such Drawing is reimbursed by the Borrower. Interest on each Drawing shall
be payable when such Drawing shall be due (whether at maturity, by reason of
acceleration or otherwise).
Section 1.10 Obligations of Participating Banks.
----------------------------------
(a) Acquisition by Participating Banks of LC Participations in
----------------------------------------------------------
Letters of Credit.
-----------------
Upon the issuance of a Letter of Credit, the Issuing Bank shall be
deemed to have granted to each Participating Bank (including the Issuing Bank in
its capacity as a Bank), and each Participating Bank (including the Issuing Bank
in its capacity as a Bank) shall be deemed to have acquired from the Issuing
Bank, without further action by any party hereto, for its own account and risk,
an undivided interest (each such interest an "LC Participation") in the Issuing
----------------
Bank's rights under Section 1.09(b) in respect of Drawings under such Letter of
Credit to the extent of such Participating Bank's Participating Bank Percentage
thereof. A Bank that is a Participating Bank with respect to a Letter of Credit
shall remain a Participating Bank with respect to that Letter of Credit
notwithstanding its subsequent designation, if any, as a Nonparticipating Bank
with respect to any other Letter of Credit.
(b) Funding by Participating Banks of LC Participations.
---------------------------------------------------
(i) If the Borrower fails to pay to the Issuing Bank in full the
principal amount of, together with interest accrued on, a Drawing in accordance
with the terms of this Agreement, each Participating Bank that has an LC
Participation in such Letter of Credit shall pay to the Issuing Bank, upon
demand (a "Funding Demand"), its Participating Bank Percentage of such unpaid
--------------
amount, in Dollars in funds immediately available to the Issuing Bank at the
Administrative Agent's Office, on, if such demand is made not later 3:00 p.m. on
a Business Day, such Business Day, and, if not, the next Business Day, together
with interest on such amount from the date of the relevant Drawing until such
amount is paid in full at, for the first three days, the Federal Funds Rate and,
thereafter, the Base Rate.
(ii) Until payment in full of all amounts required to be paid by it
pursuant to Section 1.10(b)(i) in respect of its LC Participation is made by the
Participating Bank obligated to make such payments, the Issuing Bank shall hold
such Participating Bank's Participating Bank Percentage of all amounts paid by
the Borrower in respect of the Drawing relating to such unpaid amount, or in
respect of interest thereon, as security for such Participating Bank's
obligation to make such payment.
(c) Subject to Section 1.10(b)(ii), if, at any time after a Funding
Demand in respect of a Drawing, the Issuing Bank receives any payment on account
of such Drawing (whether directly from the Borrower or otherwise, including
proceeds of any collateral applied thereto), or any payment on account of
interest thereon, the Issuing Bank shall, subject to Section 1.10(b)(ii),
promptly distribute to each Participating Bank with respect to such Drawing its
Participating Bank Percentage thereof; provided that in the event that any such
--------
payment received by the Issuing Bank shall be required to be returned by the
Issuing Bank, for any reason other than pursuant to an Adjudicated Letter of
Credit Claim, such Participating Bank shall return to the Issuing Bank the
portion thereof previously distributed by the Issuing Bank to it, but without
interest thereon (unless the Issuing Bank is required to pay interest on the
amount so returned, in which case the Participating Bank shall be required to
pay interest at the same rate).
(d) (i) If any Bank Nonparticipation occurs with respect to a Bank,
(A) the Administrative Agent, the Borrower and such Bank agree, if requested by
the Borrower, to
11
attempt to locate an Eligible Assignee that will accept the assignment of the
Loans, LC Participations, Commitments and other rights and obligations hereunder
of such Bank and (B) if such an Eligible Assignee is located, such Bank agrees
to assign its interest in its Loans, LC Participations, Commitments and other
rights and obligations hereunder to such Eligible Assignee in accordance with
Section 10.10(a), for a purchase price equal to the unpaid principal amount of
such Bank's Loans and funded LC Participations, together with interest thereon
and fees accrued to the date of payment of such purchase price and all other
amounts at such time payable to such Bank under the Loan Documents. If Loans to
be so assigned include Eurodollar Rate Loans, the assignment thereof shall occur
on the last day of the then-current Interest Periods. If no such assignment is
arranged, the Borrower may, if no Default exists, upon ten days' prior notice to
such Bank, terminate such Bank's Commitments and thereupon promptly prepay such
Bank's Loans and all other amounts payable to such Bank hereunder (including,
without limitation, with respect to its LC Participations and Commitments) and
cash collateralize its LC Participations; provided that prepayments of
--------
Eurodollar Rate Loans shall(1) be made on the last day of the applicable
Interest Periods or (2) if made on a day other than the last day of the
applicable Interest Periods, be accompanied by the amount, if any, due with
respect thereto under Section 7.04.
(ii) If, as a result of the existence of a Bank Nonparticipation with
respect to any Bank, availability of the RC Commitments is reduced, such Bank
shall be deemed to have breached its RC Commitment to the extent of such
reduction and, subject to Section 10.13, shall be liable to the Borrower for any
damages resulting from such reduction.
Section 1.11 Absolute, Unconditional and Irrevocable Obligation.
--------------------------------------------------
The obligation of the Borrower to reimburse the Issuing Bank, the
Administrative Agent and each Participating Bank for payments made with respect
to any Letter of Credit shall be absolute, unconditional and irrevocable,
without necessity of presentment, demand, protest, notice of dishonor or notice
of intent, and the obligation of each Participating Bank to acquire LC
Participations in, and to make payments to the Issuing Bank with respect to
Letters of Credit pursuant to Funding Demands, shall be absolute, unconditional
and irrevocable. Such obligations of the Borrower and the Participating Banks
shall be performed strictly in accordance with the terms hereof (and without any
reduction whatsoever, including any reduction or deduction for any set-off,
recoupment or counterclaim (whether sounding in tort, contract or otherwise))
under all circumstances including the following circumstances:
(a) any lack of validity or enforceability of any Letter of Credit,
this Agreement or any other Loan Documents or any other agreement;
(b) the existence of any claim, set-off, defense or other right which
the Borrower or any of its Affiliates or any Bank may at any time have
against a beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank, the Swing Line Bank, any Bank or
any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or therein or any unrelated
transaction (including any underlying transaction between the Borrower or
any of its Affiliates and the beneficiary for which any Letter of Credit
was procured);
12
(c) any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(d) payment by the Issuing Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does
not comply with the terms of such Letter of Credit;
(e) the fact that a Default or an Event of Default shall have occurred
and be continuing; and
(f) any other circumstance or happening whatsoever.
Section 1.12 Limited Liability of the Issuing and Participating Banks.
---------------------------------------------------------
(a) (i) The Issuing Bank, the Participating Banks and their
respective officers, directors, employees and agents shall not be liable or
responsible for, and the Borrower hereby waives, releases and agrees not to ▇▇▇
for any Letter of Credit Loan Document Claim, including any claim involving (A)
the use which may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (B) the validity,
sufficiency or genuineness of documents presented under any Letter of Credit, or
any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, insufficient, fraudulent or forged; (C) any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit
(except for errors or omissions caused by the Issuing Bank's gross negligence or
willful misconduct); (D) subject, in the case of the Issuing Bank, to Section
1.12(b), payment by the Issuing Bank against presentation of documents to the
Issuing Bank which do not comply with the terms of the applicable Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; or (E) any other similar circumstances
whatsoever in insuring or failing to insure payment under any Letter of Credit.
The Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary unless any beneficiary (or a transferee to whom such
Letter of Credit has been transferred in accordance with its terms) and the
Borrower shall have notified the Issuing Bank that such documents do not comply
with the terms and conditions of such Letter of Credit. The Issuing Bank shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing (which may be a bank wire, telex,
facsimile transmission or similar writing) believed by it to be genuine or to be
signed by the proper party or parties.
(ii) The Borrower assumes all risks of the acts or omissions of any
beneficiary and any transferee of any Letter of Credit with respect to its use
of such Letter of Credit.
(b) (i) Notwithstanding Section 1.12(a) (i) but subject to Section
10.13, the Issuing Bank shall be liable to the Borrower for Adjudicated Letter
of Credit Claims; provided that notwithstanding any such claim, the Borrower
--------
shall make payments under Section 1.09 in the manner but with the effect
contemplated by Section 1.18(b).
13
(ii) Each Bank shall, ratably in accordance with its RC Commitment,
indemnify the Issuing Bank (to the extent not reimbursed by the Borrower)
against any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except for Adjudicated Letter of Credit
Claims) that the Issuing Bank may suffer or incur in connection with this
Agreement or any action taken or omitted by the Issuing Bank hereunder.
Section 1.13 Provisions Not Exclusive; Conflict.
----------------------------------
The rights and remedies of the Issuing Bank, the Administrative Agent and
the Banks under this Agreement in respect of any Letters of Credit are
supplemental to, and not in derogation of, any rights and remedies of the
Issuing Bank, the Administrative Agent and the Banks under the Applications
related to such Letters of Credit and under other Applicable Law. In the event
of any conflict between the terms of this Agreement and the terms of any
Application, the terms set forth in this Agreement shall control.
Section 1.14 Reduction or Increase of Commitments.
-------------------------------------
(a) Optional Reduction of RC Commitments.
------------------------------------
The Borrower may permanently reduce the RC Commitments by giving the
Administrative Agent notice (which shall be irrevocable) thereof no later than
10:00 a.m. on the Business Day before the requested date of such reduction,
except that (i) no partial reduction of the RC Commitments shall be in an
aggregate amount less than $10,000,000 or any integral multiple of $5,000,000 in
excess thereof and (ii) no reduction may reduce the RC Commitments to an amount
less than the aggregate amount of Exposures at such time. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each Bank of the
contents thereof and the amount to which such Bank's RC Commitment is to be
reduced and shall notify the Issuing Bank of the amount to which the aggregate
RC Commitments are to be reduced.
(b) Mandatory Reduction of RC Commitments.
-------------------------------------
The aggregate RC Commitments shall be automatically and permanently
reduced in nineteen (19) consecutive quarterly reductions, on successive Payment
Dates commencing on September 30, 2000 and with the final reduction to zero on
the RC Termination Date. Each such reduction shall be in the amount equal to 5%
of the aggregate RC Commitments in effect on June 30, 2000, and the final such
reduction shall be in an amount equal to the aggregate RC Commitments then in
effect; provided that, at the request of the Borrower as part of the notice to
--------
the Administrative Agent of an optional reduction of the RC Commitments pursuant
to Section 1.14(a) on or after June 30, 2000, any of the scheduled reductions
required to be made by Section 1.14(b) shall be reduced by the amount specified
in such notice to the Administrative Agent, provided that such reduction shall
--------
not exceed the amount of such optional reduction. The Borrower shall prepay the
principal amount of the RC Loans that is in excess of the aggregate amount of
the RC Commitments as so reduced on the effective date of such reduction.
(c) Optional Increase of RC Commitments.
-----------------------------------
At any time on or prior to June 30, 2000, the aggregate amount of the
RC Commitments may be increased once to an amount not in excess of
$1,000,000,000, either by new Banks establishing such additional RC Commitments
or by one or more then-existing Banks increasing their RC Commitments (each such
increase by either means, a "Commitment Increase," and each such new Bank or
-------------------
Bank increasing its RC Commitment, an "Additional Commitment Bank"); provided
-------------------------- --------
that no Default or Event of Default shall exist immediately prior to or after
the effective date of such Commitment Increase; and provided, further, that no
-------- -------
such Commitment Increase shall become effective unless and until the
14
Borrower and the Additional Commitment Bank shall have executed and delivered an
agreement substantially in the form of Exhibit C such Administrative Agent shall
---------
have consented to such Additional Commitment Bank (which consent shall not be
unreasonably withheld or delayed) (a "Commitment Increase Supplement"). On the
------------------------------
effective date of such Commitment Increase, each Additional Commitment Bank
shall pay to each other Bank the purchase price (as determined in accordance
with Exhibit D hereto) for an assignment of a portion of such other ▇▇▇▇▇ ▇▇
---------
Loans outstanding at such time such that, after giving effect to such
assignments, the respective aggregate amount of RC Loans of each Bank (other
than the Additional Commitment Bank) shall be in the same proportion to its RC
Commitments as immediately preceding such assignment. Upon payment of such
purchase price, each other Bank shall be deemed to have sold and made such an
assignment to such Additional Commitment Bank, and such Additional Commitment
Bank shall be deemed to have purchased and assumed such an assignment from each
other Bank, on the terms set forth in Exhibit D hereto. Upon the effectiveness
---------
of any Commitment Increase, the Borrower shall issue an RC Note to each
Additional Commitment Bank (other than an existing Bank).
Section 1.15 Fees.
----
(a) RC Commitment Fee.
-----------------
The Borrower shall pay to the Administrative Agent for the account of
each Bank a commitment fee at a rate per annum equal to (a) for the period from
the Agreement Date to the date three Business Days after the delivery of the
financial statements of the Borrower pursuant to Section 5.01(a) for the
quarterly period ending September 30, 1998, 0.375% and (b) thereafter, the
percentage set forth in the following table opposite the applicable Leverage
Ratio for the four fiscal quarters of the Borrower most recently completed on
the daily amount by which such Bank's RC Commitment exceeds the sum of (i) the
aggregate unpaid principal amount at such time of the RC Loans of such Bank and
(ii) the aggregate at such time of the Letter of Credit Amounts of such Bank,
for each day from the Agreement Date through the RC Termination Date, payable on
successive Payment Dates, on the RC Termination Date and on the date of any
reduction of such RC Commitments (to the extent accrued and unpaid on the amount
of such reduction):
Applicable RC Commitment
Leverage Ratio Fee Percentage
-------------------------------------------- --------------------------------------------
greater than or equal to 5.00 : 1.00 0.375%
less than 5.00 : 1.00 but greater than or equal to 3.00 : 1.00 0.250%
less than 3.00 : 1.00 0.200%
Not later than three Business Days after receipt by the Administrative
Agent of the financial statements required to be delivered pursuant to Section
5.01(a) or (b) for any fiscal quarter of the Borrower, the Administrative Agent
shall determine the Leverage Ratio for the applicable period and shall promptly
notify the Borrower and the Banks of such determination and of any change in the
commitment fee payable hereunder resulting therefrom; provided that if such
--------
financial statements are not delivered on or prior to the date when due, during
the period from the date when due to the date that is three Business Days after
such financial statements are so delivered, the commitment fee payable hereunder
shall be at a rate per annum equal to 0.375%. Any change in the commitment fee
(other than one pursuant to the proviso to the immediately preceding sentence)
-------
shall be effective as of the date the Administrative Agent so notifies the
Borrower and the Banks and such new commitment fees shall continue in effect
until
15
the effective date of the next redetermination in accordance with this Section,
and shall not be retroactive. Each determination of the Leverage Ratio and
commitment fees by the Administrative Agent in accordance with this Section
shall be conclusive and binding on the Borrower and the Banks absent manifest
error.
(b) Letter of Credit Fees.
---------------------
(i) Issuing Bank Fees.
-----------------
The Borrower shall pay to the Issuing Bank, for its own account (A) at
the time of (x) the issuance of each Letter of Credit and (y) any extension of
the expiry date of such Letter of Credit, an issuing bank fee equal to the
greater of (1) 0.15% of the face amount of such Letter of Credit and (2) $5,000
and (B) from time to time, such normal and customary charges, fees, commissions,
costs and expenses as are incurred or charged by the Issuing Bank in issuing,
re-confirming, effecting payment under, amending, transferring or otherwise
administering any Letter of Credit.
(ii) Participating Bank Fees.
-----------------------
The Borrower shall pay to the Administrative Agent for the respective
accounts of the Participating Banks having LC Participations in any Letters of
Credit, a letter of credit fee in an amount per annum equal to the applicable
Eurodollar Rate Margin on the daily Letter of Credit Amount of each such
Participating Bank. Such fee shall be payable on successive Payment Dates
(commencing with the first Payment Date occurring after the issuance of each
Letter of Credit) and on the date on which each Letter of Credit expires
(whether or not such date would otherwise be a Payment Date).
Section 1.16 Computation of Interest and Fees.
--------------------------------
Interest calculated on the basis of the Eurodollar Rate or the Federal
Funds Rate shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed. Interest calculated on the basis of the Prime
Rate, fees payable pursuant to Section 1.15 and, unless otherwise agreed by the
Borrower and the Administrative Agent, Agreed Rate Loans, shall be computed on
the basis of a year of 365 or 366 days, as applicable, and paid for the actual
number of days elapsed. Interest for any period shall be calculated from and
including the first day thereof to but excluding the last day thereof.
Section 1.17 Evidence of Indebtedness.
------------------------
Each Bank's Loans (including the Swing Line Bank) and the Borrower's
obligation to repay such Loans with interest in accordance with the terms of
this Agreement shall be evidenced by this Agreement, the records of such Bank
and (a) in the case of Term A Loans, a single Term A Note payable to the order
of such Bank which, subject to Section 10.20, may be a Registered Note, (b) in
the case of Term B Loans, a single Term B Note payable to the order of such Bank
which, subject to Section 10.20, may be a Registered Note, (c) in the case of RC
Loans, a single RC Note payable to the order of such Bank which, subject to
Section 10.20, may be a Registered Note and (d) in the case of Swing Loans, a
Swing Loan Note payable to the order of the Swing Line Bank. The records of
each Bank shall, absent manifest error, be prima facie evidence of such Bank's
Loans and accrued interest thereon and of all payments made in respect thereof.
Drawings, Contingent Reimbursement Obligations and LC Participations, and the
Borrower's obligations to repay Drawings with interest in accordance with the
terms of this Agreement and to prepay Contingent Reimbursement Obligations,
shall be evidenced by this Agreement and the records of the Issuing Bank. The
records of the Issuing Bank shall, absent manifest error, be prima facie
evidence of, with respect to each Letter of Credit, the amount of Drawings.
Swing Line Participations shall be evidenced by this Agreement, the
participation certificates furnished by the Swing Line Bank pursuant to Section
1.05(b)(ii)(A), if any, and the records of the Swing Line Bank.
16
Section 1.18 Payments by the Borrower.
------------------------
(a) Time, Place and Manner.
----------------------
All payments due to the Administrative Agent under the Borrower Loan
Documents shall be made to the Administrative Agent at the Administrative
Agent's Office or at such other address as the Administrative Agent may
designate by notice to the Borrower. All payments due to the Issuing Bank under
the Borrower Loan Documents by the Borrower or any Bank shall be made to the
Issuing Bank at the Issuing Bank's Office or to such other Person or at such
other address as the Issuing Bank may designate by notice to the Borrower or
such Bank, as the case may be. All payments due to any Bank under the Borrower
Loan Documents shall, in the case of payments by the Borrower on account of
principal of or interest on the Loans (including Swing Loans, so long as the
Bank that is the Swing Line Bank is also the Administrative Agent) or fees be
made to the Administrative Agent at the Administrative Agent's Office and in the
case of all other payments (including payments of principal of, and interest on,
Swing Loans, if the Bank that is the Swing Line Bank is not the Administrative
Agent), be made directly to such Bank at its Domestic Lending Office or such
other address as such Bank may designate. All payments due to any Bank under the
Borrower Loan Documents, whether made to the Administrative Agent or directly to
such Bank, shall be made for the account of, in the case of payments in respect
of Eurodollar Rate Loans, such Bank's Eurodollar Lending Office and, in the case
of all other payments, such Bank's Domestic Lending Office. A payment, other
than a payment on account of a Drawing, shall not be deemed to have been made on
any day unless such payment is received by the required Person, at the required
place of payment, in Dollars in funds immediately available to the
Administrative Agent at such place, no later than 12:00 noon on such day. A
payment on account of a Drawing shall not be deemed to have been made on any day
unless such payment is received by the Issuing Bank at the required place of
payment, in Dollars in funds immediately available to the Issuing Bank at such
place, no later than, in the case of payments by the Borrower, the times
specified in Section 1.09(b)(i) and, in the case of payments by a Bank, the
times specified in Section 1.10(b).
(b) No Reductions.
-------------
All payments due to the Administrative Agent, the Issuing Bank or any
Bank under the Borrower Loan Documents, and all other terms, conditions,
covenants and agreements to be observed and performed by the Borrower
thereunder, all payments due to the Issuing Bank by a Bank and all payments due
to the Swing Line Bank by a Bank, shall be made, observed or performed by the
Borrower or such Bank, as the case may be, without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether sounding in tort, contract or otherwise) or Tax, except in
the case of payments by the Borrower, subject to Section 1.20, for any
withholding or deduction for Taxes required to be withheld or deducted under
Applicable Law; provided that no payment by any Person to another Person shall
--------
constitute a waiver or release by the Person making such payment of any right it
may have against the Person receiving such payment.
(c) Extension of Payment Dates.
--------------------------
Whenever any payment to the Administrative Agent, the Issuing Bank,
the Swing Line Bank or any Bank under the Borrower Loan Documents would
otherwise be due (except by reason of acceleration) on a day that is not a
Business Day, or, in the case of payments of the principal of Eurodollar Rate
Loans, a Eurodollar Business Day, such payment shall instead be due on the next
succeeding Business or Eurodollar Business Day, as the case may be, unless, in
the case of a payment of the principal of a Eurodollar Rate Loan, such extension
would cause payment to be due in the next succeeding calendar month, in which
case such due date shall be advanced to the next preceding Eurodollar Business
Day. If the date
17
any payment under the Borrower Loan Documents is due is extended (whether by
operation of any Borrower Loan Document, Applicable Law or otherwise), such
payment shall bear interest for such extended time at the rate of interest
applicable hereunder.
Section 1.19 Distribution of Payments by the Administrative Agent.
----------------------------------------------------
(a) The Administrative Agent shall promptly distribute to each Bank
its ratable share of each payment received by the Administrative Agent under the
Loan Documents for the account of the Banks by credit to an account of such Bank
at the Administrative Agent's Office or by wire transfer to an account of such
Bank at an office of any other commercial bank located in the United States of
America.
(b) Unless the Administrative Agent shall have received notice from
the applicable Loan Party prior to the date on which any payment is due to the
Banks under the Loan Documents that such Loan Party will not make such payment
in full, the Administrative Agent may assume that such Loan Party has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent in its sole discretion may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date a corresponding amount with respect to
the amount then due such Bank. If and to the extent such Loan Party shall not
have so made such payment in full to the Administrative Agent and the
Administrative Agent shall have so distributed to any Bank a corresponding
amount, such Bank shall, on demand, repay to the Administrative Agent the amount
so distributed together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Administrative Agent, at the Federal Funds Rate until (and including) the
third Business Day after demand is made and thereafter at the Base Rate.
Section 1.20 Taxes.
-----
(a) Taxes Payable by the Borrower.
-----------------------------
If under Applicable Law any Tax is required to be withheld or deducted
from, or is otherwise payable by the Borrower in connection with, any payment to
the Administrative Agent, the Issuing Bank, the Swing Line Bank or any Bank
under the Loan Documents, the Borrower (A) shall (1) if so required, withhold or
deduct the amount of such Tax from such payment and, in any case, pay such Tax
to the appropriate taxing authority in accordance with Applicable Law and (2)
indemnify the Administrative Agent, the Issuing Bank, the Swing Line Bank or
such Bank in accordance with the provisions of Section 10.02(a) against its
failure so to do and (B) shall pay to the Administrative Agent, the Issuing
Bank, the Swing Line Bank or such Bank such additional amounts as may be
necessary so that the net amount received by the Administrative Agent, the
Issuing Bank, the Swing Line Bank or such Bank with respect to such payment,
after withholding or deducting all Taxes required to be withheld or deducted, is
equal to the full amount payable under the Loan Documents less any Bank Taxes
required to be withheld or deducted, or otherwise payable by the Borrower. If
any Tax is withheld or deducted from, or is otherwise payable by the Borrower in
connection with, any payment payable to the Administrative Agent, the Issuing
Bank, the Swing Line Bank or any Bank under the Loan Documents, the Borrower
shall, as soon as possible after the date of such payment, furnish to the
Administrative Agent, the Issuing Bank, the Swing Line Bank or such Bank the
original or a certified copy of a receipt for such Tax from the applicable
taxing authority. If any payment due to the Administrative Agent, the Issuing
Bank, the Swing Line Bank or any Bank under the Loan Documents is or is expected
to be made without withholding or deducting therefrom, or otherwise paying in
connection therewith, any Tax payable to any taxing authority, the Borrower
18
shall, within 30 days after any request from the Administrative Agent, furnish
to the Administrative Agent a certificate from such taxing authority, or an
opinion of counsel acceptable to the Administrative Agent, in either case
stating that no Tax payable to such taxing authority was or is, as the case may
be, required to be withheld or deducted from, or otherwise paid by the Borrower
in connection with, such payment.
(b) Taxes Payable by the Administrative Agent, the Issuing Bank or any
------------------------------------------------------------------
Bank.
----
The Borrower shall, promptly upon request by the Administrative Agent,
the Issuing Bank, the Swing Line Bank or any Bank for the payment thereof, pay
to the Administrative Agent, the Issuing Bank, the Swing Line Bank or such Bank
(A) all Taxes (other than Bank Taxes) payable by the Administrative Agent, the
Issuing Bank or such Bank with respect to any payment due to the Administrative
Agent, the Issuing Bank, the Swing Line Bank or such Bank under the Loan
Documents and (B) all Taxes payable by the Administrative Agent, the Issuing
Bank, the Swing Line Bank or such Bank as a result of payments made by the
Borrower (whether made to a taxing authority or to the Administrative Agent, the
Issuing Bank or such Bank) pursuant to this Section 1.20(b).
(c) Exemption from U.S. Withholding Taxes.
-------------------------------------
There shall be submitted to the Borrower and the Administrative Agent
(A) on or before the first date that interest or fees are payable to such Bank
under the Loan Documents, (1) if at the time the same are applicable (aa) by
each of the Issuing Bank and the Swing Line Bank if it is not, and by each Bank
that is not, a United States Person, two duly completed and signed copies of
Internal Revenue Service Form 1001 or 4224, in either case entitling such Person
to a complete exemption from withholding of any United States federal income
taxes on all amounts to be received by such Person under the Loan Documents or
(bb) by each of the Issuing Bank and the Swing Line Bank if it is, and by each
Bank that is, a Non-US Bank (x) a duly completed Internal Revenue Service Form
W-8 and (y) a certification in the form of Schedule 1.20(c) that such Person is
----------------
a Non-US Bank or (2) if at the time any of the foregoing are inapplicable, duly
completed and signed copies of such form, if any, as entitles such Person to
exemption from withholding of United States federal income taxes to the maximum
extent to which such Person is then entitled under Applicable Law and (B) from
time to time thereafter, prior to the expiration or obsolescence of any
previously delivered form or upon any previously delivered form becoming
inaccurate or inapplicable, such further duly completed and signed copies of
such form, if any, as entitles such Person to exemption from withholding of
United States federal income taxes to the maximum extent to which such Person is
then entitled under Applicable Law. Each such Person shall promptly notify the
Borrower and the Administrative Agent if (A) it is required to withdraw or
cancel any form or certificate previously submitted by it or any such form or
certificate has otherwise become ineffective or inaccurate or (B) payments to it
are or will be subject to withholding of United States federal income taxes to a
greater extent than the extent to which payments to it were previously subject.
Upon the request of the Borrower or the Administrative Agent, each such Person
that is a United States Person shall from time to time submit to the Borrower
and the Administrative Agent a certificate to the effect that it is such a
United States Person and a duly completed Internal Revenue Service Form W-9 (and
from time to time thereafter, any appropriate form that identifies such Person
as a United States Person, as required under Applicable Law).
19
(d) Limitations.
-----------
Notwithstanding anything to the contrary contained herein, the
Borrower shall not be required to pay any additional amount in respect of
withholding taxes pursuant to this Section 1.20 to any Bank (A) in respect of
any Bank Tax, (B) except to the extent such Taxes are required to be withheld as
a result of (1) in the case of a Person that is a Bank on the Agreement Date, a
Regulatory Change Enacted after the Agreement Date and (2) in the case of a
Person that becomes a Bank after the Agreement Date, a Regulatory Change Enacted
after such Person becomes a Bank or (C) to the extent such withholding is
required because such Bank has failed (x) to submit any form or certificate that
it is required to submit pursuant to Section 1.20(c) or (y) in the case of a
Bank that is a Non-US Bank, to cause its Notes to be issued as Registered Notes.
Section 1.21 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein, (a) Term A Loans, Term B
Loans, Term B Loans and RC Loans of each Type to be made on any day shall be
made by the Banks pro rata in accordance with their respective Term A
Commitments, Term B Commitments or RC Commitments, as the case may be, (b) Term
A Loans, Term B Loans and RC Loans of the Banks shall be converted and continued
pro rata in accordance with their respective amounts of Term Loans or RC Loans,
as the case may be, of the Type and, in the case of Eurodollar Rate Loans,
having the Interest Period being so converted or continued, (c) each reduction
in the Term A Commitments, Term B Commitments or the RC Commitments shall be
made pro rata in accordance with the respective amounts thereof, (d) each
payment of the principal of or interest on the Term A Loans, Term B Loans, RC
Loans or of fees (other than Issuing Bank fees pursuant to Section 1.15(b)(i)
and Participating Bank fees payable pursuant to Section 1.15(b)(ii)) shall be
made for the account of the Banks pro rata in accordance with the respective
amounts thereof then due and payable and (e) each payment of Participating Bank
fees payable with respect to a Letter of Credit pursuant to Section 1.15(b)(ii)
shall be made for the account of the Participating Banks having LC
Participations in such Letter of Credit pro rata in accordance with their
respective Letter of Credit Amounts with respect to such Letter of Credit.
ARTICLE 2
---------
CONDITIONS TO CREDIT EXTENSIONS
-------------------------------
Section 2.01 Conditions to Initial Credit Extension.
--------------------------------------
The obligation of each Bank, including the Swing Line Bank, to make its
initial Loan (or, if no Loans have been made at such time, the obligation of the
Issuing Bank to issue the initial Letter of Credit) is subject to the
determination of the Administrative Agent, in its reasonable discretion, that
each of the following conditions has been fulfilled:
(a) the Administrative Agent shall have received each of the
following, in form and substance and, in the case of the materials referred to
in clauses (i), (ii), (iii), (vi) and (xvii), certified in a manner satisfactory
to it:
(i) a certificate of the Secretary, an Assistant Secretary or other
officer acceptable to the Administrative Agent of each Loan Party, dated
the requested date for the making of such Credit Extension substantially in
the form of Schedule 2.01(a)(i), to which shall be attached copies of the
-------------------
resolutions (or in the case of MAC Inc. and
20
SOFTBANK Corp. the minutes) and by-laws (or in the case of MAC Inc. and
SOFTBANK Corp. the Articles of Incorporation) referred to in such
certificate;
(ii) a copy of the certificate of incorporation of each Loan Party
and each Subsidiary the capital stock of which is pledged pursuant to any
Pledge Agreement, that is a corporation (or in the case of MAC Inc. and
SOFTBANK Corp., the Commercial Register) certified, as of a recent date, by
the Secretary of State, the Legal Affairs Bureau or other appropriate
official of such Person's jurisdiction of incorporation;
(iii) a good standing certificate with respect to each Loan Party
and each Subsidiary the capital stock of which is pledged pursuant to any
Pledge Agreement, that is a corporation, issued as of a recent date by the
Secretary of State or other appropriate official of such Person's
jurisdiction of incorporation, together with a telegram from such Secretary
of State or other official, updating the information in such certificate;
(iv) opinions of counsel for each Loan Party, in form and substance
and from counsel satisfactory to, and with respect to the jurisdictions
required by, the Administrative Agent, dated the requested date for the
making of such Credit Extension;
(v) a certificate of the President or Chief Financial Officer of
the Borrower, dated the requested date for the making of such Credit
Extension, setting forth the manner and degree of detail in which the
Borrower will make the calculations required by paragraph 3 of Schedule
--------
5.01(b);
-------
(vi) a copy of each Governmental Approval, Governmental
Registration and other consent or approval listed on Schedule 3.03;
-------------
(vii) completed Schedules 3.02, 3.03, 3.06, 4.05, 4.06, 4.07, 4.11,
-------------- ---- ---- ---- ---- ---- ----
4.12 and 9.01;
---- ----
(viii) a duly executed Term A Note to the order of each Bank;
(ix) a duly executed Term B Note to the order of each Bank;
(x) a duly executed RC Note to the order of each Bank;
(xi) a duly executed Swing Loan Note to the order of the Swing Line
Bank;
(xii) a duly executed copy of each Subordination Agreement;
(xiii) a duly executed Pledge Agreement delivered by the Borrower
and each Subsidiary that is a United States Person owning Capital
Securities of any other Subsidiary that is not a Non-Material Subsidiary
and is either a United States Person or ZD Holdings (UK) Ltd. (subject in
the case of ZD Holdings (UK) Ltd. to the provisio in clause (a)(i) of
Section 4.05), and a certificate of a Responsible Officer of the Borrower
certifying that all Subsidiaries whose Capital Securities are not pledged
pursuant to a Pledge Agreement as of the Agreement Date are Non-Material
Subsidiaries;
21
(xiv) either (A) such duly executed UCC-1 financing statements and
other documents as the Administrative Agent may request, the filing or
recordation of which is necessary or appropriate in the Administrative
Agent's determination to create or perfect a security interest in the
Collateral under Applicable Law or (B) evidence of the filing or
recordation of the same in such offices as the Administrative Agent shall
have specified;
(xv) such instruments and other documents as the Administrative
Agent may request, the execution, delivery, filing or possession of which
is necessary or appropriate in the Administrative Agent's determination to
create or perfect a security interest in the Collateral under Applicable
Law, including but not limited to share certificates and stock powers duly
executed in blank with respect to the Capital Securities subject to the
Security Interest;
(xvi) such instruments of termination, release and discharge and
all other documents, including UCC-3 financing statements, as the
Administrative Agent may request, the delivery of which is necessary or
appropriate in the Administrative Agent's determination to effect the
termination of all Liens to which Section 4.07 is applicable other than
Permitted Liens, and such judgment and lien searches as shall be reasonably
required by the Administrative Agent;
(xvii) a copy of each of the Registration Statement, the Indenture
and the Affiliate Note, each in form and substance and certified in a
manner satisfactory to the Administrative Agent; and
(xviii) such additional materials as any Reviewing Agent may have
requested pursuant to Section 5.01(d);
(b) the Administrative Agent shall be satisfied that, prior to or
substantially simultaneously with the Credit Extensions requested to be made on
such date, (i) all outstanding Predecessor Indebtedness will be repaid in full,
(ii) all commitments for the making of loans or extensions of credit under each
Contract evidencing Predecessor Indebtedness will terminate and (iii) all
promissory notes evidencing loans or extensions of credit under each Contract
evidencing Predecessor Indebtedness shall be delivered to the Borrower;
(c) the Offering shall have been, or shall be simultaneously,
consummated as described in the Registration Statement, and the Administrative
Agent shall have received a certificate of a Responsible Officer of the Borrower
certifying that such issuance shall have resulted in a gross cash proceeds of
not less than $400,000,000;
(d) Subordinated Notes shall have been, or shall be simultaneously,
sold by the Borrower in accordance with the terms of the Indenture and the
Administrative Agent shall have received a certificate of a Responsible Officer
of the Borrower certifying that the aggregate principal amount of Subordinated
Notes so sold were not less than $250,000,000;
(e) the Reorganization shall have been, or shall be simultaneously,
consummated, and the Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower certifying that the Reorganization shall
have been consummated, in all material respects in accordance with the
description thereof in the Registration Statement;
22
(f) the acceptance by CT Corporation System of its appointment as
"Process Agent" under each Subordination Agreement that requires such
appointment;
(g) the Administrative Agent shall have received copies, certified in
a manner satisfactory to it, of all notes, bonds, debentures and other
instruments and securities that evidence Indebtedness of the Borrower listed on
Schedule 4.05, and all Contracts under which such Indebtedness is issued or
-------------
which otherwise relate to such Indebtedness; and
(h) the Administrative Agent shall have received a certificate from a
Responsible Officer of the Borrower certifying that the funds available to the
Borrower on the Agreement Date, and that are referred to under the heading "Use
of Proceeds" in the Registration Statement, have been or shall be applied
substantially as set forth under such heading.
Section 2.02 Conditions to Each Loan.
-----------------------
The obligation of each Bank, including the Issuing Bank and the Swing Line
Bank, to make each Credit Extension, including its initial Credit Extension
(other than, unless a Bankruptcy Default exists, RC Loans to be made pursuant to
a request under Section 1.04(d) or Section 1.05(b)(i)), is subject to each of
the following conditions:
(a) such Bank shall have received a notice of or request for a
borrowing, or an Application for the issuance of a Letter of Credit, with
respect to such Credit Extension complying with the requirements of Section 1.02
or Section 1.08, as the case may be;
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time such Credit Extension is to be made, both with and
without giving effect to such Credit Extension and all other Credit Extensions
to be made at such time and to the application of the proceeds thereof; and
(c) no Default shall exist at the time such Credit Extension is to be
made or would result from the making of such Credit Extension and all other
simultaneous Credit Extensions to be made at such time or from the application
of the proceeds thereof.
Except to the extent that the Borrower shall have disclosed in the
applicable notice of borrowing or Application, or in a subsequent notice given
to the Administrative Agent prior to 5:00 p.m. on the Business Day before the
requested date for the making of the requested Credit Extension, that a
condition specified in clause (b) or (c) above will not be fulfilled as of the
requested time for the making of such Credit Extension, the Borrower shall be
deemed to have made a Representation and Warranty as of the time of the making
of such Credit Extension that the conditions specified in such clauses have been
fulfilled as of such time. No such disclosure by the Borrower that a condition
specified in clause (b) or (c) above will not be fulfilled as of the requested
time for the making of the requested Credit Extension shall affect the right of
each Bank, the Swing Line Bank or the Issuing Bank, as the case may be, to not
make the Credit Extension requested to be made by it if, in such Person's
determination, such condition has not been fulfilled at such time.
23
ARTICLE 3
---------
CERTAIN REPRESENTATIONS AND WARRANTIES
--------------------------------------
In order to induce each Bank, the Swing Line Bank and the Issuing Bank to
enter into this Agreement and to make each Credit Extension requested of it, the
Borrower represents and warrants as follows:
Section 3.01 Organization; Power; Qualification.
----------------------------------
The Borrower and each Consolidated Subsidiary are legal entities, duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of formation, have the power and authority to own their
respective properties and to carry on their respective businesses as now being
and hereafter proposed to be conducted and are duly qualified and in good
standing as foreign entities, and are authorized to do business, in all
jurisdictions in which the character of their respective properties or the
nature of their respective businesses requires such qualification or
authorization, except for qualifications and authorizations the lack of which,
singly or in the aggregate, has not had and could not reasonably be expected to
have a Materially Adverse Effect on the Borrower and the Consolidated
Subsidiaries taken as a whole.
Section 3.02 Subsidiaries.
------------
Schedule 3.02 sets forth, as of the Agreement Date, all of the Subsidiaries
-------------
of the Borrower, their jurisdictions of formation, the percentages of the
various classes of their Capital Securities owned by the Borrower or any
Subsidiary and which Subsidiaries are Consolidated Subsidiaries. The Borrower
or a Subsidiary, as the case may be, has the unrestricted right to vote, and
(subject to limitations imposed by Applicable Law) to receive dividends and
distributions on, all Capital Securities indicated on Schedule 3.02 as owned by
-------------
the Borrower or such Subsidiary. All such Capital Securities have been duly
authorized and issued and are fully paid and nonassessable.
Section 3.03 Authorization; Enforceability; Required Consents; Absence of
------------------------------------------------------------
Conflicts.
---------
The Borrower and each Loan Party has the power, and has taken all necessary
action (including, if a corporation, any necessary stockholder action) to
authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents to which it is a party and, in the case of
the Borrower, to borrow hereunder in the unused amount of the Commitments and to
have Letters of Credit issued for its accounts in an amount not exceeding the LC
Sublimit. This Agreement has been, and each of the other Loan Documents to
which the Borrower or any Loan Party is a party when delivered to the
Administrative Agent will have been, duly executed and delivered by the Borrower
and each Loan Party that is a party thereto and is, or when so delivered will
be, a legal, valid and binding obligation of such Loan Party, enforceable
against such Loan Party in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally. The execution,
delivery and performance in accordance with their respective terms by the
Borrower and the Loan Parties of the Loan Documents to which they are parties,
and each borrowing hereunder, whether or not in the amount of the unused
Commitments and the issuance of each Letter of Credit hereunder, whether or not
up to the LC Sublimit, do not and (absent any change in any Applicable Law or
applicable Contract) will not (a) require any Governmental Approval,
Governmental Registration or any other consent or approval, including any
consent or approval of the stockholders or partners, as the case may be, of the
Borrower or
24
any Loan Party, other than Governmental Approvals, Governmental Registrations
and other consents and approvals that have been obtained, are final and not
subject to review on appeal or to collateral attack, are in full force and
effect and, in the case of any such required under any Applicable Law or
Contract as in effect on the Agreement Date, are listed on Schedule 3.03 or
-------------
(b) violate, conflict with, result in a breach of, constitute a default under or
result in or require the creation of any Lien (other than the Security Interest)
upon any assets of the Borrower or any Affiliate under (i) any Contract to which
the Borrower or any Affiliate is a party or by which the Borrower or any
Affiliate or any of their respective properties may be bound or (ii) any
Applicable Law.
Section 3.04 Affiliate Indebtedness and Investments.
---------------------------------------
(a) Schedule 4.05 sets forth (i) all Affiliate Indebtedness of the
-------------
Borrower outstanding on the Agreement Date in an original aggregate principal
amount equal to $1,000,000 or more, (ii) all other Indebtedness of the Borrower
and the Consolidated Subsidiaries outstanding on the Agreement Date in an
original aggregate principal amount equal to $1,000,000 or more and (iii) each
such Person that such Indebtedness is payable to or the indenture or similar
instrument under which such Indebtedness was issued.
(b) Schedule 4.11 sets forth all Investments of the Borrower and the
-------------
Consolidated Subsidiaries outstanding on the Agreement Date the Investment
Amount of which is equal to $1,000,000 or more.
Section 3.05 Taxes.
-----
(a) The Borrower and each Consolidated Subsidiary has timely filed
all Tax returns required to have been filed by them under Applicable Law (taking
into account any extension of time in which to file) except for returns (other
than U.S. federal income tax returns) which show or when completed would show a
liability for Taxes less than $250,000, (b) all such filed returns correctly
reflect the facts concerning the income, business, assets, properties,
operations, activities and status of the Borrower and each Consolidated
Subsidiary, (c) the Borrower and each Consolidated Subsidiary has timely paid
all Taxes (except for Taxes the failure of timely payment of which does not
contravene Section 4.01) that are shown as due on such filed returns or that
have been assessed against them and (d) to the extent required by Generally
Accepted Accounting Principles, reserved against all Taxes that are payable by
it but are not yet due or that are due and payable by it or have been assessed
against it but have not yet been paid.
Section 3.06 Litigation.
----------
Except as set forth on Schedule 3.06, there are not, in any court or before
-------------
any arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits or proceedings pending or threatened (nor, to the
knowledge of the Borrower or any Subsidiary is there any basis therefor) against
or in any other way relating to or affecting (a) the validity or enforceability
of any Loan Document or (b) the Borrower or any Subsidiary or any of their
respective businesses or properties, except actions, suits or proceedings that
could not reasonably be expected to be adversely determined and that, in the
case of those pending against the Borrower or any Subsidiary, if adversely
determined, could not reasonably be expected to have, singly or in the
aggregate, a Materially Adverse Effect on the Borrower and the Consolidated
Subsidiaries taken as a whole.
25
Section 3.07 Burdensome Provisions.
---------------------
Neither the Borrower nor any Subsidiary is a party to or bound by any
Contract or Applicable Law, compliance with which could reasonably be expected
to have a Materially Adverse Effect on (a) the Borrower and the Consolidated
Subsidiaries taken as a whole or (b) any Loan Document.
Section 3.08 No Adverse Change or Event.
--------------------------
Since December 31, 1997, no change in the business, assets, Liabilities,
financial condition, results of operations or business prospects of the Borrower
or any Consolidated Subsidiary has occurred, and no event has occurred or failed
to occur, that has had or could reasonably be expected to have, either alone or
in conjunction with all other such changes, events and failures, a Materially
Adverse Effect on (a) the Borrower and the Consolidated Subsidiaries taken as a
whole or (b) any Loan Document. Such an adverse change may have occurred, and
such an event may have occurred or failed to occur, at any particular time
notwithstanding the fact that at such time no Default shall exist.
Section 3.09 Guarantors.
----------
As of the Agreement Date, the Guarantors listed on Schedule 9.01 are all of
-------------
the Wholly Owned Subsidiaries of the Borrower that are United States Persons.
Section 3.10 Investment Company Act.
----------------------
Neither the Borrower nor any Consolidated Subsidiary is an "investment
company" or a Person "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940.
Section 3.11 Registration Statement.
----------------------
The Registration Statement does not contain any misstatement of a material
fact or omit any statement of a material fact necessary to make the statements
contained therein, in light of the circumstances in which they were made, not
misleading.
ARTICLE 4
---------
CERTAIN COVENANTS
-----------------
From the Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Consolidated Subsidiary to:
-- ------------------------------------------------------------------
Section 4.01 Preservation of Existence and Properties, Scope of Business,
------------------------------------------------------------
Compliance with Law, Payment of Taxes and Claims, Preservation of
-----------------------------------------------------------------
Enforceability.
(a) Preserve and maintain its corporate or partnership existence, as
the case may be, and all of its other franchises, licenses, rights and
privileges, (b) preserve, protect and obtain all Intellectual Property, and
preserve and maintain in good repair, working order and condition all other
properties, required for the conduct of its business, (c) comply with Applicable
Law, (d) pay or discharge when due all Taxes (other than Taxes that are the
subject of a good faith contest as to the fact or the amount of liability and,
to the extent required by Generally Accepted Accounting Principles, have been
reserved against on the books of the Person that has failed to discharge such
Tax) and all Liabilities that are or might become Liens on any of its properties
and (e) take all action and obtain all consents and Governmental Approvals and
make all Governmental Registrations required so that its obligations under the
Loan Documents will at all times be legal, valid and
26
binding and enforceable in accordance with their respective terms, except that
this Section 4.01 (other than clauses (a), insofar as it requires any Person to
preserve its corporate or partnership existence and (e)) shall not apply in any
circumstance where noncompliance, together with all other noncompliances with
this Section 4.01, could not reasonably be expected to have a Materially Adverse
Effect on (x) the Borrower and the Consolidated Subsidiaries taken as a whole,
(y) any Loan Document or (z) the Collateral.
Section 4.02 Insurance.
---------
Maintain insurance with responsible insurance companies against at least
such risks and in at least such amounts as is customarily maintained by similar
businesses, or as may be required by Applicable Law.
Section 4.03 Use of Proceeds.
---------------
Use (a) the proceeds of the Loans only for (i) the repayment of Drawings
together with interest thereon, (ii) the repayment of Swing Loans, (iii) the
refinancing of Predecessor Indebtedness and (iv) the general corporate purposes
of the Borrower, including any acquisition or disposition of assets not
prohibited by the terms of this Agreement, and (b) the Letters of Credit only
for the purposes specified in Section 1.07(b). None of the proceeds of any of
the Loans and none of the Letters of Credit, directly or indirectly, shall be
used to purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meaning of
Regulations U and X of the Board of Governors of the Federal Reserve System) or
to extend credit to others for the purpose of purchasing or carrying any margin
stock. If requested by any Bank, the Borrower shall complete and sign Part I of
a copy of Federal Reserve Form U-1 referred to in Regulation U and deliver such
copy to such Bank.
Section 4.04 Subsidiaries and Wholly Owned Subsidiaries.
-------------------------------------------
(a) Subsidiaries.
------------
Within five Business Days after the date the Borrower or any
Subsidiary forms or acquires any new Subsidiary that is not a Non-Material
Subsidiary, and with respect to a Subsidiary that ceases to be a Non-Material
Subsidiary, promptly after such Subsidiary ceases to be a Non-Material
Subsidiary, (i) grant to the Secured Party a fully perfected security interest,
not subject to any prior Lien, in all of the Capital Securities owned by the
Borrower or any of its Subsidiaries, as the case may be, of any such Subsidiary,
as security for the Secured Obligations, provided that if such Subsidiary is not
--------
a United States Person, such security interest shall be granted in no more than
65% of the outstanding Capital Securities of such Subsidiary; without limiting
the generality of the foregoing, such requirement shall include (A) delivery to
the Secured Party of executed stock pledge agreements in form and substance
reasonably satisfactory to the Secured Party in respect of such Capital
Securities, (B) the delivery to the Secured Party of the stock certificates (if
any) evidencing such Capital Securities, together with any appropriate stock
powers duly executed in blank, (C) the delivery to the Administrative Agent of
an opinion of counsel to Borrower and relevant Subsidiaries as to such matters
as the Administrative Agent may reasonably request, (D) the delivery to the
Secured Party of charter documents and authorizing resolutions of the Borrower
and the relevant Subsidiaries and (E) the taking of such other action by the
Borrower and any Subsidiaries (including, without limitation, the obtaining of
any required consents) as the Administrative Agent may reasonably request in
connection with the grant to the Secured Party of an effective and fully
perfected security interest, not subject to any prior Lien, in such Capital
Securities, and (F) such certificates, resolutions, legal opinions, copies of
filings and notices and other materials, relating to such new Subsidiary, the
documents referred to above and the actions required thereunder, as the Secured
Party may reasonably
27
request; provided that if a Default shall exist, the Administrative Agent may,
--------
in its sole and absolute discretion, require that the Borrower and each
Consolidated Subsidiary comply with the requirements of this Section 4.04(a)
with respect to the Capital Securities of any Subsidiary that is a Non-Material
Subsidiary.
(b) Wholly Owned Subsidiaries.
-------------------------
On or prior to the date that the Borrower or any Consolidated
Subsidiary forms or acquires any new Wholly Owned Subsidiary that is a United
States Person or any existing Subsidiary of the Borrower becomes a Wholly Owned
Subsidiary that is a United States Person, and promptly after any Wholly Owned
Subsidiary that is a United States Person ceases to be a Non-Material
Subsidiary, deliver to the Administrative Agent a Guarantor Supplement executed
by such Wholly Owned Subsidiary; provided that such Wholly Owned Subsidiary is
--------
not a Non-Material Subsidiary; and provided, further, that if a Default shall
-------- -------
exist, the Administrative Agent may, in its sole and absolute discretion,
require that any Wholly Owned Subsidiary comply with the requirements of this
Section 4.04(b) notwithstanding the immediately preceding proviso.
B. The Borrower shall not, and shall not permit any Consolidated Subsidiary to,
-- ----------------------------------------------------------------------------
directly or indirectly:
----------------------
Section 4.05 Indebtedness.
------------
(a) Have any Indebtedness, at any time, except that this Section 4.05(a)
shall not apply to (i) the Loans and Drawings, (ii) Guaranties to which Section
4.06 is not applicable, (iii) the Affiliate Note, (iv) Purchase Money
Indebtedness in a principal amount not exceeding $50,000,000 outstanding at any
time in the aggregate for the Borrower and the Consolidated Subsidiaries, (v)
unsecured Indebtedness of the Borrower and the Consolidated Subsidiaries to
which Section 4.05(b) is not applicable by virtue of clause (i), (vi) New
Subordinated Indebtedness, (vii) InterCompany Indebtedness, (viii) the
Subordinated Notes and (ix) Indebtedness under interest rate, currency swap or
similar transactions entered into pursuant to Section 4.22; and
(b) Incur any Indebtedness, at any time, except that this Section 4.05(b) shall
not apply to (i) unsecured Indebtedness of the Borrower and the Consolidated
Subsidiaries in an aggregate principal amount, for the Borrower and the
Consolidated Subsidiaries, and together with the aggregate principal amount of
Indebtedness outstanding at such time that was incurred pursuant to this clause
(i), (A) not in excess of $35,000,000, of which not more than $25,000,000
aggregate principal amount may be Indebtedness of the Consolidated Subsidiaries,
if at the time of the incurrence of such Indebtedness the Leverage Ratio shall
be equal to or greater than 4.00 to 1.00 and (B) not in excess of $100,000,000,
of which not more than $50,000,000 aggregate principal amount may be
Indebtedness of the Consolidated Subsidiaries, if immediately before and after
the incurrence of such Indebtedness the Leverage Ratio shall be less than 4.00
to 1.00, provided that, in each case, no Default or Event of Default shall exist
--------
immediately prior to or after the incurrence of such Indebtedness, and (ii)
Indebtedness to which Section 4.05 (a) is not applicable by virtue of (i), (ii),
(iv), (vii) and (ix).
Section 4.06 Guaranties.
----------
Be obligated, at any time, in respect of any Guaranty, except that this
Section 4.06 shall not apply to (a) Existing Guaranties, (b) Permitted
Guaranties, (c) Letters of Credit and (d) other letters of credit in an
aggregate face amount not exceeding [$10,000,000] at any time.
28
Section 4.07 Liens.
-----
Permit to exist, at any time, any Lien upon any of its properties or assets
of any character, whether now owned or hereafter acquired, or upon any income or
profits therefrom, except that this Section 4.07 shall not apply to Permitted
Liens.
Section 4.08 Restricted Payments.
-------------------
Make or declare or otherwise become obligated to make any Restricted
Payment, except that this Section 4.08 shall not apply:
(a) to Restricted Payments made by any Consolidated Subsidiary,
provided that, if any such Consolidated Subsidiary is not a Wholly Owned
--------
Subsidiary, any Restricted Payment made by such Consolidated Subsidiary to a
Person other than the Borrower or another Consolidated Subsidiary shall be no
greater than such Person's share of such Restricted Payment if distributed to
the holders of such Consolidated Subsidiary's Capital Securities pro rata on the
basis of the relative amounts of such Capital Securities held by such holders
immediately prior to the making of such Restricted Payment;
(b) if the Leverage Ratio as at the end of any fiscal year (a
"Determination Year") of the Borrower, commencing with the Determination Year
-------------------
ending December 31, 1999, shall be greater than or equal to 4.00 to 1.00 but
less than 5.00 to 1.00, to Restricted Payments during the fiscal year of the
Borrower next succeeding such Determination Year in an aggregate amount,
together with the aggregate amount of all Prepayments of Subordinated
Indebtedness made during such fiscal year to which Section 4.15 shall not be
applicable by virtue of clause (c) thereof ("Subordinated Payments"), not to
---------------------
exceed 25% of Consolidated Excess Cash Flow for such Determination Year;
provided that the Leverage Ratio immediately before and after the making of such
--------
Restricted Payment shall be less than 5.00 to 1.00; and
(c) if the Leverage Ratio as at the end of any Determination Year,
commencing with the Determination Year ending December 31, 1999, shall be less
than 4.00:1.00, to any Restricted Payment made during the fiscal year of the
Borrower next succeeding such Determination Year, provided that the Leverage
--------
Ratio immediately before and after the making of such Restricted Payment shall
be less than 4.00 to 1.00;
provided, further, that in the case of any Restricted Payment made or to be made
-------- -------
under subparagraph (b) or (c) above, no Default or Event of Default shall exist
immediately prior to or after the making of such Restricted Payment.
This Section 4.08 shall not prohibit the payment of a dividend that
constitutes a Restricted Payment if such Restricted Payment is made within 45
days of the declaration thereof and if this Section 4.08 did not prohibit such
Restricted Payment at the time of its declaration.
Section 4.09 Merger or Consolidation.
-----------------------
Merge or consolidate with any Person, except that, if after giving effect
thereto no Default would exist, this Section 4.09 shall not apply to (a) any
merger or consolidation of the Borrower with any one or more Wholly Owned
Subsidiaries and (b) any merger or consolidation of any Wholly Owned Subsidiary
with any one or more other Wholly Owned Subsidiaries; provided that if the
--------
Borrower is a party to such merger or consolidation the Borrower is the
surviving Person.
Section 4.10 Disposition of Assets.
---------------------
Sell, lease, license, transfer or otherwise dispose of any asset or any
interest therein, except that this Section 4.10 shall not apply to (a) any
29
disposition of any asset or any interest therein in the ordinary course of
business, (b) any disposition of any obsolete or retired property not used or
useful in its business, (c) any disposition of any asset or any interest therein
by the Borrower or any Guarantor to the Borrower or any Guarantor, (d) any
disposition (i) of all of the issued and outstanding Capital Securities owned by
the Borrower and the Consolidated Subsidiaries of a Consolidated Subsidiary, or
(ii) all of the Borrower and the Consolidated Subsidiaries' interest in the
assets constituting a Business Unit of any Person, for cash in an amount not
less than the fair market value thereof, as determined in good faith by the
board of directors of the Borrower or the applicable Consolidated Subsidiary, so
long as (i) the EBITDA Percentage of such Consolidated Subsidiary or Business
Units so sold, together with the EBITDA Percentages of all such Consolidated
Subsidiaries and Business Units so sold (A) within the prior twelve calendar
month period does not exceed 20% and (B) after the Agreement Date does not
exceed 40% and (e) any transaction to which any of the other provisions of this
Agreement (other than Section 4.13) is by its express terms inapplicable;
provided, in each case, that no Default or Event of Default shall exist
--------
immediately prior to or after such disposition. For this purpose, "fair market
value" of an asset means the fair market value of such asset at the time of
disposition of such asset as reasonably determined by, if the Person disposing
of such asset is a corporation, its board of directors, if such Person is a
partnership, its general partner or partners, and, if such person is a limited
liability company, its managing directors.
Section 4.11 Investments.
-----------
Make or acquire any Investment or Business Unit, except that this Section
4.11 shall not apply (a) to Money Market Investments, (b) to extensions of trade
credit in the ordinary course of business, but only if and so long as the same
are payable on customary trade terms, (c) to (i) loans and advances to employees
of the Borrower or any Consolidated Subsidiary in the ordinary course of
business in an aggregate amount not exceeding $5,000,000 outstanding at any time
in the aggregate for the Borrower and the Consolidated Subsidiary, and (ii)
Investments constituting Guaranties of loans and advances referred to in clause
(c)(i), (d) to Investments in the Borrower or a Consolidated Subsidiary by the
Borrower or a Consolidated Subsidiary, (e) in addition to the Guaranties
contemplated by clause (c)(ii), to Guaranties to which Section 4.06 is not
applicable, (f) to Existing Investments, (g) to Investments in MAC Inc. and ZDTV
made prior to the exercise by the Borrower of the ZDTV Option, for purposes of
effecting the transactions contemplated in the [License and Services Agreement]
in an aggregate Investment Amount not exceeding $35,000,000 outstanding at any
time, (h) to Business Units acquired from MAC Inc. pursuant to the exercise
after the Agreement Date by the Borrower of the ZDTV Option, (i) during any
fiscal quarter of the Borrower, (A) if the Leverage Ratio as of the end of each
of the two immediately preceding fiscal quarters of the Borrower shall be less
than or equal to 4.00 to 1.00, to
Like-Business Investments, provided that the Leverage Ratio immediately before
--------
and after the making of such Investment shall be less than 4.00 to 1.00, (B) if
the Leverage Ratio as of the end of either of the two immediately preceding
fiscal quarters of the Borrower shall be greater than 4.00 to 1.00, to Like-
Business Investments which at the time such Investments are made, together with
(x) the aggregate amount of Like-Business Investments outstanding at such time
pursuant to this subparagraph (B) and pursuant to subparagraphs (A) and (C) and
(y) the Investment Amount with respect to the exercise by the Borrower of the
ZDTV Option to the extent exceeding $100,000,000, do not exceed $150,000,000,
provided that the Leverage Ratio immediately before and after the making of
--------
such Investment shall be less than 5.00 to 1.00, and (C) if the Leverage Ratio
as of the end of any immediately preceding fiscal quarter of the Borrower shall
be greater than 5.00 to 1.00, to
30
Like-Business Investments which at the time such Investments are made, together
with (x) the aggregate amount of Like-Business Investments outstanding at such
time pursuant to this subparagraph (C) and pursuant to subparagraphs (A) and (B)
and (y) the Investment Amount with respect to the exercise by the Borrower of
the ZDTV Option to the extent exceeding $100,000,000, do not exceed
$100,000,000, and (j) to acquisitions of all of the outstanding Capital
Securities of any Persons engaged in the same lines of business as the Borrower
or all of the assets constituting a Business Unit of any Persons if such
Business Units are engaged in the same lines of business as the Borrower;
provided, in each case other than clause (f), that no Default or Event of
--------
Default shall exist immediately prior to or after the making of such Investment;
and provided, further, that in each case other than clauses (f), (g), (h) and,
-------- -------
to the extent constituting the Investment Amount over $100,000,000 with respect
to the exercise by the Borrower of the ZDTV Option, clause (i), the aggregate
Investment Amount with respect to such Investments in Affiliates shall not
exceed $25,000,000 outstanding at any time.
Section 4.12 Benefit Plans.
-------------
(a) permit any Benefit Plan to be amended in any manner that would cause
the aggregate Unfunded Benefit Liabilities under all Existing Benefit Plans to
exceed $100,000,000 or (b) permit any Benefit Plan to have a Funded Current
Liability Percentage of less than 60%.
Section 4.13 Transactions with Affiliates.
----------------------------
Effect any transaction with any Affiliate that is (a) outside the ordinary
course of business or (b) on a basis less favorable than would at the time be
obtainable for a comparable transaction in arms-length dealing with an unrelated
third party, except that this Section 4.13 shall not apply to (i) the Guaranties
of the Borrower and the Guarantors pursuant to Article 9, (ii) any transaction
between the Borrower and a Guarantor and (iii) any renewal or amendment of any
agreement with any Affiliate existing on the Agreement Date, which renewals or
amendments are not, individually or in the aggregate, adverse to the interests
of the Banks; provided that any such renewal or amendment is in writing and
--------
delivered to the Administrative Agent within 30 days of its execution and
delivery.
Section 4.14 Subordinated Indebtedness.
-------------------------
Amend, modify or waive any provision of any Subordinated Indebtedness,
or make any Prepayment of all or any portion of any Subordinated Indebtedness or
make any other payments on or in respect thereof, except that this Section 4.14
shall not apply to (a) amendments, modifications and waivers of Subordinated
Indebtedness that do not have an adverse effect on the rights of the
Administrative Agent, the Issuing Bank, the Swing Line Lender or any Bank under
the Loan Documents, so long as such amendment, modification or waiver is in
writing and a copy thereof is provided to the Administrative Agent within 30
days of its execution, (b) payments of interest and principal when due on the
Subordinated Indebtedness in accordance with their regularly scheduled
maturities (without giving effect to any acceleration or required or optional
Prepayment), but not earlier, and then only if (i) no Default exists and (ii)
with respect to Subordinated Indebtedness, such payment is permitted by the
applicable Subordination Agreement, (c) if the Leverage Ratio for any
Determination Year, commencing with the Determination Year ending December 31,
1999, shall be greater than or equal to 4.00:1.00 but less than 5.00:1.00,
Prepayments of Subordinated Indebtedness for the fiscal year of the Borrower
next succeeding such Determination Year in aggregate amount, together with the
aggregate amount of all Restricted Payments made during such year to which
Section 4.08 shall not be applicable by virtue of clause (b) thereof ("Permitted
---------
Restricted Payments"), not exceeding 25% of Consolidated Excess
-------------------
31
Cash Flow for such Determination Year, provided that the Leverage Ratio
--------
immediately before and after the making of such Prepayment shall be less than
5.00 to 1.00 and provided, further, that no Default or Event of Default shall
-------- -------
exist immediately before or after the making of such Prepayment and (d) if the
Leverage Ratio for any Determination Year, commencing with the Determination
Year ending December 31, 1999, shall be less than 4.00:1.00, any Prepayments of
Subordinated Indebtedness made during the fiscal year of the Borrower next
succeeding such Determination Year, provided that the Leverage Ratio immediately
--------
before and after the making of such Prepayment shall be less than 4.00 to 1.00
and provided, further, that no Default or Event of Default shall exist
-------- -------
immediately before or after the making of such Prepayment.
For purposes of clause (a) of the preceding sentence, an increase in the
principal amount of, an increase in the interest rate beyond a commercially
reasonable rate on, or date scheduled earlier than the Term B Termination Date
for the payment, purchase or defeasement of principal of or interest on
Subordinated Indebtedness or the Subordinated Notes shall be deemed to have such
an adverse effect.
C. The Borrower shall not permit any Consolidated Subsidiary to:
------------------------------------------------------------
Section 4.15 Issuance of Capital Securities.
------------------------------
Issue any of its Capital Securities except that this Section 4.15 shall not
apply to any issuance by a Consolidated Subsidiary of any of its Capital
Securities so long as the Capital Securities so issued to any Person other than
the Borrower or another Consolidated Subsidiary shall be no greater than such
Person's share of all Capital Securities of such Consolidated Subsidiary issued
at such time, if issued to the holders of such Consolidated Subsidiary's Capital
Securities pro rata on the basis of the relative amounts of such Capital
Securities held by such holders immediately prior to the issuance of such
Capital Securities, provided, except with respect to the Capital Securities of a
--------
Non-Material Subsidiary, that any such Capital Securities issued to the Borrower
or a Consolidated Subsidiary shall constitute Collateral and the Borrower or
such Consolidated Subsidiary, as the case may be, shall grant to the Secured
Party a fully perfected security interest, not subject to any prior Lien, in all
of the Capital Securities owned by such Person of any such Subsidiary, as
security for the Secured Obligations, provided that if such Subsidiary is not a
--------
United States Person, such security interest shall be granted in no more than
65% of the outstanding Capital Securities of such Subsidiary; without limiting
the generality of the foregoing, such requirement shall include (i) delivery to
the Secured Party of executed stock pledge agreements in form and substance
satisfactory to the Secured Party in respect of such Capital Securities, (ii)
the delivery to the Secured Party of the stock certificates (if any) evidencing
such Capital Securities, together with any appropriate stock powers duly
executed in blank, (iii) the delivery to the Administrative Agent of an opinion
of counsel to Borrower and relevant Subsidiaries as to such matters as the
Administrative Agent may reasonably request, (iv) the delivery to the
Administrative Agent of charter documents and authorizing resolutions of the
Borrower and the relevant Subsidiaries and (v) the taking of such other action
by the Borrower and any Subsidiaries (including, without limitation, the
obtaining of any required consents) as the Administrative Agent may reasonably
request in connection with the grant to Secured Party of an effective and fully
perfected security interest, not subject to any prior Lien, in such Capital
Securities and (vi) such certificates, resolutions, legal opinions, copies of
filings and notices, and other materials as the Administrative Agent may
reasonably request; and provided, further, that if a Default shall exist, the
-------- -------
Administrative Agent may, in its sole and absolute discretion, require that the
Capital
32
Securities of any Subsidiary constitute Collateral and the Person acquiring such
Capital Securities comply with the requirements of the immediately preceding
proviso.
Section 4.16 Limitation on Restrictive Covenants.
-----------------------------------
Permit to exist, at any time, any consensual restriction limiting the
ability (whether by covenant, event of default, subordination or otherwise) of
any Consolidated Subsidiary to (a) pay dividends or make any other distributions
on shares of its capital stock or other ownership interests held by the Borrower
or any other Consolidated Subsidiary, (b) pay any obligation owed to the
Borrower or any Consolidated Subsidiary, (c) make any loans or advances to or
investments in the Borrower or any Consolidated Subsidiary, (d) transfer any of
its property or assets to the Borrower or any Consolidated Subsidiary or (e)
create any Lien upon its property or assets whether now owned or hereafter
acquired or upon any income or profits therefrom, except that this Section 4.16
shall not apply to Permitted Restrictive Covenants.
D. The Borrower shall not at any time:
----------------------------------
Section 4.17 Leverage Ratio.
--------------
Permit the Leverage Ratio of the Borrower to be greater than the following
amounts at any time during the following respective periods:
Period Ratio
-------------------------------------------------------------- --------------------------
Agreement Date through September 29, 1998 6.25:1.00
September 30, 1998 through December 30, 1998 6.00:1.00
December 31, 1998 through December 30, 1999 5.50:1.00
December 31, 1999 through December 30, 2000 5.25:1.00
December 31, 2000 and thereafter 4.50:1.00
Section 4.18 Senior Leverage Ratio.
---------------------
Permit the Senior Leverage Ratio of the Borrower to be greater than the
following amounts at any time during the following respective periods:
Period Ratio
-------------------------------------------------------------- --------------------------
Agreement Date through December 30, 1998 5.25:1.00
December 31, 1998 through December 30, 1999 4.50:1.00
December 31, 1999 through December 30, 2000 4.00:1.00
December 31, 2000 and thereafter 3.50:1.00
Section 4.19 Ratio of Consolidated EBITDA to Consolidated Interest
-----------------------------------------------------
Expense.
Permit the ratio of Consolidated EBITDA to Consolidated Interest Expense
for the four consecutive fiscal quarters of the Borrower most recently completed
to be less than 2.00:1.00 as at the end of any fiscal quarter of the Borrower.
Section 4.20 Fixed Charge Coverage.
---------------------
Permit the ratio of Consolidated EBITDA to Consolidated Fixed Charges for
the four consecutive fiscal quarters of the Borrower most recently completed to
be less than 1.10:1.00 as at the end of any fiscal quarter of the Borrower.
Section 4.21 [License and Services Agreement].
--------------------------------
Amend or modify, or waive any provision of, the [License and Services
Agreement], except for amendments and waivers that are
33
not, individually or in the aggregate, materially adverse to the interests of
the Banks; provided that such amendments and waivers are in writing and copies
--------
thereof have been provided to the Administrative Agent within 30 days of their
execution and delivery.
E. The Borrower shall:
------------------
Section 4.22 Interest Rate Protection Agreements. [TO COME]
-----------------------------------
ARTICLE 5
---------
INFORMATION
-----------
Section 5.01 Information to Be Furnished.
---------------------------
From the Agreement Date and until the Repayment Date, the Borrower shall
furnish to each Bank and the Issuing Bank:
(a) Quarterly Financial Statements.
------------------------------
As soon as available and in any event within 45 days after the close
of each of the first three quarterly accounting periods in each fiscal year of
the Borrower, commencing with the quarterly period ending June 30, 1998,
consolidated and consolidating balance sheets of the Borrower and the
Consolidated Subsidiaries as at the end of such quarterly period and the related
consolidated and consolidating statements of income, retained earnings and cash
flows of the Borrower and the Consolidated Subsidiaries for such quarterly
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, setting forth in each case in comparative form the
figures for the corresponding periods of the previous fiscal year. The
consolidated financial statements of the Borrower will be supported by schedules
showing revenues and EBITDA by major business units.
(b) Year-End Financial Statements; Accountants' Certificate.
-------------------------------------------------------
As soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 1998:
(i) consolidated and consolidating balance sheets of the Borrower and
the Consolidated Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income, retained earnings and cash
flows of the Borrower and the Consolidated Subsidiaries for such fiscal year,
setting forth in comparative form (A) the figures as at the end of and for the
previous fiscal year and (B) the figures for the fourth quarterly period during
such fiscal year and the corresponding quarterly period during the previous
fiscal year, supported by schedules showing revenues, operating expenses,
EBITDA, net assets, capital spending and depreciation, by major business units;
and
(ii) an audit report of Price Waterhouse, or other independent
certified public accountants of recognized national standing satisfactory to the
Reviewing Agents, on such of the financial statements referred to in clause (i)
as are consolidated financial statements, which report shall be without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit.
(c) Officer's Certificate as to Financial Statements and Defaults.
-------------------------------------------------------------
At the time that financial statements are furnished pursuant to
Section 5.01(a) or Section 5.01(b), a certificate
34
of the president, chief financial officer or other officer of the Borrower
acceptable to the Administrative Agent in the form of Schedule 5.01(b).
----------------
(d) Requested Information.
---------------------
From time to time and promptly upon request of the Administrative
Agent, such Information regarding the Loan Documents, the Loans, the Letters of
Credit or the business, assets, Liabilities, financial condition, results of
operations or business prospects of the Borrower and the Consolidated
Subsidiaries as any Reviewing Agent may reasonably request.
(e) Notice of Defaults, Material Adverse Changes and Other Matters.
--------------------------------------------------------------
Prompt notice of:
(i) any Default of which the Borrower is or in the exercise of
normal business prudence should have been aware,
(ii) the acquisition or formation of a new Subsidiary and, in the
case of each such new Subsidiary, its name, jurisdiction of incorporation,
the percentages of the various classes of its Capital Securities owned by
the Borrower or another Subsidiary and whether or not such new Subsidiary
is a Consolidated Subsidiary,
(iii) any change in the name of any Subsidiary, its jurisdiction
of incorporation or formation, the percentages of the various classes of
its Capital Securities or partnership or other ownership interests owned by
the Borrower or another Subsidiary or its status as a Consolidated or non-
Consolidated Subsidiary,
(iv) the written threat or commencement of, or the occurrence of
any change or event relating to, any action, suit or proceeding that would
cause the Representation and Warranty contained in Section 3.06 to be
incorrect if made at such time,
(v) the occurrence of any change or event that would cause the
Representation and Warranty contained in Section 3.08 to be incorrect if
made at such time,
(vi) any event or condition referred to in clauses (i) through
(vii) of Section 6.01(h), whether or not such event or condition shall
constitute an Event of Default, and
(vii) any material amendment of the certificate of incorporation
or partnership agreement or by-laws of the Borrower or any Subsidiary that
is a Loan Party.
Section 5.02 Accuracy of Financial Statements and Information.
------------------------------------------------
(a) Financial Statements.
--------------------
The Borrower hereby represents and warrants that (i) the financial
statements attached hereto as Schedule 5.02(a), while not prepared in accordance
----------------
with Generally Accepted Accounting Principles, would be substantially the same
had such financial statements been so prepared, and fairly present the
respective financial positions of the Persons whose financial statements such
financial statements purport to be as of their respective dates and the results
of operations, retained earnings and, as applicable, changes in financial
position or cash flows of such Persons for the respective periods to which such
statements relate on a combined basis pro forma for the Reorganization, (ii)
except as disclosed or reflected in such financial statements, as
35
at their respective dates, neither the Borrower nor any Consolidated Subsidiary
had any Liability, contingent or otherwise, or any unrealized or anticipated
loss, that, singly or in the aggregate, has had or could reasonably be expected
to have a Materially Adverse Effect on the Borrower and the Consolidated
Subsidiaries taken as a whole and (iii) the financial statements furnished
pursuant to Section 5.01(a) or Section 5.01(b) will fairly present, in
accordance with Generally Accepted Accounting Principles (except for (x) changes
therein or departures therefrom that are described in the certificate or report
accompanying such statements and that have been approved in writing by the
Borrower's then-current independent certified public accountants and (y)
financial statements for periods prior to January 1, 1998), the consolidated
financial position of the Borrower and the Consolidated Subsidiaries, as at
their respective dates and the consolidated results of operations, retained
earnings and cash flows of such Persons for the respective periods to which such
statements relate.
(b) Other Information.
-----------------
The Borrower hereby represents and warrants that the Information
furnished to the Administrative Agent, the Issuing Bank, the Swing Line Bank or
any Bank by or on behalf of the Borrower, any Pledgor or any Subsidiary on or
prior to the Agreement Date (other than the financial statements referred to in
Section 5.02(a)) does not, and the Information furnished to such Person by or on
behalf of the Borrower, any Pledgor or any Subsidiary after the Agreement Date
(other than the financial statements referred to in Section 5.02(a)) will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading in
the light of the circumstances under which they were made.
Section 5.03 Additional Covenants Relating to Disclosure.
-------------------------------------------
From the Agreement Date and until the Repayment Date, the Borrower shall
and shall cause each Subsidiary to:
(a) Accounting Methods and Financial Records.
----------------------------------------
Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete), as may be required or necessary to
permit (i) the preparation of financial statements required to be delivered
pursuant to Section 5.01(a) and Section 5.01(b) and (ii) the determination of
the compliance of the Borrower and the Consolidated Subsidiaries with the terms
of the Loan Documents.
(b) Visits, Inspections and Discussions.
-----------------------------------
Permit representatives of any Bank, from time to time, as often as may
be reasonably requested and upon reasonable notice to a senior officer of the
Borrower, to visit and inspect its properties and its books and records, at
reasonable times, and discuss with any Person its business, assets, Liabilities,
financial condition, results of operation and business prospects.
Section 5.04 Authorization of Third Parties to Deliver Information and
---------------------------------------------------------
Discuss Affairs.
---------------
The Borrower and each Guarantor hereby authorizes and directs, and the
Borrower agrees to cause each Consolidated Subsidiary that is not a Guarantor to
authorize and direct, each Person whose preparation or delivery to the
Administrative Agent, the Issuing Bank, the Swing Line Bank or any Bank of any
opinion, report or other Information is a condition or covenant under the Loan
Documents (including under Article 2 or this Article 5) to so prepare or deliver
such Information for the benefit of the Administrative Agent, the Issuing Bank,
the Swing Line Bank or such Bank.
36
ARTICLE 6
---------
DEFAULT
-------
Section 6.01 Events of Default.
-----------------
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary, or
within or without the control of the Borrower or any Consolidated Subsidiary, or
be effected by operation of law or pursuant to any judgment or order of any
court or any order, rule or regulation of any governmental or nongovernmental
body:
(a) any payment of (i) principal of or interest on any of the Loans or
the Notes, (ii) any fee payable pursuant to Section 1.15 or any fee payable to
the Administrative Agent or any of its Affiliates or (iii) the amount to be
reimbursed to the Issuing Bank pursuant to Section 1.09 with respect to any
Drawing or any interest thereon, shall not be made when and as due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) and in
accordance with the terms of this Agreement and the Notes, and, except in the
case of payments of principal, such failure shall continue for three Business
Days from the earlier of (1) the date that the Borrower or a Consolidated
Subsidiary knew or in the exercise of normal business prudence should have known
of and (2) the date that the Borrower or a Consolidated Subsidiary was given
notice of, such non-payment;
(b) any Loan Document Representation and Warranty shall at any time
prove to have been incorrect or misleading in any material respect when made;
(c) (i) the Borrower shall default in the performance or observance
of:
(A) any term, covenant, condition or agreement contained in
Section 4.01(a) (insofar as such Section requires the preservation of the
corporate existence of the Borrower), 4.01(e), 4.03, 4.04, 4.08 through
4.10, 4.12, 4.13, 5.01(e)(i) or 5.03(b);
(B) any term, covenant, condition or agreement contained in
Section 4.05, 4.06, 4.07, 4.11, 4.14 or 4.16 through 4.18 and, if capable
of being remedied, such default shall continue unremedied for a period of
10 days; or
(C) any term, covenant, condition or agreement contained in this
Agreement (other than a term, covenant, condition or agreement a default in
the performance or observance of which is elsewhere in this Section
specifically dealt with) and, if capable of being remedied, such default
shall continue unremedied for a period of 30 days from the earlier of (1)
the date that the Borrower or a Consolidated Subsidiary knew or in the
exercise of normal business prudence should have known of and (2) the date
that the Borrower or a Consolidated Subsidiary was given notice of, such
default; or
(ii) any Loan Party shall default in the performance or observance of
any term, covenant, condition or agreement contained in (A) any Subordination
Agreement to which such Loan Party is a party or (B) any Pledge Agreement to
which such Loan Party is a party;
37
(d) (i) the Borrower, any Consolidated Subsidiary or, subject to the
proviso to this Section 6.01(d), any Affiliate, shall fail to pay, in accordance
with its terms and when due and payable, any of the principal of or interest on
any of its Indebtedness (other than the Loans and the Drawings) having a then
outstanding principal amount in excess of $10,000,000, (ii) the maturity of any
such Indebtedness shall, in whole or in part, have been accelerated, or any such
Indebtedness shall, in whole or in part, have been required to be prepaid prior
to the stated maturity thereof, in accordance with the provisions of any
Contract evidencing, providing for the creation of or concerning such
Indebtedness or (iii) (A) any event shall have occurred and be continuing that
permits (or, with the passage of time or the giving of notice or both, would
permit) any holder or holders of such Indebtedness, any trustee or agent acting
on behalf of such holder or holders or any other Person so to accelerate such
maturity or require any such prepayment and (B) if the Contract evidencing,
providing for the creation of or concerning such Indebtedness provides for a
cure period for such event, such event shall not be cured prior to the end of
such cure period; provided that this Section 6.01(d) shall not apply to any
--------
Indebtedness of an Affiliate unless such Affiliate has granted to the Person to
whom such Indebtedness is owed a Lien on Affiliate Indebtedness;
(e) a default shall exist under any Contract (other than a Contract
relating to Indebtedness to which clause (d) of this Section 6.01 is applicable)
binding upon any Loan Party or any Subsidiary of any Loan Party, except a
default that, together with all other such defaults, has not had and will not
have a Materially Adverse Effect on (i) the Borrower and its Consolidated
Subsidiaries taken as a whole, (ii) any Loan Document or (iii) the Collateral;
(f) (i) the Borrower or any Consolidated Subsidiary shall (A)
commence a voluntary case under the Federal bankruptcy laws (as now or hereafter
in effect), (B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, (C) consent to or fail to contest in a
timely and appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws, (D) apply for, or consent to, or
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, liquidator or the like
of itself or of a substantial part of its assets, domestic or foreign, (E) admit
in writing its inability to pay, or generally not be paying, its debts (other
than those that are the subject of bona fide disputes) as they become due, (F)
make a general assignment for the benefit of creditors or (G) take any corporate
or partnership action, as the case may be, for the purpose of effecting any of
the foregoing;
(ii) (A) a case or other proceeding shall be commenced against the
Borrower or any Consolidated Subsidiary seeking (1) relief under the federal
bankruptcy laws of the United States of America (as now or hereafter in effect)
or under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition or adjustment of debts or
(2) the appointment of a trustee, receiver, custodian, liquidator or the like of
the Borrower or any Consolidated Subsidiary, or of all or any substantial part
of the assets, domestic or foreign, of the Borrower or any Consolidated
Subsidiary, and such case or proceeding shall continue undismissed and unstayed
for a period of 60 days or (B) an order granting the relief requested in such
case or proceeding against the Borrower or any Consolidated Subsidiary
(including an order for relief under such federal bankruptcy laws of the United
States of America) shall be entered;
38
(g) a judgment or order shall be entered against the Borrower or any
Consolidated Subsidiary by any court and (i) in the case of a judgment or order
for the payment of money, either (A) such judgment or order shall continue
undischarged and unstayed for a period of 30 days in which the aggregate amount
(determined in accordance with the proviso to this Section 6.01(g)) of all such
judgments and orders exceeds $50,000,000 or (B) enforcement proceedings shall
have been commenced upon such judgment or order and (ii) in the case of any
judgment or order for other than the payment of money, such judgment or order
could, together with all other such judgments or orders, reasonably be expected
to have a Materially Adverse Effect on the Borrower and the Consolidated
Subsidiaries taken as a whole; provided that clause (i) of this Section 6.01(g)
--------
shall not apply to (x) any judgment or order for the payment of money in an
amount less than $5,000,000 that, in the reasonable determination of the
Borrower, is payable under a policy of insurance issued by a financially
responsible insurer to the Borrower or such Consolidated Subsidiary, as the
case may be, insuring against the claim that was the basis for such judgment or
order and (y) any judgment or order for the payment of money in an amount equal
to or greater than $5,000,000 that a financially responsible insurer has
acknowledged is payable under a policy of insurance issued by it to the Borrower
or such Consolidated Subsidiary, as the case may be, insuring against the claim
that was the basis for such judgment or order;
(h) (i) any Termination Event shall occur with respect to any Benefit
Plan of the Borrower, any Consolidated Subsidiary or any of their respective
ERISA Affiliates, (ii) any Accumulated Funding Deficiency, whether or not
waived, shall exist with respect to any such Benefit Plan, (iii) any Person
shall engage in any Prohibited Transaction involving any such Benefit Plan, (iv)
the Borrower, any Consolidated Subsidiary or any of their respective ERISA
Affiliates shall be in "default" (as defined in ERISA Section 4219(c)(5)) with
respect to payments owing to any such Benefit Plan that is a Multiemployer
Benefit Plan as a result of such Person's complete or partial withdrawal (as
described in ERISA Section 4203 or 4205) therefrom, (v) the Borrower, any
Consolidated Subsidiary or any of their respective ERISA Affiliates shall fail
to pay when due an amount that is payable by it to the PBGC or to any such
Benefit Plan under Title IV of ERISA, (vi) a proceeding shall be instituted by a
fiduciary of any such Benefit Plan against the Borrower, any Consolidated
Subsidiary or any of their respective ERISA Affiliates to enforce ERISA Section
515 and such proceeding shall not have been dismissed within 30 days thereafter,
or (vii) any other event or condition shall occur or exist with respect to any
such Benefit Plan, except that no event or condition referred to in clauses (i)
through (vii) shall constitute an Event of Default if it, together with all
other such events or conditions at the time existing, has not subjected, and in
the reasonable determination of the Administrative Agent will not subject, the
Borrower or any Consolidated Subsidiary to any Liability that, alone or in the
aggregate with all such Liabilities for all such Persons, exceeds $5,000,000;
(i) (a) any Loan Party, any payee of any Subordinated Indebtedness or
any Affiliate of any Loan Party or any such payee asserts, or any Person
institutes, any proceeding that could reasonably be expected to establish that
(x) any provision of the Loan Documents is invalid, not binding or unenforceable
or (y) the Guaranty of the Borrower or any Consolidated Subsidiary is limited in
amount other than pursuant to Section 9.02 hereof;
39
(b) any Pledge Agreement, Subordination Agreement or any guaranty
under Article 9 shall, without the prior written consent of the Banks, cease to
be in full force and effect; or
(j) if at any time (a) SOFTBANK Corp. shall for any reason cease,
directly or indirectly, to have and exercise voting power for the election of at
least a majority of the board of directors of the Borrower or to direct the
management of the business and operations of the Borrower, or (b) any "person"
or "group" (as such terms are used for purposes of Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act")) other than SOFTBANK
------------
Corp. becomes the ultimate "beneficial owner" (as such term is used in Rule 13d-
3 promulgated pursuant to the Exchange Act), directly or indirectly, of more
than 50% of the aggregate voting power of the voting stock of the Borrower on a
fully diluted basis.
Section 6.02 Remedies upon Event of Default.
------------------------------
During the continuance of any Event of Default (other than one specified in
Section 6.01(f)) and in every such event, the Administrative Agent, upon notice
to the Borrower, may do any or all of the following: (a) declare, in whole or,
from time to time, in part, the principal of and interest on the Loans, the
Notes and the Drawings and all other amounts owing under the Borrower Loan
Documents to be, and the Loans, the Notes and the Drawings and all such other
amounts shall thereupon and to that extent become, due and payable, (b)
terminate, in whole or, from time to time, in part, the Commitments and (c)
demand that the Borrower deliver cash collateral to the Administrative Agent in
an amount equal to the aggregate amount of Contingent Reimbursement Obligations
then outstanding to be held in accordance with Section 10.19 and thereupon such
amount will become so due and payable to the Administrative Agent. Upon the
occurrence of an Event of Default specified in Section 6.01(f), automatically
and without any notice to the Borrower, (a) the principal of and interest on the
Loans, the Notes and the Drawings and all other amounts owing under the Borrower
Loan Documents shall be due and payable, (b) the Commitments shall terminate and
(c) an amount equal to the aggregate amount of Contingent Reimbursement
Obligations then outstanding shall be due and payable to the Administrative
Agent to be held in accordance with Section 10.19. Presentment, demand, protest
or notice of any kind (other than the notice provided for in the first sentence
of this Section 6.02) are hereby expressly waived.
ARTICLE 7
---------
ADDITIONAL CREDIT FACILITY PROVISIONS
-------------------------------------
Section 7.01 Mandatory Suspension and Conversion of Eurodollar Rate Loans.
------------------------------------------------------------
Each Banks' obligations to make, continue or convert into, Eurodollar Rate
Loans of any Type shall be suspended, all outstanding Loans of that Type shall
be converted on the last day of their applicable Interest Periods (or, if
earlier, in the case of clause (b) below, on the last day the Bank may lawfully
continue to maintain Loans of that Type or, in the case of clause (c) below, on
the day determined by such Bank to be the last Business Day before the effective
date of the applicable restriction) into, and all pending requests for the
making or continuation of or conversion into Loans of such Type shall be deemed
requests for, Base Rate Loans and, in the case of clause (b)(ii) below, the
Issuing Bank's obligation to issue Letters of Credit shall be suspended, if:
40
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of that Type for any Interest Period, the Administrative
Agent determines that for any reason appropriate quotations are not available to
it (including, in the case of the Eurodollar Rate, quotations in the London
interbank market for deposits with it) for purposes of determining the
Eurodollar Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of that Type, such Bank determines that the Adjusted
Eurodollar Rate as determined by the Administrative Agent for such Interest
Period would not accurately reflect the cost to such Bank of making, continuing
or converting into a Eurodollar Rate Loan of such Type for such Interest Period;
(c) at any time such Bank determines that any Regulatory Change
Enacted after the Agreement Date (i) makes it unlawful or impracticable for the
Bank or the applicable Lending Office to make, continue or convert into any
Eurodollar Rate Loan of that Type, or to comply with its obligations hereunder
in respect thereof, or (ii) in the determination of the Issuing Bank, makes it
unlawful or impracticable for the Issuing Bank to issue any Letters of Credit or
to comply with its obligations hereunder in respect thereof;
(d) such Bank determines that, by reason of any Regulatory Change
Enacted after the Agreement Date, the Bank or the applicable Lending Office is
restricted, directly or indirectly, in the amount that it may hold of (i) a
category of liabilities that includes deposits by reference to which, or on the
basis of which, the interest rate applicable to Eurodollar Rate Loans of that
Type is directly or indirectly determined or (ii) the category of assets that
includes Eurodollar Rate Loans of that Type.
If, as a result of this Section 7.01, any Loan of any Bank that would
otherwise be made or maintained as or converted into a Eurodollar Rate Loan of
any Type for any Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then, unless the corresponding Loan of each of the other
Banks is also to be made or maintained as or converted into a Base Rate Loan,
such Loan shall be treated as being a Eurodollar Rate Loan of such Type for such
Interest Period for all purposes of this Agreement (including the timing,
application and proration among the Banks of interest payments, conversions and
prepayments) except for the calculation of the interest rate borne by such Loan.
The Administrative Agent shall promptly notify the Borrower and each Bank of the
existence or occurrence of any condition or circumstance specified in clause (a)
above, and each Bank shall promptly notify the Borrower and the Administrative
Agent of the existence or occurrence of any condition or circumstance specified
in clause (b), (c) or (d) above applicable to such Bank's Loans, but the failure
by the Administrative Agent or such Bank to give any such notice shall not
affect such Bank's rights hereunder.
Section 7.02 Regulatory Changes.
------------------
If (a) any Regulatory Change shall directly or indirectly (i)(A) in the
determination of any Bank, reduce the amount of any sum received or receivable
by such Bank with respect to any Loan, LC Participation or Swing Loan
Participation or the return to be earned by such Bank on any Loan, LC
Participation or Swing Loan Participation or (B) in the determination of the
Issuing Bank, reduce the amount of any sum received or receivable by the Issuing
Bank with respect to any Letter of Credit, Drawing or
41
Contingent Reimbursement Obligation, or the return to be earned by the Issuing
Bank on any Letter of Credit, Drawing or Contingent Reimbursement Obligation,
(ii)(A) in the determination of any Bank, impose a cost on such Bank or any
Affiliate of such Bank that is attributable to the making or maintaining of, or
such Bank's commitment to make or acquire, any Loan or LC Participation or to
purchase any Swing Loan Participation, or (B) in the determination of the
Issuing Bank, impose a cost on the Issuing Bank or any of its Affiliates that is
attributable to the issuance or maintenance of, or the commitment to issue, any
Letter of Credit or the making or maintaining of any Drawing or Contingent
Reimbursement Obligation, (iii)(A) in the determination of any Bank, require
such Bank or any Affiliate to make any payment on or calculated by reference to
the gross amount of any amount received by such Bank under any Loan Document or
(B) in the determination of the Issuing Bank, require the Issuing Bank or any of
its Affiliates to make any payment on or calculated by reference to the gross
amount of any amount received by the Issuing Bank or any of its Affiliates in
respect of (1) any Letter of Credit or its commitment to issue any Letter of
Credit or (2) any Drawing or Contingent Reimbursement Obligation or (iv)(A) in
the determination of any Bank, reduce, or have the effect of reducing, the rate
of return on the capital of such Bank or any Affiliate of such Bank allocable to
any Loan, LC Participation, Swing Loan Participation or such Bank's commitment
to make any Loan, acquire any LC Participation or purchase any Swing Loan
Participation or (B) in the determination of the Issuing Bank, reduce, or have
the effect of reducing, the rate of return on the capital of the Issuing Bank or
any of its Affiliates allocable to (1) any Letter of Credit or its commitment to
issue any Letter of Credit or (2) any Drawing or Contingent Reimbursement
Obligation and (b) such reduction, increased cost or payment shall not be fully
compensated for by an adjustment in the applicable rates of interest payable
under the Loan Documents, then the Borrower shall pay to such Bank or the
Issuing Bank, as the case may be, such additional amounts as such Bank or the
Issuing Bank, as the case may be, determines will, together with any adjustment
in the applicable rates of interest payable hereunder, fully compensate for such
reduction, increased cost or payment. Such additional amounts shall be payable,
in the case of those applicable to prior periods, within 15 days after request
by such Bank or the Issuing Bank, as the case may be, for such payment and, in
the case of those applicable to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank or the Issuing
Bank, as the case may be. Each Bank and the Issuing Bank will promptly notify
the Borrower of any determination made by such Bank or the Issuing Bank, as the
case may be, referred to in clauses (a) and (b) above, but the failure to give
such notice shall not affect the right of such Bank or the Issuing Bank, as the
case may be, to compensation.
Section 7.03 Capital Requirements.
--------------------
If, (a) in the determination of any Bank, such Bank or any of its
Affiliates is required to maintain capital on account of any Loan, LC
Participation or Swing Loan Participation or such Bank's commitment to make any
Loan, acquire any LC Participation or purchase any Swing Loan Participation in a
greater amount than such Bank or such Affiliate would otherwise have been so
required to maintain on account thereof, or (b) in the determination of the
Issuing Bank, the Issuing Bank or any of its Affiliates is required to maintain
capital on account of (i) any Letter of Credit or its commitment to issue any
Letter of Credit or (ii) any Drawing or Contingent Reimbursement Obligation in a
greater amount than the Issuing Bank or such Affiliate otherwise would have been
so required to maintain on account thereof, then, upon request by such Bank or
the Issuing Bank, as the case may be, the Borrower shall from time to time
thereafter pay to such Bank or the Issuing Bank, as the case may be, such
42
additional amounts as such Bank or the Issuing Bank, as the case may be,
determines will fully compensate it for any reduction in the rate of return on
the additional capital that such Bank, or the Issuing Bank, or such Affiliate of
either thereof, as the case may be, is so required to maintain. Such additional
amounts shall be payable, in the case of those applicable to prior periods,
within 15 days after request by such Bank or the Issuing Bank, as the case may
be, for such payment and, in the case of those relating to future periods, on
the dates specified, or determined in accordance with a method specified, by
such Bank or the Issuing Bank, as the case may be.
Section 7.04 Funding Losses.
--------------
The Borrower shall pay to each Bank, upon request, such amount or amounts
as such Bank determines are necessary to compensate it for any loss, cost or
expense incurred by it as a result of (a) in the case of Eurodollar Rate Loans,
(i) any payment (including a payment pursuant to Section 1.14(c)), prepayment
or conversion of a Eurodollar Rate Loan on a date other than the last day of an
Interest Period for such Eurodollar Rate Loan or (ii) a Eurodollar Rate Loan for
any reason not being made or converted, or any payment of principal thereof or
interest thereon not being made, on the date therefor determined in accordance
with the applicable provisions of this Agreement, and (b) in the case of Agreed
Rate Loans, (i) any payment or prepayment of an Agreed Rate Loan on a date other
than the last day of an Agreed Rate Interest Period or (ii) an Agreed Rate Loan
for any reason not being made, or any payment of principal thereof or interest
thereon not being made, on the date required therefor determined in accordance
with the applicable provisions of this Agreement, including any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow, convert, continue or prepay.
Section 7.05 Certain Determinations.
----------------------
In making the determinations contemplated by Sections 7.01, 7.02, 7.03 and
7.04, each Bank may make such estimates, assumptions, allocations and the like
that such Bank in good faith reasonably determines to be appropriate, and each
Bank's selection thereof in accordance with this Section 7.05, and the
determinations made by such Bank on the basis thereof, shall be final, binding
and conclusive upon the Borrower, except, for manifest errors. Each Bank shall
furnish to the Borrower upon request a certificate outlining in reasonable
detail the computation of any amounts claimed by it under Sections 7.02, 7.03
and 7.04 and the assumptions underlying such computations.
Section 7.06 Change of Lending Office.
------------------------
If an event occurs with respect to a Lending Office that obligates the
Borrower to pay any amount under Section 1.20, makes operable the provisions of
clause (b) or (c) of Section 7.01 or entitles any Bank to make a claim under
Section 1.20(a), 7.02 or 7.03, such Bank shall, if requested by the Borrower,
use reasonable efforts to designate another Lending Office or Offices the
designation of which will reduce the amount the Borrower is so obligated to pay,
eliminate such operability or reduce the amount such Bank is so entitled to
claim, provided that such designation would not, in the sole and absolute
discretion of such Bank, be disadvantageous to such Bank in any manner or
contrary to Bank policy. Each Bank may at any time and from time to time change
any Lending Office and shall give notice of any such change to the Borrower.
Except in the case of a change in Lending Offices made at the request of the
Borrower, the designation of a new Lending Office by any Bank shall not obligate
the Borrower to pay any amount to such Bank under Section 1.20, make operable
the provisions of clause (b) or (c) of Section 7.01 or entitle the Bank to make
a claim under Section 1.20(a),
43
7.02 or 7.03 if such obligation, the operability of such clause or such claim
results solely from such designation and not from a Regulatory Change Enacted
thereafter.
ARTICLE 8
---------
THE ADMINISTRATIVE AGENT
------------------------
Section 8.01 Appointment and Powers.
----------------------
Each Bank, the Swing Line Bank and the Issuing Bank hereby irrevocably
appoints and authorizes the Administrative Agent, and the Administrative Agent
hereby agrees, to act as the agent for and representative (within the meaning of
Section 9-105(m) of the Uniform Commercial Code) of such Bank and the Issuing
Bank under the Loan Documents with such powers as are delegated to the
Administrative Agent and the Secured Party by the terms thereof, together with
such other powers as are reasonably incidental thereto. The Administrative
Agent's duties shall be purely ministerial and it shall have no duties or
responsibilities except those expressly set forth in the Loan Documents. The
Administrative Agent shall not be required under any circumstances to take any
action that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Applicable Law or (b) would expose it to any Liability or expense
against which it has not been indemnified to its satisfaction. The
Administrative Agent shall not, by reason of its serving as the Administrative
Agent, be a trustee or other fiduciary for any Bank or the Issuing Bank.
Section 8.02 Limitation on Administrative Agent's Liability.
----------------------------------------------
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence, willful misconduct or
knowing violations of law. The Administrative Agent shall not be responsible to
any Bank or the Issuing Bank for (a) any recitals, statements, representations
or warranties contained in the Loan Documents or in any certificate or other
document referred to or provided for in, or received by any of the Banks under,
the Loan Documents, (b) the validity, effectiveness or enforceability of the
Loan Documents or any such certificate or other document, (c) the value or
sufficiency of the Collateral, or (d) any failure by the Loan Parties to perform
any of their obligations under the Loan Documents. The Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact so long as the
Administrative Agent was not grossly negligent in selecting or directing such
agents or attorneys-in-fact. The Administrative Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telecopier, telegram or cable) believed by it to be genuine
and correct and to have been signed or given by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. As to any
matters not expressly provided for by the Loan Documents, the Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under the Loan Documents in accordance with instructions signed by the
Required Banks, and such instructions of the Required Banks and any action taken
or failure to act pursuant thereto shall be binding on all of the Banks.
Section 8.03 Defaults.
--------
The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment to it of principal of or
interest on Loans or fees) unless the Administrative Agent has received notice
from a Bank, or
44
the Borrower specifying such Default and stating that such notice is a "Notice
of Default". In the event that the Administrative Agent has knowledge of such a
non-payment or receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Banks and the
Issuing Bank. In the event of any Default, the Administrative Agent shall (a) in
the case of a Default that constitutes an Event of Default, take any or all of
the actions referred to in clauses (a), (b) and (c) of the first sentence of
Section 6.02 if so directed by the Required Banks and (b) in the case of any
Default, take such other action with respect to such Default as shall be
reasonably directed by the Required Banks. Unless and until the Administrative
Agent shall have received such directions, in the event of any Default, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interests of the Banks and the Issuing Bank.
Section 8.04 Rights as a Bank.
----------------
Each Person acting as the Administrative Agent that is also a Bank shall,
in its capacity as a Bank, have the same rights and powers under the Loan
Documents as any other Bank and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Bank" or "Banks" shall include
such Person in its individual capacity. Each Person acting as the
Administrative Agent (whether or not such Person is a Bank) and its Affiliates
may (without having to account therefor to any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Loan Parties and their Affiliates as if it were not acting as the
Administrative Agent, and such Person and its Affiliates may accept fees and
other consideration from the Loan Parties and their Affiliates for services in
connection with the Loan Documents or otherwise without having to account for
the same to the Banks.
Section 8.05 Indemnification.
---------------
The Banks agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Loan Parties under the Loan Documents), ratably on the basis
of the respective aggregate principal amounts of the Exposures of the Banks and
the Term A Loans and Term B Loans outstanding made by the Banks (or, if no
Exposures, Term A Loans or Term B Loans are at the time outstanding, ratably on
the basis of their respective Commitments), for any and all Liabilities, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Administrative Agent (including the costs and expenses that
the Loan Parties are obligated to pay under the Loan Documents) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent (a) they are subject to the indemnity contemplated by the last sentence
of Section 10.10(b) or (b) they arise from gross negligence, willful misconduct
or knowing violations of law by the Administrative Agent.
Section 8.06 Non-Reliance on Administrative Agent and Other Banks.
----------------------------------------------------
Each Bank and the Issuing Bank agrees that it has made and will continue to
make, independently and without reliance on the Administrative Agent or any
other Bank, and based on such documents and information as it deems appropriate,
its own credit analysis of the Loan Parties, its own evaluation of the
Collateral and its own decision to enter into the Loan Documents and to take or
refrain from taking any action in connection therewith. The Administrative
Agent shall not be
45
required to keep itself informed as to the performance or observance by the Loan
Parties of the Loan Documents or any other document referred to or provided for
therein or to inspect the properties or books of any Loan Party or any
Subsidiary thereof or the Collateral. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks and
the Issuing Bank by the Administrative Agent under the Loan Documents, the
Administrative Agent shall have no obligation to provide any Bank or the Issuing
Bank with any information concerning the business, status or condition of any
Loan Party or any Subsidiary thereof or the Loan Documents or the Collateral
that may come into the possession of the Administrative Agent or any of its
Affiliates.
Section 8.07 Execution and Amendment of Loan Documents on Behalf of the
----------------------------------------------------------
Banks.
-----
Each Bank hereby authorizes the Administrative Agent to execute and deliver, in
the name of and on behalf of such Bank, (a) any Pledge Agreement, (b) all UCC
financing and continuation statements and other documents the filing or
recordation of which are, in the determination of the Administrative Agent,
necessary or appropriate to create, perfect or maintain the existence or
perfected status of the Security Interest and (c) any other Loan Document
requiring execution by or on behalf of such Bank other than, in the case of the
Issuing Bank, Letters of Credit and Applications. The Administrative Agent
shall consent to any amendment of any term, covenant, agreement or condition of
the Pledge Agreement, or to any waiver of any right thereunder, if, but only if,
the Administrative Agent is directed to do so in writing by the Required Banks;
provided that (a) the Administrative Agent shall not be required to consent to
--------
any such amendment or waiver that affects its rights or duties and (b) the
Administrative Agent shall not, unless directed to do so in writing by each
Bank, (i) consent to any assignment by any Loan Party of any of its rights or
obligations under any such agreement or (ii) release any Collateral from the
Security Interest, except as required or contemplated by the Loan Documents.
Section 8.08 Resignation of the Administrative Agent.
---------------------------------------
The Administrative Agent may at any time give notice of its resignation to
the Banks, the Issuing Bank and the Borrower. Upon receipt of any such notice
of resignation, the Required Banks and the Issuing Bank may, after consultation
with the Borrower, appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Banks and the
Issuing Bank and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks and the Issuing Bank
and after consultation with the Borrower, appoint a successor Administrative
Agent. Upon the acceptance by any Person of its appointment as a successor
Administrative Agent, such Person shall thereupon succeed to and become vested
with all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations as Administrative Agent under the Loan Documents
and (b) the retiring Administrative Agent shall promptly transfer all Collateral
within its possession or control to the possession or control of the successor
Administrative Agent and shall execute and deliver such notices, instructions
and assignments as may be necessary or desirable to transfer the rights of the
Administrative Agent with respect to the Collateral to the successor
Administrative Agent. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article 8 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 the Administrative Agent.
46
ARTICLE 9
---------
GUARANTEES
----------
Section 9.01 Guaranty of Payment.
-------------------
The Borrower and each of the Guarantors hereby (a) guarantees to each Bank,
the Issuing Bank, the Swing Line Bank and each holder of a Note the due and
punctual payment of all of the Guaranteed Obligations (other than those that
constitute Liabilities of such Guarantor) in accordance with their respective
terms and when and as due (whether at maturity, by reason of acceleration or
otherwise), or deemed to be due pursuant to Section 9.03, and (b) agrees so to
pay the same when so due, or deemed to be due, upon demand.
Section 9.02 Limitation on Guaranty.
----------------------
It is the intention of the Borrower, each of the Guarantors, the Banks, the
Issuing Bank and the Swing Line Bank that the obligations of the Borrower and
each such Guarantor under Section 9.01 shall be in, but not in excess of, the
maximum amount permitted by Applicable Law. To that end, but only to the extent
such obligations would otherwise be void, voidable or otherwise unenforceable,
the obligations of the Borrower and each such Guarantor hereunder shall be
limited to the maximum amount that would not make such obligations void,
voidable or otherwise unenforceable. This Section 9.02 is intended solely to
preserve the rights of each Bank, the Issuing Bank, the Swing Line Bank and each
holder of a Note hereunder to the maximum extent permitted by Applicable Law,
and neither the Borrower, any Guarantor nor any other Person shall have any
right under this Section 9.02 that it would not otherwise have under Applicable
Law.
Section 9.03 Continuance and Acceleration of Guaranteed Obligations upon
-----------------------------------------------------------
Certain Events.
--------------
If:
(a) any Event of Default that this Agreement states is to result in
the automatic acceleration of any Guaranteed Obligations shall occur;
(b) any injunction, stay or the like that enjoins any acceleration, or
demand for the payment of any Guaranteed Obligations that would otherwise
be required or permitted hereunder shall become effective; or
(c) any Guaranteed Obligations shall be or be determined to be or
become discharged, disallowed, invalid, illegal, void or otherwise
unenforceable (whether by operation of any present or future law or by
order of any court or governmental agency) against the Borrower;
then (i) such Guaranteed Obligations shall, for all purposes hereof, be deemed
(A) in the case of clause (c), to continue to be outstanding and in full force
and effect notwithstanding the unenforceability thereof against the Borrower and
(B) if such is not already the case, to have thereupon become immediately due
and payable and, if subject thereto, to have commenced bearing interest at the
Post-Default Rate and (ii) such Bank, the Issuing Bank, the Swing Line Bank or
other holder of a Note to which such Guaranteed Obligations are owing may, with
respect to such Guaranteed Obligations, exercise all of the rights and remedies
under the Borrower Loan Documents that would be available to them during an
Event of Default.
47
Section 9.04 Recovered Payments.
------------------
The Guaranteed Obligations shall be deemed not to have been paid, and the
Borrower's and each Guarantor's obligations hereunder in respect thereof shall
continue and not be discharged, to the extent that any payment thereof by the
Borrower or any other guarantor, or out of the proceeds of any collateral, is
recovered from or paid over by or for the account of any Bank, the Issuing Bank,
the Swing Line Bank or other holder of a Note for any reason, including as a
preference or fraudulent transfer or by virtue of any subordination (whether
present or future or contractual or otherwise) of the Guaranteed Obligations,
whether such recovery or payment over is effected by any judgment, decree or
order of any court or governmental agency, by any plan of reorganization or by
settlement or compromise by such Bank, the Issuing Bank, the Swing Line Bank or
other holder of a Note (whether or not consented to by the Borrower, any
Guarantor or any other guarantor) of any claim for any such recovery or payment
over. The Borrower and each Guarantor hereby expressly waives the benefit of
any applicable statute of limitations and agrees that it shall be liable
hereunder with respect to any Guaranteed Obligation whenever such a recovery or
payment over thereof occurs.
Section 9.05 Evidence of Guaranteed Obligations.
----------------------------------
The records of the Administrative Agent, the Issuing Bank, the Swing Line
Bank and each Bank and other holder of a Note shall be conclusive evidence of
the Guaranteed Obligations owing to it and of all payments in respect thereof.
Section 9.06 Binding Nature of Certain Adjudications.
---------------------------------------
The Borrower and each Guarantor shall be conclusively bound by the
adjudication in any action or proceeding, legal or otherwise, involving any
controversy arising under, in connection with, or in any way related to, any of
the Guaranteed Obligations, and by a judgment, award or decree entered therein.
Section 9.07 Nature of Guarantor's Obligations.
---------------------------------
The Borrower's and each Guarantor's obligations hereunder (a) are absolute
and unconditional, (b) are unlimited in amount except as provided in Section
9.02, (c) constitute a guaranty of payment and not a guaranty of collection, (d)
are as primary obligor and not as a surety only, (e) shall be a continuing
guaranty of all present and future Guaranteed Obligations and all promissory
notes and other documentation given in extension or renewal or substitution for
any of the Guaranteed Obligations and (f) shall be irrevocable.
Section 9.08 No Release of Guarantor.
-----------------------
THE OBLIGATIONS OF THE BORROWER AND EACH GUARANTOR UNDER THIS ARTICLE 9
SHALL NOT BE REDUCED, LIMITED OR TERMINATED, NOR SHALL THE BORROWER OR SUCH
GUARANTOR BE DISCHARGED FROM ANY THEREOF, FOR ANY REASON WHATSOEVER (other than,
subject to Section 9.04, the payment of the Guaranteed Obligations), INCLUDING
(and whether or not the same shall have occurred or failed to occur once or more
than once and whether or not the Borrower or such Guarantor shall have received
notice thereof) ANY ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR CIRCUMSTANCE
THAT (i) VARIES THE RISK OF THE BORROWER OR SUCH GUARANTOR HEREUNDER OR (ii) BUT
FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF STATUTE OR RULE OF LAW OR
EQUITY, OPERATE TO REDUCE, LIMIT OR TERMINATE THE OBLIGATIONS OF THE BORROWER OR
SUCH GUARANTOR HEREUNDER OR DISCHARGE THE BORROWER OR SUCH GUARANTOR FROM ANY
THEREOF.
48
Section 9.09 Certain Waivers.
---------------
THE BORROWER AND EACH GUARANTOR WAIVES ALL DEFENSES UNDER APPLICABLE LAW
THAT WOULD, BUT FOR THIS SECTION 9.09, BE AVAILABLE TO THE BORROWER OR SUCH
GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS
HEREUNDER.
ARTICLE 10
----------
MISCELLANEOUS
-------------
Section 10.01 Notices and Deliveries.
----------------------
(a) Manner of Delivery.
------------------
All notices, communications and materials (including all Information)
to be given or delivered pursuant to the Borrower Loan Documents shall, except
in those cases where giving notice by telephone is expressly permitted, be given
or delivered in writing (which shall include telecopy transmissions). Notices
under Sections 1.02, 1.03(c), 1.05, 1.09(b), 1.14 and 6.02 may be by telephone,
promptly, in the case of each notice other than one under Section 6.02,
confirmed in writing. In the event of a discrepancy between any telephonic
notice and any written confirmation thereof, such written confirmation shall be
deemed the effective notice except to the extent that the Administrative Agent,
the Issuing Bank or the Swing Line Bank has acted in reliance on such telephonic
notice.
(b) Addresses.
---------
All notices, communications and materials to be given or delivered
pursuant to the Borrower Loan Documents shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
(i) if to the Borrower, to it at:
▇▇▇▇-▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
49
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(ii) if to the Administrative Agent, to it at:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇/8595
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy of each notice of borrowing under Section 1.02(a)
or under Section 1.02(b) to:
[▇▇▇▇▇▇▇ ▇▇▇▇▇▇]
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (212) [635-6365]
Telephone No.: (212) [▇▇▇-▇▇▇▇]
(iii) if to any Guarantor, to it at the address for notices listed
on Schedule 10.01 or such Guarantor's Guarantor Supplement;
--------------
(iv) if to any Bank, to it at the address or telex, telecopier or
telephone number and to the attention of the individual or
department, set forth below such Bank's name under the
heading "Notice Address" on Annex A or, in the case of a
-------
Bank that becomes a Bank pursuant to an assignment, set forth
under the heading "Notice Address" in the Notice of
Assignment given to the Borrower, the Administrative Agent
and the Issuing Bank with respect to such assignment;
(v) if to the Swing Line Bank or the Issuing Bank, if the Swing
Line Bank or the Issuing Bank, as the case may be, is at such
time (A) the Bank that is the Administrative Agent, to it at
the address of the Administrative Agent or (b) any other
Bank, to it at the address of such Bank;
50
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address," given to (v) if the party to which such
information pertains is the Borrower, the Administrative Agent, the Issuing
Bank, the Swing Line Bank and each Bank, (w) if the party to which such
information pertains is the Administrative Agent, the Borrower, the Swing Line
Bank, the Issuing Bank and each Bank, (x) if the party to which such information
pertains is a Bank, the Borrower, the Swing Line Bank, the Issuing Bank and the
Administrative Agent, (y) if the party to which such information pertains is the
Swing Line Lender, the Borrower, the Administrative Agent, the Issuing Bank and
each Bank and (z) if the party to which such information pertains is the Issuing
Bank, the Borrower, the Administrative Agent, the Swing Line Bank and each Bank.
(c) Effectiveness.
-------------
Each notice and communication and any material to be given or
delivered pursuant to the Borrower Loan Documents shall be deemed so given or
delivered (i) if sent by registered or certified mail, postage prepaid, return
receipt requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
office and a receipt therefor is issued thereby, (ii) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, (iii) if sent by telecopier, when
such notice, communication or material is transmitted to the appropriate
telecopier number as above provided and is received at such number and (iv) if
given by telephone, when communicated to the individual or any member of the
department specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered, or, in the case of
notice by the Administrative Agent to the Borrower under Section 6.02 given by
telephone as above provided, if any individual or any member of the department
to whose attention notices, communications and materials are to be given or
delivered is unavailable at the time, to any other officer or employee of the
Borrower, except that (x) notices of a change of address, telecopier or
telephone number or individual or department to whose attention notices,
communications and materials are to be given or delivered shall not be deemed
given until received, (y) notices, communications and materials to be given or
delivered to the Administrative Agent or any Bank pursuant to Sections 1.02,
1.03(c), 1.05, 1.14 and 1.19(b) shall not be deemed given or delivered until
received by the officer of the Administrative Agent or such Bank responsible, at
the time, for the administration of the Loan Documents and (z) notices,
communications and materials to be given or delivered to the Issuing Bank
pursuant to Sections 1.07(d) and 1.08(a) shall not be deemed given or delivered
until received by the officer of the Issuing Bank responsible, at the time, for
the administration of the Issuing Bank's commitment hereunder to issue Letters
of Credit and, in the case of a notice pursuant to Section 1.07(d), such notice
is specifically captioned "Notice of Limitation Under Applicable Law".
(d) Reasonable Notice.
-----------------
Any requirement under Applicable Law of reasonable notice by the
Administrative Agent, the Issuing Bank, the Swing Line Bank or the Banks to the
Borrower or a Guarantor of any event in connection with, or in any way related
to, the Loan Documents or the exercise by the Administrative Agent, the Issuing
Bank, the Swing Line Bank or the Banks of any of their rights thereunder shall
be met if notice of such event is given to the Borrower or such Guarantor in the
manner prescribed above at least 10 days before (i) the date of such event or
(ii) the date after which such event will occur.
51
(e) Collateral.
----------
Until the Administrative Agent shall otherwise specify, all Collateral
to be delivered to the Administrative Agent pursuant to the Borrower Loan
Documents consisting of instruments, securities, chattel paper, letters of
credit or documents shall be delivered to the Administrative Agent at the
Administrative Agent's Office either by hand delivery or by registered or
certified mail, postage prepaid, return receipt requested, in either case
insured in an amount not less than the greater of the aggregate face amount and
the aggregate fair market value of the Collateral so being delivered. All other
Collateral to be delivered to the Administrative Agent pursuant to the Borrower
Loan Documents shall be delivered to such Person, at such address, by such means
and in such manner as the Administrative Agent may designate.
Section 10.02 Expenses; Indemnification.
-------------------------
Whether or not any Credit Extensions are made hereunder, the Borrower
shall:
(a) pay or reimburse the Administrative Agent, the Issuing Bank, the
Swing Line Bank and each Bank for all transfer, documentary, stamp and similar
taxes, and all recording and filing fees and taxes, payable in connection with,
arising out of, or in any way related to, the execution, delivery and
performance of the Loan Documents or the making of the Loans;
(b) pay or reimburse the Administrative Agent, the Issuing Bank and
the Swing Line Bank for all costs and reasonable expenses (including reasonable
fees and disbursements of legal counsel), incurred by the Administrative Agent,
the Issuing Bank or the Swing Line Bank, as the case may be, in connection with,
arising out of, or in any way related to (i) the negotiation, preparation,
execution and delivery of (A) the Loan Documents and (B) whether or not
executed, any waiver, amendment or consent thereunder or thereto requested or
consented to by the Borrower, (ii) consulting with respect to any matter in any
way arising out of, related to or connected with, the Loan Documents, including
the performance of any of their obligations under or related to the Loan
Documents or the protection or preservation of the Collateral or (iii)
protecting, preserving, exercising or enforcing any of the rights of the
Administrative Agent or the Banks in, under or related to the Collateral or the
Loan Documents, including defending the Security Interest as a valid, perfected
security interest, not subject to any prior Lien, in the Collateral subject only
to Permitted Liens;
(c) pay or reimburse each Bank for all costs and expenses (including
fees and disbursements of legal counsel and other experts employed or retained
by such Bank) incurred by such Bank, in connection with, arising out of, or in
any way related to (i) consulting during a Default with respect to (A) the
protection, preservation, exercise or enforcement of any of its rights in, under
or related to the Collateral or the Loan Documents or (B) the performance of any
of its obligations under or related to the Loan Documents or (ii) protecting,
preserving, exercising or enforcing during a Default any of its rights in, under
or related to the Collateral or the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and
against all losses (including judgments, penalties and fines) suffered, and pay
or reimburse each Indemnified Person for all costs and expenses (including fees
and disbursements of legal counsel and other experts employed or retained by
such Indemnified Person) incurred, by such Indemnified Person in connection
with, arising out of, or in any way related to (i) any Loan
52
Document Related Claim (whether asserted by such Indemnified Person, the
Borrower, a Guarantor or any other Person), including the prosecution or defense
thereof and any litigation or proceeding with respect thereto (whether or not,
in the case of any such litigation or proceeding, such Indemnified Person is a
party thereto) or (ii) any investigation, governmental or otherwise, arising out
of, related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity shall
not be applicable to any loss suffered by any Indemnified Person to the extent
such loss is determined by a judgment of a court that is binding on the Borrower
and such Indemnified Person, final and not subject to review on appeal, to be
the result of acts or omissions on the part of such Indemnified Person
constituting (x) willful misconduct or (y) knowing violations of law.
Section 10.03 Amounts Payable Due upon Request for Payment.
--------------------------------------------
All amounts payable by the Borrower under Section 10.02 and under the other
provisions of the Borrower Loan Documents shall, except as otherwise expressly
provided, be immediately due upon request for the payment thereof.
Section 10.04 Remedies of the Essence.
-----------------------
The various rights and remedies of the Administrative Agent, the Issuing
Bank, the Swing Line Bank and each of the Banks under the Borrower Loan
Documents are of the essence of those agreements, and the Administrative Agent,
the Issuing Bank, the Swing Line Bank and each of the Banks shall be entitled to
obtain a decree requiring specific performance of each such right and remedy.
Section 10.05 Rights Cumulative.
-----------------
Each of the rights and remedies of the Administrative Agent, the Issuing
Bank, the Swing Line Bank and the Banks under the Loan Documents shall be in
addition to all of its other rights and remedies under the Loan Documents and
Applicable Law, and nothing in the Loan Documents shall be construed as limiting
any such rights or remedies.
Section 10.06 Confidentiality.
---------------
The Administrative Agent, the Issuing Bank, the Swing Line Bank and the
Banks shall maintain the confidentiality of non-public information regarding the
Borrower, the Guarantors and their Affiliates received pursuant to this
Agreement and shall use such information only for the purposes of analyzing the
financial condition of the Borrower and the Guarantors and their compliance with
the terms and conditions of the Loan Documents; provided that nothing herein
--------
shall prevent the Administrative Agent, the Issuing Bank, the Swing Line Bank or
the Banks from disclosing such information (i) to its officers, directors,
employees, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section 10.06, (ii)
upon the order or other process of any court or administrative agency or
regulatory authority of competent jurisdiction, (iii) pursuant to any
requirement of Applicable Law, (iv) protecting, exercising or enforcing any of
its rights under the Loan Documents or (v) in the case of an assignment
permitted under Section 10.10, to any potential assignee so long as such Person
shall have been made aware of and shall have agreed to abide by the restrictions
set forth in this Section 10.06.
Section 10.07 Amendments; Waivers.
-------------------
Any term, covenant, agreement or condition of the Loan Documents may be
amended, and any right under the Loan Documents may be waived, if, but only if,
such amendment or waiver is in writing and is signed by (a) in the case of an
amendment or waiver with respect to the documents referred to in Section 8.07,
the
53
Administrative Agent, (b) in the case of an amendment or waiver with respect
to any Loan Document, the Required Banks and, if the rights and duties of the
Administrative Agent, the Issuing Bank or the Swing Line Bank are affected
thereby, by the Administrative Agent, the Issuing Bank or the Swing Line Bank,
as the case may be, and (c) in the case of an amendment, by the Borrower;
provided that no amendment or waiver shall be effective, unless in writing and
--------
signed by each Bank affected thereby, to the extent it (A) increases the amount
of such Bank's Commitments, (B) reduces the principal of or the rate of interest
on such Bank's Loans or Notes or any of the Drawings or the fees payable to such
Bank hereunder, (C) postpones any date fixed for (1) any payment of principal of
or interest on such Bank's Loans or Notes, any of the Drawings or the fees
payable to such Bank hereunder or (2) the expiration of any Letter of Credit if
such postponement would extend the expiration date of such Letter of Credit
beyond the RC Termination Date, (D) releases any Guarantor from its Guaranty of
the Guaranteed Obligations, (E) release any Collateral from the Security
Interest, unless such release is specifically provided for or contemplated in
the Loan Documents, (F) amends Section 1.21, this Section 10.07, the final
sentence of Section 1.02(a)(ii), the definition of "Required Banks" or any other
provision of this Agreement requiring the consent or other action of all of the
Banks; and provided, further, that no amendment or waiver of any Section
-------- -------
permitted to be amended or waived by Required Banks, which amendment or waiver
would have an effect on the rights or interests of any Lender Group under the
Loan Documents that is (x) adverse to such Lender Group and (y) disproportionate
in such effect to the effect that such amendment or waiver would have on the
rights or interests of any other Lender Group under the Loan Documents, shall be
effective, unless in writing and signed by Banks comprising 51% or more of such
first Lender Group, based on the Commitments or, if such Commitments shall have
expired or been terminated, based on the Term A Loans or Term B Loans, as the
case may be, outstanding (in the case of the Term A Banks or the Term B Banks)
or the Exposures outstanding (in the case of the ▇▇ ▇▇▇▇▇), of such Lender
Group. Unless otherwise specified in such waiver, a waiver of any right under
the Loan Documents shall be effective only in the specific instance and for the
specific purpose for which given. No election not to exercise, failure to
exercise or delay in exercising any right, nor any course of dealing or
performance, shall operate as a waiver of any right of the Administrative Agent,
the Issuing Bank, the Swing Line Bank or any Bank under the Loan Documents or
Applicable Law, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right of such Person under the Loan Documents or Applicable Law.
Section 10.08 Set-Off; Suspension of Payment and Performance.
----------------------------------------------
The Administrative Agent, the Issuing Bank, the Swing Line Bank and each
Bank is hereby authorized by the Borrower and each Guarantor, at any time and
from time to time, without notice, (a) during any Event of Default, to set off
against, and to appropriate and apply to the payment of, the Liabilities of such
Person under the Loan Documents (whether owing to the Administrative Agent, the
Issuing Bank, the Swing Line Bank or such Bank or to any other Person that is
the Administrative Agent, the Issuing Bank, the Swing Line Bank or a Bank and
whether matured or unmatured, fixed or contingent or liquidated or unliquidated)
any and all Liabilities owing by the Administrative Agent, the Issuing Bank, the
Swing Line Bank or such Bank or any of its Affiliates to such Person (whether
payable in Dollars or any other currency, whether matured or unmatured and, in
the case of Liabilities that are deposits, whether general or special, time or
demand and however evidenced and whether maintained at a branch or office
located within or without the United States of America) and (b) during any
Default, to suspend the payment and
54
performance of such Liabilities owing by such Person or its Affiliates in an
amount of the Loans and Drawings plus interest accrued thereon and other amounts
then due and payable under the Loan Documents and, in the case of Liabilities
that are deposits, to the extent necessary, to return as unpaid for insufficient
funds any and all checks and other items drawn against such deposits.
Section 10.09 Sharing of Recoveries.
---------------------
(a) Each Bank agrees that, if, for any reason, including as a result
of (i) the exercise of any right of counterclaim, set-off, banker's lien or
similar right, (ii) its claim in any applicable bankruptcy, insolvency or other
similar law being deemed secured by a Debt owed by it to any Loan Party,
including a claim deemed secured under Section 506 of the Bankruptcy Code or
(iii) the allocation of payments by the Administrative Agent or any Loan Party
in a manner contrary to the provisions of Section 1.21, such Bank shall receive
payment of a proportion of the aggregate amount due and payable to it hereunder
(A) as principal of or interest on the Loans or with respect to any LC
Participation or any Swing Loan Participation or (B) fees that is greater than
the proportion received by any other Bank in respect of the respective
aggregates of such amounts due and payable to such other Bank hereunder, then
the Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder in such
Loans or fees, as the case may be, so that all such recoveries with respect to
such respective amounts due and payable hereunder (net of costs of collection)
shall be pro rata; provided that if all or part of such proportionately greater
--------
payment received by the purchasing Bank is thereafter recovered by or on behalf
of any Loan Party from such Bank, such purchases shall be rescinded and the
purchase prices paid for such participations shall be returned to such Bank to
the extent of such recovery, but without interest (unless the purchasing Bank is
required to pay interest on the amount recovered to the Person recovering such
amount, in which case the selling Bank shall be required to pay interest at a
like rate). The Borrower expressly consents to the foregoing arrangements and
agrees that any holder of a participation in any rights hereunder so purchased
or acquired pursuant to this Section 10.09(a) shall, with respect to such
participation, be entitled to all of the rights of a Bank as fully as though it
were a Bank under Sections 1.20, 7.02 through 7.06, 10.02 and 10.08 (subject to
any condition imposed on a Bank hereunder with respect thereto) and may exercise
any and all rights of set-off with respect to such participation as fully as
though the Borrower were directly indebted to the holder of such participation
for Loans in the amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim, set-off,
banker's lien or similar right that it may have in respect of any Loan Party in
a manner so as to apportion the amount subject to such exercise, on a pro rata
basis, first, between (i) obligations of such Loan Party for amounts subject to
the sharing provisions of Section 10.09(a) and (ii) other Liabilities of such
Loan Party and, second, with respect to amounts allocated to obligations of such
Loan Party referred to in clause (i), between, first, to Loans and second, Swing
Loan Participations.
Section 10.10 Assignments and Participations.
------------------------------
(a) Assignments.
-----------
(i) Neither the Borrower nor any other Loan Party may assign any of
its rights or obligations under the Loan Documents to which it is a party
without the prior written consent of (A) in the case of the documents referred
to in Section 8.07, the Administrative Agent and (B) in the case of any of the
other Loan Documents, each Bank, and no assignment of any such obligation shall
release the Borrower or such other Loan Party therefrom unless the
Administrative Agent or each Bank, as
55
applicable, shall have consented to such release in a writing specifically
referring to the obligation from which the Borrower or such other Loan Party is
to be released.
(ii) Each Bank may from time to time assign any or all of its rights
and obligations under any Loan Documents to one or more Persons; provided that,
--------
except in the case of the grant of a security interest to a Federal Reserve Bank
(which may be made without condition or restriction), no such assignment shall
be effective unless (A) the assignment is consented to by the Administrative
Agent, the Issuing Bank, the Swing Line Bank and the Borrower (which consent
shall not be unreasonably withheld or delayed), and provided, further, that the
-------- -------
consent of the Borrower shall not be required (x) in the case of any assignment
to an Affiliate of such Bank or another Bank and (y) during an Event of Default,
(B) the assignment shall involve, in the case of a partial assignment, the
assignment of not less than $5,000,000 of the assignor Bank's Loans and
Commitments so assigned, (C) a Notice of Assignment with respect to the
assignment, duly executed by the assignor and the assignee, shall have been
given to the Borrower, the Issuing Bank, the Swing Line Bank and the
Administrative Agent, (D) in the case of an assignment of a Registered Note,
such Registered Note shall have been surrendered for registration of assignment
duly endorsed by (or accompanied by a written instrument of assignment duly
executed by) the Registered Holder and such assignment shall have been recorded
on the Register and (E) except in the case of an assignment by the Bank that is
the Administrative Agent, the Administrative Agent shall have been paid an
assignment fee of $3,500. Upon any effective assignment, the assignee shall
have all of the rights and shall be obligated to perform all of the obligations
of a Bank; provided that no assignee shall be entitled to any amounts that would
--------
otherwise be payable to it with respect to its assignment under Section 1.20 or
Section 7.02 unless (x) such amounts are payable in respect of a Regulatory
Change Enacted after the date the applicable assignment agreement was executed
or (y) such amounts would have been payable to the Bank that made such
assignment if such assignment had not been made. In the event of any effective
assignment by a Bank, the Borrower shall, against (except in the case of a
partial assignment) receipt of the existing Notes of the assignor Bank, issue
new Notes to the assignee Bank.
(b) Participation.
-------------
Each Bank may from time to time sell or otherwise grant participations
in any or all of its rights and obligations under the Borrower Loan Documents
without the consent of the Borrower, any Guarantor, the Issuing Bank, the Swing
Line Bank or any other Bank; provided that no such grant of a participation
--------
shall be effective unless consented to by the Administrative Agent (which
consent shall not be unreasonably withheld or delayed). In the event of any
such grant by a Bank of a participation, such Bank's obligations under the Loan
Documents to the other parties thereto shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, and the Borrower, the
Guarantors, the Administrative Agent, the Issuing Bank, the Swing Line Bank and
the other Banks may continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations thereunder. A Bank may not
grant to any holder of a participation the right to require such Bank to take or
omit to take any action under the Loan Documents, except that a Bank may grant
to any such holder the right to require such holder's consent to (i) reduce the
principal of or the rate of interest on such Bank's Loans or any of the Drawings
or the fees payable to such Bank hereunder, (ii) postpone any date fixed for
(A) any payment of principal of or interest on such Bank's Loans, any of the
Drawings or the fees payable to such Bank hereunder or (B) the expiration of any
Letter of Credit if such postponement would extend the expiration date of such
56
Letter of Credit beyond the RC Termination Date, (iii) permit any Loan Party
to assign any of its obligations under the Loan Documents to any other Person,
(iv) release any Guarantor from its obligations under Article 9 or (v) release
any Collateral from the Security Interest except as required or contemplated by
the Loan Documents. Each holder of a participation in any rights under the
Borrower Loan Documents, if and to the extent the applicable participation
agreement so provides, shall, with respect to such participation, be entitled to
all of the rights of a Bank as fully as though it were a Bank under Sections
1.20, 7.02 through 7.06, 10.02 and 10.08 (subject to any conditions imposed on a
Bank hereunder with respect thereto, including delivery of the forms and
certificates required under Section 1.20(c)) and may exercise any and all rights
of set-off with respect to such participation as fully as though the Borrower
were directly indebted to the holder of such participation for Loans in the
amount of such participation; provided that no holder of a participation shall
--------
be entitled to any amounts that would otherwise be payable to it with respect to
its participation under Section 1.20 or 7.02 unless (x) such amounts are payable
in respect of a Regulatory Change Enacted after the date the applicable
participation agreement was executed or (y) such amounts would have been payable
to the Bank that granted such participation if such participation had not been
granted. Each Bank selling or granting a participation shall indemnify the
Borrower and the Administrative Agent for any Taxes and Liabilities that they
may sustain as a result of such Bank's failure to withhold and pay any Taxes
applicable to payments by such Bank to its participant in respect of such
participation.
Section 10.11 Governing Law.
-------------
The rights and duties of the Borrower, the Guarantors, the Administrative
Agent, the Issuing Bank, the Swing Line Bank and the Banks under this Agreement
and the Notes (including matters relating to the Maximum Permissible Rate)
shall, pursuant to New York General Obligations Law Section 5-1401, be governed
by the law of the State of New York.
Section 10.12 Judicial Proceedings; Waiver of Jury Trial.
------------------------------------------
Any judicial proceeding brought against the Borrower or any Guarantor with
respect to any Loan Document Related Claim may be brought in any court of
competent jurisdiction in the City of New York, and, by execution and delivery
of this Agreement, the Borrower and each Guarantor (a) accepts, generally and
unconditionally, the nonexclusive jurisdiction of such courts and any related
appellate court and irrevocably agrees to be bound by any judgment rendered
thereby in connection with any Loan Document Related Claim and (b) irrevocably
waives any objection it may now or hereafter have as to the venue of any such
proceeding brought in such a court or that such a court is an inconvenient
forum. The Borrower and each Guarantor hereby waives personal service of
process and consents that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address specified or
determined in accordance with the provisions of Section 10.01(b), and service so
made shall be deemed completed on the third Business Day after such service is
deposited in the mail. Nothing herein shall affect the right of the
Administrative Agent, the Issuing Bank, the Swing Line Bank, any Bank or any
other Indemnified Person to serve process in any other manner permitted by law
or shall limit the right of the Administrative Agent, the Issuing Bank, the
Swing Line Bank, any Bank or any other Indemnified Person to bring proceedings
against the Borrower or any Guarantor in the courts of any other jurisdiction.
Any judicial proceeding by the Borrower or any Guarantor against the
Administrative Agent involving any Loan Document Related Claim shall be brought
only in a court located in the City and State of New York and in the case of a
Bank or the Issuing Bank or the Swing Line Bank, the jurisdiction in which the
Bank's principal United States office is
57
located. THE BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE SWING
LINE BANK, EACH BANK AND EACH GUARANTOR HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING TO WHICH ANY OF THEM ARE PARTY INVOLVING ANY LOAN DOCUMENT
RELATED CLAIM.
Section 10.13 LIMITATION OF LIABILITY.
-----------------------
NEITHER THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE SWING LINE BANK,
NOR ANY OTHER INDEMNIFIED PERSON SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND
THE BORROWER AND EACH GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇
FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL, AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, PUNITIVE, DAMAGES SUFFERED BY THE BORROWER OR SUCH GUARANTOR IN
CONNECTION WITH ANY LOAN DOCUMENT RELATED CLAIM.
Section 10.14 Severability of Provisions.
--------------------------
Any provision of the Borrower Loan Documents that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent permitted by Applicable Law,
the Borrower and each Guarantor hereby waive any provision of Applicable Law
that renders any provision of the Borrower Loan Documents prohibited or
unenforceable in any respect.
Section 10.15 Counterparts.
------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto were
upon the same instrument.
Section 10.16 Survival of Obligations.
-----------------------
Except as otherwise expressly provided therein, the rights and obligations
of the Borrower, the Guarantors, the Administrative Agent, the Issuing Bank, the
Swing Line Bank and the other Indemnified Persons under the Borrower Loan
Documents shall survive the Repayment Date and the termination of the Security
Interest; provided that the obligations of the Guarantors under Article 9 shall
--------
be subject to the proviso to the definition of Guaranteed Obligations.
Section 10.17 Entire Agreement.
----------------
This Agreement, the Notes and the other Loan Documents embody the entire
agreement between the Borrower, the Guarantors, the Administrative Agent, the
Issuing Bank, the Swing Line Bank and the Banks relating to the subject matter
hereof and supersede all prior agreements, representations and understandings,
if any, relating to the subject matter hereof.
Section 10.18 Successors and Assigns.
----------------------
All of the provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Section 10.19 Cash Collateral.
---------------
If, at any time, cash collateralization of Contingent Reimbursement
Obligations shall be required pursuant to any provision of any of the Loan
Documents, such cash collateralization shall be made by deposit of funds in
Dollars, in the required amount, into an interest bearing cash collateral
account at the Administrative Agent's
58
Office, which account shall be under the dominion and control of the
Administrative Agent and is hereby pledged to the Banks, the Issuing Bank and
the Swing Line Bank as security for the payment of the Contingent Reimbursement
Obligations and any other amounts that may become payable hereunder or under the
other Loan Documents. Funds deposited in such account, and any income thereon,
may be applied by the Administrative Agent against amounts payable under the
Loan Documents as such amounts become due. Any funds remaining in such account
when all Contingent Reimbursement Obligations and other amounts payable under
the Loan Documents shall have been paid shall be returned to the Borrower.
Section 10.20 Registered Notes.
----------------
A Bank that is a Non-US Bank and that has complied with Section
1.20(c)(A)(1)(bb) may, by written request delivered to the Borrower and the
Administrative Agent, have any or all of its Notes issued as Registered Notes,
and for this purpose the Borrower shall cause to be maintained a Register. Once
issued, Registered Notes may not be exchanged for Notes that are not Registered
Notes and the ownership of Registered Notes, and of the Loans evidenced thereby,
may be transferred only in accordance with the provisions of Section
10.10(a)(ii)(E).
Section 10.21 Foreign Currency Conversion.
---------------------------
(a) Each reference in this Agreement to Dollars is of the essence. If in
connection with determining the amount of a judgment to be rendered in a
currency other than Dollars it is necessary to convert a sum payable in Dollars
into such other currency, then, unless another rate of exchange is required
under Applicable Law, the rate of exchange used shall be the Administrative
Agent's spot rate of exchange in New York City on the Business Day immediately
preceding the day on which final judgment is to be rendered. Notwithstanding
the foregoing, to the fullest extent permitted by Applicable Law, the obligation
of the Borrower in respect of any amount due in Dollars under the Loan Documents
shall, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in
Dollars that the Person entitled to receive such payment may, in accordance with
normal banking procedures, purchase with the sum paid in such other currency
(after any premium and costs of exchange) on the Business Day immediately
following the day on which such Person receives such payment. If the amount of
Dollars so purchased on such Business Day in accordance with such procedures is
for any reason less than the sum originally due to such Person in Dollars, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Person against such loss, and if the amount of Dollars so
purchased exceeds the sum of (a) the amount originally due to the relevant
Person in Dollars plus (b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Person under
Section 10.09, such Person agrees to remit such excess to the Borrower.
(b) If any amount is received or recovered by the Administrative Agent, the
Secured Party or any Bank in respect of the Secured Obligations (whether
pursuant to a judgment or otherwise) in a currency other than Dollars, then the
Administrative Agent, the Secured Party or such Bank, as the case may be, may
convert such other currency into Dollars at the Administrative Agent's spot rate
of exchange in New York City on the Business Day immediately following the day
that such amount is received in such other currency.
(c) For purposes of determining the amount of any Indebtedness,
Investments, Restricted Payments, Guaranties or other amounts under the Loan
Documents in a currency other than
59
Dollars, such other currency shall be converted on the basis of the
Administrative Agent's spot rate of exchange in New York City on the Business
Day immediately preceding the date of such determination.
ARTICLE 11
----------
INTERPRETATION
--------------
Section 11.01 Defined Terms.
-------------
For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to that term in
------------------------------
Section 302(a)(2) of ERISA.
"Additional Commitment Bank" has the meaning ascribed to that term in
--------------------------
Section 1.14(c).
"Adjudicated Letter of Credit Claim" means a final judgment against the
----------------------------------
Issuing Bank in a proceeding in which the Borrower had the risk of persuasion
that (a)(i) documents presented under a Letter of Credit on the basis of which a
Drawing was made did not comply with the terms thereof and (ii) the Issuing
Bank's payment against such documents constituted gross negligence or bad faith
or (b) the Issuing Bank willfully failed to pay under a Letter of Credit after
the presentation to the Issuing Bank by the beneficiary (or a transferee to whom
such Letter of Credit had been transferred in accordance with its terms) of
documents strictly complying with the terms and conditions of such Letter of
Credit; and for this purpose a "final judgment" means a judgment by a court that
is binding on the Issuing Bank, final and not subject to review on appeal.
"Adjusted Eurodollar Rate" means, for any Interest Period, a rate per annum
------------------------
(rounded upward, if necessary, to the next higher 1/16 of 1%) equal to the rate
obtained by dividing (a) the Eurodollar Rate for such Interest Period by (b) a
percentage equal to 1 minus the Reserve Requirement in effect from time to time
during such Interest Period.
"Administrative Agent" means The Bank of New York, as agent for and
--------------------
representative (within the meaning of Section 9-105(m) of the Uniform Commercial
Code) of the Banks and the Issuing Bank under the Loan Documents, and any
successor Administrative Agent appointed pursuant to Section 8.08.
"Administrative Agent's Office" means the address of the Administrative
-----------------------------
Agent specified in or determined in accordance with the provisions of Section
10.01(b).
"Affiliate" means, with respect to a Person, any other Person that,
---------
directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower. For
purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of such
Person, whether through the ownership of securities or partnership or other
ownership interests or by contract or otherwise.
60
"Affiliate Indebtedness" means Indebtedness payable by the Borrower to any
----------------------
Person or group of Persons that are Affiliates.
"Affiliate Note" means the [Promissory Note by the Borrower to
--------------
_____________]; provided that such [promissory note] is subject to a
--------
Subordination Agreement.
"Agreed Rate" means, for any day with respect to a Swing Loan, a rate per
-----------
annum equal to the rate agreed to by the Borrower and the Swing Line Bank as the
rate of interest applicable to such Swing Loan.
"Agreed Rate Interest Period" has the meaning ascribed to that term in
---------------------------
Section 1.02(b)(i).
"Agreed Rate Loan" means a Swing Loan the interest on which is, or is to
----------------
be, as the context may require, computed on the basis of the applicable Agreed
Rate.
"Agreement" means this Agreement, including all schedules, annexes and
---------
exhibits hereto.
"Agreement Date" means the date set forth as such on the signature pages
--------------
hereof, which date is the date the executed copies of this Agreement were
delivered by all parties hereto and, accordingly, this Agreement became
effective and the Banks, the Issuing Bank and the Swing Line Bank first became
committed to make the Loans and other extensions of credit contemplated by this
Agreement. If no such date is there set forth, the Agreement Date shall be the
date as of which this Agreement is dated.
"Applicable Law" means, anything in Section 10.11 to the contrary
--------------
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and Governmental
Registrations and (iii) orders, decisions, judgments and decrees of all courts
(whether at law or in equity or admiralty) and arbitrators.
"Application" means a request for the issuance or amendment of a Letter of
-----------
Credit in such form as the Issuing Bank shall require.
"Bank" means (a) any Person listed on the signature pages hereof as a Bank
----
and (b) any Person that has been assigned any or all of the rights or
obligations of a Bank pursuant to Section 10.10(a).
"Bank Nonparticipation" means (a) the inability of any Bank to acquire any
---------------------
LC Participation pursuant to Section 1.10(a) or to make any payment required by
it under Section 1.10(b) because of such Bank's having been subject to
receivership, insolvency or other similar laws, (b) the refusal of any Bank to
acquire any LC Participation pursuant to Section 1.10(a) or to make any payment
required by it under Section 1.10(b) or (c) the giving by any Bank to the
Issuing Bank of any notice (which has not been retracted) of its intention not
to so acquire any LC Participation or to make any such required payment.
"Bank Tax" means any net income, franchise or similar Tax imposed upon any
--------
Bank by any jurisdiction (or political subdivision thereof) in which such Bank
or any of its Lending
61
Offices is located or where such Bank is otherwise subject to tax other than as
a result of the transactions contemplated by this Agreement, but in no event
shall it mean any withholding tax.
"Bankruptcy Default" means a Default which is such by virtue of Section
------------------
6.01(f).
"Base Rate" means, for any day, a rate per annum equal to the higher of (a)
---------
the Prime Rate in effect on such day and (b) the sum of the Federal Funds Rate
in effect on such day plus 0.500%.
"Base Rate Loan" means a Loan the interest on which is, or is to be, as the
--------------
context may require, computed on the basis of the Base Rate.
"Base Rate Margin" means with respect to (a) Base Rate Loans that are Term
----------------
B Loans outstanding at any time, 0.75% and (b) Base Rate Loans that are RC Loans
or Term A Loans (i) outstanding during any period on or before the date three
Business Days after the delivery of the financial statements of the Borrower
pursuant to Section 5.01(a) for the quarterly period ending September 30, 1998,
0.500% and (ii) outstanding during any period thereafter, such percentage as set
forth in the following table opposite the applicable Leverage Ratio for the four
fiscal quarters of the Borrower most recently completed prior to such period:
Applicable Base
Leverage Ratio Rate Margin
---------------------------------------------- -----------------------------------------
greater than or
equal to 5.75 : 1.00 0.500%
less than 5.75 : 1.00 but greater than or equal to 5.50 : 1.00 0.375%
less than 5.50 : 1.00 but greater than or equal to 5.00: 1.00 0.125%
less than 5.00 : 1.00 0.000%
The Base Rate Margin will be adjusted upon receipt of the Borrower's
quarterly financial statements for each fiscal quarter of the Borrower. Not
later than three Business Days after receipt by the Administrative Agent of the
financial statements required to be delivered pursuant to Section 5.01(a) or (b)
for each fiscal quarter of the Borrower, the Administrative Agent shall
determine the Leverage Ratio for the applicable period and shall promptly notify
the Borrower and the Banks of such determination and of any change in the Base
Rate Margin resulting therefrom; provided that (x) if financial statements are
--------
not delivered on or prior to the date when due, during the period from the date
when due to the date that is three Business Days after such financial statements
are so delivered or (y) if an Event of Default described in Section 6.01(a)
shall at any time exist, the Base Rate Margin shall be 0.500%. Any change in
the Base Rate Margin (other than one pursuant to the proviso to the immediately
-------
preceding sentence) shall be effective as of the date the Administrative Agent
so notifies the Borrower and the Banks with respect to all Loans outstanding on
such date, and such new Base Rate Margin shall continue in effect until the
effective date of the next redetermination in accordance with this Section. Each
determination of the Leverage Ratio and Base Rate Margin by the Administrative
Agent in accordance with this Section shall be conclusive and binding on the
Borrower and the Banks absent manifest error.
62
"Benefit Plan" of any Person, means, at any time, any employee benefit plan
------------
(including a Multiemployer Benefit Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within six years immediately preceding the time in question were, in whole or in
part, the responsibility of such Person. All Benefit Plans of the Borrower in
existence on the Agreement Date are listed on Schedule 4.12.
-------------
"Borrower" means ▇▇▇▇-▇▇▇▇▇ Inc., a Delaware corporation.
--------
"Borrower Loan Documents" means the Loan Documents to which the Borrower is
-----------------------
a party.
"Business Day" means any day other than a Saturday, Sunday or other day on
------------
which banks in New York City are authorized to close.
"Business Unit" means the assets constituting the business, or a division
-------------
or operating unit thereof, of any Person.
"Capital Security" means, with respect to any Person, (a) any share of
----------------
capital stock or other ownership interest of such Person and (b) any security
convertible into, or any option, warrant or other right to acquire, any share of
capital stock or other ownership interest of such Person.
"Cash Management Arrangements" means any foreign exchange contracts
----------------------------
(whether the same are for future or spot delivery or a hedge transaction),
derivative obligations (including commodities swaps, commodities options, equity
or equity index swaps and the like) and overdrafts and other extensions of
credit under cash management arrangements, checking accounts and the like.
"Code" means the Internal Revenue Code of 1986.
----
"Collateral" means all property in which a Lien is created pursuant to the
----------
Loan Documents.
"Commitment" of any Bank means such Bank's Term A Commitment, Term B
----------
Commitment and RC Commitment.
"Commitment Increase" has the meaning ascribed to that term in Section
-------------------
1.14(c).
"Commitment Increase Supplement" has the meaning ascribed to that term in
------------------------------
Section 1.14(c).
"Consolidated EBITDA" means, for any period, the consolidated EBITDA of the
-------------------
Borrower and the Consolidated Subsidiaries for such period (taken as a
cumulative whole).
"Consolidated Excess Cash Flow" means, for any period, the excess of (a)
-----------------------------
the sum of (i) Consolidated EBITDA for such period (plus the amount of net cash
proceeds received during such period on account of any gain, and minus the
amount of cash paid during such period on account of any loss, excluded from
Consolidated EBITDA under clause (b) of the definition
63
thereof) and (ii) the aggregate of the decreases, if any, in Non-Cash Working
Capital of the Borrower and the Consolidated Subsidiaries during such period,
over (b) the sum of (i) interest paid or payable in cash by the Borrower and the
Consolidated Subsidiaries during such period other than interest paid to the
Borrower or any Consolidated Subsidiary, (ii) income taxes of the Borrower and
the Consolidated Subsidiaries paid or payable in cash for such period, (iii)
expenditures by the Borrower and the Consolidated Subsidiaries during such
period for fixed assets and capital equipment, determined on a consolidated
basis and net of any credits or reimbursements with respect to such expenditures
received by the Borrower or any Consolidated Subsidiary, (iv) scheduled payments
of principal of Indebtedness made by the Borrower and the Consolidated
Subsidiaries during such period other than payments of Indebtedness owing to the
Borrower or any Consolidated Subsidiary, (v) the aggregate of the increases, if
any, in Non-Cash Working Capital during such period of the Borrower and the
Consolidated Subsidiaries, (vi) the aggregate amount of Investments made by the
Borrower and the Consolidated Subsidiaries during such period and (vii) the
aggregate consideration paid by the Borrower and the Consolidated Subsidiaries
for the acquisition of assets during such period, to the extent in excess of Net
Cash Proceeds resulting from asset dispositions by the Borrower and the
Consolidated Subsidiaries to which Section 4.10 is not applicable.
"Consolidated Fixed Charges" means, for any period, the sum of (a) the
--------------------------
aggregate amount of principal payments of Indebtedness scheduled to have been
made by the Borrower and the Consolidated Subsidiaries during such period,
determined on a consolidated basis, (b) Consolidated Interest Expense and cash
taxes paid or payable for such period, (c) expenditures by the Borrower and the
Consolidated Subsidiaries for fixed assets and capital equipment during such
period and (d) any Restricted Payment made by the Borrower or any Consolidated
Subsidiary during such period.
"Consolidated Indebtedness" means, at any time, the consolidated
-------------------------
Indebtedness of the Borrower and its Consolidated Subsidiaries as at such time.
"Consolidated Interest Expense" means, for any period, without duplication,
-----------------------------
(i) all interest paid or payable on Indebtedness of the Borrower and the
Consolidated Subsidiaries for such period and commitment fees in respect thereof
paid or payable for such period plus (ii) the net amount accrued, whether or not
----
actually paid, by such Persons pursuant to any interest rate or currency swap or
similar transaction entered into pursuant to Section 4.22 during such period (or
minus the net amount receivable, whether or not actually received, by such
-----
Persons thereunder during such period).
"Consolidated Subsidiary" means, with respect to any Person at any time,
-----------------------
any Subsidiary (other than, in the case of the Borrower or a Consolidated
Subsidiary, ZDTV) or other Person the accounts of which would be consolidated
with those of such first Person in its consolidated financial statements as of
such time; unless otherwise specified, "Consolidated Subsidiary" means a
Consolidated Subsidiary of the Borrower.
"Contingent Reimbursement Obligation" means, with respect to a Letter of
-----------------------------------
Credit, at any time, the amount of the contingent obligation of the Borrower, at
such time, to reimburse the Issuing Bank for any Drawing that may be made under
such Letter of Credit.
64
"Contract" means (a) any agreement (whether bilateral or unilateral or
--------
executory or non-executory and whether a Person entitled to rights thereunder is
so entitled directly or as a third-party beneficiary), including an indenture,
lease or license, (b) any deed or other instrument of conveyance, (c) any
certificate of incorporation or charter and (d) any by-law.
"Credit Extension" means (a) the making by any Bank or the Swing Line Bank
----------------
of any Loan and (b) the issuance by the Issuing Bank of any Letter of Credit.
"Debt" means any Liability that constitutes "debt" or "Debt" under section
----
101(11) of the Bankruptcy Code or under the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any analogous Applicable Law.
"Default" means any condition or event that constitutes an Event of Default
-------
or that with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
------- -
America.
"Domestic Lending Office" means (a) the branch or office of any Bank set
-----------------------
forth below such Bank's name under the heading "Domestic Lending Office" on
Annex A or, in the case of a Bank that becomes a Bank pursuant to an assignment,
-------
the branch or office of such Bank set forth as its Domestic Lending Office in
the Notice of Assignment relating to such assignment or (b) such other branch or
office of such Bank designated by such Bank from time to time as the branch or
office at which its Base Rate Loans and LC Participations are to be made or
maintained and, if such Bank is an Issuing Bank, and its Letters of Credit will
be issued and its Contingent Reimbursement Obligations and Drawings are to be
made or maintained.
"Drawing" means (a) any amount disbursed by the Issuing Bank under a Letter
-------
of Credit and (b) as the context may require, the Borrower's obligation to
reimburse the Issuing Bank for such amounts disbursed.
"EBITDA" means, for any Person and for any period, the sum of:
------
(a) Net Income of such Person for such period; plus
----
(b) the sum of the following items (to the extent deducted in the
computation of such Net Income):
(i) depreciation expense;
(ii) amortization expense;
(iii) interest expense and commitment fees paid or payable for such
period with respect to Indebtedness of such Person (other than
InterCompany Indebtedness), including imputed interest on capital
leases and fees and other amounts paid or payable for such period to
any Person under interest rate or currency swap or similar
transactions;
65
(iv) income tax expense; and
(v) other non-cash items.
EBITDA will be adjusted to (A) exclude the EBITDA attributable to any asset or
business that was disposed of (either directly or as part of an exchange) by
such Person and (B) include the EBITDA attributable to any asset or business
that was acquired (either directly or as part of an exchange) by such Person, in
each case during the period of calculation (as if such asset or business had not
been owned, or had been owned (as applicable), by such Person during such
period).
"EBITDA Percentage" means, as of the date of any sale, pledge or other
-----------------
disposition (whether voluntary or involuntary) of the Capital Securities of a
Consolidated Subsidiary or assets comprising a Business Unit of a Person, the
ratio, expressed as a percentage, derived by dividing (a) EBITDA attributable
thereto for the period of four consecutive fiscal quarters ending on the last
day of the most recent fiscal year or fiscal quarter in respect of which the
Administrative Agent shall have received the financial statements delivered, or
to be delivered, pursuant to Section 5.01(a) or (b) by (b) Consolidated EBITDA
for such period.
"Eligible Assignee" means (a) any commercial bank, savings and loan
-----------------
institution or savings bank organized under the laws of the United States of
America, or any State thereof, and having combined capital and surplus in excess
of $100,000,000, (b) any commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
----
combined capital and surplus (or the equivalent thereof under the accounting
principles applicable thereto) in excess of $100,000,000; provided that such
--------
bank is acting through a branch, agency or Affiliate of such bank located in the
country in which it is organized or another country that is also a member of the
OECD, (c) the central bank of any country that is a member of the OECD and (d)
any insurance company, pension fund, mutual fund or other financial institution
of recognized standing.
"Enacted" means, as applied to a Regulatory Change, the date such
-------
Regulatory Change first becomes effective or is implemented or first required or
expected to be complied with, whether the same is (a) the result of an enactment
by a government or any agency or political subdivision thereof, a determination
of a court or regulatory authority, a request or directive of a regulatory
authority, or otherwise or (b) enacted, adopted, issued or proposed before or
after the Agreement Date.
"ERISA" means the Employee Retirement Income Security Act of 1974.
-----
"ERISA Affiliate" means, with respect to any Person, any other Person,
---------------
including a Subsidiary or other Affiliate of such first Person, that is a member
of any group of organizations within the meaning of Code Section 414(b), (c),
(m) or (o) of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which dealings in
-----------------------
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
66
"Eurodollar Lending Office" means (a) the branch or office of any Bank set
-------------------------
forth below such Bank's name under the heading "Eurodollar Lending Office" on
Annex A or, in the case of a Bank that becomes a Bank pursuant to an assignment,
-------
the branch or office of such Bank set forth as its Eurodollar Lending Office in
the Notice of Assignment relating to such assignment or (b) such other branch or
office of such Bank designated by such Bank from time to time as the branch or
office at which its Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the rate per annum that
---------------
appears on page 3750 or any successor page of the Telerate screen which displays
British Bankers Association Settlement Rates for deposits in Dollars, of the
offered quotation for deposits in Dollars for a period equal to such Interest
Period, at 11:00 a.m. (London time) on the second Eurodollar Business Day before
the first day of such Interest Period.
"Eurodollar Rate Loan" means a Loan the interest on which is, or is to be,
--------------------
as the context may require, computed on the basis of the Adjusted Eurodollar
Rate.
"Eurodollar Rate Margin" means, with respect to (a) Eurodollar Rate Loans
----------------------
that are Term B Loans outstanding at any time, 1.75% and (b) Eurodollar Rate
Loans that are RC Loans or Term A Loans (i) outstanding during any period on or
before the date three Business Days after the delivery of the financial
statements of the Borrower pursuant to Section 5.01(a) for the quarterly period
ending September 30, 1998, 1.500% and (ii) outstanding during any period
thereafter, such percentage as set forth in the following table opposite the
applicable Leverage Ratio for the four fiscal quarters of the Borrower most
recently completed prior to such period:
Applicable Eurodollar
Leverage Ratio Rate Margin
---------------------------------------------- ------------------------------------------
greater than or equal to 5.75 : 1.00 1.500%
less than 5.75 : 1.00 but greater than or equal to 5.50 : 1.00 1.375%
less than 5.50 : 1.00 but greater than or equal to 5.00 : 1.00 1.125%
less than 5.00 : 1.00 but greater than or equal to 4.50 : 1.00 1.000%
less than 4.50 : 1.00 but greater than or equal to 4.00 : 1.00 0.750%
less than 4.00 : 1.00 but greater than or equal to 3.50 : 1.00 0.625%
less than 3.50 : 1.00 0.500%
The Eurodollar Rate Margin will be adjusted upon receipt of the Borrower's
quarterly financial statements for each fiscal quarter of the Borrower. Not
later than three Business Days after receipt by the Administrative Agent of the
financial statements required to be delivered pursuant to Section 5.01(a) or (b)
for each fiscal quarter of the Borrower, the Administrative Agent shall
determine the Leverage Ratio for the applicable period and shall promptly notify
the Borrower and the Banks of such determination and of any change in the
Eurodollar Rate Margin resulting therefrom; provided that (x) if financial
--------
statements are not delivered on or prior to the date when due, during the period
from the date when due to the date that is three Business Days after such
financial statements are so delivered or (y) if an Event of Default described in
Section 6.01(a) shall at any time exist, the Eurodollar Rate Margin shall be
1.500%. Any change in the Eurodollar Rate Margin shall (other than one pursuant
to the proviso to the immediately preceding sentence) be effective as of the
-------
date the Administrative Agent so notifies the Borrower
67
and the Banks with respect to all Loans outstanding on such date, and such new
Eurodollar Rate Margin shall continue in effect until the effective date of the
next redetermination in accordance with this Section, and shall not be
retroactive. Each determination of the Leverage Ratio and Eurodollar Rate Margin
by the Administrative Agent in accordance with this Section shall be conclusive
and binding on the Borrower and the Banks absent manifest error.
"Event of Default" means any of the events specified in Section 6.01.
----------------
"Existing Guaranty" means (a) any Guaranty outstanding on the Agreement
-----------------
Date, to the extent set forth on Schedule 4.06 and (b) any Guaranty that
-------------
constitutes a renewal, extension or replacement of an Existing Guaranty, but
only if (i) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (ii) such Guaranty is binding
only on the obligor or obligors under the Guaranty so renewed, extended or
replaced, (iii) the principal amount of the obligations Guaranteed by such
Guaranty does not exceed the principal amount of the obligations Guaranteed by
the Guaranty so renewed, extended or replaced at the time of such renewal,
extension or replacement and (iv) the obligations Guaranteed by such Guaranty
bear interest at a rate per annum not exceeding the rate borne by the
obligations Guaranteed by the Guaranty so renewed, extended or replaced except
for any increase that is commercially reasonable at the time of such increase.
"Existing Investments" means any Investment listed on Schedule 4.11.
-------------------- -------------
"Exposure" of a Bank means, at any time, an amount equal to the sum of (a)
--------
the aggregate unpaid principal amount at such time of the RC Loans of such Bank,
and (b) the aggregate at such time of the Letter of Credit Amounts of such Bank,
and (c) such Bank's Pro Rata Share of the aggregate unpaid principal amount at
such time of the Swing Loans.
"Federal Funds Rate" means, for any day, the weighted average of the rates
------------------
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any day that
is a Business Day, the average of quotations for such day on such transactions
received by The Bank of New York from three Federal funds brokers of recognized
standing selected by such Bank.
"Funded Current Liability Percentage" has the meaning ascribed to that term
-----------------------------------
in Code Section 401(a)(29)(E).
"Funding Demand" has the meaning ascribed to that term in Section
--------------
1.10(b)(i).
"Generally Accepted Accounting Principles" means generally accepted
----------------------------------------
accounting principles as in effect in the United States of America on, unless
specifically stated otherwise in this Agreement, the Agreement Date.
"Governmental Approval" means any authorization, consent, approval, license
---------------------
(or the like) or exemption (or the like) of, any governmental unit.
68
"Governmental Registration" means any registration or filing (or the like)
-------------------------
with, or report or notice (or the like) to, any governmental unit.
"Guaranteed Obligations" means all Liabilities of the Borrower and each
----------------------
Guarantor owing to, or in favor or for the benefit of, or purporting to be owing
to, or in favor or for the benefit of, the Administrative Agent or any Bank
under the Loan Documents or under any interest rate or currency swap or similar
transaction entered into pursuant to Section 4.22 (including in the case of a
Bank that is the Issuing Bank or the Swing Line Bank, those in favor of such
Bank in such capacity), in each case (i) WHETHER NOW EXISTING OR HEREAFTER
ARISING OR ACQUIRED, (ii) whether owing to, or in favor or for the benefit of,
or purporting to be owing to or in favor or the benefit of, the Person that is
the Administrative Agent or a Bank as of the Agreement Date or any Person or
Persons that become the Administrative Agent or a Bank by reason of any
succession or assignment at any time thereafter and (iii) WHETHER OR NOT AN
ALLOWABLE CLAIM AGAINST THE BORROWER OR SUCH GUARANTOR UNDER THE BANKRUPTCY CODE
OR OTHERWISE ENFORCEABLE AGAINST THE BORROWER OR SUCH GUARANTOR, AND INCLUDING
IN ANY EVENT, INTEREST AND OTHER LIABILITIES ACCRUING OR ARISING AFTER THE
FILING BY OR AGAINST THE BORROWER OR SUCH GUARANTOR OF A PETITION UNDER THE
BANKRUPTCY CODE OR THAT WOULD HAVE SO ACCRUED OR ARISEN BUT FOR THE FILING OF
SUCH A PETITION.
"Guarantor" shall mean each Person listed on Schedule 9.01 and each Person
--------- -------------
executing and delivering a Guarantor Supplement.
"Guarantor Supplement" shall mean a supplement hereto in the form of
--------------------
Exhibit F.
---------
"Guaranty" of any Person means any obligation, contingent or otherwise, of
--------
such Person (a) to pay any Liability of any other Person or to otherwise
protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person
being a partner of a partnership or participant in a joint venture or by
agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any Liability of any other Person
(whether such obligation arises by agreement to reimburse or indemnify such
third Person or otherwise). The word "Guarantee" when used as a verb has the
correlative meaning.
"Indebtedness" of any Person means (in each case, whether such obligation
------------
is with full or limited recourse), without duplication, (a) any obligation of
such Person for borrowed money, (b) any obligation of such Person evidenced by a
bond, debenture, note or other similar instrument, (c) any obligation of such
Person to pay the deferred purchase price of property or services, except a
trade account payable that arises in the ordinary course of business but only if
and so long as the same is payable on customary trade terms, (d) any obligation
of such Person as lessee under a capital lease, (e) any Mandatorily Redeemable
Stock of such Person owned by any Person other than such Person or an
Indebtedness-Free Subsidiary of such Person (the amount of such Mandatorily
Redeemable Stock to be determined for this purpose as the higher of the
liquidation preference of and the amount payable upon redemption of such
Mandatorily Redeemable Stock), (f) any obligation of such Person to purchase
securities or other property
69
that arises out of or in connection with the sale of the same or substantially
similar securities or property, (g) any non-contingent obligation of such Person
to reimburse any other Person in respect of amounts paid under a letter of
credit or other Guaranty issued by such other Person to the extent that such
reimbursement obligation remains outstanding after it becomes non-contingent,
(h) any amount that is due and payable under an interest rate or currency swap
or similar obligation, including any amount required to be paid upon the early
termination or other unwinding of any such obligation but excluding any
regularly scheduled interim payments thereunder except to the extent that any
such interim payment is overdue beyond any applicable grace period, except that
if any agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount thereof, (i) any
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) a Lien on any
asset of such Person and (j) any Indebtedness of others Guaranteed by such
Person.
"Indebtedness-Free Subsidiary" means a Subsidiary (a) all of the Capital
----------------------------
Securities, other ownership interests and rights to acquire ownership interests
of which are owned or controlled by the Borrower, by one or more other
Indebtedness-Free Subsidiaries or by the Borrower and one or more other
Indebtedness-Free Subsidiaries and (b) that has no Indebtedness other than the
Loans and Indebtedness owing to the Borrower or another Indebtedness-Free
Subsidiary.
"Indemnified Person" means (a) any Person that is, or at any time was, the
------------------
Administrative Agent, a Bank, the Swing Line Bank, the Issuing Bank, an
Affiliate of any such Person or a director, officer, employee or agent of any
such Person and (b) a Syndication Agent, Co-Documentation Agent or Lead Arranger
(each as identified on the cover of this Agreement), or a director, officer,
employee or agent of any thereof.
"Indenture" means the Indenture dated as of May ___, 1998 between Ziff-
---------
▇▇▇▇▇ Inc. (formerly known as ZD Inc.) and The Bank of New York providing for
the issuance by the Borrower of the Subordinated Notes.
"Information" means data, certificates, reports, statements (including
-----------
financial statements), opinions of counsel, documents and other information.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
---------------------
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature and (iii) copyrights, in each case whether registered, unregistered
or under pending registration and, in the case of any such that are registered
or under pending registration, whether registered or under pending registration
under the laws of the United States of America or any other country, (b)
reissues, continuations, continuations-in-part and extensions of any
Intellectual Property referred to in clause (a), and (c) rights relating to any
Intellectual Property referred to in clause (a) or (b), including rights under
applications (whether pending under the laws of the United States of America or
any other country) or licenses relating thereto.
70
"InterCompany Indebtedness" means Indebtedness payable by the Borrower or
-------------------------
any Guarantor to the Borrower or any Guarantor.
"Interest Period" means a period commencing, in the case of the first
---------------
Interest Period applicable to a Eurodollar Rate Loan, on the date of the making
of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending in the case of Eurodollar Rate
Loans, depending on the Type of Loan, on the same day in the first, second,
third or sixth, and if such type of Eurodollar Rate Loan is made available by
all of the Banks, ninth or twelfth calendar month thereafter, except that (a)
any Interest Period that would otherwise end on a day that is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Eurodollar Business
Day and (b) any Interest Period that begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month in which such Interest Period ends) shall end on the
last Eurodollar Business Day of a calendar month.
"Interest Rate Protection Agreements" means, for any Person, an interest
-----------------------------------
rate swap, cap or collar agreement or similar arrangement between such Person
and a Bank or other financial institution having combined capital and surplus of
at least $200,000,000 or that has (or that is a subsidiary of a bank holding
company that has) publicly traded unsecured long-term debt securities given a
rating of A- (or the equivalent rating then in effect) or better by Standard &
Poor's Ratings Group or a rating of A3 (or the equivalent rating then in effect)
or better by ▇▇▇▇▇'▇ Investors Service, Inc., providing for the transfer or
mitigation of increases in interest rates either generally or under specific
contingencies.
"Investment" of any Person means (a) any Capital Security, evidence of
----------
Indebtedness or other security or instrument issued by any other Person, (b) any
loan, advance or extension of credit to (including Guaranties of Liabilities
of), or any contribution to the capital of, any other Person and (c) any other
investment in any other Person. An Investment shall be deemed to be
"outstanding", except to the extent that it has been paid or otherwise satisfied
in cash (whether as a payment of principal, interest, dividend or other
distribution in respect thereof) or the Person making such Investment has
received cash in consideration for the sale thereof, notwithstanding the fact
that such Investment may otherwise have been forgiven, released, canceled or
otherwise nullified.
"Investment Amount" means, with respect to any Investment, the aggregate
-----------------
amount of consideration paid, and other transaction costs incurred, by the
Borrower and Subsidiaries in connection with the making or acquisition thereof.
"Issuing Bank" means the Bank that, with its consent and the consent of
------------
each existing Issuing Bank, if any, is designated as such by the Borrower. On
the Agreement Date such Bank is The Bank of New York.
"Issuing Bank's Office" means, at any time that the Issuing Bank is the
---------------------
Administrative Agent, the Administrative Agent's Office and, at any other time,
the address of such Bank determined in accordance with the provisions of Section
10.01(b).
71
"LC Participation" has the meaning ascribed to that term in Section
----------------
1.10(a).
"LC Sublimit" means at any time $25,000,000.
-----------
"Lender Group" means either the Term A Banks, the Term B Banks or the RC
------------
Banks.
"Lending Office" of any Bank, the Issuing Bank or the Swing Line Bank means
--------------
the Domestic Lending Office or the Eurodollar Lending Office of such Person.
"Letter of Credit" means (a) a letter of credit issued by the Issuing Bank
----------------
pursuant to Section 1.07(a) and (b) an amended Letter of Credit (including an
amended Letter of Credit which is the amendment of a Letter of Credit which is
such by virtue of this clause (b)).
"Letter of Credit Amount" means, with respect to a Letter of Credit in
-----------------------
which a Participating Bank has an LC Participation, at any time, an amount equal
to the product of (a) the sum of (i) the aggregate unpaid principal amount of
all Drawings under such Letter of Credit at such time and (ii) the amount of the
Contingent Reimbursement Obligation with respect to such Letter of Credit at
such time, multiplied by (b) such Participating Bank's Participating Bank
Percentage with respect to such Letter of Credit.
"Letter of Credit Loan Document Claim" means a Loan Document Related Claim
------------------------------------
arising under or with respect to a Letter of Credit or Application.
"Leverage Ratio" means, as of any date of determination, the ratio of
--------------
Consolidated Indebtedness outstanding on such date of determination to
Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower
ending on, or most recently ended prior to, such date; provided that for
--------
purposes of determining (a) whether the condition specified in Section 2.02(c)
will be fulfilled as of the requested time for the making of any Credit
Extension, (ii) whether any Restricted Payment is permitted to be made pursuant
to Section 4.08, (iii) whether any Investment is permitted to be made or
Business Units are permitted to be acquired pursuant to Section 4.11 and (iv)
whether any Prepayment of Subordinated Indebtedness is permitted to be made
pursuant to Section 4.14, Consolidated EBITDA shall be calculated on the basis
of the period of four consecutive fiscal quarters ending on the last day of the
most recent fiscal year or fiscal quarter in respect of which the Administrative
Agent shall have received the financial statements delivered, or to be
delivered, pursuant to Section 5.01(a) or (b).
"Liability" of any Person means (in each case, whether with full or limited
---------
recourse) any indebtedness, liability, obligation, covenant or duty of or
binding upon, or any term or condition to be observed by or binding upon, such
Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"License and Services Agreement" means the License and Services Agreement
------------------------------
governing the management of ZDTV dated as of July 28, 1997, among ▇▇▇▇-▇▇▇▇▇
Inc., ZDTV, MAC Holdings America, Inc., a [______________] corporation and MAC
Inc., as filed in the Registration Statement.
72
"Lien" means, with respect to any property or asset (or any income or
----
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by Contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof or (b) any other
arrangement, express or implied, under which the same is subordinated,
transferred, sequestered or otherwise identified so as to subject the same to,
or make the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured Liabilities of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Like-Business Investments" means Investments in Persons engaged in the
-------------------------
same or directly related lines of business as the Borrower.
"Loan" means any RC Loan, Term A Loan, Term B Loan or Swing Loan.
----
"Loan Document Related Claim" means any claim or dispute (whether arising
---------------------------
under Applicable Law, including any "environmental" or similar law, under
Contract or otherwise and, in the case of any proceeding relating to any such
claim or dispute, whether civil, criminal, administrative or otherwise) in any
way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Agreement Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any "Representation and
-----------------------------------------
Warranty" as defined in any Loan Document and any other representation or
warranty made or deemed made under any Loan Document.
"Loan Documents" means this Agreement, the Notes, each Application and each
--------------
Letter of Credit, each Pledge Agreement and each Subordination Agreement.
"Loan Party" means any Person (other than the Administrative Agent, the
----------
Issuing Bank, the Swing Line Bank or a Bank) that is a party to a Loan Document.
"MAC Inc." means MAC Inc., a Japanese corporation.
--------
"Mandatorily Redeemable Stock" means, with respect to any Person, any share
----------------------------
of such Person's capital stock to the extent that it is (a) redeemable, payable
or required to be purchased or otherwise retired or extinguished, or convertible
into any Indebtedness or other Liability of such Person, (i) at a fixed or
determinable date, whether by operation of a sinking fund or otherwise, (ii) at
the option of any Person other than such Person or (iii) upon the occurrence of
a condition not solely within the control of such Person, such as a redemption
required to be made out of future earnings or (b) convertible into Mandatorily
Redeemable Stock.
"Materially Adverse Effect" means, (a) with respect to any Person, any
-------------------------
materially adverse effect on such Person's business, assets, Liabilities,
financial condition, results of operations or business prospects, (b) with
respect to a group of Persons "taken as a whole", any
73
materially adverse effect on such Persons' business, assets, Liabilities,
financial condition, results of operations or business prospects taken as a
whole on, where appropriate, a consolidated basis in accordance with Generally
Accepted Accounting Principles, (c) with respect to any Loan Document, any
materially adverse effect on the binding nature, validity or enforceability
thereof as an obligation of any Loan Party that is a party thereto and (d) with
respect to any Collateral, or any category of Collateral, pledged by any Loan
Party, a materially adverse effect on its value as Collateral or an adverse
effect on the validity, perfection, priority or enforceability of the Security
Interest therein.
"Maximum Permissible Rate" means, with respect to interest payable on any
------------------------
amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable thereon.
"Money Market Investment" means (a) any security issued or directly and
-----------------------
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof having a remaining maturity of not more than one year,
(b) any certificate of deposit, eurodollar time deposit or bankers' acceptance
with remaining maturity of not more than one year, any overnight bank deposit,
and any demand deposit account, in each case with any Bank or with any United
States commercial bank having capital and surplus in excess of $500,000,000 and
rated B or better by Thomson Bankwatch Inc., (c) any repurchase obligation with
a term of not more than seven days entered into with (i) any financial
institution meeting the qualifications specified in clause (b) above or (ii) any
primary dealer of national reputation reporting daily to the Federal Reserve
Bank of New York and (d) any commercial paper issued by any Bank or the parent
corporation of any Bank and any other commercial paper of issuers rated A-2 by
Standard & Poor's Ratings Service or Prime-2 by ▇▇▇▇▇'▇ Investors Service, Inc.
and in any case having a remaining maturity of not more than six months.
"Multiemployer Benefit Plan" means any Benefit Plan that is a multiemployer
--------------------------
plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to (a) the disposition of any
-----------------
asset, including Capital Securities of Persons other than the Person effecting
the disposition, (i) the gross cash proceeds from such disposition (including
(A) insurance payments and condemnation awards and (B) principal payments in
respect of any notes or other instruments received as consideration for such
disposition) less (ii) (A) all documented taxes, fees, including underwriting
----
and placement fees, and reasonable expenses payable by the Borrower or any
Subsidiary in connection with such disposition, including income taxes payable
as a consequence of such disposition, (B) the principal amount of, and the
premium, if any, and interest on, any Indebtedness (other than the Loans)
secured by such asset and required to be prepaid upon such disposition and (C)
amounts required to be maintained as a reserve against liabilities associated
with such disposition under Generally Accepted Accounting Principles as then in
effect (provided that such amounts shall cease to be deducted from Net Cash
Proceeds and may become payable whenever they cease to be so required to be
maintained) and (b) the disposition of any Capital Security that is a Capital
Security of the Person effecting such disposition, (i) the gross cash proceeds
from such disposition (including principal payments in respect of any notes
74
or other instruments received as consideration for such disposition) less (ii)
----
all underwriting, placement and other fees and discounts and any other expenses
reasonably incurred in connection with such disposition.
"Net Income" means, for any Person and for any period, the net income (or
----------
net loss) of such Person for such period; provided that such amount shall be
--------
adjusted to exclude (to the extent otherwise included therein):
(a) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of income accrued
during such period and except for normal accruals and reversals in the
ordinary course of business;
(b) any write-up or write-down of any asset;
(c) any net gain or loss from the collection of the proceeds of any
insurance policies;
(d) any gain or loss arising from the acquisition of any securities or
Indebtedness of such Person and any net loss arising from the exercise of
any warrant of such Person;
(e) any deferred credit representing the excess of equity in any
Person at the date of acquisition over the cost of the investment in such
Person;
(f) any aggregate net gain (or loss) during such period arising from
the sale, exchange or other disposition of capital assets (such term to
include all fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets, and all
securities) other than any sale, exchange or other disposition in the
ordinary course of business; provided that there shall also be excluded any
--------
related charges for taxes on such capital assets;
(g) any net gains or losses resulting from the extinguishment or
defeasance of any Indebtedness;
(h) any earnings or losses from discontinued businesses; and
(i) all other extraordinary items.
"New Subordinated Indebtedness" means Indebtedness of the Borrower incurred
-----------------------------
after the Agreement Date; provided that such Indebtedness shall (a) not require
--------
any scheduled payment or purchase or redemption of principal prior to the first
anniversary of the Term B Termination Date, (b) bear interest at a commercially
reasonable rate at the time of incurrence thereof, (c) be subject to other terms
and conditions no more burdensome in any material manner to the Borrower or any
Subsidiary than the Subordinated Notes and (d) is subject to a Subordination
Agreement.
"Non-Cash Working Capital" means, as applied to a Person, at any time, (a)
------------------------
the amount, at such time, of such Person's current assets that are at such time
reflected, or would, in
75
accordance with Generally Accepted Accounting Principles, be required to be
reflected at such time on a balance sheet of such Person minus all cash and cash
-----
equivalents (including Money Market Investments) of such Person at such time,
minus (b) the amount, at such time, of such Person's current liabilities, that
-----
are at such time reflected, or would, in accordance with Generally Accepted
Accounting Principles, be required to be reflected at such time, on a balance
sheet of such Person minus the current portion of long-term Indebtedness of
-----
such Person at such time.
"Non-Material Subsidiary" means, as of any date, any Subsidiary of the
-----------------------
Borrower (a) the gross revenues of which account for less than 10% of the gross
revenues of the Borrower and the Consolidated Subsidiaries, on a consolidated
basis as of such date and (b) the fair saleable value of which, together with
the fair saleable value of all other Non-Matrial Subsidiaries as of such date,
value is less than $50,000,000. For purposes of this definition "fair saleable
value" of a Subsidiary means the fair market value of such Subsidiary in a
disposition of all or substantially all of its assets in an arms' length
transaction on the date of determination, as reasonably determined by the board
of directors of the Borrower.
"Non-US Bank" means a Person that is not a United States Person and not
-----------
described in Section 881(c)(3) of the Code.
"Nonparticipating Bank" means a Bank designated by the Issuing Bank as a
---------------------
Bank with respect to which a Bank Nonparticipation has occurred. The
designation of a Bank by the Issuing Bank as a "Nonparticipating Bank" shall not
affect the status of such Bank as a Participating Bank in respect of Letters of
Credit issued prior to the date of such designation.
"Note" means any Term A Note, Term B Note, RC Note or Swing Loan Note and,
----
in each case other than the Swing Loan Note, included such a Note that is a
Registered Note.
"Notice of Assignment" means any notice to the Borrower, the Administrative
--------------------
Agent, the Issuing Bank and the Swing Line Bank with respect to an assignment
pursuant to Section 10.10(a), in the form of Schedule 10.10(a).
-----------------
"Offering" means the sale by the Borrower of Capital Securities in a public
--------
offering as described in the Registration Statement.
"Participating Bank" means, with respect to any Letter of Credit, a Bank
------------------
that is not a Nonparticipating Bank.
"Participating Bank Percentage" means, with respect to a Participating Bank
-----------------------------
for any Letter of Credit, the percentage obtained by dividing such Participating
Bank's RC Commitment at the time of the issuance of such Letter of Credit by the
sum of the RC Commitments at such time of all of the Participating Banks with
respect to such Letter of Credit.
"Payment Date" means the last day of March, June, September and December
------------
during each calendar year from the Agreement Date to the Repayment Date.
"PBGC" means the Pension Benefit Guaranty Corporation.
----
76
"Permitted Guaranty" means any Guaranty that is (a) an endorsement of a
------------------
check for collection in the ordinary course of business, (b) a Guaranty of and
only of the Guaranteed Obligations, obligations of the Borrower under Cash
Management Arrangements or reimbursement obligations of the Borrower with
respect to letters of credit to which Section 4.06 is not applicable by virtue
of clause (d) thereof, (c) a Guaranty constituting an Investment to which
Section 4.11 is not applicable by virtue of clause (c)(ii) or (f) of such
Section, (d) a Guaranty of Indebtedness to which Section 4.05 is not applicable
by virtue of clause (a)(v) of such Section or (e) a Guaranty of a Liability of
the Borrower or a Guarantor constituting Indebtedness other than Indebtedness to
which Section 4.05 is not applicable by virtue of clause (a)(v) of such Section;
provided that such Guaranty and such Liability shall each be incurred in the
--------
ordinary course of business of the party obligated thereunder and shall be upon
terms and conditions reasonable and customary in the industry in which such
party conducts its business.
"Permitted Lien" means (a) with respect to any asset that does not
--------------
constitute Collateral, (i) any Lien securing a tax, assessment or other
governmental charge or levy or the claim of a materialman, mechanic, carrier,
warehouseman or landlord for labor, materials, supplies or rentals incurred in
the ordinary course of business, but only if payment thereof shall not at the
time be required to be made in accordance with Section 4.01(d) and foreclosure,
distraint, sale or other similar proceedings shall not have been commenced; (ii)
any Lien consisting of a deposit or pledge made in the ordinary course of
business in connection with, or to secure payment of, obligations under worker's
compensation, unemployment insurance or similar legislation; (iii) any Lien
arising pursuant to an order of attachment, distraint or similar legal process
arising in connection with legal proceedings, but only if and so long as the
execution or other enforcement thereof is not unstayed for more than 20 days;
(iv) any Lien existing on (x) any property or asset of any Person at the time
such Person becomes a Consolidated Subsidiary or (y) any property or asset at
the time such property or asset is acquired by the Borrower or a Consolidated
Subsidiary, but only, in the case of (x) and (y), if and so long as (A) such
Lien was not created in contemplation of such Person becoming a Consolidated
Subsidiary or such property or asset being acquired, (B) such Lien is and will
remain confined to the property or asset subject to it at the time such Person
becomes a Consolidated Subsidiary or such property or asset is acquired and to
fixed improvements thereafter erected on such property or asset, (C) such Lien
secures only the obligation secured thereby at the time such Person becomes a
Consolidated Subsidiary or such property or asset is acquired and (D) the
obligation secured by such Lien is not in default; (v) any Lien in existence on
the Agreement Date to the extent set forth on Schedule 4.07, but only, in the
-------------
case of each such Lien, to the extent it secures an obligation outstanding on
the Agreement Date to the extent set forth on such Schedule; (vi) any Lien
securing Purchase Money Indebtedness but only if, in the case of each such Lien,
(x) such Lien shall at all times be confined solely to the property or asset the
purchase price of which was financed through the incurrence of the Purchase
Money Indebtedness secured by such Lien and to fixed improvements thereafter
erected on such property or asset and (y) such Lien attached to such property or
asset within 30 days of the acquisition of such property or asset; or (vii) any
Lien constituting a renewal, extension or replacement of a Lien constituting a
Permitted Lien by virtue of clause (v), (vi), (vii) or (viii) of this
definition, but only if (v) at the time such Lien is granted and immediately
after giving effect thereto, no Default would exist, (w) such Lien is limited to
all or a part of the property or asset that was subject to the Lien so renewed,
extended or replaced and to fixed improvements thereafter erected on such
property or asset, (x) the principal amount of the obligations
77
secured by such Lien does not exceed the principal amount of the obligations
secured by the Lien so renewed, extended or replaced, (y) if the principal
amount of such obligations constitutes Subordinated Indebtedness, such
obligations continue to constitute Subordinated Indebtedness and (z) the
obligations secured by such Lien bear interest at a rate per annum not exceeding
the rate borne by the obligations secured by the Lien so renewed, extended or
replaced except for any increase that is commercially reasonable at the time of
such increase; and (b) with respect to any asset that constitutes Collateral,
any Lien that constitutes a "Permitted Lien" under the applicable Pledge
Agreement.
"Permitted Restrictive Covenant" means (a) any covenant or restriction
------------------------------
contained in any Loan Document, (b) any covenant or restriction binding upon any
Person at the time such Person becomes a Consolidated Subsidiary if the same is
not created in contemplation thereof, (c) any covenant or restriction of the
type contained in Section 4.07 that is contained in any Contract evidencing or
providing for the creation of or concerning Purchase Money Indebtedness so long
as such covenant or restriction is limited to the property purchased therewith
and (d) any covenant or restriction that (i) is not more burdensome than an
existing Permitted Restrictive Covenant that is such by virtue of clause (b),
(c) or (d), (ii) is contained in a Contract constituting a renewal, extension or
replacement of the Contract in which such existing Permitted Restrictive
Covenant is contained and (iii) is binding only on the Person or Persons bound
by such existing Permitted Restrictive Covenant.
"Person" means any individual, sole proprietorship, corporation, limited
------
liability company, partnership, trust, unincorporated organization, mutual
company, joint stock company, estate, union, employee organization, government
or any agency or political subdivision thereof or, for the purpose of the
definition of "ERISA Affiliate," any trade or business.
"Pledge Agreement" means a Securities and Instrument Pledge Agreement in
----------------
the form of Exhibit E with respect to which the Administrative Agent, if it
---------
shall have requested the same, shall have received an opinion, in form and
substance satisfactory to the Administrative Agent, of counsel, acceptable to
the Administrative Agent, to the effect that such Pledge Agreement has been duly
authorized, executed and delivered by the obligee subject thereto and
constitutes a legally binding agreement of such Person, enforceable against such
Person in accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization and other similar laws affecting the
enforcement of creditors' rights generally or otherwise in the form and
substance satisfactory to the Administrative Agent, pursuant to which the
Borrower shall create Liens on the Collateral in favor of the Administrative
Agent, for the ratable benefit of the Banks.
"Pledgor" means any Person (other than the Administrative Agent) that is
-------
party to a Pledge Agreement.
"Post-Default Rate" means the rate otherwise applicable under Section
-----------------
1.03(a) plus 2.0%.
"Predecessor Indebtedness" means Indebtedness of the Borrower or any
------------------------
Consolidated Subsidiary other than Indebtedness to which Section 4.05 is not
applicable.
"Prepayment" means, with respect to Subordinated Indebtedness, any payment
----------
on account of the principal of such Indebtedness, other than a payment of
principal at a regularly scheduled maturity (without giving affect to any
acceleration or required or optional
78
prepayment), whether such payment is by way of purchase, repayment, defeasance,
redemption or other entitlement.
"Prime Rate" means the prime commercial lending rate of The Bank of New
----------
York, as publicly announced to be in effect from time to time. The Prime Rate
shall be adjusted automatically, without notice, on the effective date of any
change in such prime commercial lending rate. The Prime Rate is not necessarily
The Bank of New York's lowest rate of interest.
"Prohibited Transaction" means any transaction that is prohibited under
----------------------
Code Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408.
"Pro Rata Share," as applied to a Bank means, at any time, the percentage
--------------
obtained by dividing the amount of such Bank's RC Commitment at such time by the
sum of the RC Commitments at such time of all the Banks.
"Purchase Money Indebtedness" means (a) Indebtedness of a Person that is
---------------------------
incurred to finance part or all of (but not more than) the purchase price of a
tangible asset, provided that (i) neither the Borrower nor any Consolidated
--------
Subsidiary had at any time prior to such purchase any interest in such asset
other than a security interest or an interest as lessee under an operating lease
and (ii) such Indebtedness is incurred within 30 days after such purchase, or
(b) Indebtedness that (i) constitutes a renewal, extension or refunding of, but
not an increase in the principal amount of, Purchase Money Indebtedness that is
such by virtue of clause (a) or (b), (ii) bears interest at a rate per annum
that is commercially reasonable at the time such Indebtedness is incurred and
(iii) if the Indebtedness that is being renewed, extended or refunded
constitutes Subordinated Indebtedness, such Indebtedness constitutes
Subordinated Indebtedness.
"▇▇ ▇▇▇▇▇" means, at any time, all of the Banks having, individually, RC
--------
Commitments in excess of zero at such time or, if the RC Commitments shall have
expired or been terminated, any Exposures outstanding at such time.
"RC Commitment" of any Bank means (a) the amount set forth opposite such
-------------
Bank's name under the heading "RC Commitment" on Annex A or, in the case of a
-------
Bank that becomes a Bank pursuant to an assignment, the amount of the assignor's
RC Commitment assigned to such Bank, in either case as the same may be increased
or reduced from time to time pursuant to Section 1.14 or pursuant to assignments
in accordance with Section 10.10(a) or (b) as the context may require, the
obligation of such Bank to make RC Loans and acquire and fund LC Participations
in an aggregate unpaid principal amount not exceeding such amount.
"RC Loan" means any amount advanced by a Bank pursuant to Section 1.01(c).
-------
"RC Note" means any promissory note in the form of Exhibit A-III.
------- -------------
"RC Termination Date" means March 31, 2005.
-------------------
"Register" means a register kept at the Administrative Agent's office by
--------
the Administrative Agent on behalf of the Borrower, at no extra charge to the
Borrower, on which the Administrative Agent records the names of the Registered
holders of Registered Notes.
79
"Registered Holder" means the Person in whose name a Registered Note is
-----------------
registered.
"Registered Note" means a Note the name of the holder of which has been
---------------
recorded on the Register. The registration of a Note shall constitute the
registration of the Loan evidenced thereby.
"Registration Statement" means the Form S-1 Registration Statement filed
----------------------
with the Securities and Exchange Commission by the Borrower on April 6, 1998, as
amended as of April 24, 1998, without giving effect to any subsequent amendments
or modifications thereto, together with the final prospectus dated April [28],
1998 relating to the issue of 25,800,000 shares of common stock of the Borrower,
as originally filed with the Securities and Exchange Commission without giving
effect to any subsequent amendments or modifications thereto, with such changes
to the pricing and number of shares offered in such issuance as the Reviewing
Agents shall have approved.
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
------------
Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the Federal
------------
Reserve System.
"Regulatory Change" means any Applicable Law, interpretation, directive,
-----------------
determination, request or guideline (whether or not having the force of law), or
any change therein or in the administration or enforcement thereof, that is
Enacted after the Agreement Date, including any such that imposes, increases or
modifies any Tax, reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, but excluding any such
that imposes, increases or modifies any Bank Tax.
"Reorganization" means the transactions described and referred to under the
--------------
heading "The Reorganization" in the Registration Statement, including, without
limitation, the acquisition by the Borrower of the MAC Assets and the Offerings
(each as defined in the Registration Statement).
"Repayment Date" means the later of the date of (a) the termination of the
--------------
Commitments (whether as a result of the occurrence of the Term B Termination
Date, reduction to zero pursuant to Section 1.14, or termination pursuant to
Section 6.02), (b) the payment in full of the Loans, the Letter of Credit
Amounts and all other amounts payable or accrued under the Loan Documents and
(c) the termination, and the return to the Issuing Bank, of all Letters of
Credit.
"Reportable Event" means, with respect to any Benefit Plan of any Person,
----------------
(a) the occurrence of any of the events set forth in ERISA Sections 4043(c),
other than an event as to which the requirement of 30 days' notice, or the
penalty for failure to provide such notice, has been waived by the PBGC, (b) the
existence of conditions sufficient to require advance notice to the PBGC
pursuant to ERISA Section 4043(b), (c) the occurrence of any of the events set
forth in ERISA Sections 4062(e) or 4063(a) or the regulations thereunder, (d)
any event requiring such
80
Person or any of its ERISA Affiliates to provide security to such Benefit Plan
under Code Section 401(a)(29) or (e) any failure to make a payment required by
Code Section 412(m) with respect to such Benefit Plan.
"Representation and Warranty" means any representation or warranty made
---------------------------
pursuant to or under (a) Article 2, Article 3, Section 5.02 or any other
provision of this Agreement or (b) any amendment to, or waiver of rights under,
this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY
REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT
MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, at any time, Banks having 51% or more of the
--------------
aggregate amount of the Commitments or, if the Commitments shall have expired or
been terminated, Banks having 51% or more of the aggregated amount of the Term A
Loans, Term B Loans and Exposures outstanding.
"Reserve Requirement" means, at any time, the then current maximum rate for
-------------------
which reserves (including any marginal, supplemental or emergency reserve) are
required to be maintained under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars
against "Eurocurrency liabilities", as that term is used in Regulation D. The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Responsible Officer" of any Person means a chairman, chief executive
-------------------
officer, president, vice president, chief financial officer or treasurer of such
Person, or such other officer of such Person as shall be acceptable to the
Administrative Agent.
"Restricted Payment" means, with respect to any Person, any payment with
------------------
respect to or on account of any of such Person's Capital Securities, including
any dividend or other distribution on, any payment of interest on or principal
of, and any payment on account of any purchase, redemption, retirement,
exchange, defeasance or conversion of, or on account of any claim relating to or
arising out of the offer, sale or purchase of, any such Capital Securities. For
the purposes of this definition, a "payment" shall include the transfer of any
asset or the incurrence of any Indebtedness or other Liability (the amount of
any such payment to be the fair market value of such asset or the amount of such
obligation, respectively) but shall not include the issuance by the Borrower of
any capital stock of the Borrower other than Mandatorily Redeemable Stock.
"Reviewing Agents" means the Administrative Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
----------------
Funding, Inc.
"Secured Obligations" means all Liabilities of the Borrower and each
-------------------
Guarantor owing to, or in favor or for the benefit of, or purporting to be owing
to, or in favor or for the benefit of, the Administrative Agent or any Bank
under the Loan Documents or under any interest rate or currency swap or similar
transaction entered into pursuant to Section 4.22 (including in the case of a
Bank that is the Issuing Bank or the Swing Line Bank, those in favor of such
Bank in such
81
capacity), in each case (i) WHETHER NOW EXISTING OR HEREAFTER ARISING OR
ACQUIRED, (ii) whether owing to, or in favor or for the benefit of, or
purporting to be owing to or in favor or the benefit of, the Person that is the
Administrative Agent or a Bank as of the Agreement Date or any Person or Persons
that become the Administrative Agent or a Bank by reason of any succession or
assignment at any time thereafter and (iii) WHETHER OR NOT AN ALLOWABLE CLAIM
AGAINST THE BORROWER OR SUCH GUARANTOR UNDER THE BANKRUPTCY CODE OR OTHERWISE
ENFORCEABLE AGAINST THE BORROWER OR SUCH GUARANTOR AND INCLUDING, IN ANY EVENT,
INTEREST AND OTHER LIABILITIES ACCRUING OR ARISING AFTER THE FILING BY OR
AGAINST THE BORROWER OR SUCH GUARANTOR OF A PETITION UNDER THE BANKRUPTCY CODE
OR THAT WOULD HAVE SO ACCRUED OR ARISEN BUT FOR THE FILING OF SUCH A PETITION.
"Secured Party" has the meaning ascribed to such term in the Pledge
-------------
Agreements.
"Security Interest" means the Liens created, or purported to be created, by
-----------------
the Loan Documents.
"Senior Leverage Ratio" means, as of any date of determination, the ratio
---------------------
of Consolidated Indebtedness outstanding on such date of determination, less the
aggregate principal amount of Subordinated Indebtedness outstanding on such date
of determination, to Consolidated EBITDA for the four consecutive fiscal
quarters of the Borrower ending on, or most recently ended prior to, such date;
provided that for purposes of determining (a) whether the condition specified in
--------
Section 2.02(c) will be fulfilled as of the requested time for the making of any
Credit Extension, (ii) whether any Restricted Payment is permitted to be made
pursuant to Section 4.08, (iii) whether any Investment is permitted to be made
or Business Units are permitted to be acquired pursuant to Section 4.11 and (iv)
whether any Prepayment of Subordinated Indebtedness is permitted to be made
pursuant to Section 4.14, Consolidated EBITDA shall be calculated on the basis
of the period of four consecutive fiscal quarters ending on the last day of the
most recent fiscal year or fiscal quarter in respect of which the Administrative
Agent shall have received the financial statements delivered, or to be
delivered, pursuant to Section 5.01(a) or (b).
"SOFTBANK Corp." means SOFTBANK Corp., a Japanese corporation.
--------------
"Subordinated Indebtedness" means Indebtedness under the Affiliate Note,
-------------------------
the Subordinated Notes and New Subordinated Indebtedness.
"Subordinated Notes" means the ___% Senior Subordinated Notes of the
------------------
Borrower, due 2008, issued pursuant to the Indenture.
"Subordination Agreement" means a Subordination Agreement substantially in
-----------------------
the form of Exhibit B, with respect to which the Administrative Agent, if it
---------
shall have requested the same, shall have received an opinion, in form and
substance satisfactory to the Administrative Agent, of counsel, acceptable to
the Administrative Agent, to the effect that such Subordination Agreement has
been duly authorized, executed and delivered by the obligee subject thereto and
constitutes a legally binding agreement of such Person, enforceable against such
Person in
82
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization and other similar laws affecting the enforcement of
creditors' rights generally.
"Subsidiary" means, with respect to any Person, any other Person (i)
----------
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions) or (ii) other
ownership interests of which ordinarily constituting a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower, and "Subsidiaries" means the Subsidiaries of the
Borrower.
"Swing Line Availability" means, at any time, the lesser of (a) the Swing
-----------------------
Line Sublimit at such time less the aggregate principal amount of outstanding
Swing Loans at such time and (b) the aggregate amount of the RC Commitments at
such time less the aggregate amount of the Exposures of all of the Banks at such
time.
"Swing Line Bank" means any Bank that, with its consent and the consent of
---------------
each existing Swing Line Bank, if any, is designated as such by the Borrower.
On the Agreement Date such Bank is The Bank of New York.
"Swing Line Bank's Office" means, at any time that the Swing Line Bank is
------------------------
the Administrative Agent, the Administrative Agent's Office and, at any other
time, the address of such Bank determined in accordance with the provisions of
Section 10.01(b).
"Swing Line Sublimit" means at any time $25,000,000.
-------------------
"Swing Loan" means an amount advanced by the Swing Line Bank pursuant to
----------
Section 1.01(d).
"Swing Loan Note" means a promissory note in the form attached hereto as
---------------
Exhibit A-IV.
------------
"Swing Loan Participation" has the meaning ascribed to such term in Section
------------------------
1.05(b)(ii)(A).
"Tax" means any federal, state, local or foreign tax, assessment or other
---
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"Term A Banks" means, at any time, all of the Banks having, individually,
------------
Term A Commitments in excess of zero at such time or, if the Term A Commitments
shall have expired or been terminated, any Term A Loans outstanding at such
time.
"Term A Commitment" of any Bank means (a) the amount set forth opposite
-----------------
such Bank's name under the heading "Term A Commitment" on Annex A or, in the
-------
case of a Bank that becomes a Bank pursuant to an assignment, the amount of the
assignor's Term A Commitment assigned to such Bank, in either case as the same
may be increased or reduced from time to time pursuant to Section 1.14 or
pursuant to assignments in accordance with Section 10.10(a) or (b) as
83
the context may require, the obligation of such Bank to make Term A Loans in an
aggregate unpaid principal amount not exceeding such amount.
"Term A Loan" means any amount advanced by a Bank pursuant to Section
-----------
1.01(a).
"Term A Note" means any promissory note in the form of Exhibit A-I.
----------- -----------
"Term A Termination Date" means March 31, 2005.
-----------------------
"Term B Banks" means, at any time, all of the Banks having, individually,
------------
Term B Commitments in excess of zero at such time or, if the Term B Commitments
shall have expired or been terminated, any Term B Loans outstanding at such
time.
"Term B Commitment" of any Bank means (a) the amount set forth opposite
-----------------
such Bank's name under the heading "Term B Commitment" on Annex A or, in the
-------
case of a Bank that becomes a Bank pursuant to an assignment, the amount of the
assignor's Term B Commitment assigned to such Bank, in either case as the same
may be increased or reduced from time to time pursuant to Section 1.14 or
pursuant to assignments in accordance with Section 10.10(a) or (b) as the
context may require, the obligation of such Bank to make Term B Loans in an
aggregate unpaid principal amount not exceeding such amount.
"Term B Loan" means any amount advanced by a Bank pursuant to Section
-----------
1.01(b).
"Term B Note" means any promissory note in the form of Exhibit A-II.
----------- ------------
"Term B Termination Date" means March 31, 2006.
-----------------------
"Termination Event" means, with respect to any Benefit Plan, (a) any
-----------------
Reportable Event with respect to such Benefit Plan, (b) the termination of such
Benefit Plan, or the filing of a notice of intent to terminate such Benefit
Plan, or the treatment of any amendment to such Benefit Plan as a termination
under ERISA Section 4041(e), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042(a) or (d) the appointment of a
trustee to administer such Benefit Plan under ERISA Section 4042(b).
"Type" means, with respect to Term A Loans, Term B Loans and RC Loans, any
----
of the following, each of which shall be deemed to be a different "Type" of
Loan: Base Rate Loans, Eurodollar Rate Loans having a one-month Interest Period,
Eurodollar Rate Loans having a two-month Interest Period, Eurodollar Rate Loans
having a three-month Interest Period, Eurodollar Rate Loans having a six-month
Interest Period and, if made available by all of the Banks, Eurodollar Rate
Loans having a nine-month Interest Period and Eurodollar Rate Loans having a
twelve-month Interest Period. Any Eurodollar Rate Loan having an Interest
Period that differs from the duration specified for a Type of Eurodollar Rate
Loan listed above solely as a result of the operation of clauses (a) and (b) of
the definition of "Interest Period" shall be deemed to be a Loan of such above-
listed Type notwithstanding such difference in duration of Interest Periods.
"Unfunded Benefit Liabilities" means, with respect to any Benefit Plan at
----------------------------
any time, the amount of unfunded benefit liabilities of such Benefit Plan at
such time as determined under ERISA Section 4001(a)(18).
84
"Uniform Commercial Code" means the Uniform Commercial Code as in effect
-----------------------
from time to time in the State of New York.
"Uniform Customs" means the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
"United States Person" means a corporation, partnership or other entity
--------------------
created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
"Wholly Owned Subsidiary" means, with respect to any Person, any Subsidiary
-----------------------
of such Person (other than, in the case of the Borrower or a Consolidated
Subsidiary, ZDTV) all of the Capital Securities and all other ownership
interests and rights to acquire ownership interests of which (except directors'
qualifying shares) are, directly or indirectly, owned or controlled by such
Person or one or more Wholly Owned Subsidiaries of such Person or by such Person
and one or more of such Subsidiaries; unless otherwise specified, "Wholly Owned
Subsidiary" means a wholly owned subsidiary of the Borrower. For purposes of
Section 3.09 and Section 4.04(b), Capital Securities as used in this definition
shall not include the items referred to in clause (b) of the definition of
Capital Securities.
"ZD Holdings (UK) Ltd." means ZD Holdings (UK) Ltd., a company organized
---------------------
under the laws of England.
"ZDTV" means [ZDTV LLC and/or ZD Television Productions, Inc.]
----
"ZDTV Option" means the Borrower's option to purchase all of the interests
-----------
held by MAC Holdings America, Inc. in ZDTV [pursuant to the License and Services
Agreement.]
Section 11.02 Other Interpretive Provisions.
-----------------------------
(a) Except as otherwise specified herein, all references herein (i)
to any Person shall be deemed to include such Person's successors and assigns,
(ii) to any Applicable Law defined or referred to herein shall be deemed
references to such Applicable Law or any successor Applicable Law as the same
may have been or may be amended or supplemented from time to time and (iii) to
any Loan Document or Contract defined or referred to herein shall be deemed
references to such Loan Document or Contract (and, in the case of any Note or
any other instrument, any instrument issued in substitution therefor) as the
terms thereof may have been or may be amended, supplemented, waived or otherwise
modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
85
(d) Any item or list of items set forth following the word
"including," "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included," such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(e) Each authorization in favor of the Administrative Agent, the
Issuing Bank, the Banks or any other Person granted by or pursuant to this
Agreement shall be deemed to be irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references herein to the
Administrative Agent, the Issuing Bank, the Swing Line Bank, any Bank or any
Loan Party shall be deemed to refer to such Person however designated in Loan
Documents, so that (i) a reference to rights of a Bank under the Loan Documents
shall be deemed to include the rights of such Person as the guaranteed party
under Article 9 and, if such Person is the Swing Line Bank, the rights of such
Person as the Swing Line Bank and, if such Person is the Issuing Bank, the
rights of such Person as the Issuing Bank and (ii) a reference to costs incurred
by a Bank in connection with Loan Documents shall be deemed to include costs
incurred by such Person as the guaranteed party under Article 9, as the Swing
Line Bank and as the Issuing Bank, as the case may be.
(g) except as otherwise specified herein, all references to the time
of day shall be deemed to be to New York City time as then in effect.
Section 11.03 Accounting Matters.
------------------
Unless otherwise specified herein, all accounting determinations hereunder
and all computations utilized by the Borrower in complying with the covenants
contained herein shall be made, all accounting terms used herein shall be
interpreted, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with Generally Accepted Accounting Principles,
except, in the case of such financial statements, for departures from Generally
Accepted Accounting Principles that may from time to time be approved in writing
by the independent certified public accountants who are at the time, in
accordance with Section 5.01(b), reporting on the Borrower's financial
statements.
Section 11.04 Representations and Warranties.
------------------------------
All Representations and Warranties shall be deemed made (a) in the case of
any Representation and Warranty contained in this Agreement at and as of the
Agreement Date, (b) in the case of any Representation and Warranty contained in
this Agreement or any other document delivered in connection with or pursuant to
this Agreement or at the time any Credit Extension is made, at and as of such
time and (c) in the case of any particular Representation and Warranty, wherever
contained, at such other time or times as such Representation and Warranty is
made or deemed made in accordance with the provisions of this Agreement or the
document pursuant to, under or in connection with which such Representation and
Warranty is made or deemed made.
Section 11.05 Captions.
--------
Captions to Articles, Sections and subsections of, and Annexes, Schedules
and Exhibits to, this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose or in
any way affect the meaning or construction of any provision of this Agreement.
86
Section 11.06 Interpretation of Related Documents.
-----------------------------------
Except as otherwise specified therein, terms that are defined herein that
are used in Notes, certificates, opinions and other documents delivered in
connection herewith shall have the meanings ascribed to them herein and such
documents shall be otherwise interpreted in accordance with the provisions of
this Article 11.
87
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Agreement Date.
▇▇▇▇-▇▇▇▇▇ INC.
By:
----------------------------------
Name:
Title:
[GUARANTORS],
as a Guarantor
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent, Issuing Bank,
Swing Line Bank and a Bank
By:
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
----------------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC.
By:
----------------------------------
Name:
Title:
[OTHER BANKS]
By:
----------------------------------
Name:
Title:
Agreement Date: _________________
ANNEX A
-------
BANKS, LENDING OFFICES AND NOTICE ADDRESSES
Banks, Lending Offices
and Notice Addresses Term A Commitment Term B Commitment RC Commitment
-------------------- ----------------- ----------------- -------------
THE BANK OF NEW YORK $_____________ $_____________ $_____________
Domestic Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇/8595
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Banks, Lending Offices
and Notice Addresses Term A Commitment Term B Commitment RC Commitment
-------------------- ----------------- ----------------- -------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR
FUNDING, INC. $_____________ $_____________ $_____________
Domestic Lending Office:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: [(▇▇▇) ▇▇▇-▇▇▇▇]
Telephone No.: [(▇▇▇) ▇▇▇-▇▇▇▇]
Attention: [▇▇. ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇▇]
2
Banks, Lending Offices
and Notice Addresses Term A Commitment Term B Commitment RC Commitment
-------------------- ----------------- ----------------- -------------
THE CHASE MANHATTAN BANK $_____________ $_____________
$_____________
Domestic Lending Office:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
3
Banks, Lending Offices
and Notice Addresses Term A Commitment Term B Commitment RC Commitment
-------------------- ----------------- ----------------- -------------
DLJ CAPITAL FUNDING, INC. $_______________ $_______________ $____________
Domestic Lending Office:
DLJ Capital Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
DLJ Capital Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
DLJ Capital Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: [(▇▇▇) ▇▇▇-▇▇▇▇]
Telephone No.: [(▇▇▇) ▇▇▇-▇▇▇▇]
Attention: [Mr. ▇▇▇▇ ▇▇▇▇▇▇]
4
Banks, Lending Offices
and Notice Addresses Term A Commitment Term B Commitment RC Commitment
-------------------- ----------------- ----------------- -------------
[BANK] $_____________ $_____________ $____________
Domestic Lending Office:
[Bank]
Eurodollar Lending Office:
[Bank]
Notice Address:
[Bank]
Telecopy No.:
Telephone No.:
Attention:
5
Schedule 1.02(a)
NOTICE OF BORROWING
[Name and address
of the Administrative Agent
in accordance with
Section 10.01(b)]
Date:
Ladies and Gentlemen:
Reference is made to the Secured Guaranteed Credit Agreement, dated as of
May [4], 1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement").
The undersigned hereby gives notice pursuant to Section 1.02(a) of the Credit
Agreement of its request to have the following RC Loans made to it on [insert
requested date of borrowing]:
Type of RC Loan/1/ Amount
---------------- ------
The undersigned on behalf of the Borrower, represents and warrants that (a)
the borrowing requested hereby complies with the requirements of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]2 (i) each
Loan Document Representation and Warranty is true and correct at and as of the
date hereof and (except to the extent the undersigned gives notice to the Bank
to the contrary prior to 5:00 p.m. on the Business Day before the requested date
for the making of the RC Loans) will be true and correct at and as of the time
the RC Loans are made, in each case both with and without giving effect to the
RC Loans and the application of the proceeds thereof, and (ii) no Default has
occurred and is continuing as of the date hereof or would result from the making
of the RC Loans or from the application of the
proceeds thereof if the RC Loans were made on the date hereof, and (except to
the extent the undersigned gives notice to the Bank to the contrary prior to
5:00 p.m. on the Business Day before the requested date for the making of the RC
Loans) no Default will have occurred and be continuing at the time the RC Loans
are to be made or would result from the making of the RC Loans or from the
application of the proceeds thereof.
▇▇▇▇-▇▇▇▇▇ INC.
By:
--------------------------------
Name:
Title:
----------
1 Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
----
2 If the representation and warranty in either clause (b)(i) or (b)(ii) would
be incorrect, include the material in brackets and set forth the reasons such
representation and warranty would be incorrect on an attachment labeled Annex
A.
2
Schedule 1.03(c)
NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of the Administrative Agent in accordance with
Section 10.01(b)]
Date:
Ladies and Gentlemen:
Reference is made to the Secured Guaranteed Credit Agreement, dated as of
May [4], 1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement").
The undersigned hereby gives notice pursuant to Section 1.03(c) of the Credit
Agreement of its desire to convert or continue the Loans specified below into or
as Loans of the Types and in the amounts specified below on [insert date of
conversion or continuation]:
Loans to be Converted or Continued Converted or Continued Loans
----------------------------------------------------------- ------------------------------------------
Last Day of Current Type of
Type of Loan/1/ Interest Period Amount Loan /1/ Amount
-------------------- ---------------------- ------------- -------------------------- --------------
The undersigned represents and warrants that conversions and continuations
requested hereby comply with the requirements of the Credit Agreement.
▇▇▇▇-▇▇▇▇▇ INC.
By:
---------------------------------
Name:
Title:
1 Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
----
Schedule 1.05
NOTICE OF PREPAYMENT
[Name and address
of the Administrative Agent in accordance with
Section 10.01(b)]
[Name and address of the Swing Line Bank in
accordance with Section 10.01(b)]/1/
Date:
Ladies and Gentlemen:
Reference is made to the Secured Guaranteed Credit Agreement, dated as of
May [4], 1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement").
The undersigned hereby gives notice pursuant to Section 1.05 of the Credit
Agreement that it will prepay the [Term [A][B]] [RC] [Swing]/2/ Loans specified
below on [insert date of prepayment]:
Last Day of
Type of [Term[A][B]] [RC] [Current] [Agreed Rate]
[Swing] Loan Interest Period/3/ Amount
------------ ----------------- ------
The undersigned represents and warrants that the prepayment requested
hereby complies with the requirements of the Credit Agreement.
▇▇▇▇-▇▇▇▇▇ INC.
By:________________________
Name:
Title:
1 Include if Swing Loans are to be prepaid and the Swing Line Bank is not the
Administrative Agent.
2 Specify whether RC, Swing or Term A or B Loans. Be sure to specify duration
of the Interest Period or the Agreed Rate Interest Period, as applicable, in
the case of Eurodollar Rate Loans and Agreed Rate Loans (e.g., one-month
----
Eurodollar Rate, two-day Agreed Rate, as applicable).
/3/ Insert as applicable.
Schedule 1.20 (c)
-----------------
NON-US BANK CERTIFICATE
[Name and address
of Borrower in accordance with
Section 10.01(b)]
[Name and address
of Administrative Agent in accordance with
Section 10.01(b)]
Gentlemen:
Reference is made to the Secured Guaranteed Credit Agreement dated as of
May [4], 1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement").
Terms used herein that are defined in the Credit Agreement are used with the
meanings therein ascribed to them.
The undersigned hereby (a) certifies to the Borrower and the Administrative
Agent that (i) it is a Non-US Bank and (ii) it is entitled to submit an Internal
Revenue Service Form W-8 and (b) agrees to indemnify and defend the Borrower and
the Administrative Agent from, and hold each of them harmless against, any and
all losses, liabilities, claims, damages and expenses of any kind arising out
of, resulting from, or in any way connected with the certification made pursuant
to clause (a) being incorrect.
Very truly yours,
[Bank]
By:
------------------------
Name:
Title:
Schedule 2.01(a)(i)
-------------------
[NAME OF LOAN PARTY]
CERTIFICATE AS TO RESOLUTIONS, ETC.
I, __________, [Assistant] Secretary of [name of Loan Party], a
__________ [corporation/partnership] (the "Company"), hereby certify, pursuant
to Section 2.01(a)(i) of the Guaranteed Credit Agreement dated as of May [4],
1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ Capital
Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto, that:
1. The below named persons have been duly elected (or appointed) and
have duly qualified as, and on this day are, officers of the Company
holding their respective offices below set opposite their names, and the
signatures below set opposite their names are their genuine signatures:
Name Office Signature
---- ------ ---------
[Insert names and offices of persons authorized to sign the Loan Documents
to which the Company is a party and any related documents]
2. (a) Attached as Annex A is a true and correct copy of
[resolutions/consents] duly adopted by [written consents of] the [Board of
Directors/partners] of the Company. Such [resolutions/consents] have not
been amended, modified or revoked and are in full force and effect on the
date hereof.
[(b) Attached as Annex A-1 is a true and correct copy of
resolutions duly adopted by [unanimous written consent of] the stockholders
of the Company. Such resolutions have not been amended, modified or
revoked and are in full force and effect on the date hereof. ]/1/
[(b) Attached as Annex A-2 is a true and correct copy of the
minutes and by-laws or the Articles of Incorporation of the Company. Such
minutes and by-laws or
----------
1 Omit if not applicable.
Articles of Incorporation have not been amended, modified or revoked and are in
full force and effect on the date hereof.]/2/
3. [List Loan Documents to which the Company is a party], in each
case as executed and delivered on behalf of the Company, are in the forms
thereof approved by [unanimous written consent of] the [Board of
Directors/partners] of the Company.
[4. There has been no amendment to [the Certificate of Incorporation]
[partnership agreement] of the Company since __________, 19__./3/]/1/
[5. Attached as Annex B is a true and correct copy of the By-laws of
the Company as in effect on __________, 19__4 and at all subsequent times
to and including the date hereof.]/1/
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 19__.
___________________________
[Assistant] Secretary
I, __________, [title] of the Company, hereby certify that [name of
the above [Assistant] Secretary] has been duly elected or appointed and has been
duly qualified as, and on this day is, [Assistant] Secretary of the Company, and
the signature in paragraph 1 above is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 19__.
___________________________
[Title]
----------
1 Omit if not applicable.
2 Use this alternate clause (b) for Subordiantors MAC Inc. and SOFTBANK Corp.
and other Loan Parties as appropriate.
3 Insert date of the Secretary of State's Certificate of Incorporation required
by Section 2.01(a)(ii).
4 Insert date of the Board of Directors' meeting adopting the resolutions
referred to in paragraph 2(a).
2
Annex A
-------
[NAME OF LOAN PARTY]
RESOLUTIONS OF BOARD OF DIRECTORS
Annex A-1
---------
[NAME OF LOAN PARTY]
RESOLUTIONS OF SHAREHOLDERS
[Insert applicable resolutions]
Annex A-2
---------
[NAME OF LOAN PARTY]
[MINUTES AND BY-LAWS/ARTICLES OF INCORPORATION]
Schedule 3.02
-------------
SCHEDULE OF SUBSIDIARIES
Schedule 3.03
-------------
SCHEDULE OF REQUIRED CONSENTS,
GOVERNMENTAL APPROVALS
AND GOVERNMENTAL REGISTRATIONS
Schedule 3.06
-------------
SCHEDULE OF MATERIAL LITIGATION
Schedule 4.05
-------------
SCHEDULE OF INDEBTEDNESS
Schedule 4.06
-------------
SCHEDULE OF EXISTING GUARANTIES
Schedule 4.07
-------------
SCHEDULE OF EXISTING LIENS
Obligation Secured Collateral
------------------ ----------
Schedule 4.11
-------------
SCHEDULE OF EXISTING INVESTMENTS
Schedule 4.12
-------------
SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 5.01(b)
----------------
▇▇▇▇-▇▇▇▇▇ INC.
CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
I, __________, [President, Chief Financial Officer] of ▇▇▇▇-▇▇▇▇▇
Inc., a Delaware corporation (the "Borrower"), hereby certify, pursuant to
Section 5.01 of the Secured Guaranteed Credit Agreement dated as of May [4],
1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ Capital
Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto, that:
1. (a) The accompanying [unaudited]1 consolidated and consolidating
financial statements of the Borrower and the Consolidated Subsidiaries as at
__________ and for the [fiscal year][quarterly accounting period]2 ending
__________, are complete and correct and present fairly, in accordance with
Generally Accepted Accounting Principles (except for changes therein or
departures therefrom described below that have been approved in writing by
Messrs. __________, the Borrower's current independent certified public
accountants), the consolidated and consolidating financial position of the
Borrower and the Consolidated Subsidiaries as at the end of such [fiscal
year][quarterly period]2, and the consolidated and consolidating results of
operations and cash flows for such quarterly period, and for the elapsed portion
of the fiscal year ended with the last day of [fiscal year][such quarterly
period]2, in each case on the basis presented [and subject only to normal year-
end auditing adjustments]1.
(b) Except as disclosed or reflected in such financial statements, as
at __________, neither the Borrower nor any Subsidiary had any Liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, have had or might have a Materially Adverse Effect on the
Borrower and the Consolidated Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted
Accounting Principles are as follows:
All such changes have been approved in writing by Messrs. __________.
3. There follow the calculations required to establish whether or not
the Borrower was in compliance with the following Sections of the Agreement:4
(a)
(b)
(c)
(d)
(e)
4. Based on an examination sufficient to enable me to make an
informed statement, no Default exists, including, in particular, any such
arising under the provisions of Article 4, except the following:
[If none such exist, insert "None"; if any do exist, specify the
same by Section, give the date the same occurred, and the steps being taken
by the Borrower or a Subsidiary with respect thereto.]
Dated:
[President, Chief Financial Officer]
_______________
1 Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2 Include first alternative in the case of a certificate to be delivered with
respect to year-end financial statements; include second alternative in the
case of a certificate to be delivered with respect to quarterly financial
statements.
3 Paragraph (b) should be included in, and Annex A attached to, the Certificate
only if changes from Generally Accepted Accounting Principles are specified
in Paragraph 2(a) of this or any previous Certificate.
4 The calculations should be made in the same manner and with the same degree
of detail as the calculations set forth in the certificate delivered by the
Borrower pursuant to Section [2.01(a)(vi)].
2
Schedule 5.02(a)
----------------
SCHEDULE OF HISTORICAL FINANCIAL STATEMENTS
Schedule 9.01
-------------
SCHEDULE OF GUARANTORS
Schedule 10.10(a)
-----------------
NOTICE OF ASSIGNMENT
[Name and address
of Borrower in accordance with
Section 10.01(b)]
[Name and address
of Administrative Agent in accordance with
Section 10.01(b)]
[Name and address
of Issuing Bank in, accordance with
Section 10.01(b)]/1/
[Name and address of Swing Line Bank in
accordance with Section 10.01(b)]/1/
Date:
Gentlemen:
Reference is made to the Secured Guaranteed Credit Agreement, dated as
of May [4], 1998 among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement").
The undersigned hereby gives notice that [name of Assignor] [(the "Assignor")] 2
has made the following assignment to [name of Assignee] [(the "Assignee")]:3
Rights and Obligations
Assigned:
----------
1 Include if not the Administrative Agent.
2 Include definition if Footnote 4 material is to be included.
3 Include definition if Footnote 3 or Footnote 4 material is to be included.
Effective Date of
Assignment:
[The Assignee's Lending Offices and address for notices are as
follows:
Domestic Lending Office:
Eurodollar Lending Office:
Notice Address:]/4/
[The Assignor hereby requests that [the Borrower and] [the
Administrative Agent] [the Issuing Bank] [the Swing Line Bank] consent to the
assignment described above by signing a copy of this letter in the space
provided below and returning it to the Assignor. Such consent shall release the
Assignor from all of the obligations described above as having been assigned to
the Assignee.]5
[NAME OF ASSIGNOR]
By:
---------------------
Name:
Title:
[NAME OF ASSIGNEE]
By:
---------------------
Name:
Title:
[Assignment and release consented to:]5
▇▇▇▇-▇▇▇▇▇ INC.
By:
---------------------
Name:
Title:
--------------------
4 Omit if the Assignee is a Bank.
5 Include the appropriate portion of the bracketed provision if (i) the
Assignor desires to be released from the assigned obligations, (ii) the
consent of the Borrower and/or the Agent is required for such release and
(iii) the Assignor has not otherwise obtained such consents.
2
THE BANK OF NEW YORK,
as Administrative Agent
By:
---------------------
Name:
Title:
[SWING LINE BANK]
---------------------
Name:
Title:
[ISSUING BANK]
---------------------
Name:
Title:
3
EXHIBIT A-I
-----------
▇▇▇▇-▇▇▇▇▇ INC.
TERM A NOTE
___________, 1998
FOR VALUE RECEIVED, ▇▇▇▇-▇▇▇▇▇ INC. (the "Borrower") hereby promises
to pay to the order of _______________________ (the "Bank") the principal amount
of the Term A Loans made by the Bank, on the dates and in the amounts specified
in Section 1.04 of the Credit Agreement referred to below, and to pay interest
on the principal amount of each Term A Loan on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 1.18 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Term A Loan and each payment with
respect thereto, provided that the failure of the Bank to make any such
endorsement shall not affect the obligations of the Borrower hereunder or under
such Credit Agreement.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences Term A Loans made by the Bank under, and is
entitled to the benefits of, the Secured Guaranteed Credit Agreement, dated as
of May [4], 1998, among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto, as the same may be
amended from time to time (the "Credit Agreement"). Reference is made to such
Credit Agreement, as so amended, for provisions relating to the prepayment and
the acceleration of the maturity hereof.
This Note shall, pursuant to New York General Obligations Law Section
5-1401, be governed by the law of the State of New York.
[This is a Registered Note, and it and the Loans evidenced hereby may
be assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer on the Register and compliance with the other
requirements provided for in the Credit Agreement.]
▇▇▇▇-▇▇▇▇▇ INC.
By:
---------------------
Name:
Title:
2
GRID
PROMISSORY NOTE
--------------------------------------------------------------------------------
Amount of Amount of Notation
Date Loan Principal Repaid Made By
---- ---- ---------------- -------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
EXHIBIT A-II
------------
▇▇▇▇-▇▇▇▇▇ INC.
TERM B NOTE
___________, 1998
FOR VALUE RECEIVED, ▇▇▇▇-▇▇▇▇▇ INC. (the "Borrower") hereby promises
to pay to the order of _______________________ (the "Bank") the principal amount
of the Term B Loans made by the Bank, on the dates and in the amounts specified
in Section 1.04 of the Credit Agreement referred to below, and to pay interest
on the principal amount of each Term B Loan on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 1.18 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Term B Loan and each payment with
respect thereto, provided that the failure of the Bank to make any such
endorsement shall not affect the obligations of the Borrower hereunder or under
such Credit Agreement.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences Term B Loans made by the Bank under, and is
entitled to the benefits of, the Secured Guaranteed Credit Agreement, dated as
of May [4], 1998, among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto, as the same may be
amended from time to time (the "Credit Agreement"). Reference is made to such
Credit Agreement, as so amended, for provisions relating to the prepayment and
the acceleration of the maturity hereof.
This Note shall, pursuant to New York General Obligations Law Section
5-1401, be governed by the law of the State of New York.
[This is a Registered Note, and it and the Loans evidenced hereby may
be assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer on the Register and compliance with the other
requirements provided for in the Credit Agreement.]
▇▇▇▇-▇▇▇▇▇ INC.
By:
-----------------
Name:
Title:
2
GRID
PROMISSORY NOTE
--------------------------------------------------------------------------------
Amount of Amount of Notation
Date Loan Principal Repaid Made By
---- ---- ---------------- -------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
EXHIBIT A-III
-------------
▇▇▇▇-▇▇▇▇▇ INC.
RC NOTE
_______, 1998
FOR VALUE RECEIVED, ▇▇▇▇-▇▇▇▇▇ INC. (the "Borrower") hereby promises
to pay to the order of _______________________ (the "Bank") the principal amount
of the RC Loans made by the Bank, on the dates and in the amounts specified in
Section 1.04 of the Credit Agreement referred to below, and to pay interest on
the principal amount of each RC Loan on the dates and at the rates specified in
Section 1.03 of such Credit Agreement. All payments due the Bank hereunder
shall be made to the Bank at the place, in the type of money and funds and in
the manner specified in Section 1.18 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each RC Loan and each payment with respect
thereto, provided that the failure of the Bank to make any such endorsement
shall not affect the obligations of the Borrower hereunder or under such Credit
Agreement.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences RC Loans made by the Bank under, and is entitled
to the benefits of, the Secured Guaranteed Credit Agreement, dated as of May
[4], 1998, among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ Capital
Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto, as the same may be
amended from time to time (the "Credit Agreement"). Reference is made to such
Credit Agreement, as so amended, for provisions relating to the prepayment and
the acceleration of the maturity hereof.
This Note shall, pursuant to New York General Obligations Law Section
5-1401, be governed by the law of the State of New York.
[This is a Registered Note, and it and the Loans evidenced hereby may
be assigned or otherwise transferred in whole or in part only by registration of
such assignment
or transfer on the Register and compliance with the other requirements
provided for in the Credit Agreement.]
▇▇▇▇-▇▇▇▇▇ INC.
By:
--------------------
Name:
Title:
2
GRID
PROMISSORY NOTE
--------------------------------------------------------------------------------
Amount of Amount of Notation
Date Loan Principal Repaid Made By
---- ---- ---------------- -------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
EXHIBIT A-IV
------------
▇▇▇▇-▇▇▇▇▇ INC.
SWING LOAN NOTE
_______, 1998
FOR VALUE RECEIVED, ▇▇▇▇-▇▇▇▇▇ INC. (the "Borrower") hereby promises
to pay to the order of _______________________ (the "Swing Line Bank") the
principal amount of the Swing Loans made by the Swing Line Bank, on the dates
and in the amounts specified in Section 1.04 of the Credit Agreement referred to
below, and to pay interest on the principal amount of each Swing Loan on the
dates and at the rates specified in Section 1.03 of such Credit Agreement. All
payments due the Swing Line Bank hereunder shall be made to the Swing Line Bank
at the place, in the type of money and funds and in the manner specified in
Section 1.18 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Swing Loan and each payment with
respect thereto, provided that the failure of the Bank to make any such
endorsement shall not affect the obligations of the Borrower hereunder or under
such Credit Agreement.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences Swing Loans made by the Swing Line Bank under, and
is entitled to the benefits of, the Secured Guaranteed Credit Agreement, dated
as of May [4], 1998, among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and
DLJ Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto, as the same may be
amended from time to time (the "Credit Agreement"). Reference is made to such
Credit Agreement, as so amended, for provisions relating to the prepayment and
the acceleration of the maturity hereof.
This Note shall, pursuant to New York General Obligations Law Section
5-1401, be governed by the law of the State of New York.
▇▇▇▇-▇▇▇▇▇ INC.
By:
---------------------
Name:
Title:
GRID
PROMISSORY NOTE
--------------------------------------------------------------------------------
Amount of Amount of Notation
Date Loan Principal Repaid Made By
---- ---- ---------------- -------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
EXHIBIT B
---------
[FORM OF SUBORDINATION AGREEMENT]
EXHIBIT C
---------
COMMITMENT INCREASE SUPPLEMENT
THIS COMMITMENT INCREASE SUPPLEMENT is made and dated as of
_________________ ____, by and among [ADDITIONAL COMMITMENT BANK] (the
"Additional Commitment Bank"), Ziff ▇▇▇▇▇ Inc., a Delaware corporation (the
"Borrower"), and The Bank of New York, as Administrative Agent under the Secured
Guaranteed Credit Agreement, dated as of May [4], 1998, among ▇▇▇▇-▇▇▇▇▇ Inc.,
the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Syndication
Agent, The Chase Manhattan Bank and DLJ Capital Funding, Inc., as Co-
Documentation Agents, The Bank of New York, as Administrative Agent, and the
Guarantors party thereto (the "Credit Agreement"). Terms used and not otherwise
defined herein are used herein with the meanings therein ascribed thereto in the
Credit Agreement.
WHEREAS, the Borrower desires to have the aggregate amount of the
Commitments increased; and
WHEREAS, the Additional Commitment Bank is willing to [become an additional
Bank][increase its Commitment]1;
NOW, THEREFORE, the parties hereto agree as follows:
1. Upon the effectiveness of this Commitment Increase Supplement, [the
Additional Commitment Lender shall be a party to the Credit Agreement and shall
be entitled to all of the rights, and be subject to all of the obligations, of a
Bank under the Credit Agreement][the RC Commitment of the Additional Commitment
Bank shall be increased from $_____________ to $__________________.]1
[2. The initial amount of the Additional Commitment Bank's RC Commitment shall
be $________________.]2
3. The Additional Commitment Bank acknowledges, and agrees to comply with,
its obligation under Section 1.14(c) of the Credit Agreement to purchase
assignments of [Loans] from the other Banks on the effective date hereof.
4. This Commitment Increase Supplement shall become effective upon the
execution and delivery hereof by the Additional Commitment Bank, the Borrower
and the Administrative Agent, which Commitment Increase Supplement is subject to
the consent of the Administrative Agent.
____________________________
1 Use second alternative if the Additional Commitment Bank is an existing Bank;
otherwise use the first alternative.
2 Omit if the Additional Commitment Bank is an existing Bank.
5. This Commitment Increase Supplement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
6. The rights and duties of the parties to this Commitment Increase
Supplement shall, pursuant to New York General Obligations Law Section 5-1401,
be governed by the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have cause this Commitment Increase
Supplement to be executed as of the day and year first written above.
[ADDITIONAL COMMITMENT LENDER]
By:
----------------------------
Name:
Title:
▇▇▇▇-▇▇▇▇▇ INC.
By:
----------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent
By:
----------------------------
Name:
Title:
2
EXHIBIT D
---------
[TERMS OF COMMITMENT INCREASE ASSIGNMENTS/1/
Each assignment of Loans by any Bank (an "Assignor") to an Additional
Commitment Bank (an "Assignee") pursuant to Section 1.14(c) (an "Assignment")
shall be made on the terms set forth in this Exhibit.
1. The purchase price for the Assignment shall be equal to the aggregate
principal amount of the Loans assigned plus the amount of accrued and unpaid
interest thereon on the date of the assignment. The purchase price shall be
payable, not later than 12:00 noon New York City time on the effective date of
the applicable Commitment Increase, in Dollars in funds immediately available
to the Assignor at such office of the Assignor (or a commercial bank designated
by it) located in the United States as the Assignor shall specify to the
Assignee.
2. The Assignment shall consist of an equal percentage of all Loans of the
Assignor outstanding and shall include all of the Assignor's rights under the
Credit Agreement and the other Loan Documents in respect of the portion of the
Loans of the Assignor assigned, including accrued interest thereon.
3. The Assignment shall be without recourse to the Assignor. The Assignor
shall not be deemed to have made any representation or warranty or to have
assumed any responsibility with respect to (a) any statements, warranties or
representations made in or in connection with the Credit Agreement, any other
Loan Document or any other instrument or document furnished pursuant thereto or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than as set forth in paragraph 4
below, or (b) the financial condition of the Borrower or any of its
Subsidiaries, or the performance or observance by the Borrower or any of its
Subsidiaries of any of their respective obligations under the Credit Agreement,
any other Loan Document or any other instrument or document furnished pursuant
thereto.
4. The Assignor shall, at the time of the Assignment, be deemed to have
represented and warranted that (a) it has full power, authority and legal right
to make the Assignment and (b) it is the legal and beneficial owner of the
rights assigned and such rights are free and clear of any lien or adverse claim,
including any participation.
5. The Assignee shall, at the time of the Assignment, be deemed to have (a)
represented and warranted that it has full power, authority and legal right to
purchase and assume the Assignment; (b) confirmed that it has received a copy of
the Credit Agreement and all other
----------
/1/ Conform to terms of 1.14(c) when agreed.
3
Loan Documents, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 of the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to purchase and assume the Assignment; and (c) agreed that
it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement and
the other Loan Documents.]
4
EXHIBIT E
---------
[FORM OF PLEDGE AGREEMENT]
EXHIBIT F
---------
GUARANTOR SUPPLEMENT
Reference is made to the Secured Guaranteed Credit Agreement dated as
of May [4], 1998, among ▇▇▇▇-▇▇▇▇▇ Inc., the Banks party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement");
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in, or by reference in, the Credit Agreement. The
undersigned hereby agrees that upon delivery hereof to the Bank the undersigned
shall be and become a Guarantor for all purposes of the Credit Agreement as
fully and to the same extent as if it were an original signatory thereto.
[Name of Guarantor]
By:
------------------------
Name:
Title:
Dated:
Notice Address:
Attention:
Telephone:
Telecopy: