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EXHIBIT 2.2
[$475,000,000]
CREDIT AGREEMENT
Dated as of May 12, 1999
As Amended and Restated as of January 2, 2001
Among
MEDIANEWS GROUP, INC.
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HEREOF,
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF,
BANK OF AMERICA NT&SA, as Syndication Agent,
FIRST UNION NATIONAL BANK, as Documentation Agent
FLEET NATIONAL BANK, as Co-Documentation Agent
and
THE BANK OF NEW YORK,
as Administrative Agent
Lead Arrangers and Book Managers:
BNY Capital Markets, Inc.
and
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
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TABLE OF CONTENTS
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Article I. CREDIT FACILITY....................................................1
Section 1.01 Commitment to Lend..........................................1
Section 1.02 Manner of Borrowing of RC Loans.............................3
Section 1.03 Letters of Credit...........................................4
Section 1.04 Interest....................................................8
Section 1.05 Repayment..................................................10
Section 1.06 Prepayments................................................11
Section 1.07 Limitation on Types of Loans...............................12
Section 1.08 Reduction and Termination of RC Commitments................12
Section 1.09 Fees.......................................................14
Section 1.10 Computation of Interest and Fees...........................14
Section 1.11 Evidence of Indebtedness...................................14
Section 1.12 Payments by the Borrower...................................15
Section 1.13 Distribution of Payments by the Administrative Agent.......16
Section 1.14 Taxes on Payments..........................................16
Section 1.15 Pro Rata Treatment.........................................19
Article II. CONDITIONS TO EFFECTIVENESS; CONDITIONS TO LOANS AND LETTERS OF
CREDIT........................................................19
Section 2.01 Conditions to Effectiveness................................19
Section 2.02 Conditions to Each Loan and Letter of Credit...............20
Article III. CERTAIN REPRESENTATIONS AND WARRANTIES..........................21
Section 3.01 Organization; Power; Qualification.........................21
Section 3.02 Subsidiaries...............................................21
Section 3.03 Authorization; Enforceability; Required Consents; Absence
of Conflicts.............................................22
Section 3.04 Taxes......................................................22
Section 3.05 Litigation.................................................23
Section 3.06 Burdensome Provisions......................................23
Section 3.07 No Adverse Change or Event.................................23
Section 3.08 Additional Adverse Facts...................................23
Section 3.09 Investment Company Act.....................................23
Section 3.10 Substance Release and Disposal.............................24
Section 3.11 Senior Obligations.........................................24
Article IV. CERTAIN COVENANTS................................................24
Section 4.01 ...........................................................24
Section 4.02 Insurance..................................................25
Section 4.03 Additional Subsidiaries....................................25
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Section 4.04 Use of Proceeds............................................26
Section 4.05 Indebtedness...............................................26
Section 4.06 Guaranties.................................................26
Section 4.07 Liens......................................................27
Section 4.08 Restricted Payments........................................27
Section 4.09 Merger or Consolidation, Acquisitions......................28
Section 4.10 Disposition of Assets......................................28
Section 4.11 Investments................................................30
Section 4.12 Taxes of Other Persons.....................................30
Section 4.13 Benefit Plans..............................................30
Section 4.14 Transactions with Affiliates...............................30
Section 4.15 Limitation on Restrictive Covenants........................31
Section 4.16 Issuance or Disposition of Capital Securities..............31
Section 4.17 Substance Storage and Disposal.............................32
Section 4.18 Denver Tax Sharing Agreement; Salt Lake Acquisition
Documents................................................32
Section 4.19 Certain Restrictions with Respect to Other Indebtedness....32
Section 4.20 Ratio of Consolidated Debt to Operating Cash Flow..........33
Section 4.21 Ratio of Consolidated Senior Debt to Operating Cash Flow...33
Section 4.22 Pro Forma Interest Coverage................................33
Section 4.23 Pro Forma Debt Service Coverage............................33
Section 4.24 Fixed Charge Coverage......................................33
Section 4.25 Certain Activities of the California Partnership...........33
Section 4.26 Certain Activities of Denver; Denver Acquisition
Documents................................................34
Section 4.27 Master Intercompany Note...................................34
Article V. INFORMATION.......................................................34
Section 5.01 Information to Be Furnished................................34
Section 5.02 Accuracy of Financial Statements and Information...........37
Section 5.03 Additional Covenants Relating to Disclosure................39
Section 5.04 Authorization of Third Parties to Deliver Information and
Discuss Affairs..........................................39
Article VI. DEFAULT..........................................................39
Section 6.01 Events of Default..........................................39
Section 6.02 Remedies Upon Event of Default.............................42
Article VII. ADDITIONAL CREDIT FACILITY PROVISIONS...........................43
Section 7.01 Mandatory Suspension and Conversion of Eurodollar Rate
Loans....................................................43
Section 7.02 Regulatory Changes.........................................44
Section 7.03 Funding Losses.............................................44
Section 7.04 Certain Determinations.....................................45
Section 7.05 Change of Lending Office...................................45
Article VIII. THE AGENTS.....................................................46
Section 8.01 Appointment and Powers.....................................46
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Section 8.02 Limitation on Administrative Agent's Liability.............46
Section 8.03 Defaults...................................................47
Section 8.04 Rights as a Bank...........................................47
Section 8.05 Indemnification............................................47
Section 8.06 Non-Reliance on Administrative Agent and Other Banks.......47
Section 8.07 Execution and Amendment of Loan Documents on Behalf of the
Banks....................................................48
Section 8.08 Resignation of the Administrative Agent....................48
Article IX. MISCELLANEOUS....................................................49
Section 9.01 Notices and Deliveries.....................................49
Section 9.02 Expenses; Indemnification..................................52
Section 9.03 Amounts Payable Due Upon Request for Payment...............53
Section 9.04 Remedies of the Essence....................................53
Section 9.05 Rights Cumulative..........................................53
Section 9.06 Confidentiality............................................53
Section 9.07 Amendments; Waivers........................................54
Section 9.08 Set-Off; Suspension of Payment and Performance.............55
Section 9.09 Sharing of Recoveries......................................55
Section 9.10 Assignments and Participations.............................56
Section 9.11 Governing Law..............................................58
Section 9.12 Judicial Proceedings; Waiver of Jury Trial.................58
Section 9.13 Limitation of Liability....................................59
Section 9.14 Severability of Provisions.................................59
Section 9.15 Counterparts...............................................59
Section 9.16 Survival of Obligations....................................59
Section 9.17 Entire Agreement...........................................59
Section 9.18 Successors and Assigns.....................................59
Section 9.19 Cash Collateral............................................59
Section 9.20 Existing Pledge Agreements.................................60
Article X. GUARANTY..........................................................60
Section 10.01 Guaranty of Payment and Performance........................60
Section 10.02 Limitation on Guaranty.....................................60
Section 10.03 Continuance and Acceleration of Guaranteed Obligations upon
Certain Events. If:.....................................61
Section 10.04 Recovered Payments.........................................61
Section 10.05 Binding Nature of Certain Adjudications....................62
Section 10.06 Nature of Guarantor's Obligations..........................62
Section 10.07 No Release of Guarantor....................................62
Section 10.08 Certain Waivers............................................63
Section 10.09 Independent Credit Evaluation..............................64
Section 10.10 Subordination of Rights Against the Borrower, Other
Guarantors and Collateral................................64
Section 10.11 Economic Benefits; Solvency................................64
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Article XI. INTERPRETATION...................................................65
Section 11.01 Defined Terms..............................................65
Section 11.02 Other Interpretive Provisions..............................91
Section 11.03 Accounting Matters.........................................92
Section 11.04 Representations and Warranties.............................92
Section 11.05 Captions...................................................92
Section 11.06 Interpretation of Related Documents........................92
ANNEX A
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CREDIT AGREEMENT
Dated as of May 12, 1999
As Amended and Restated as of January 2, 2001
MEDIANEWS GROUP, INC., a Delaware corporation, the GUARANTORS listed on
the signature pages hereof, the BANKS listed on the signature pages hereof, BANK
OF AMERICA NT&SA, as Syndication Agent, FIRST UNION NATIONAL BANK, as
Documentation Agent, FLEET NATIONAL BANK, as Co-Documentation Agent, and THE
BANK OF NEW YORK, as Administrative Agent, agree that the Credit Agreement among
them dated as of May 12, 1999 and amended and restated as of June 30, 1999 shall
be amended and restated, effective, subject to the conditions to effectiveness
set forth in Section 2.01, as of the Restated Agreement Date, to read in its
entirety as follows (with certain terms used herein being defined in Article
11):
ARTICLE I.
CREDIT FACILITY
Section 1.01 Commitment to Lend.
(a) Term Loans. Upon the terms and subject to the conditions
of this Agreement, each Bank having a Term Loan Commitment agrees to make, on
the Restated Agreement Date, a Term Loan to the Borrower in an aggregate
principal amount not exceeding such Bank's Term Loan Commitment. The aggregate
amount of the Term Loan Commitments on the Restated Agreement Date is
$125,000,000.
(b) RC Loans. Upon the terms and subject to the conditions of
this Agreement, each Bank having an RC Commitment agrees to make, from time to
time during the period from the Restated Agreement Date to but excluding the RC
Maturity 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 minus the sum of (A) the aggregate amount of such Bank's Letter of Credit
Participations at such time and (B) such Bank's Swing Loan Percentage of the
aggregate principal amount of the Swing Loans outstanding at such time. The
aggregate amount of the RC Commitments on the Restated Agreement Date is
$350,000,000. Upon the effectiveness of the amendment and restatement of this
Agreement as of the Restated Agreement Date, all Loans (as defined in this
Agreement prior to such amendment and restatement) outstanding immediately prior
to such effectiveness shall be deemed to be RC Loans outstanding hereunder.
(c) Swing Loans.
(i) Upon the terms and subject to the conditions of this
Agreement, the Swing Loan Lender agrees to make, from time to time from
the Restated Agreement Date to but excluding the RC Maturity Date, one
or more Swing Loans to the Borrower in an aggregate unpaid principal
amount not exceeding at any time the lesser of (A) the aggregate amount
of the RC Commitments at such time minus the sum of the aggregate
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unpaid principal amount of all RC Loans and Swing Loans outstanding at
such time and the aggregate amount of the Letter of Credit
Participations outstanding at such time and (B) $10,000,000. All Swing
Loans shall be in an amount not less than $100,000 and shall be in an
integral multiple of $50,000 and shall be made and maintained as Base
Rate Loans. All Swing Loans shall be disbursed by the Swing Loan Lender
in Dollars in funds immediately available to the Borrower by credit to
an account of the Borrower at the Swing Loan Lender's Domestic Lending
Office, or in such other manner as may have been specified in the
applicable notice of borrowing and as shall be acceptable to the Swing
Loan Lender, on the day requested, if such request is received not
later than 2:00 p.m. (New York time) on such day, and if received
thereafter on any Business Day, on the next Business Day. Each request
by the Borrower for the making of Swing Loans shall constitute a
Representation and Warranty by the Borrower as of the time of the
making of such Swing Loans that the conditions specified in Sections
2.02(b) and (c) have been fulfilled at such time.
(ii) Upon demand made to all of the Banks with RC Commitments
by the Swing Loan Lender, which demand may be made before or after a
Default, but subject to the provisions of Section 1.01(c)(iii), each
Bank (other than the Swing Loan Lender) shall irrevocably and
unconditionally purchase from the Swing Loan Lender, without recourse
or warranty, an undivided interest and participation in the Swing Loans
then outstanding, by paying to the Swing Loan Lender, without reduction
or deduction of any kind, including but not limited to reductions or
deductions for set-off, recoupment or counterclaim, in Dollars
immediately available to the Swing Loan Lender at the Swing Loan
Lender's Domestic Lending Office, an amount equal to such Bank's Swing
Loan Percentage of the principal amount of all Swing Loans then
outstanding, and thereafter, except as otherwise provided in the second
succeeding sentence, the Banks' respective interests in such Swing
Loans, and the remaining interest of the Swing Loan Lender in such
Swing Loans, shall in all respects be treated as RC Loans under this
Agreement, but such Swing Loans shall continue to be evidenced by the
Swing Note, and shall continue to be due and payable by the Borrower in
accordance with Section 1.05. If any Bank does not pay any amount which
it is required to pay after giving effect to the provisions of Section
1.01(c)(iii) forthwith upon the Swing Loan Lender's demand therefor,
the Swing Loan Lender shall be entitled to recover such amount on
demand from such Bank, together with interest thereon, at the Federal
Funds Rate for the first three Business Days, and thereafter at the
Base Rate, for each day from the date of such demand, if made prior to
2:00 p.m. (New York time) on any Business Day, and if made thereafter
on any Business Day, or made on any day that is not a Business Day,
from the next Business Day following the date of such demand, until the
date such amount is paid to the Swing Loan Lender by such Bank. If such
Bank does not pay such amount forthwith upon the Swing Loan Lender's
demand therefor, and until such time as such Bank makes the required
payment, the Swing Loan Lender's remaining interest in the applicable
Swing Loan shall continue to include the amount of such unpaid
participation obligation.
(iii) No Bank shall be obligated to purchase a participation
in any Swing Loan unless (A) the Swing Loan Lender believed in good
faith that the conditions specified in Sections 2.02(b) and (c) were
satisfied at the time such Swing Loan was made or (B) such Bank had
actual knowledge, by receipt of information furnished to it pursuant to
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Section 5.01(f) hereof, or otherwise, that any such condition had not
been satisfied and failed to notify the Swing Loan Lender in a writing
received by the Swing Loan Lender one Business Day prior to the time
that it made such Swing Loan that the Swing Loan Lender was not
authorized to make such Swing Loan or (C) the satisfaction of such
condition that was not satisfied had been waived in accordance with
the provisions of this Agreement.
(d) Type of Loans. Subject to Section 1.07 and the other terms
and conditions of this Agreement, the 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 of RC Loans.
(a) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) no later than 10:00 a.m. (New York time) on, in the
case of RC Loans that are Base Rate Loans (other than Swing Loans), the Business
Day before the requested date for the making of such Loans and, in the case of
RC Loans that are Eurodollar Rate Loans, the third Eurodollar Business Day
before the requested date for the making of such Loans. Each such notice shall
be in the form of Schedule 1.02 and shall specify (i) the requested date for the
making of the requested Loans, which shall be, in the case of RC Loans that are
Base Rate Loans, a Business Day and, in the case of RC Loans that are Eurodollar
Rate Loans, a Eurodollar Business Day, (ii) the Type or Types of Loans requested
and (iii) the amount of each such Type of Loan, which amount shall be not less
than, in the case of RC Loans that are Base Rate Loans, $500,000 or an integral
multiple of $100,000 in excess thereof and, in the case of RC Loans that are
Eurodollar Rate Loans, $1,000,000 or an integral multiple of $250,000 in excess
thereof, or the aggregate amount of the applicable unused RC Commitments, as the
case may be. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of the amount and Type of
each Loan to be made by such Bank on the requested date specified therein.
(b) Not later than 11:00 a.m. (New York time) on each
requested date for the making of Loans (other than Swing Loans), each Bank shall
make available to the Administrative Agent, in Dollars in funds immediately
available to the Administrative Agent at the Administrative Agent's Office, the
Loans to be made by such Bank on such date. Any Bank's failure to make any Loan
to be made by it on the requested date therefor shall not relieve any other Bank
of its obligation to make any Loan to be made by such other Bank on such date,
but such other Bank shall not be liable for such failure.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to 10:00 a.m. (New York time) on the requested date for the
making of any Loans that such Bank will not make available to the Administrative
Agent the Loans requested to be made by such Bank on such date, the
Administrative Agent may assume that such Bank has made such Loans available to
the Administrative Agent on such date in accordance with Section 1.02(b) and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower 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 Loans
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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 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 1.04(a).
(d) All Loans made available to the Administrative Agent in
accordance with Section 1.02(b) or Section 1.02(c) shall be disbursed by the
Administrative Agent not later than 1:00 p.m. (New York time) 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.
Section 1.03 Letters of Credit.
(a) Upon the terms and subject to the conditions of this
Agreement, the Issuing Bank shall, from time to time during the period from the
Restated Agreement Date through the tenth Business Day preceding the RC Maturity
Date, issue one or more Letters of Credit for the account of the Borrower;
provided, that the aggregate principal amount of all Letter of Credit
Participations shall not exceed at any time the lesser of (A) the aggregate
amount of the RC Commitments at such time minus the aggregate unpaid principal
amount of all RC Loans and Swing Loans outstanding at such time and (B)
$15,000,000. Each Letter of Credit shall be in a form and shall contain such
terms as shall be reasonably satisfactory to the Issuing Bank. Upon the
effectiveness of the amendment and restatement of this Agreement as of the
Restated Agreement Date, all outstanding Letters of Credit (as defined in this
Agreement prior to such amendment and restatement) shall be deemed to be Letters
of Credit issued hereunder.
(b) Each Letter of Credit shall be denominated only in Dollars
and shall expire on or before the first anniversary of the issuance thereof
(provided, that, any Letter of Credit may include terms that provide for the
automatic renewal thereof for successive one-year periods so long as such terms
include a provision whereby the Issuing Bank shall be entitled to elect that any
such renewal shall not occur if the conditions set forth in Section 2.02(b) and
(c) could not be fulfilled at such time, and the Issuing Bank shall give notice
of such election to the beneficiary thereof) and in any event not later than the
Business Day preceding the RC Maturity Date. Any extension of the expiry date,
or automatic renewal, of a Letter of Credit to a date beyond the first
anniversary of the issuance thereof shall constitute an "issuance" of such
Letter of Credit for all purposes hereof on, in the case of any such extension,
the date on which such extension shall have been granted and, in the case of any
such automatic renewal, on the tenth Business Day preceding the last day on
which the Issuing Bank is entitled to give notice of its election that any such
renewal shall not occur.
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(c) Letters of Credit shall be issued only on a Business Day,
and shall be used for the corporate purposes of the Borrower or the
Subsidiaries.
(d) The Borrower shall request the issuance of a Letter of
Credit by furnishing to the Administrative Agent and the Issuing Bank, at least
five Business Days before the requested date of such issuance, notice thereof in
the form of Schedule 1.02 or such other notice as shall be reasonably
satisfactory to the Issuing Bank (and, in the case of any such notice, the
Borrower shall be deemed to have made the Representation and Warranty with
respect to such issuance provided for in the final paragraph of the form of
notice set forth in Schedule 1.02).
(e) Upon the date of issuance of a Letter of Credit, the
Issuing Bank shall be deemed to have granted to each Participating Bank (other
than the Issuing Bank), and each Participating Bank (other than the Issuing
Bank) shall be deemed to have acquired from the Issuing Bank without further
action by any party hereto, a participation in such Letter of Credit and any
Drawings that may at any time be made thereunder, to the extent of such Bank's
Participating Bank Percentage thereof.
(f) The Issuing Bank shall promptly notify the Borrower of its
receipt of each Drawing request with respect to a Letter of Credit, stating the
date and amount of the Drawing requested thereby and the date and amount of each
Drawing disbursed pursuant to such request. The failure of the Issuing Bank to
give, or delay in giving, any such notice shall not release or diminish the
obligations of the Borrower hereunder in respect of such Drawing.
(g) The Borrower shall, on the day it receives notice of each
Drawing from the Issuing Bank, if such notice is received prior to 10:00 a.m.
(New York time) on such day, and on the Business Day following the day it
receives such notice from the Issuing Bank, if such notice is received after
10:00 a.m. (New York time) on such day, reimburse such Drawing by paying to the
Issuing Bank in immediately available funds the amount of the payment made by
the Issuing Bank with respect to such Drawing, together (but only if such
Drawing is not reimbursed on the day notice is received) with interest thereon
at a rate per annum equal to the Base Rate as in effect from time to time plus
the applicable Base Rate Margin until the day such reimbursement is made. In the
event that the Borrower shall fail to make any such payment when due and for so
long as such failure shall be continuing, the Issuing Bank may give notice of
such failure to the Administrative Agent and each Participating Bank, which
notice shall include, in the case of a Participating Bank, the amount of such
Participating Bank's Participating Bank Percentage of such Drawing, whereupon
each such Participating Bank (other than the Issuing Bank) shall promptly remit
such amount to the Administrative Agent for the account of the Issuing Bank as
provided in Section 1.03(h).
(h) Each Participating Bank (other than the Issuing Bank)
shall, in the event it receives the notice from the Issuing Bank pursuant to
Section 1.03(g) at or before 12:00 noon (New York time) on any Business Day,
fund its participation in any unreimbursed Drawing by remitting to the
Administrative Agent, no later than 2:00 p.m. (New York time) on such day, in
immediately available funds, its Participating Bank Percentage of the
reimbursement obligation in respect of each Drawing. The Administrative Agent
shall, in the event it receives such funds from such Participating Bank at or
before 2:00 p.m. (New York time) on any day, no later than 4:00 p.m. (New York
time) on such day, make available the amount thereof to the Issuing Bank,
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in immediately available funds. Any amount payable by any Participating Bank to
the Administrative Agent for the account of the Issuing Bank under this Section
1.03(h), and any amount payable by the Administrative Agent to the Issuing Bank
under this Section 1.03(h), shall bear interest for each day from the date due
(and including such day if paid after 2:00 p.m. (New York time), in the case of
any such payment by a Participating Bank to the Administrative Agent, or 4:00
p.m. (New York time), in the case of any such payment by the Administrative
Agent to the Issuing Bank, on such day) in accordance with this Section 1.03(h)
until the date it is received by the Issuing Bank at a rate equal to the Federal
Funds Rate until (and including) the third Business Day after the date due and
thereafter at the Base Rate. Each Participating Bank shall, upon the demand of
the Issuing Bank, reimburse the Issuing Bank, to the extent the Issuing Bank has
not been reimbursed by the Borrower after demand therefor, for the reasonable
costs and expenses (including reasonable legal fees) incurred by it (other than
as a result of its willful misconduct or gross negligence) in connection with
the collection of amounts due under, the administration of, and the preservation
and enforcement of any rights conferred by, the Letters of Credit or the
performance of the Issuing Bank's obligations under this Agreement in respect
thereof (other than its obligation to make Loans in its capacity as a Bank or
Swing Loans in its capacity as the Swing Loan Lender), to the extent of such
Participating Bank's Participating Bank Percentage (as of the time such costs
and expenses are incurred) of the amount of such costs and expenses. The Issuing
Bank shall refund any costs and expenses reimbursed by such Participating Bank
that are subsequently recovered from the Borrower in an amount equal to such
Participating Bank's Participating Bank Percentage thereof.
(i) The obligation of each Participating Bank to make
available to the Issuing Bank the amounts set forth in this Section 1.03 shall
be absolute, unconditional and irrevocable under any and all circumstances
without reduction for any set-off or counterclaim of any nature whatsoever, and
may not be terminated, suspended or delayed for any reason whatsoever, shall not
be subject to any qualification or exception and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower or any Subsidiary may have at any time against
a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting),
the Administrative Agent, the Issuing Bank, any Participating Bank or
any other Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
or any Subsidiary and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in
any respect;
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(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default.
(j) (i) Without affecting any rights the Participating Banks
may have under Applicable Law, the Borrower agrees that none of the
Participating Banks, the Issuing Bank, the Administrative Agent or their
respective officers or directors shall be liable or responsible for, and the
obligations of the Borrower to the Participating Banks, the Issuing Bank and the
Administrative Agent hereunder shall not in any manner be affected by: (A) the
use that may be made of any Letter of Credit or the proceeds thereof by the
beneficiary thereof or any other Person or any acts or omissions of such
beneficiary or any other Person; (B) the validity or genuineness of documents
presented in connection with any Drawing, or of any endorsements thereon, even
if such documents should, in fact, prove to be in any or all respects, invalid,
fraudulent or forged; or (C) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit or any other action taken or
omitted to be taken by any Person under or in connection with any Letter of
Credit, except that the Borrower shall have a claim against the Issuing Bank and
the Issuing Bank shall be liable to the Borrower, in each case to the extent and
only to the extent of any damages suffered by the Borrower that are caused by
(1) the Issuing Bank's willful misconduct or gross negligence (as determined by
a court of competent jurisdiction) in determining whether documents presented
under any Letter of Credit issued by the Issuing Bank complied with the terms of
such Letter of Credit or (2) the Issuing Bank's willful failure (as determined
by a court of competent jurisdiction) to pay under such Letter of Credit after
the presentation to it of documents strictly complying with the terms and
conditions of such Letter of Credit. In furtherance and not in limitation of the
foregoing, in determining whether to pay under any Letter of Credit, the Issuing
Bank shall not have any obligation relative to the other Banks other than to
determine that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit, regardless of any notice or
information to the contrary. Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for the Issuing Bank any resulting liability to any Bank.
(ii) In addition to any other amounts payable under this
Agreement, the Borrower agrees to protect, indemnify, pay and hold the
Issuing Bank harmless from and against any and all claims, costs,
charges and reasonable expenses (including reasonable attorneys' fees)
which the Issuing Bank may incur or be subject to as a consequence,
direct or indirect, of the issuance of, or payment of any Drawing
under, any Letter of Credit, other than as a result of the gross
negligence or willful misconduct of the Issuing Bank as determined by a
court of competent jurisdiction.
(iii) The Issuing Bank shall not be responsible for:
(A) the validity, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the issuance of
Letters of Credit,
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(B) the validity of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof in whole or in part,
(C) errors, omissions, interruptions or delays in
transmissions or delivery of any messages, by mail, cable, telecopy,
telex or otherwise,
(D) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit, and
(E) any consequence arising from causes beyond the control of
the Issuing Bank, including, without limitation, any governmental acts.
(k) If any Bank Nonparticipation occurs with respect to any
Bank, (A) the Administrative Agent and such Bank agree, if requested by the
Borrower, to attempt to locate a bank or other financial institution that
desires to accept the assignment of the RC Loans, Letter of Credit
Participations, RC Commitments and other rights and obligations hereunder of
such Bank and (B) if such bank or other financial institution acceptable to the
Borrower is located, such Bank agrees to assign its interest in its RC Loans,
Letter of Credit Participations, RC Commitments and other rights and obligations
hereunder to such bank or other financial institution in accordance with Section
9.10(a)(ii).
Section 1.04 Interest.
(a) Rates. Unless an Event of Default is continuing, (i) each
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 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 and (ii) each other amount due and payable
under the Loan Documents shall, to the maximum extent permitted by Applicable
Law, bear interest at a rate per annum equal to the Base Rate as in effect from
time to time plus the applicable Base Rate Margin. During an Event of Default
(and whether before or after judgment), upon notice from the Administrative
Agent to the Borrower given at the direction of the Required Banks, each Loan
(whether or not due) and, to the maximum extent permitted by Applicable Law,
each other amount due and payable under the 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, quarterly in arrears on each Interest 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), (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 on the amount then so due or converted, and (iv) in the case of all
other amounts due and payable under the Loan Documents, on demand. Interest at
the Post-Default Rate shall be payable on demand.
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(c) Conversion and Continuation.
(i) All or any part of the principal amount of Loans of any
Type may, on any Business Day, be converted into any other Type or
Types of Loans, except that (A) Eurodollar Rate Loans may be converted
only on the last day of an applicable Interest Period, (B) Base Rate
Loans may be converted into Eurodollar Rate Loans only on a Eurodollar
Business Day and (C) Swing Loans shall be maintained as Base Rate Loans
at all times.
(ii) Base Rate Loans shall continue as Base Rate Loans unless
and until such Loans are converted into Loans of another Type.
Eurodollar Rate Loans of any Type shall continue as Loans of such Type
until the end of the then current Interest Period therefor, at which
time they shall be automatically converted into Base Rate Loans unless
the Borrower shall have given the Administrative Agent notice in
accordance with Section 1.04(c)(iv) requesting either that such Loans
continue as Loans of such Type for another Interest Period or that such
Loans be converted into Loans of another Type at the end of such
Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.04(c)(i) or (ii), during a Default, the Administrative Agent
may, and upon the direction of the Required Banks shall, notify the
Borrower that Loans may only be converted into or continued as Loans of
certain specified Types and, thereafter, until no Default shall
continue to exist, Loans may not be converted into or continued as
Loans of any Type other than one or more of such specified Types,
provided that, notwithstanding the foregoing, Loans may continue as or
be converted into Base Rate Loans.
(iv) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of Loans or
continuation of Eurodollar Rate Loans no later than 10:00 a.m. (New
York time) on, in the case of a conversion into Base Rate Loans, the
Business Day before the requested date of such conversion, and, in the
case of a conversion into or continuation of Eurodollar Rate Loans, 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 1.04(c)(iv) and shall specify (A)
whether the Loans to be converted or continued are Term 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 the Loans 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 to 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
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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 or, if no Loans are outstanding, such
excess shall be refunded to the Borrower.
Section 1.05 Repayment.
(a) Term Loans. The Term Loans shall mature and become due and
payable by the Borrower, and shall be repaid by the Borrower, in quarterly
installments, payable on successive Installment Payment Dates, commencing with
September 30, 2003 and ending with the Term Loan Maturity Date. Each such
installment shall be in an amount equal to the amount set forth below for the
applicable Installment Payment Date; provided that the final installment shall
be in an amount equal to the amount of Term Loans then outstanding.
Installment Payment Date Amount
------------------------ ------
September 30, 2003 $12,500,000
December 31, 2003 $12,500,000
March 31, 2004 $ 7,812,500
June 30, 2004 $ 7,812,500
September 30, 2004 $ 7,812,500
December 31, 2004 $ 7,812,500
March 31, 2005 $ 7,812,500
June 30, 2005 $ 7,812,500
September 30, 2005 $ 7,812,500
December 31, 2005 $ 7,812,500
March 31, 2006 $ 9,375,000
June 30, 2006 $ 9,375,000
September 30, 2006 $ 9,375,000
December 31, 2006 $ 9,375,000
(b) RC Loans. The aggregate outstanding principal amount of
the RC Loans shall mature and become due and payable, and shall be repaid by the
Borrower, on the RC Maturity Date.
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(c) Drawings. The Borrower shall reimburse the Issuing Bank
for each Drawing under a Letter of Credit on the date determined with respect to
such Drawing in the manner set forth in Section 1.03(g).
Section 1.06 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 (but subject to Section 7.03), except that any partial prepayment under
this Section (other than a prepayment of Swing Loans) shall be in an aggregate
principal amount of at least, in the case of Base Rate Loans, $500,000 or any
integral multiple of $100,000 in excess thereof and, in the case of Eurodollar
Rate Loans, $1,000,000 or an integral multiple of $250,000 in excess thereof,
and any prepayment of Eurodollar Rate Loans made on a day other than the last
day of an applicable Interest Period shall be accompanied by the amount, if any,
required to be paid in respect thereof pursuant to Section 7.03 hereof. The
Borrower shall give the Administrative Agent notice of each prepayment pursuant
to this Section 1.06(a) no later than 10:00 a.m. (New York time) on, in the case
of a prepayment of Base Rate Loans (other than Swing Loans), the first Business
Day, and, in the case of a prepayment of Eurodollar Rate Loans, the third
Eurodollar Business Day, before the date of such prepayment and, in the case of
a prepayment of Swing Loans, the day of such prepayment. Each such notice of
prepayment shall be in the form of Schedule 1.06(a) and shall specify (i)
whether the Loans to be prepaid are Term Loans or RC Loans, (ii) the date such
prepayment is to be made and (iii) the amount and Type and, in the case of
Eurodollar Rate Loans, the last day of the applicable Interest Period of the
Loans to be prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Bank of the contents thereof and the amount and Type
and, in the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period of each Loan of such Bank to be prepaid. Amounts to be prepaid
pursuant to this Section 1.06(a) shall irrevocably be due and payable on the
date specified in the applicable notice of prepayment, together with interest
thereon as provided in Section 1.04(b). Prepayments of the Term Loans pursuant
to this Section 1.06(a) shall be applied to the remaining installments thereof
in the inverse order of maturity.
(b) Mandatory Prepayments.
(i) The Borrower shall, on each date that a reduction in the
aggregate amount of the RC Commitments is required to be made pursuant
to Section 1.08(b)(ii) or (iii) (or would be so required if RC
Commitments were in existence at such time), prepay the Term Loans in
an aggregate amount equal to the excess, if any, of the applicable Net
Proceeds (less the reinvested portion thereof, as provided in Section
1.08(b)(ii)) or Excess Net Proceeds referred to therein, as the case
may be, over the aggregate amount of the RC Commitments in effect
immediately prior to such reduction thereof. Each such prepayment of
the Term Loan shall be applied to the remaining installments thereof
pro rata in accordance with the relative amounts thereof.
(ii) The Borrower shall, on each date that a reduction in the
aggregate amount of the RC Commitments causes the sum of the aggregate
outstanding principal amount of the RC Loans and the aggregate amount
of Letter of Credit Participations to exceed the aggregate amount of
the RC Commitments, prepay the RC Loans and the Contingent
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Reimbursement Obligations, in an aggregate amount not less than the
amount of such excess, together with interest thereon as provided in
Section 1.04(b), on the date of such reduction.
(c) Reborrowing. Amounts of Term Loans prepaid may not be
reborrowed. Amounts of RC Loans prepaid prior to the RC Maturity Date may,
subject to the terms and conditions hereof (including, but not limited to,
Sections 1.01 and 1.08(b)), be reborrowed.
Section 1.07 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
$1,000,000 (b) there shall not be, at any one time, more than five Interest
Periods in effect with respect to Eurodollar Rate Loans of all Types and (c) no
payment of Eurodollar Rate Loans will have to be made prior to the last day of
an applicable Interest Period in order to repay the Loans in the amounts and
(subject to Section 1.12(d)) on the dates specified in Section 1.05 or
determined pursuant to Section 1.06(b).
Section 1.08 Reduction and Termination of RC Commitments.
(a) Optional Reduction of RC Commitments. The Borrower may
terminate or reduce the aggregate amount of the RC Commitments by giving the
Administrative Agent notice (which shall be irrevocable) thereof no later than
10:00 a.m. (New York time) on the third Business Day before the requested date
of such reduction, except that (i) each partial reduction of the aggregate
amount of the RC Commitments shall be in an aggregate amount equal to $1,000,000
or any integral multiple of $500,000 in excess thereof and (ii) no reduction may
reduce the aggregate amount of the RC Commitments to an amount less than the sum
of the aggregate principal amount of all RC Loans and the amount of all Letter
of Credit Participations outstanding on such date. 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.
(b) Mandatory Reductions of RC Commitments.
(i) The aggregate amount of RC Commitments shall be
automatically and permanently reduced by (A) $75,000,000 (subject to
reduction as provided in Section 1.08(c)) on September 30, 2003, and
(B) $25,000,000 (subject to reduction as provided in Section 1.08(c))
on the last day of each calendar quarter, commencing December 31, 2003.
(ii) (A) In the event that the Borrower or any Restricted
Subsidiary shall receive Net Proceeds from the sale or disposition of
any assets (including any loss or damage to, or condemnation of, such
assets), the aggregate RC Commitments shall be automatically and
permanently reduced (x) on the fifth day following the end of the
Reinvestment Contract Period with respect to such sale or disposition,
in an amount equal to the Net Proceeds of such sale or disposition less
the Reinvested Amount with respect thereto and (y) on the fifth day
following the end of the Reinvestment Period with respect
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to such sale or disposition, in an amount equal to the portion, if any,
of such Reinvested Amount that would have been paid pursuant to
Reinvestment Contracts that shall have terminated, or with respect to
which the closing of the transaction provided for therein shall not
have occurred, within such Reinvestment Period.
(B) Notwithstanding anything to the contrary contained herein,
so long as no Default shall have occurred and be continuing, the
Borrower shall be entitled, in connection with any such reinvestment,
to structure the applicable disposition and reinvestment as an exchange
of like-kind property to the maximum extent possible under Section 1031
of the Code as hereinafter provided (each such reinvestment, a
"Like-Kind Exchange"). If the Borrower desires to effect a Like-Kind
Exchange, at or prior to the closing of any transfer or other
disposition of such assets, the Borrower shall establish a "qualified
escrow account" within the meaning of Treasury Regulation Section
1.1031(k)-1(g)(3) or use such other safe harbor described in Treasury
Regulation Section 1.1031(k)-1(g) as is reasonably acceptable to the
Administrative Agent, which account shall be governed by an escrow
agreement complying with the requirements of Treasury Regulation
Sections 1.1031(k)-1(g)(4) and 1.1031(k)-1(g)(6). The terms of the
escrow agreement governing the "qualified escrow account" shall, among
other things, provide that immediately upon the occurrence of any event
set forth in Treasury Regulation Section 1.1031(k)-1(g)(6)(ii) or
(iii), the Net Proceeds from the transfer or other disposition of such
assets shall be released to the Borrower, for application as provided
in Section 1.08(b)(ii)(A) hereof.
(iii) In the event that the Borrower or any Restricted
Subsidiary shall issue or otherwise incur Indebtedness (other than the
(A) Indebtedness under the Loan Documents, (B) Existing Debt, (C)
Intercompany Debt, (D) Indebtedness of Denver evidenced by the Master
Intercompany Note, (E) Indebtedness of Denver, any of its Subsidiaries
or the California Partnership incurred from and owed to the Borrower or
any Restricted Subsidiary or (F) any increase of the aggregate
principal amount of the 1999 Subordinated Notes up to $300,000,000),
the net proceeds of which, together with the aggregate net proceeds of
all other such issuances and incurrences after the Restated Agreement
Date, are in excess of $100,000,000 ("Excess Net Proceeds"), the
aggregate RC Commitments shall be automatically and permanently reduced
on the fifth day following the day on which the Borrower shall have
received such net proceeds in an amount equal to the portion of such
net proceeds constituting Excess Net Proceeds.
(c) Application to Scheduled Reductions.
(i) Each reduction of the RC Commitments pursuant to Section
1.08(a) shall be applied to the remaining reductions thereof scheduled
to be made pursuant to Section 1.08(b)(i) in the inverse order in which
they are scheduled to occur.
(ii) Each reduction of the RC Commitments pursuant to Section
1.08(b)(ii) or 1.08(b)(iii) shall be applied to the remaining
reductions thereof scheduled to be made pursuant to Section 1.08(b)(i)
(as such amounts may have been previously reduced by the operation of
this Section 1.08(c)) pro rata in accordance with the relative amounts
thereof.
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Section 1.09 Fees.
(a) Commitment Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank a commitment fee on the daily
unused aggregate amount of such Bank's RC Commitment for each day from the
Restated Agreement Date through the RC Maturity Date, at a rate per annum of (i)
so long as the ratio of Consolidated Debt to Operating Cash Flow is equal to or
greater than 5.50 to 1.00, 0.500%, (ii) so long as the ratio of Consolidated
Debt to Operating Cash Flow is equal to or greater than 4.00 to 1.00, but less
than 5.50 to 1.00, 0.375% and (iii) at all other times, 0.250%, payable
quarterly in arrears on successive Interest Payment Dates, on the RC Maturity
Date and on the date of any reduction of the RC Commitment (to the extent
accrued and unpaid on the amount of such reduction). For this purpose, Swing
Loans shall not constitute a utilization of any Bank's RC Commitment.
(b) Letter of Credit Fees.
(i) The Borrower shall pay to the Administrative Agent for the
account of each Participating Bank a letter of credit fee on the daily
aggregate amount of the Contingent Reimbursement Obligations under each
Letter of Credit at a rate per annum equal to the Eurodollar Rate
Margin in effect at such time. Such fees shall be payable in arrears on
successive Interest Payment Dates and on the date of expiration or
termination of each Letter of Credit.
(ii) The Borrower shall pay to the Agent for the account of
the Issuing Bank a letter of credit issuance fee on the daily aggregate
face amount of all Letters of Credit issued hereunder at a rate per
annum of 0.125%. Such fees shall be payable in arrears on successive
Interest Payment Dates and on the date of expiration or termination of
each Letter of Credit; provided, that no such quarterly payment shall
in any event be less than $125.00.
Section 1.10 Computation of Interest and Fees.
Interest and the commitment and letter of credit fees shall be computed
on the basis of a year of 360 days and paid for the actual number of days
elapsed. Interest, commitment fees and letter of credit fees for any period
shall be calculated from and including the first day thereof to but excluding
the last day thereof.
Section 1.11 Evidence of Indebtedness.
Each Bank's Loans 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 Banks and a single Note payable to the
order of such Bank. The Swing Loans and the Borrower's obligation to repay the
Swing Loans with interest in accordance with the terms of this Agreement shall
be evidenced by this Agreement, the records of the Swing Loan Lender, and a
single Swing Loan Note payable to the order of the Swing Loan Lender. Each
Bank's Letter of Credit Participations shall be evidenced by this Agreement, the
records of such Bank and the Letters of Credit. The records of each Bank and the
Swing Loan Lender shall be prima facie evidence of such Bank's Loans and Letter
of Credit Participations, of the Swing Loan
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Lender's Swing Loans and, in each case, of accrued interest thereon and of all
payments made in respect thereof.
Section 1.12 Payments by the Borrower.
(a) Time, Place and Manner. All payments due to the
Administrative Agent, the Swing Loan Lender or the Issuing Bank under the Loan
Documents shall be made to the Administrative Agent at the Administrative
Agent's Office or to such other Person or at such other address as the
Administrative Agent, the Swing Loan Lender or the Issuing Bank, respectively,
may designate by notice to the Borrower. All payments due to any Bank under the
Loan Documents shall, in the case of payments on account of principal of or
interest on the Loans or fees, be made to the Administrative Agent at the
Administrative Agent's Office and, in the case of all other payments, be made
directly to such Bank at its Domestic Lending Office or at such other address as
such Bank may designate by notice to the Borrower. All payments due to any Bank
under the 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
shall not be deemed to have been made on any day unless such payment has been
received by the required Person, at the required place of payment, in Dollars in
funds immediately available to such Person at such place, no later than 12:00
noon (New York time) on such day.
(b) No Reductions. All payments due to the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or any Bank under the Loan
Documents, and all other terms, conditions, covenants and agreements to be
observed and performed by the Borrower thereunder, shall be made, observed or
performed by the Borrower 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 for any Tax
required to be withheld or deducted in accordance with Section 1.14.
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent, the Issuing Bank, the Swing Loan Lender and
each Bank, if and to the extent any amount payable by the Borrower under the
Loan Documents (whether payable to such Person or to any other Person that is
the Administrative Agent, the Issuing Bank, the Swing Loan Lender or a Bank) is
not otherwise paid when due, to charge such amount against any or all of the
accounts of such Borrower or any Wholly Owned Subsidiary that is a Restricted
Subsidiary with the Administrative Agent, the Issuing Bank, the Swing Loan
Lender or any such Bank or any of its Affiliates (whether maintained at a branch
or office located within or without the United States), with the Borrower
remaining liable for any deficiency.
(d) Extension of Payment Dates. Whenever any payment to the
Administrative Agent, the Issuing Bank, the Swing Loan Lender or any Bank under
the 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 Eurodollar Rate
Loans, such extension would cause payment to be due in the next succeeding
calendar month, in which case
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such due date shall be the next preceding Eurodollar Business Day. If the date
any payment under the Loan Documents is due is extended (whether by operation of
any Loan Document, Applicable Law or otherwise), such payment shall bear
interest for such extended time at the rate of interest applicable hereunder.
Section 1.13 Distribution of Payments by the Administrative Agent.
(a) The Administrative Agent shall promptly distribute to the
Issuing Bank, the Swing Loan Lender and each Bank its ratable share of each
payment received by the Administrative Agent under the Loan Documents for the
account of the Issuing Bank, the Swing Loan Lender and the Banks by credit to an
account of the Issuing Bank, the Swing Loan Lender or such Bank at the
Administrative Agent's Office or by wire transfer to an account of the Issuing
Bank, the Swing Loan Lender or such Bank at an office of any other commercial
bank located in the United States.
(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 the Issuing Bank, the Swing Loan Lender
and each Bank on such due date a corresponding amount with respect to the amount
then due the Issuing Bank, the Swing Loan Lender and 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
the Issuing Bank, the Swing Loan Lender or any Bank a corresponding amount, the
Issuing Bank, the Swing Loan Lender or 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 the Issuing Bank, the
Swing Loan Lender or such Bank until the date the Issuing Bank, the Swing Loan
Lender or 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 1.14 Taxes on Payments.
(a) Taxes Payable by the Borrower. If any Tax is required to
be withheld or deducted from, or is otherwise payable by the Borrower in
connection with, any payment due to any Bank or any Administrative Agent
appointed in accordance with Section 8.08 that is not a "United States person"
(as such term is defined in Section 7701(a)(30) of the Code) hereunder, the
Borrower (i) shall, if 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 (ii) except in the case of any Bank Tax,
shall pay to such Bank or Administrative Agent such additional amounts as may be
necessary so that the net amount received by such Bank or Administrative Agent
with respect to such payment, after withholding or deducting all Taxes required
to be withheld or deducted, is equal to the full amount payable hereunder. If
any Tax is withheld or deducted from, or is otherwise payable by the Borrower in
connection with, any payment due to any such Bank or Administrative Agent
hereunder, the Borrower shall furnish to such Bank or Administrative Agent the
original or a certified copy of a
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receipt for such Tax from the applicable taxing authority within 30 days after
the date of such payment (or, if such receipt shall not have been made available
by such taxing authority within such time, the Borrower shall use reasonable
efforts to promptly obtain and furnish such receipt). If the Borrower fails to
pay any Taxes when due to the appropriate taxing authority or fails to remit to
any such Bank or Administrative Agent the required receipts, the Borrower shall
indemnify such Bank or Administrative Agent for any Taxes, interest, penalties
or additions to Tax that may become payable by such Bank or Administrative Agent
as a result of any such failure.
(b) Taxes Payable by any Bank or Administrative Agent. The
Borrower shall, promptly upon request by any Bank or Administrative Agent that
is not a United States person, pay to any such Bank or Administrative Agent an
amount equal to (i) all Taxes (other than Bank Taxes and without duplication of
amounts paid pursuant to Section 1.14(a)) payable by such Bank or Administrative
Agent with respect to any payment due to such Bank or Administrative Agent
hereunder and (ii) all Taxes (other than Bank Taxes) payable by such Bank or
Administrative Agent as a result of payments made by the Borrower (whether made
to a taxing authority or to such Bank or Administrative Agent) pursuant to
Section 1.14(a) or this Section 1.14(b).
(c) Exemption from U.S. Withholding Taxes.
(i) On or before the fifth day prior to the first Interest
Payment Date occurring after the Restated Agreement Date (or, in the
case of a Person that became a Bank by assignment, promptly upon such
assignment), and from time to time thereafter as reasonably requested
in writing by the Borrower or the Administrative Agent, each Bank that
is not a "United States person" (as such term is defined in Section
7701(a)(30) of the Code) shall provide to the Borrower and the
Administrative Agent either:
(A) Two original Internal Revenue Service Forms W-8BEN,
W-8IMY or W-8ECI, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service, properly completed and duly executed, certifying
that such Bank is completely exempt from or entitled to a zero rate of United
States withholding tax on all amounts to be received by such Bank pursuant to
this Agreement and the Loans; or
(B) Two original certificates, duly executed, certifying
that such Bank is not (a) a "bank" (as defined in Section 881(c)(3)(A) of the
Code) (b) a 10% shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower, or (c) a controlled foreign corporation related to the
Borrower (within the meaning Section 864(d)(4) of the Code); and two original
Internal Revenue Service Forms W-8BEN or Form W-8IMY, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, properly
completed and duly executed, certifying that such Bank meets the requirements of
Section 871(h)(2)(B)(ii) and Section 871(h)(5) of the Code and the regulations
promulgated thereunder.
(ii) If any Bank determines that it is unable to submit to the
Borrower or the Administrative Agent any form or certificate that such
Bank is obligated to submit pursuant to the preceding paragraph, or
that it is required to withdraw or cancel any such form or certificate,
or that any such form or certificate previously submitted has
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otherwise become ineffective or inaccurate, such Bank shall promptly
notify the Borrower and the Administrative Agent of such fact.
(iii) Notwithstanding anything to the contrary contained
herein, the Borrower shall not be required to pay any additional amount
in respect of United States withholding taxes pursuant to Section
1.14(a) or Section 7.02 to any Bank that (A) is not, on the Restated
Agreement Date (or, in the case of a Person that became a Bank by
assignment, on the date of such assignment), either (x) entitled to
submit Form W-8BEN of the United States Internal Revenue Service
entitling such Bank to a complete exemption from withholding on all
amounts to be received by such Bank pursuant to this Agreement and the
Loans or Form W-8ECI of the United States Internal Revenue Service
relating to all amounts to be received by such Bank pursuant to this
Agreement and the Loans and Form W-9 of the United States Internal
Revenue Service or (y) a United States person, (B) is no longer
entitled, or in the case of a Bank that is no longer a United States
person, is not entitled, to submit either such form (or any successor
form as shall be adopted from time to time by the relevant United
States taxing authorities) as a result of any change in circumstances
or other event other than a Regulatory Change or (C) with respect to
any affected interest payments, fails to fulfill its requirements set
forth in Section 1.14(c)(i). If, as a result of a Regulatory Change, a
Bank is no longer entitled to submit Form W-8BEN, Form W-8ECI, or Form
W-9 of the United States Internal Revenue service (or any successor
form), such Bank shall, if requested by the Borrower, use reasonable
efforts to designate another Lending Office or Offices the designation
of which will reduce or eliminate payments under this Section 1.14,
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 such Bank's policies. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Bank in connection
with any such designation.
(d) Notification and Contest. If a taxing authority imposes or
seeks to impose upon the Administrative Agent or any Bank any Taxes with respect
to which the Borrower would be required to make a payment under this Section
1.14, the Administrative Agent or such Bank shall promptly notify the Borrower
of such imposition.
(e) Credits and Deductions. If the Administrative Agent or a
Bank receives a refund or otherwise realizes a reduction of, or credit against,
its Tax liabilities in any taxable year in connection with a Tax indemnified by
the Borrower under this Section 1.14, it shall pay to the Borrower an amount
equal to the net after-tax value to the Administrative Agent or such Bank, in
its sole opinion, of such part of such refund or other reduction as it considers
to be allocable to such payment by the Borrower, having regard to all of the
Administrative Agent's or such Bank's dealings giving rise to similar refunds or
other reductions in relation to the same tax period and to the cost of obtaining
the same; provided, however, that if the Administrative Agent or any Bank has
made a payment to the Borrower pursuant to this Section 1.14(e) and the
applicable refund or other reduction in Tax is subsequently disallowed, the
Borrower shall, promptly upon request by the Administrative Agent or such Bank,
refund to the Administrative Agent or such Bank that portion of such payment
determined by the Administrative Agent or such Bank, in its sole opinion,
relating to such disallowance; and provided, further that (i) the Administrative
Agent or such Bank, as the case may be, shall not be obligated to disclose to
the
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Borrower any information regarding its Tax affairs or computations and (ii)
nothing in this Section 1.14(e) shall interfere with the right of the
Administrative Agent or any Bank to arrange its Tax affairs as it deems
appropriate.
Section 1.15 Pro Rata Treatment.
Except to the extent otherwise provided herein, (a) Loans (other than
Swing Loans) shall be made by the Banks pro rata in accordance with their
respective Commitments, (b) Loans of the Banks shall be converted and continued
pro rata in accordance with their respective amounts of Loans 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 RC Commitments shall be made
pro rata in accordance with the respective amounts thereof and (d) each payment
of the principal of or interest on the Loans, reimbursement of Drawings under
Letters of Credit or of commitment or letter of credit fees shall be made for
the account of the Banks and, if applicable, the Issuing Bank or the Swing Loan
Lender pro rata in accordance with their respective amounts thereof then due and
payable.
ARTICLE II.
CONDITIONS TO EFFECTIVENESS;
CONDITIONS TO LOANS AND LETTERS OF CREDIT
Section 2.01 Conditions to Effectiveness.
This Agreement, as amended and restated as of the Restated Agreement
Date, and the rights and obligations of the parties hereunder, shall become
effective upon the determination by each Bank, in its sole and absolute
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), (iv), and (vi) certified in a manner satisfactory to the
Administrative Agent:
(i) a certificate of the Secretary or an Assistant Secretary
of each Loan Party, dated the Restated Agreement Date, substantially in
the form of Schedule 2.01(a)(i), to which shall be attached copies of
the resolutions and, if not previously delivered pursuant to this
Agreement, by-laws referred to in such certificate;
(ii) if not previously delivered pursuant to this Agreement, a
copy of the certificate of incorporation of each Loan Party, certified,
as of a recent date, by the Secretary of State or other appropriate
official of such Person's jurisdiction of incorporation;
(iii) an opinion of counsel for each Loan Party, dated the
Restated Agreement Date, in the form of Schedule 2.01(a)(iii), with
such changes as the Administrative Agent shall approve;
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(iv) a copy of each Governmental Approval and other consent or
approval listed on Schedule 3.03;
(v) a duly executed Note for each Bank, if any, that was not a
party hereto immediately prior to the Restated Agreement Date; and
(vi) a copy of each of the Denver JOA Documents and the Salt
Lake Acquisition Documents.
(b) the Administrative Agent shall have received evidence
reasonably satisfactory to it that the transactions contemplated by the Salt
Lake Acquisition Documents to occur on or prior to the Restated Agreement Date
shall have occurred in accordance with the terms of the Salt Lake Acquisition
Documents; and
(c) all fees payable on or prior to the Restated Agreement
Date pursuant to Section 1.09, all fees accrued and unpaid prior to the Restated
Agreement Date pursuant to Section 1.09 of this Agreement as in effect prior to
amendment and restatement hereof as of the Restated Agreement Date, and all
amounts payable pursuant to Section 9.02 for which invoices have been delivered
to the Borrower on or prior to the Restated Agreement Date, shall have been paid
in full or arrangements satisfactory to the Administrative Agent shall have been
made to cause them to be paid in full on the Restated Agreement Date.
Section 2.02 Conditions to Each Loan and Letter of Credit.
The obligation of each Bank to make each Loan requested to be made by
it, and the obligation of the Issuing Bank to issue each Letter of Credit
requested to be issued by it (including any request to extend the expiry date of
any Letter of Credit to the date beyond the first anniversary of the original
issuance thereof or any automatic renewal thereof), is subject to the
fulfillment of each of the following conditions:
(a) the Administrative Agent, or in the case of a Swing Loan,
the Swing Loan Lender, shall have received a notice of borrowing with respect to
such Loan complying with the requirements of Section 1.02 or, in the case of a
Swing Loan, a notice of borrowing complying with the requirements of Section
1.01(c)(i) or, a notice of issuance with respect to such Letter of Credit
complying with the requirements of Section 1.03;
(b) each Loan Document Representation and Warranty shall be
true and correct at and as of the time such Loan is to be made or such Letter of
Credit is to be issued, both with and without giving effect to such Loan or
Letter of Credit and all other Loans or Letters of Credit to be made or issued
at such time and to the application of the proceeds thereof;
(c) no Default shall have occurred and be continuing at the
time such Loan is to be made or such Letter of Credit is to be issued or would
result from the making of such Loan or the issuance of such Letter of Credit and
all other Loans and Letters of Credit to be made or issued at such time or from
the application of the proceeds thereof;
(d) in the case of any such Loan, such Loan will not
contravene any Applicable Law applicable to such Bank, including Regulation U;
and
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(e) in the case of any such Letter of Credit, the Issuing Bank
shall have received such other instruments and agreements related thereto as the
Issuing Bank shall have requested.
Except to the extent that the Borrower shall have disclosed in the
notice of borrowing or notice of issuance, or in a subsequent notice given to
the Banks or the Issuing Bank, as the case may be, prior to 5:00 p.m. (New York
time) on the Business Day before the requested date for the making of the
requested Loans or the issuance of the requested Letter of Credit, that a
condition specified in clause (b) or (c) above will not be fulfilled as of the
requested time for the making of such Loans or the issuance of such Letter of
Credit, the Borrower shall be deemed to have made a Representation and Warranty
as of the time of the making of such Loans 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 Loans shall affect the
right of each Bank or the Issuing Bank, as the case may be, to not make the
Loans requested to be made by it or to not issue the Letter of Credit requested
to be issued by it if, in such Bank's or the Issuing Bank's determination, such
condition has not been fulfilled at such time.
ARTICLE III.
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, each Bank, the Swing Loan
Lender and the Issuing Bank to make each Loan requested to be made by it or
issue each Letter of Credit, the Borrower represents and warrants as follows:
Section 3.01 Organization; Power; Qualification.
The Borrower and each Restricted Subsidiary are corporations duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, have the corporate 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 corporations, 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 will not have a
Materially Adverse Effect on (a) the Borrower and the Restricted Subsidiaries
taken as a whole, (b) any Loan Document or (c) the Collateral.
Section 3.02 Subsidiaries.
Schedule 3.02 sets forth, as of the Restated Agreement Date, all of the
Subsidiaries, their jurisdictions of incorporation or formation (as applicable)
and the percentages of the various classes of their Capital Securities owned by
the Borrower or another Restricted Subsidiary. As of the Restated Agreement
Date, all such Subsidiaries are Restricted Subsidiaries. The Borrower or another
Restricted Subsidiary, as the case may be, has the unrestricted right to vote
(except as may be provided in the Pledge Agreements and the Denver Acquisition
Documents), and (subject to limitations imposed by Applicable Law and except as
provided in the Denver
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Acquisition Documents) to receive dividends and distributions on, all Capital
Securities indicated on Schedule 3.02 as owned by the Borrower or such
Restricted 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 Restricted Subsidiary 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. This Agreement has been, and each of the other Loan Documents
to which the Borrower or any Restricted Subsidiary is a party when delivered to
the Administrative Agent will have been, duly executed and delivered by the
Borrower and each Restricted Subsidiary 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
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by equitable principles regardless of whether
considered in a proceeding in equity or at law. The execution, delivery and
performance in accordance with their respective terms by the Borrower and the
Restricted Subsidiaries of the Loan Documents to which they are parties, and
each borrowing hereunder, whether or not in the amount of the unused
Commitments, do not and (absent any change in any Applicable Law or applicable
Contract) will not (a) require any Governmental Approval or any other consent or
approval, including any consent or approval of the stockholders of the Borrower
or any Restricted Subsidiary, other than Governmental Approvals 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 Governmental Approval or other consent or approval required
under any Applicable Law or Contract as in effect on the Restated 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 Restricted Subsidiary under, (i) any Contract to which the Borrower or any
Restricted Subsidiary is a party or by which the Borrower or any Restricted
Subsidiary or any of their respective properties may be bound or (ii) any
Applicable Law.
Section 3.04 Taxes.
The Borrower and each Restricted Subsidiary have (a) filed all material
Tax returns required to have been filed by it under Applicable Law, (b) paid all
Taxes that are due and payable by it or have been assessed against it except for
Taxes the failure to have paid which does not contravene Section 4.01 and such
Taxes as are being contested in good faith by appropriate proceedings and (c) 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. Other
than Permitted Tax Sharing Agreements, there are in effect no tax sharing, tax
allocation or similar agreements to which the Borrower or any of its Restricted
Subsidiaries is a signatory providing for the manner in which tax payments owing
by members of the affiliated group of which the Borrower
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is the "common parent" (within the meaning of Section 1504 of the Code) (whether
in respect of Federal or state income or other taxes) are allocated among the
members of such group.
Section 3.05 Litigation.
Except as set forth on Schedule 3.05, 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 and its Restricted Subsidiaries, is there
any basis therefor) against or in any other way relating to or affecting (a) the
Borrower or any Restricted Subsidiary or any of their respective businesses or
properties, (b) any Loan Document or (c) the Collateral, that, if adversely
determined, would, singly or in the aggregate, have a Materially Adverse Effect
on (x) the Borrower and the Restricted Subsidiaries taken as a whole, (y) any
Loan Document or (z) the Collateral.
Section 3.06 Burdensome Provisions.
Neither the Borrower nor any Restricted Subsidiary is a party to or
bound by any Contract or Applicable Law, compliance with which would be
reasonably likely to have a Materially Adverse Effect on (a) the Borrower and
the Restricted Subsidiaries taken as a whole, (b) any Loan Document or (c) the
Collateral.
Section 3.07 No Adverse Change or Event.
Since June 30, 2000, no change in the business, assets, Liabilities,
financial condition, results of operations or business prospects of the Borrower
or any Restricted Subsidiary has occurred, and no event has occurred or failed
to occur, that has had or would be reasonably likely 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 Restricted Subsidiaries taken as a
whole, (b) any Loan Document or (c) the Collateral. 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 have
occurred and be continuing.
Section 3.08 Additional Adverse Facts.
Except for facts and circumstances disclosed on Schedule 3.05 or
Schedule 3.08 or in the notes to the financial statements referred to in Section
5.02(a), no fact or circumstance is known to the Borrower and its Restricted
Subsidiaries, as of the Restated Agreement Date, that, either alone or in
conjunction with all other such facts and circumstances, has had or would be
reasonably likely to have (so far as the Borrower and its Restricted
Subsidiaries can foresee) a Materially Adverse Effect on (a) the Borrower and
the Restricted Subsidiaries taken as a whole, (b) any Loan Document or (c) the
Collateral. If a fact or circumstance disclosed on such Schedules or in such
notes should in the future have a Materially Adverse Effect on (x) the Borrower
and the Restricted Subsidiaries taken as a whole, (y) any Loan Document or (z)
the Collateral, such Materially Adverse Effect shall be a change or event
subject to Section 3.07 notwithstanding such disclosure.
Section 3.09 Investment Company Act.
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Neither the Borrower nor any Restricted Subsidiary is an "investment
company" or a Person "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940.
Section 3.10 Substance Release and Disposal.
Except as disclosed on Schedule 3.10, to the best of the Borrower's
knowledge, (a) there have been no releases or disposals of hazardous wastes,
environmental contaminants or other substances in quantities or locations that,
singly or in the aggregate, would be reasonably likely to result in the
incurrence by the Borrower or any of its Restricted Subsidiaries of remedial
obligations under Applicable Law that would be reasonably likely to have a
Materially Adverse Effect on the Borrower and its Restricted Subsidiaries taken
as a whole, and (b) neither the Borrower nor any of its Restricted Subsidiaries
has received any notice or order advising it that it has or may have any
remedial obligation with respect to any such releases or disposals or that it is
or may be responsible for the costs of any remedial action taken or to be taken
by any other Persons with respect to any such releases or disposals, which
obligation or cost, if fully payable, would, singly or in the aggregate, be
reasonably likely to have a Materially Adverse Effect on the Borrower and its
Restricted Subsidiaries taken as a whole.
Section 3.11 Senior Obligations.
The obligations of the Borrower under the Loan Documents constitute
"Senior Debt" and "Designated Senior Debt" (and are hereby designated as such),
within the meaning and pursuant to the terms of the 1997 Indenture and the 1999
Indenture.
ARTICLE IV.
CERTAIN COVENANTS
From the Restated Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Restricted Subsidiary to:
Section 4.01
(a) Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability.
(i) Except as permitted by Section 4.09, (i) preserve and
maintain its corporate existence and all of its other franchises,
licenses, rights and privileges, (ii) 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, (iii) engage only in businesses in
substantially the same fields as the businesses conducted on the
Restated Agreement Date, or in other businesses directly related
thereto, (iv) comply with Applicable Law, (v) pay or discharge when due
all Taxes and all Liabilities that might become a Lien on any of its
properties and (vi) take all action and obtain all consents and
Governmental Approvals required so that its obligations under the Loan
Documents will at all times be legal, valid and binding and enforceable
in
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accordance with their respective terms, except that this Section 4.01
(other than clause (i), in so far as it requires any Loan Party to
preserve its corporate existence, (iii) and (vi)) shall not apply in
any circumstance where noncompliance, together with all other
noncompliances with this Section 4.01, will not have a Materially
Adverse Effect on (A) the Borrower and the Consolidated Subsidiaries
taken as a whole, (B) any Loan Document or (C) the Collateral.
(b) Subsidiary Matters.
(i) Ensure that no payment is made or required to be made by
the Borrower or a Restricted Subsidiary to a creditor of an
Unrestricted Subsidiary in respect of any Indebtedness or other
Liability of such Unrestricted Subsidiary, and ensure that no action is
taken by it, and that its affairs are not conducted in a manner, which
is reasonably likely to result in the corporate existence of any
Unrestricted Subsidiary that is a direct Subsidiary of the Borrower or
any Restricted Subsidiary being ignored in a material respect, or in
the assets or Liabilities of the Borrower or any Restricted Subsidiary
being substantively consolidated with those of any Unrestricted
Subsidiary in a bankruptcy, reorganization or other insolvency
proceeding.
(ii) If an Unrestricted Subsidiary will file a consolidated
tax return with the Borrower, deliver to the Administrative Agent, on
or prior to the date on which such Unrestricted Subsidiary shall have
been designated as an Unrestricted Subsidiary pursuant to the
definition of "Restricted Subsidiary" herein, and maintain in full
force and effect a tax sharing agreement, in form and substance
reasonably satisfactory to the Administrative Agent and duly executed
by such Unrestricted Subsidiary and the Borrower.
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 or reasonably
requested by the Required Banks.
B. The Borrower shall:
Section 4.03 Additional Subsidiaries.
On or prior to the date it forms, and within five Business Days
following the date it acquires, any new Restricted Subsidiary, deliver to the
Administrative Agent (i) certificates representing all of the issued and
outstanding shares of capital stock of such new Subsidiary held by the Borrower
and its Subsidiaries, together with appropriate stock powers, duly endorsed in
blank, (ii) unless otherwise agreed by the Required Banks, a Subsidiary Guaranty
Supplement in the form of Exhibit B, duly executed by such new Subsidiary,
provided that the foregoing shall not apply to any of Denver's Subsidiaries or
the California Partnership until such time as it becomes a Wholly Owned
Subsidiary of the Borrower, (iii) unless otherwise agreed by the Required Banks,
a Pledge Agreement in the form of Exhibit C, duly executed by such new
Subsidiary, provided that the foregoing shall not apply to any of Denver,
Denver's Subsidiaries or Los Angeles Daily News until such time as it may do so
without violating any Contract to
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which it is a party or by which it is bound as in effect on the Restated
Agreement Date, and (iv) 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
Administrative Agent may reasonably request.
Section 4.04 Use of Proceeds.
(a) Use the proceeds of the Loans (i) to fund the purchase
price of the Salt Lake Acquisition and other acquisitions not prohibited hereby,
(ii) to fund working capital requirements, (iii) to pay transaction costs in
connection herewith and in connection with the Salt Lake Acquisition and (iv)
for other general corporate purposes and (b) use the Letters of Credit only for
the purpose specified in Section 1.03(c). None of the proceeds of any of the
Loans and none of the Letters of Credit 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.
C. The Borrower shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly:
Section 4.05 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except that
this Section 4.05 shall not apply to (a) Indebtedness under the Loan Documents,
(b) the Greenco Subordinated Debt (so long as any Guaranty by the Borrower or
any Restricted Subsidiary of any such Indebtedness of Newco shall be
subordinated on terms and conditions substantially equivalent to the terms and
conditions (including subordination provisions, covenants, events of default,
remedies and other relevant provisions) of the Greenco Note and the Greenco Note
Purchase Agreement, as determined by the Administrative Agent), the 1997
Subordinated Notes and the 1999 Subordinated Notes, (c) Existing Debt, (d)
Intercompany Debt, (e) other Indebtedness in an outstanding aggregate amount not
in excess of $33,000,000 consisting of obligations as lessee under capital
leases, (f) other Indebtedness in an outstanding aggregate amount not in excess
of $50,000,000 at any time and (g) other unsecured Indebtedness of the Borrower
so long as (x) no Default or Event of Default shall have occurred and be
continuing at the time of the incurrence of such Indebtedness, or would result
from the incurrence thereof, (y) the ratio of Consolidated Debt to Operating
Cash Flow shall be equal to or less than 5.00:1 after giving effect to such
incurrence and (z) the material terms of such Indebtedness (1) are no more
restrictive or onerous on the Borrower and its Restricted Subsidiaries, or
confer greater rights on the holders thereof, than the terms of the Loan
Documents and the rights of the Administrative Agent and the Banks thereunder
and (2) do not (absent the right to accelerate the maturity thereof upon the
occurrence of an event of default in connection therewith) require the repayment
or prepayment of any portion of such Indebtedness prior to the date that is six
months after the Term Loan Maturity Date.
Section 4.06 Guaranties.
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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 and (c) guaranties which are permitted Indebtedness under Section
4.05.
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; provided, however, that if, notwithstanding this Section 4.07,
any Lien to which this Section is applicable shall be created or arise, the
Liabilities of the Loan Parties under the Loan Documents shall, to the extent
such Lien attaches to any asset that does not constitute Collateral or to any
asset with respect to which such Lien would be prior to the Security Interest,
automatically be secured by such Lien equally and ratably with the other
Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks'
security interest shall be perfected; provided further, however, that
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a default by the Borrower in the performance or
observance of this Section 4.07.
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 to any Restricted Payment
(a) made by the Borrower or any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary (other than, so long as any such Person is not a
Wholly Owned Subsidiary, to the California Partnership, Denver or any of
Denver's Subsidiaries, if the aggregate amount of Restricted Payments made to
such Persons, together with the aggregate amount of Investments made after the
Restated Agreement Date in the California Partnership and Denver and its
Subsidiaries by the Borrower and the Restricted Subsidiaries would, without
duplication, exceed $50,000,000), (b) made by any Restricted Subsidiary to the
holders of any class of its Capital Securities, pro rata in accordance with
their respective interests in such class of Capital Securities, (c) consisting
of payments under Permitted Tax Sharing Agreements, (d) consisting of regularly
scheduled payments of interest on the Greenco Note, but only to the extent
required in accordance with the terms thereof to be made in cash, and (e) so
long as no Default shall have occurred and be continuing or would result
therefrom, made by the Borrower in an aggregate amount not in excess of the sum
of (i) $25,000,000 during the period from the Restated Agreement Date to the
Repayment Date, (ii) an additional $5,000,000 during any fiscal year of the
Borrower, commencing with the fiscal year ending June 30, 2000 and (iii) an
additional amount in any fiscal year of the Borrower equal to 50% of Excess Cash
Flow for the immediately preceding fiscal year commencing with the fiscal year
ending June 30, 2000, so long as the ratio of Consolidated Debt to Operating
Cash Flow is less than 4.50 to 1.00 before and after giving effect thereto, with
any portion of such amounts described in clauses (ii) and (iii) not paid in such
fiscal year being permitted to be carried forward and paid in any subsequent
fiscal year; provided, however, that the amount of Restricted Payments permitted
to be made pursuant to this Section 4.08(e) shall be reduced by the amount of
Investments made pursuant to Section 4.11(h).
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Section 4.09 Merger or Consolidation, Acquisitions.
Merge or consolidate with any Person, or acquire any assets or business
from or Capital Securities of any Person (other than an acquisition of Capital
Securities of a Restricted Subsidiary, as long as such acquisition of Capital
Securities is permitted under Section 4.11(d)), except that, if both before and
after giving effect thereto no Default exits or would exist, this Section 4.09
shall not apply to (a) any acquisition of assets in the ordinary course of
business, (b) any merger or consolidation of the Borrower with any one or more
Persons; provided, that the Borrower shall be the continuing Person, (c) any
merger or consolidation of any Restricted Subsidiary with any one or more other
Restricted Subsidiaries (except that the California Partnership, Denver and
Denver's Subsidiaries (so long as any such Person is not a Wholly Owned
Subsidiary) shall merge only into a Restricted Subsidiary that is a Guarantor
and a Wholly Owned Subsidiary and that shall have executed and delivered a
Pledge Agreement, and such Restricted Subsidiary shall be the continuing Person,
provided that Denver and Denver's Subsidiaries may merge amongst themselves),
(d) the acquisition of K-T on the terms set forth in the Salt Lake Acquisition
Agreement and the consummation of the transactions contemplated by the Denver
JOA Documents to occur on the Denver Effective Date and pursuant to Section 3.5
of the Denver Contribution Agreement, on the terms set forth in the Denver JOA
Documents and (e) any acquisition (whether by purchase or exchange, and whether
constituting a purchase of assets or stock) of newspaper publishing properties
and directly related businesses so long as, in the event that the aggregate
purchase price with respect to such acquisition is greater than $5,000,000, the
Borrower shall have provided to the Banks a certificate of the president or
chief financial officer of the Borrower stating that (i) each Loan Document
Representation and Warranty is true and correct in all material respects both
immediately before and after giving effect to such acquisition and (ii) no
Default shall have occurred and be continuing both immediately before and after
giving effect to such acquisition, and no Default shall have occurred and be
continuing, including under Sections 4.20 through 4.24, after giving pro forma
effect to such acquisition and any related incurrence of Indebtedness by the
Borrower or any Restricted Subsidiary.
Section 4.10 Disposition of Assets.
Sell, lease, license, transfer or otherwise dispose of any asset (which
shall include, but not be limited to, for the purposes of this Agreement, any
Capital Securities or other ownership interests) or any interest therein, except
that this Section 4.10 shall not apply to (a) any 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 to the Borrower or a Restricted
Subsidiary that is a Guarantor, (d) any transaction to which any of the other
provisions of this Agreement (other than Section 4.14) is by its express terms
inapplicable, and (e) any other disposition, so long as no Default shall have
occurred and be continuing immediately prior or after giving effect to such
disposition and
(i) such disposition is a sale to any Person for cash in an
amount not less than the fair market value of the assets sold net of
the liabilities assumed, as determined in the good faith judgment of
the Board of Directors of the Borrower or the applicable Restricted
Subsidiary, and (A) the Cash Flow Percentage attributable to such
assets
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(including the portion of assets exchanged, as provided in clause (ii)
below, to which the cash component, if any, of any such exchange is
attributable), together with the Cash Flow Percentage of all other
assets sold by the Borrower and its Restricted Subsidiaries pursuant to
this clause (i), or exchanged by the Borrower and its Restricted
Subsidiaries pursuant to clause (ii) below, within the prior four
fiscal quarters of the Borrower, does not exceed 15% and (B) the Cash
Flow Percentage attributable to such assets, together with the Cash
Flow Percentage (determined, with respect to prior sales at the time of
each such sale) of all assets sold by the Borrower and its Restricted
Subsidiaries pursuant to this clause (i), and exchanged by the Borrower
and its Restricted Subsidiaries pursuant to clause (ii) below, since
the Restated Agreement Date does not exceed 30%, and (C) the Borrower
shall have furnished to the Banks, not later than the fifth Business
Day preceding the date of any such disposition wherein the sale price
or the fair market value of the assets of the applicable Restricted
Subsidiary is greater than $5,000,000, a certificate of the president
or chief financial officer of the Borrower stating that (1) each Loan
Document Representation and Warranty is true and correct in all
material respects both immediately before and after giving effect to
such disposition, and (2) no Default shall have occurred and be
continuing both immediately before and after giving effect to such
disposition, and no Default shall have occurred and be continuing,
including under Sections 4.20 through 4.24, after giving pro forma
effect to such disposition, or
(ii) such disposition is an exchange, with any Person, of
assets exchanged by the Borrower or applicable Restricted Subsidiary
comprising one or more newspaper publishing properties or the stock of
a Person owning such property or properties for assets comprising one
or more other newspaper publishing properties of a similar nature and
of equal or greater value, as determined in the good faith judgment of
the Board of Directors of the Borrower or the applicable Restricted
Subsidiary, and (A) the Cash Flow Percentage attributable to such
assets exchanged by the Borrower or applicable Restricted Subsidiary,
together with the Cash Flow Percentage attributable to all other assets
exchanged by the Borrower and its Restricted Subsidiaries pursuant to
this clause (ii), or sold by the Borrower and its Restricted
Subsidiaries pursuant to clause (i) above, within the prior four fiscal
quarters of the Borrower, does not exceed 15%, (B) the Cash Flow
Percentage attributable to such assets, together with the Cash Flow
Percentage (determined, with respect to prior exchanges, at the time of
each such exchange) attributable to all other assets exchanged by the
Borrower and its Restricted Subsidiaries pursuant to this clause (ii),
and exchanged by the Borrower and its Subsidiaries pursuant to clause
(i) above, since the Restated Agreement Date, does not exceed 30%, and
(C) the Borrower shall have furnished to the Banks, not later than the
fifth Business Day preceding the date of any such exchange wherein the
fair market value of the assets received in exchange is greater than
$5,000,000, a certificate of the president or chief financial officer
of the Borrower stating that (1) each Loan Document Representation and
Warranty is true and correct in all material respects both immediately
before and after giving effect to such disposition, (2) no Default
shall have occurred and be continuing both immediately before and after
giving effect to such disposition, and no Default shall have occurred
and be continuing, including under Sections 4.20 through 4.24, after
giving pro forma effect to such disposition and (3) the value of the
assets received by the Borrower or applicable Restricted Subsidiary in
such exchange is not less than the fair
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market value of the assets disposed by the Borrower or such Restricted
Subsidiary in such exchange.
Section 4.11 Investments.
Make or acquire any Investment or have any Investment outstanding,
except that this Section 4.11 shall not apply to (a) Investments resulting from
the consummation of the transactions contemplated by the Denver JOA Documents to
occur on the Denver Effective Date and pursuant to Section 3.5 of the Denver
Contribution Agreement, on the terms set forth in the Denver JOA Documents, and
Existing Investments (including the Existing Investments in the Salt Lake JOA),
(b) Money Market Investments, (c) Investments constituting acquisitions
permitted under Section 4.09, (d) Investments by the Borrower or any Restricted
Subsidiary in the Borrower or any Restricted Subsidiary that is a Guarantor
(other than Denver and each of its Subsidiaries so long as Denver or any of its
Subsidiaries is not a Wholly Owned Subsidiary), (e) advances made by the
Borrower to Denver under the Master Intercompany Note, provided that the
aggregate principal amount of all such advances at any time outstanding is not
in excess of $90,000,000, (f) Investments by the Borrower or any Restricted
Subsidiary in the California Partnership or Denver, provided that such
Investments, together with the aggregate amount of Restricted Payments made to,
so long as such Person is not a Wholly Owned Subsidiary, the California
Partnership, Denver or any of Denver's Subsidiaries pursuant to Section 4.08(a),
without duplication, shall not exceed $50,000,000 in the aggregate, (g) notes or
other instruments received by the Borrower or any Restricted Subsidiary as
payment for the disposition of assets in accordance with Section 4.10(a) hereof
and (h) other Investments (other than in, so long as such Person is not a Wholly
Owned Subsidiary, the California Partnership or Denver or any of Denver's
Subsidiaries) in newspaper publishing properties and related internet businesses
and other directly related businesses in an aggregate amount not in excess of
$25,000,000.
Section 4.12 Taxes of Other Persons.
(a) File a consolidated, combined, unitary or similar group
Tax return with any other Person other than, in the case of the Borrower, a
Consolidated Tax Subsidiary and, in the case of any such Subsidiary, the
Borrower, a Consolidated Tax Subsidiary or (b) except as required by Applicable
Law or as permitted by Section 4.08 hereof, pay or enter into any Contract to
pay any Taxes owing by any Person other than the Borrower or a Consolidated Tax
Subsidiary.
Section 4.13 Benefit Plans.
(a) Permit any Benefit Plan to be amended in any manner that
would cause the aggregate Unfunded Benefit Liabilities under all Benefit Plans
to exceed $500,000; or (b) permit any Benefit Plan to have a Funded Current
Liability Percentage of less than 60%.
Section 4.14 Transactions with Affiliates.
Effect any transaction (or series of related transactions) (each a
"Transaction") with any Affiliate of the Borrower, including, without
limitation, any sale, purchase, lease or loan or any other direct or indirect
payment, transfer or other disposition of assets, property or services, unless
(a) such Transaction is on terms no less favorable to the Borrower or the
applicable
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Restricted Subsidiary, as the case may be, than those that could be obtained in
a comparable arm's-length transaction with an independent third party (the
"Fairness Condition") and (b) prior to effecting such Transaction, the Borrower
shall deliver to the Administrative Agent (i) with respect to any Transaction
involving aggregate consideration in excess of $1,000,000, a certificate of the
president or the chief financial officer of the Borrower certifying that a
majority of the disinterested members of the Board of Directors of the Borrower
has approved such Transaction and has determined that the terms of such
Transaction satisfy the Fairness Condition and (ii) with respect to any
Transaction (x) involving aggregate consideration in excess of $1,000,000 in
which there are no disinterested directors or (y) involving aggregate
consideration in excess of $10,000,000, a written opinion from a nationally
recognized investment banking firm stating that the terms of such Transaction
satisfy the Fairness Condition or are fair to the Borrower or the applicable
Restricted Subsidiary from a financial point of view; provided, however, that
clause (b)(ii)(y) shall not apply to purchases of newsprint in the ordinary
course of business by the Borrower and its Restricted Subsidiaries from
Affiliates of the Borrower. Notwithstanding the foregoing, this provision shall
not apply to (A) any Transaction, in the ordinary course of business, between
the Borrower and Denver or a Wholly Owned Subsidiary of the Borrower, or between
Wholly Owned Subsidiaries of the Borrower and Denver or other Wholly Owned
Subsidiaries of the Borrower, (B) the making of Investments not prohibited by
Section 4.11, (C) the making of any Restricted Payment not prohibited by Section
4.08, (D) the payment of fees payable pursuant to the Management Agreement and
(E) Permitted Tax Sharing Agreements.
Section 4.15 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 Restricted Subsidiary to (a) pay dividends or make any other distributions
on shares of its capital stock held by the Borrower or any other Restricted
Subsidiary, (b) pay any obligation owed to the Borrower or any other Restricted
Subsidiary, (c) make any loans or advances to or investments in the Borrower or
in any other Restricted Subsidiary, (d) transfer any of its property or assets
to the Borrower or any other Restricted 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 4.15 shall not apply to
Permitted Restrictive Covenants.
Section 4.16 Issuance or Disposition of Capital Securities.
Issue any of its Capital Securities or sell, transfer or otherwise
dispose of any Capital Securities of any Restricted Subsidiary, except for (a)
any issuance or sale of Capital Securities that are subjected to the Security
Interest in a manner satisfactory to the Administrative Agent, (b) the issuance
or sale of Capital Securities of DNA to DPC or its Affiliates pursuant to the
Denver Contribution Agreement (it being understood that for purposes of Section
1.08(b)(ii), the cash proceeds thereof shall be deemed to have been reinvested
by the Borrower in the Salt Lake Acquisition), and (c) any disposition of
Capital Securities of any Restricted Subsidiary so long as all of the assets of
such Restricted Subsidiary could have been disposed of in compliance with
Section 4.10(c) or (e).
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Section 4.17 Substance Storage and Disposal.
Permit any hazardous wastes, environmental contaminants or other
substances, the improper release or disposal of which could result in the
incurrence by the Borrower or any of its Restricted Subsidiaries of material
remedial obligations under Applicable Law, to be brought onto or stored on the
properties owned or leased by it except for (a) substances to be used in
connection with the business of the Borrower and its Restricted Subsidiaries,
pending and during such use and (b) substances that were generated or used in
connection with such business, pending their disposal.
Section 4.18 Permitted Tax Sharing Agreements; Salt Lake Acquisition
Documents; JOA Contracts.
(a) Amend, waive, modify or supplement the terms of any
Permitted Tax Sharing Agreement, or
(b) Amend, waive, modify or supplement any of the Salt Lake
Acquisition Documents in any manner that is materially adverse to the Borrower
or any Restricted Subsidiary, or
(c) Amend, waive, modify or supplement any of the Contracts by
which any JOA is governed, managed or operated if the effect thereof is to allow
such JOA to retain cash in a greater amount or for longer periods of time than
would be the case in the absence of such amendment, waiver, modification or
supplement.
Section 4.19 Certain Restrictions with Respect to Other Indebtedness.
Amend, supplement or otherwise change (or agree to any amendment,
supplement or other change of) the terms of the 1997 Subordinated Notes, the
1999 Subordinated Notes, the 1997 Indenture, the 1999 Indenture, the Greenco
Note, the Greenco Note Purchase Agreement, or make any payment consistent with
an amendment, supplement or change thereto, if the effect of such amendment,
supplement or change is to increase the interest rate payable on the 1997
Subordinated Notes, the 1999 Subordinated Notes or the Greenco Note, advance the
dates upon which payments of principal or interest are due on the 1997
Subordinated Notes, the 1999 Subordinated Notes or the Greenco Note (including
any such change that adds or modifies mandatory or voluntary prepayments),
change, in a manner adverse to the Borrower and the Restricted Subsidiaries or
which confers additional rights on the holders thereof, any event of default or
covenant (or any definition relating thereto) with respect to the 1997
Subordinated Notes, the 1999 Subordinated Notes or the Greenco Note, change the
redemption or repurchase provisions with respect to the 1997 Subordinated Notes,
the 1999 Subordinated Notes or the Greenco Note in a manner adverse to the
Borrower and the Restricted Subsidiaries or which confers additional rights on
the holders thereof, change the subordination provisions of the 1997
Subordinated Notes, the 1999 Subordinated Notes or the Greenco Note or otherwise
increase the obligations of the obligor or confer additional rights on the
holders of the 1997 Subordinated Notes, the 1999 Subordinated Notes or the
Greenco Note without, in each case, obtaining the prior written consent of the
Required Banks to such amendment or change.
D. The Borrower shall not at any time:
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Section 4.20 Ratio of Consolidated Debt to Operating Cash Flow.
Permit the ratio of Consolidated Debt to Operating Cash Flow at any
time during a period set forth below to be greater than the ratio set forth
opposite such period:
(a) From the Restated Agreement Date through June 30, 2001:
6.0:1;
(b) From July 1, 2001 through June 30, 2002: 5.50:1;
(c) From July 1, 2002 through June 30, 2003: 5.00:1; and
(d) From July 1, 2003 and thereafter: 4.75:1;
provided, however, that if the Borrower shall have issued or otherwise incurred
Indebtedness contemplated by Section 4.05(g) at any time prior to July 1, 2002,
the Borrower shall not permit the ratio of Consolidated Debt to Operating Cash
Flow to be greater than 5.00:1 at any time from the date of such issuance or
incurrence through June 30, 2003.
Section 4.21 Ratio of Consolidated Senior Debt to Operating Cash Flow.
Permit the ratio of Consolidated Senior Debt to Operating Cash Flow at
any time to be greater than 3.00:1.
Section 4.22 Pro Forma Interest Coverage.
Permit the ratio of Operating Cash Flow to Pro Forma Consolidated
Interest Expense determined as of the end of any fiscal quarter ending in a
period set forth below to be less than the ratio set forth opposite such period:
(a) From the Restated Agreement Date through June 29, 2002:
1.75:1; and
(b) From June 30, 2002 and thereafter: 2.00:1.
Section 4.23 Pro Forma Debt Service Coverage.
Permit the ratio of Operating Cash Flow to Pro Forma Debt Service
determined as of the end of any fiscal quarter to be less than 1.25:1.
Section 4.24 Fixed Charge Coverage.
Permit the ratio of Operating Cash Flow to Consolidated Fixed Charges
determined as of the end of any fiscal quarter to be less than 1.15:1.
E. The Borrower shall not permit the California Partnership to, and in the case
of clauses (b) and (c) of Section 4.25 the Borrower shall not, directly or
indirectly:
Section 4.25 Certain Activities of the California Partnership.
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(a) So long as it is not a Wholly Owned Subsidiary, fail to
make such partnership distributions or otherwise transfer its cash and cash
equivalents to the Borrower or any of the Restricted Subsidiaries, so that, as a
result of such distributions and transfers, the California Partnership shall own
or hold cash and cash equivalents not in excess of $10,000,000 at any time, (b)
amend, waive, modify or supplement the Contribution Agreement or the Partnership
Agreement in any manner that (i) is materially adverse to the Borrower or any
Restricted Subsidiary or (ii) has the effect of further limiting or restricting
the transferability of the partnership interests in the California Partnership
held by West Coast MediaNews or any of its Affiliates or could otherwise have a
material adverse effect on the practical ability of the Banks to realize the
benefits of the Security Interest (as the Security Interest applies to the
partnership interests in the California Partnership) and (c) take any action or
refrain from taking any action the result of which, directly or indirectly, is
that the California Partnership no longer constitutes a Subsidiary or the
Borrower no longer controls, directly or indirectly, the California Partnership.
F. The Borrower shall not, and shall not permit Denver and its Subsidiaries to,
directly or indirectly:
Section 4.26 Certain Activities of Denver; Denver Acquisition
Documents.
(a) So long as Denver or any of its Subsidiaries is not a
Wholly Owned Subsidiary, fail to make such corporate distributions or otherwise
transfer its cash and cash equivalents to the Borrower or any of the Restricted
Subsidiaries (other than the California Partnership so long as it is not a
Wholly Owned Subsidiary), so that, as a result of such distributions and
transfers, Denver and it Subsidiaries shall own or hold cash and cash
equivalents not in excess of $10,000,000 at any time.
(b) Amend, waive, modify or supplement any of the Denver
Acquisition Documents or the Denver JOA Documents in any manner that (i) is
materially adverse to the Borrower or any Restricted Subsidiary or (ii) has the
effect of further limiting or restricting the transferability of the Capital
Securities of Denver or any of its Subsidiaries owned by the Borrower or any
Restricted Subsidiary or could otherwise have a material adverse effect on the
practical ability of the Banks to realize the benefits of the Security Interest
(as the Security Interest applies to such Capital Securities).
Section 4.27 Master Intercompany Note.
Amend, waive or modify the Master Intercompany Note, or fail to perform
or fail to require the performance of the Master Intercompany Note, in each case
in accordance with the terms thereof.
ARTICLE V.
INFORMATION
Section 5.01 Information to Be Furnished.
From the Restated Agreement Date and until the Repayment Date, the
Borrower shall furnish to each Bank:
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(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 ended December 31, 2000 consolidated and consolidating balance
sheets of the Borrower and the Consolidated Subsidiaries, as at the end of such
quarterly period and the related consolidated statements of income, statements
of income of each Consolidated Subsidiary, and consolidated statements of 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.
(b) Monthly Reports. As soon as available and in any event
within 45 days after the end of each month, the statements of revenues and
operating expenses of each of the Borrower and its Subsidiaries, for such month
and for the portion of the fiscal year then ended, including comparisons of
operations with budget and the prior year, in the form currently prepared for
management.
(c) 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 ended June 30,
2001:
(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 statements of income,
statements of income of each Consolidated Subsidiary, and consolidated
statements of cash flows of the Borrower and the Consolidated
Subsidiaries, for such fiscal year, setting forth in comparative form
the figures as at the end of and for the previous fiscal year;
(ii) an audit report of Ernst & Young, or other independent
certified public accountants of recognized standing reasonably
satisfactory to the Required Banks, on such of the financial statements
referred to in clause (i) as are consolidated financial statements,
which report shall be in scope and substance reasonably satisfactory to
the Required Banks;
(iii) a certificate of such accountants addressed to the Banks
(A) stating that they have caused this Agreement to be reviewed and
that, in making the examination necessary for their report on such
consolidated financial statements, nothing came to their attention that
caused them to believe that, as of the date of such financial
statements, any Default exists in respect of Sections 4.20 through 4.24
insofar as they relate to accounting matters and (B) having attached
the calculations required to establish whether or not the Borrower was
in compliance with the covenants contained in Sections 4.20 to 4.24;
and
(iv) the operating budget summary setting forth the
projections of operating revenues and expenses of the Borrower and the
Subsidiaries for the succeeding budget year;
provided that, in the event the Borrower changes the opening and closing dates
for its fiscal year, the balance sheets and other financial statements provided
pursuant to Section 5.01(c)(i) above
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shall cover a period not greater than 12 months and, if necessary to ensure that
all periods from the Restated Agreement Date are covered by such audited
financial statements, the Borrower shall provide financial statements, so
audited and reported on, for any shorter interim period resulting from any such
change in its fiscal year.
(d) (i) Officer's Certificates. At the time that financial
statements are furnished pursuant to Section 5.01(a) or (c), a certificate of
the president or chief financial officer of the Borrower in the form of Schedule
5.01(d). At the time that financial statements are furnished pursuant to Section
5.01(a) and within 45 days after the end of each fiscal year of the Borrower, a
certificate of the president or chief financial officer of the Borrower
demonstrating the ratios of Consolidated Debt to Operating Cash Flow and
Consolidated Senior Debt to Operating Cash Flow and stating, if applicable, that
a change in the Base Rate Margin or Eurodollar Rate Margin should be made.
(ii) Additional Financial Statements. In the event that there
are any Unrestricted Subsidiaries during any period in respect of which
financial statements are required to be delivered pursuant to
subsections (a) and (c) above, the Borrower shall also furnish to each
Bank, at the time such financial statements are so delivered, an
additional set thereof with respect to the Borrower and the Restricted
Subsidiaries.
(e) Reports and Filings.
(i) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower or any Restricted Subsidiary, or the
Board of Directors of the Borrower or any Restricted Subsidiary, by its
independent certified public accountants, including any management
letter; (ii) as soon as practicable, copies of all such financial
statements and reports as the Borrower or any Restricted Subsidiary
shall send to its stockholders and of all registration statements and
all regular or periodic reports that the Borrower or any Restricted
Subsidiary shall file, or may be required to file, with the Securities
and Exchange Commission or any successor commission; (iii) promptly
upon the effectiveness thereof, copies of each amendment, supplement or
modification to the 1997 Indenture or the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and (iv) as
soon as practicable, copies of all Information furnished to the holders
of the 1997 Subordinated Notes or the 1999 Subordinated Notes.
(f) Requested Information. From time to time and promptly upon
request of any Bank, 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 Subsidiaries
as such Bank may request, in each case in form and substance and certified in a
manner reasonably satisfactory to the requesting Bank.
(g) Notice of Defaults, Material Adverse Changes and Other
Matters. Prompt notice of:
(i) any Default of which the Borrower has knowledge,
(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
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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, the percentages of the various classes
of its Capital Securities owned by the Borrower or another Subsidiary
or its status as a Consolidated or non-Consolidated Subsidiary,
(iv) to the extent that the Borrower has knowledge thereof,
the threatening or commencement of, or the occurrence or nonoccurrence
of any change or event relating to, any action, suit or proceeding that
would cause the Representation and Warranty contained in Section 3.05
to be incorrect if made at such time,
(v) to the extent that the Borrower has knowledge thereof, the
occurrence or nonoccurrence of any change or event that would cause the
Representation and Warranty contained in Section 3.07 or Section 3.10
to be incorrect if made at such time,
(vi) any event or condition referred to in clauses (i) through
(vii) of Section 6.01(g), whether or not such event or condition shall
constitute an Event of Default,
(vii) any amendment of the certificate of incorporation or
by-laws of the Borrower or any Subsidiary that is a Loan Party, and
(viii) the giving or receipt of any material notice or other
material written communication under the Greenco Note Purchase
Agreement, the Partnership Agreement, the Denver Acquisition Documents,
the Denver JOA Documents or the Salt Lake Acquisition Documents,
together with copies of each such notice or other communication.
Section 5.02 Accuracy of Financial Statements and Information.
(a) Historical Financial Statements. The Borrower hereby
represents and warrants that (i) Schedule 5.02(a) sets forth a complete and
correct list of the financial statements submitted by the Borrower to the Banks
in order to induce them to execute and deliver this Agreement, (ii) such
financial statements are complete and correct and present fairly, in accordance
with Generally Accepted Accounting Principles (except for normal year-end audit
adjustments and, in the case of unaudited financial statements, the absence of
footnotes), the consolidated and, to the extent applicable, consolidating
financial position of the Borrower and the Consolidated Subsidiaries as at their
respective dates and the consolidated and, to the extent applicable,
consolidating results of operations, retained earnings and, as applicable,
changes in financial position or cash flows of the Borrower and such
Subsidiaries for the respective periods to which such statements relate, and
(iii) except as disclosed or reflected in such financial statements or otherwise
disclosed in writing to the Banks, as at December 31, 1998, neither the Borrower
nor any Subsidiary had any Liability, contingent or otherwise, or any unrealized
or anticipated loss, that, singly or in the aggregate, has had or would
reasonably be expected to have a Materially Adverse Effect on the Borrower and
the Restricted Subsidiaries taken as a whole.
(b) Future Financial Statements. The financial statements
delivered pursuant to Section 5.01(a) or (c) shall be complete and correct and
present fairly, in accordance with
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Generally Accepted Accounting Principles (except for (i) 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, (ii) normal
year-end audit adjustments, (iii) in the case of consolidating statements, the
presentation of Investments in Persons formed pursuant to joint operating
agreements on a pro rata consolidation basis, and, (iv) in the case of financial
statements delivered pursuant to Section 5.01(a), the absence of footnotes) the
consolidated and, if prepared by the Borrower, consolidating financial position
of the Borrower and the Consolidated Subsidiaries as at their respective dates
and the consolidated and, if prepared by the Borrower, consolidating results of
operations, retained earnings and cash flows of the Borrower and such
Subsidiaries for the respective periods to which such statements relate, and the
furnishing of the same to the Banks shall constitute a representation and
warranty by the Borrower made on the date the same are furnished to the Banks to
that effect and to the further effect that, except as disclosed or reflected in
such financial statements, as at the respective dates thereof, neither the
Borrower nor any Subsidiary had any Liability, contingent or otherwise, or any
unrealized or anticipated loss, that, singly or in the aggregate, has had or
might have a Materially Adverse Effect on the Borrower and the Restricted
Subsidiaries taken as a whole.
(c) Historical Information. The Borrower hereby represents and
warrants that all Information furnished to the Administrative Agent or the Banks
by or on behalf of the Borrower or any Subsidiary prior to the Restated
Agreement Date in connection with or pursuant to the Loan Documents and the
relationships established thereunder, at the time the same was so furnished, but
in the case of Information dated as of a prior date, as of such date, (i) in the
case of any Information prepared in the ordinary course of business, was
complete and correct in the light of the purpose prepared, and, in the case of
any Information the preparation of which was requested by any Bank, was complete
and correct in all material respects to the extent necessary to give such Bank
true and accurate knowledge of the subject matter thereof, (ii) did not contain
any untrue statement of a material fact, and (iii) did not 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.
(d) Future Information. All Information furnished or to be
furnished to the Administrative Agent or the Banks by or on behalf of the
Borrower or any Subsidiary on or after the Restated Agreement Date in connection
with or pursuant to the Loan Documents or in connection with or pursuant to any
amendment or modification of, or waiver of rights under, the Loan Documents,
shall, at the time the same is so furnished, but in the case of Information
dated as of a prior date, as of such date, (i) in the case of any Information
prepared in the ordinary course of business, be complete and correct in the
light of the purpose prepared, and, in the case of any Information required by
the terms of the Loan Documents or the preparation of which was requested by any
Bank, be complete and correct to the extent necessary to give such Bank true and
accurate knowledge of the subject matter thereof, (ii) not contain any untrue
statement of a material fact, and (iii) not 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, and the furnishing of
the same to the Administrative Agent or any Bank shall constitute a
representation and warranty by the Borrower made on the date the same are so
furnished to the effect specified in clauses (i), (ii) and (iii).
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Section 5.03 Additional Covenants Relating to Disclosure.
From the Restated 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 (c) and (ii) the determination of the compliance of the Borrower and
its Subsidiaries with the terms of the Loan Documents.
(b) Visits, Inspections and Discussions. Permit, or, in the
case of premises, property, books, records or Persons not within its immediate
control, promptly take such actions as are necessary or desirable in order to
permit, representatives (whether or not officers or employees) of any Bank, from
time to time upon reasonable prior notice, as often as may be reasonably
requested, to (i) visit any of its premises or property or any premises or
property of others on which any of its property or books and records (or books
and records of others relating to it) may be located, (ii) inspect, and verify
the amount, character and condition of, any of its property, (iii) review and
make extracts from its books and records and books and records of others
relating to it, including management letters prepared by its independent
certified public accountants, and (iv) discuss with any Person (including its
principal officers, independent certified public accountants) 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 hereby authorizes and directs each Person whose
preparation or delivery to the Administrative Agent or the Banks 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 and the Banks. Until
further written notice from the Borrower, the Borrower further authorizes and
directs all Persons (a) to furnish to the Banks any Information regarding the
matters referred to in Section 5.01(f) that any Bank may request, (b) to permit
representatives of any Bank upon reasonable notice to make the visits,
inspections, reviews and extracts of premises, property, books and records
within their possession and control contemplated by Section 5.03(c) and (c) to
discuss with representatives of any Bank the matters referred to in Section
5.03(c). The Borrower agrees to promptly execute and deliver from time to time
such further authorizations to effect the purposes of this Section 5.04 as the
Administrative Agent or any Bank may reasonably request.
ARTICLE VI.
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, any Restricted Subsidiary or any
other Loan Party, or be effected by operation of law
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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 principal of or interest on any of the
Loans or the Notes, any reimbursement of any Drawing or any payment of any fee,
or any cash collateralization of any Contingent Reimbursement Obligation, shall
not be made when and as due (whether at maturity, upon mandatory prepayment, by
reason of notice of prepayment or acceleration or otherwise) and in accordance
with the terms of this Agreement, the Notes and the Fee Letter;
(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)(i) (insofar as such Section requires the preservation
of the corporate existence of each of the Loan Parties), 4.01(a)(vi),
4.04 through 4.27, 5.01(g)(i) or 5.03(b); or
(B) any term, covenant, condition or agreement contained in
any Loan Document (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; or
(ii) Any Loan Party shall default in the performance or
observance of:
(A) any term, covenant, condition or agreement contained in
Sections 1.02, 3.01, 3.02(a) (insofar as such Section requires the
preservation of the corporate existence of such Loan Party), 3.02(d),
3.03(a) or 3.06 of any Pledge Agreement to which such Loan Party is a
party; or
(B) any term, covenant, condition or agreement contained in
any Loan Document (other than any 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 after notice shall have been given by the Administrative Agent
to such Loan Party requiring that such default be cured; or
(d) (i) The Borrower, any Restricted Subsidiary or any other
Loan Party shall fail to pay, in accordance with its terms and when due and
payable (giving effect to any applicable grace period), any of the principal of
or interest on any of its Indebtedness (other than the Loans) having an
aggregate principal amount in excess of $3,000,000, (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
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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;
(e) (i) The Borrower, any Subsidiary or any other Loan Party
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 action for the purpose of effecting any of
the foregoing;
(ii) (A) A case or other proceeding shall be commenced against
the Borrower, any Subsidiary or any other Loan Party seeking (1) relief under
the Federal bankruptcy laws (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, any such
Subsidiary or any other Loan Party, or of all or any substantial part of the
assets, domestic or foreign, of the Borrower, any such Subsidiary or any other
Loan Party, and such case or proceeding shall continue undismissed and unstayed
for a period of 45 days, or (B) an order granting the relief requested in such
case or proceeding against the Borrower, any such Subsidiary or any other Loan
Party (including an order for relief under such Federal bankruptcy laws) shall
be entered;
(f) A judgment or order shall be entered against the Borrower,
any Restricted Subsidiary or any other Loan Party 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 of all such judgments and orders exceeds $3,000,000
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, in the reasonable judgment of the
Required Banks, together with all other such judgments or orders, have a
Materially Adverse Effect on the Borrower and the Restricted Subsidiaries taken
as a whole;
(g) (i) any Termination Event shall occur with respect to any
Benefit Plan of the Borrower, any Restricted Subsidiary, any other Loan Party 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 Restricted Subsidiary, any other Loan
Party 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 Restricted
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Subsidiary, any other Loan Party 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 Restricted
Subsidiary, any other Loan Party 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 Required Banks will
not subject, the Borrower, any Restricted Subsidiary or any other Loan Party to
any Liability that, alone or in the aggregate with all such Liabilities for all
such Persons, exceeds $1,000,000;
(h) Any Loan Party or any Affiliate of any Loan Party asserts,
or any Loan Party or any Affiliate of any Loan Party or any other Person
institutes any proceedings seeking to establish, that (i) any provision of the
Loan Documents is invalid, not binding or unenforceable or (ii) the Security
Interest is not a valid and perfected first priority security interest in the
Collateral subject only to Permitted Liens;
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, members of
their families, their estates or trusts for the benefit of such Persons shall at
any time cease to be the beneficial owners, directly or indirectly, of common
stock of the Borrower representing not less than 80% of the issued and
outstanding shares of the Borrower's common stock; or
(j) ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ shall at
any time cease to be senior officers of the Borrower or otherwise remain
actively involved in the management of the Borrower and shall not have been
replaced by one or more senior officers reasonably satisfactory to the Required
Banks within 90 days of such event.
Section 6.02 Remedies Upon Event of Default.
During the continuance of any Event of Default (other than one
specified in Section 6.01(e)) and in every such event, the Administrative Agent,
upon notice to the Borrower, may (but shall not be obligated to), and if
directed by the Required Banks shall, 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 and the Notes and all other amounts owing under the Loan Documents
to be, and the Loans and the Notes and all such other amounts shall thereupon
and to that extent become, due and payable (b) 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 9.19 and such amount shall thereupon become due and
payable to the Administrative Agent and (c) terminate, in whole or, from time to
time, in part, the Commitments. Upon the occurrence of an Event of Default
specified in Section 6.01(e), automatically and without any notice to the
Borrower, (a) the principal of and interest on the Loans and the Notes and all
other amounts owing under the 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 9.19.
Presentment, demand, protest
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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 VII.
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 Mandatory Suspension and Conversion of Eurodollar Rate
Loans.
A Bank's obligations to make, continue or convert into Eurodollar Rate
Loans of any Type shall be suspended, all such Bank's 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 (c) below, on the last day such Bank may
lawfully continue to maintain Loans of that Type or, in the case of clause (d)
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 by such Bank
shall be deemed requests for, Base Rate Loans, if:
(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 information is not available to
it for purposes of determining the Adjusted 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 makes it unlawful or impracticable for such Bank or its 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
(d) such Bank determines that, by reason of any Regulatory
Change, such Bank or its 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
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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 in the determination of any Bank or, in the case of any Letter of
Credit or Drawing, the Issuing Bank (a) any Regulatory Change shall directly or
indirectly (i) reduce the amount of any sum received or receivable by (A) such
Bank with respect to any Eurodollar Rate Loan or Letter of Credit Participation
or the return to be earned by such Bank on any Eurodollar Rate Loan or Letter of
Credit Participation or (B) the Issuing Bank with respect to any Letter of
Credit or Drawing, (ii) impose a cost on (A) 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 Eurodollar Rate Loan or Letter of Credit
Participation or (B) the Issuing Bank or any of its Affiliates that is
attributable to the issuance or maintaining of, or the commitment to issue, any
Letter of Credit or the making or maintaining of any Drawing, (iii) require (A)
such Bank or any Affiliate of such Bank to make any payment on or calculated by
reference to the gross amount of any amount received by such Bank under any Loan
Document in respect of its Eurodollar Rate Loans or its obligations to make
Eurodollar Rate Loans or (B) 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 any Letter
of Credit or its commitment to issue any Letter of Credit or Drawing or (iv)
reduce, or have the effect of reducing, the rate of return on any capital of (A)
such Bank or any Affiliate of such Bank that such Bank or such Affiliate is
required to maintain on account of any Eurodollar Rate Loan or Letter of Credit
Participation or such Bank's commitment to make any Eurodollar Rate Loan or
Letter of Credit Participation or (B) the Issuing Bank or any of its Affiliates
that the Issuing Bank or such Affiliate is required to maintain on account of
any Letter of Credit or Drawing or the Issuing Bank's commitment to issue any
Letter of Credit 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 it referred
to in clauses (a) and (b) above, but the failure to give such notice shall not
affect such Bank's, or the Issuing Bank's, as the case may be, right to such
compensation.
Section 7.03 Funding Losses.
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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) any payment, 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 (b) 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. At the election of such Bank,
and without limiting the generality of the foregoing, but without duplication,
such compensation on account of losses may include an amount equal to the excess
of (i) the interest that would have been received from the Borrower under this
Agreement on any amounts to be reemployed during an Interest Period or its
remaining portion over (ii) the interest component of the return that such Bank
determines it could have obtained had it placed such amount on deposit in the
interbank Dollar market selected by it for a period equal to such Interest
Period or its remaining portion.
Section 7.04 Certain Determinations.
In making the determinations contemplated by Sections 7.01, 7.02 and
7.03, each Bank and the Issuing Bank may make such estimates, assumptions,
allocations and the like that such Person in good faith determines to be
appropriate, and such Person's selection thereof in accordance with this Section
7.04, and the determinations made by such Bank on the basis thereof, shall be
final, binding and conclusive upon the Borrower, except, in the case of such
determinations, for manifest errors in computation or transmission. Each Bank
and the Issuing 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 and 7.03 and the assumptions underlying such computations.
Section 7.05 Change of Lending Office.
If an event occurs with respect to a Lending Office of any Bank or, in
the case of any Letter of Credit or Drawing, the Issuing Bank, that makes
operable the provisions of clause (c) or (d) of Section 7.01 or entitles such
Bank or the Issuing Bank, as the case may be, to make a claim under Section
7.02, such Bank or the Issuing Bank, as the case may be, shall, if requested by
the Borrower, use reasonable efforts to designate another Lending Office or
Offices the designation of which will eliminate such operability or reduce the
amount such Bank or the Issuing Bank, as the case may be, is so entitled to
claim, provided that such designation would not, in the sole and absolute
discretion of such Bank, or the Issuing Bank, as the case may be, be
disadvantageous to such Bank in any manner or contrary to such Bank's or the
Issuing Bank's, as the case may be, policies. Each Bank and the Issuing Bank may
at any time and from time to time change any Lending Office and shall give
notice of any such change to the Administrative Agent and 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 or the Issuing Bank shall
not make operable the provisions of clause (c) or (d) of Section 7.01 or entitle
such Bank to make a claim under Section 7.02 if the operability of such clause
or such claim results solely from such designation and not from a subsequent
Regulatory Change.
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ARTICLE VIII.
THE AGENTS
Section 8.01 Appointment and Powers.
Each Bank hereby irrevocably appoints and authorizes The Bank of New
York, and The Bank of New York 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 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. Bank of America NT & SA, in
its capacity as Syndication Agent, First Union National Bank, in its capacity as
Documentation Agent, and Fleet National Bank, in its capacity as
Co-Documentation Agent, shall be entitled to all of the rights (other than with
respect to fees payable to the Administrative Agent) and immunities of the
Administrative Agent provided for in the Loan Documents, but shall have no
duties or responsibilities except for those expressly set forth therein.
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 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.
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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 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.
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.
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 principal amounts of the Loans outstanding made by the
Banks (or, if no 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 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.
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Each 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 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 by the
Administrative Agent under the Loan Documents, the Administrative Agent shall
have no obligation to provide any Bank with any information concerning the
business, status or condition of any Loan Party or any Subsidiary thereof, 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 (a) execute and
deliver, in the name of and on behalf of such Bank, (i) the Pledge Agreements,
(ii) 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 (iii) any other Loan Document
requiring execution by or on behalf of such Bank, and (b) release Collateral
from the Security Interest to the extent that such Collateral has been disposed
of in accordance with Section 4.10. The Administrative Agent shall consent to
any amendment of any term, covenant, agreement or condition of the Pledge
Agreements, 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, however, that (i) the Administrative Agent shall not be required to
consent to any such amendment or waiver that affects its rights or duties and
(ii) the Administrative Agent shall not, unless directed to do so in writing by
each Bank, (A) consent to any assignment by any Loan Party of any of its rights
or obligations under any such agreement or (B) release any Collateral from the
Security Interest, except as specified in clause (b) above.
Section 8.08 Resignation of the Administrative Agent.
The Administrative Agent may at any time give notice of its resignation
to the Banks and the Borrower. Upon receipt of any such notice of resignation,
the Required Banks 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 shall have accepted such appointment
within 30 days after the resigning Administrative Agent's giving of notice of
resignation, then the resigning Administrative Agent may, on behalf of the Banks
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, (a) such Person shall thereupon succeed to and become
vested with all the rights, powers, privileges, duties and obligations of the
resigning Administrative Agent and the resigning Administrative Agent shall be
discharged from its duties and obligations as Administrative Agent under the
Loan Documents and (b) the resigning Administrative Agent shall promptly
transfer all Collateral within its possession or control to the possession or
control of the successor
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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 resigning 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.
ARTICLE IX.
MISCELLANEOUS
Section 9.01 Notices and Deliveries.
(a) Notices and Materials Other than Collateral. Except as
provided in Section 9.01(b):
(i) Manner of Delivery. All notices, communications and
materials (including all Information) to be given or delivered pursuant
to the Loan Documents shall, except in those cases where giving notice
by telephone is expressly permitted, be given or delivered in writing
(which shall include telex and telecopy transmissions). Notices under
Sections 1.02, 1.04(c), 1.06, 1.08 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 has acted in reliance on such telephonic
notice.
(ii) Addresses. All notices, communications and materials to
be given or delivered pursuant to the Loan Documents shall be given or
delivered at the following respective addresses and telex, telecopier
and telephone numbers and to the attention of the following individuals
or departments:
(A) if to the Borrower, to it at:
MediaNews Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Executive Vice President & Chief
Financial Officer
with a copy to:
Verner, Lipfert, Bernhard, ▇▇▇▇▇▇▇▇▇
and Hand
49
▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
and with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(B) if to any Guarantor, to it at the address or telex,
telecopier or telephone number and to the attention of the individual
or department, set forth below such Guarantor's name on Annex B, or in
the case of a Guarantor that becomes a Guarantor pursuant to a
Subsidiary Guaranty Supplement, set forth in such Subsidiary Guaranty
Supplement;
(C) if to the Administrative Agent or the Secured Party, to it
at:
The Bank of New York
Media and Telecommunications Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇/8593
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ (6366 or 6367)
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇ Gazzillio, Agency Function
Administration, 18th Floor
(D) if to any Bank (including any Bank in its capacity as the
Issuing Bank or the Swing Loan Lender), 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 and the
Administrative Agent with respect to such assignment;
or at such other address, 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 (x) if the party to which such
information pertains is the Borrower or any Guarantor, the Administrative Agent
and each Bank, (y) if the party to which such information pertains is the
Administrative Agent, the Borrower, each Guarantor and each Bank and (z) if the
party to which such information pertains is a Bank, the Borrower, each Guarantor
and the Administrative Agent.
(iii) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Loan Documents shall
be deemed so given or delivered (A) 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, (B) if sent by any other means of physical
delivery, when such notice, communication or material is delivered to
the appropriate address as above provided, (C) 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 (D) 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 and
(y) notices, communications and materials to be given or delivered to
the Administrative Agent or any Bank pursuant to Sections 1.02,
1.04(c), 1.06, 1.08 and 1.13(b) and Article 5 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.
(iv) Reasonable Notice. Any requirement under Applicable Law
of reasonable notice by the Administrative Agent or the Banks to the
Borrower or any Guarantor of any event in connection with, or in any
way related to, the Loan Documents or the exercise by the
Administrative Agent or the Banks of any of their rights thereunder
shall be met if
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notice of such event is given to the Borrower or such Guarantor in the
manner prescribed above at least 10 days before (A) the date of such
event or (B) the date after which such event will occur.
(b) Collateral. Until the Administrative Agent shall otherwise
specify, all Collateral to be delivered to the Administrative Agent pursuant to
the 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 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 9.02 Expenses; Indemnification.
Whether or not any Loans are made, or any Letter of Credit is issued,
hereunder, the Borrower shall:
(a) pay or reimburse the Administrative Agent, the Issuing
Bank, the Swing Loan Lender 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 or the
issuance of the Letters of Credit;
(b) pay or reimburse the Administrative Agent for all costs
and expenses (including reasonable fees and disbursements of legal counsel,
appraisers, accountants and other experts employed or retained by the
Administrative Agent) incurred by the Administrative Agent 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, (ii) after the
occurrence of a Default, consulting with respect to any matter in any way
arising out of, related to, or connected with, the Loan Documents, including (A)
the protection or preservation of the Collateral, (B) the protection,
preservation, exercise or enforcement of any of the rights of the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or the Banks in, under or related
to the Collateral or the Loan Documents or (C) the performance of any of the
obligations of the Administrative Agent, the Issuing Bank, the Swing Loan Lender
or the Banks under or related to the Loan Documents, (iii) protecting or
preserving the Collateral or (iv) after the occurrence of a Default, protecting,
preserving, exercising or enforcing any of the rights of the Administrative
Agent, the Issuing Bank, the Swing Loan Lender or the Banks in, under or related
to the Collateral or the Loan Documents, including defending the Security
Interest as a valid, perfected, first priority security interest in the
Collateral subject only to Permitted Liens;
(c) pay or reimburse each Bank, the Issuing Bank and the Swing
Loan Lender for all costs and expenses (including reasonable fees and
disbursements of legal counsel and other experts employed or retained by such
Bank, the Issuing Bank or the Swing Loan Lender)
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incurred by such Bank, the Issuing Bank or the Swing Loan Lender in connection
with, arising out of, or in any way related to protecting, preserving,
exercising or enforcing any of its rights in, under or related to the Collateral
or the Loan Documents, in each case, after the occurrence of a Default; 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 reasonable expenses
(including reasonable 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
Document Related Claim (whether asserted by such Indemnified Person, the
Borrower, any 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 in this subsection (d) 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, (y) knowing
violations of law or (z) in the case of claims by the Borrower against such
Indemnified Person, such Indemnified Person's failure to observe any other
standard applicable to it under any of the other provisions of the Loan
Documents or, but only to the extent not waivable thereunder, Applicable Law.
Section 9.03 Amounts Payable Due Upon Request for Payment.
All amounts payable by the Borrower under Section 9.02 and under the
other provisions of the Loan Documents shall, except as otherwise expressly
provided, be immediately due upon request for the payment thereof.
Section 9.04 Remedies of the Essence.
The various rights and remedies of the Administrative Agent, the
Issuing Bank, the Swing Loan Lender and the Banks under the Loan Documents are
of the essence of those agreements, and the Administrative Agent, the Issuing
Bank, the Swing Loan Lender and the Banks shall be entitled to obtain a decree
requiring specific performance of each such right and remedy.
Section 9.05 Rights Cumulative.
Each of the rights and remedies of the Administrative Agent, the
Issuing Bank, the Swing Loan Lender and the Banks under the Loan Documents shall
be in addition to all of their 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 9.06 Confidentiality.
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The Administrative Agent, the Issuing Bank, the Swing Loan Lender and
the Banks agree to exercise all reasonable efforts to keep any information
delivered or made available by the Borrower concerning the Collateral or the
Borrower, any Guarantor or any Subsidiary confidential from anyone other than
persons employed or retained by such Person who are or are expected to become
engaged in evaluating, approving, structuring or administering the Loans of the
Administrative Agent, the Issuing Bank, the Swing Loan Lender or any Bank;
provided, however, that nothing herein shall prevent any Person from disclosing
such information (a) to any Affiliate of such Person or to any other such
Person, (b) upon the order of any court or administrative agency, (c) upon the
request or demand of any regulatory agency or authority having jurisdiction over
such Person, (d) that has been publicly disclosed, (e) in connection with any
litigation relating to the Loans, this Agreement or any transaction contemplated
hereby to which any Bank, any Loan Party or any Administrative Agent may be a
party, (f) to the extent reasonably required in connection with the exercise of
any remedy hereunder, (g) to such Person's legal counsel and independent
auditors and (h) to any actual or proposed participant or assignee of all or any
part of the Loans hereunder, if the intended recipient of such information,
prior to such disclosure, agrees for the benefit of the Borrower to comply with
the provisions of this Section 9.06.
Section 9.07 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 Loan Documents referred to in Section
8.07(a), the Administrative Agent, (b) in the case of an amendment or waiver
with respect to any other Loan Document, the Required Banks and, if the rights
and duties of the Administrative Agent, the Issuing Bank, or the Swing Loan
Lender are affected thereby, by the Administrative Agent, the Issuing Bank, or
the Swing Loan Lender, as the case may be and (c) in the case of an amendment
with respect to any Loan Document, by the Borrower and any Guarantor which is a
party thereto; provided, however, that no amendment or waiver shall be
effective, unless in writing and signed by each Bank affected thereby, to the
extent it (i) changes the amount of such Bank's Commitment, (ii) reduces the
principal of or the rate of interest on such Bank's Loans or Note, the amount of
such Bank's Letter of Credit Participations or any fees payable to such Bank
hereunder, (iii) postpones any date fixed for, or reduces the amount of, any
scheduled reduction of the Commitments or any payment of principal of or
interest on such Bank's Loans, Note, Letter of Credit Participations or any fees
payable to such Bank hereunder, (iv) releases any Collateral from the Security
Interest except to the extent that such Collateral has been disposed of in
accordance with Section 4.16 (on the basis of the provisions of Section 4.10(e)
or, if such release shall have been consented to by the Required Banks, Section
4.10(c)) or releases any Guarantor from its obligations under Section 10.01
except to the extent that all of the Capital Securities of such Guarantor have
been disposed of in accordance with Section 4.16 (on the basis of the provisions
of Section 4.10(e) or, if such release shall have been consented to by the
Required Banks, Section 4.10(c)), or (v) amends Section 1.15, this Section 9.07,
the definition of "Required Banks" contained in Section 11.01 or any other
provision of this Agreement requiring the consent or other action of all of the
Banks. 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
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dealing or performance, shall operate as a waiver of any right of the
Administrative Agent, the Issuing Bank, the Swing Loan Lender 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 the Administrative Agent, the Issuing Bank, the Swing Loan
Lender or any Bank under the Loan Documents or Applicable Law.
Section 9.08 Set-Off; Suspension of Payment and Performance.
The Administrative Agent, the Issuing Bank, the Swing Loan Lender 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
the Borrower or any Guarantor under the Loan Documents (whether owing to such
Person or to any other Person that is the Administrative Agent, the Issuing
Bank, the Swing Loan Lender or a Bank and whether matured or unmatured, fixed or
contingent or liquidated or unliquidated and including amounts to which a Bank
is entitled with respect to its Letter of Credit Participations) any and all
Liabilities owing by such Person or any of its Affiliates to the Borrower, each
Guarantor or any Wholly Owned Subsidiary (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) and (b) during any Event of Default, to suspend the payment
and performance of such Liabilities owing by such Person or its Affiliates and,
in the case of Liabilities that are deposits, to return as unpaid for
insufficient funds any and all checks and other items drawn against such
deposits.
Section 9.09 Sharing of Recoveries.
Each Bank agrees that, if, for any reason, including as a result of (a)
the exercise of any right of counterclaim, set-off, banker's lien or similar
right, (b) 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 (c) the
allocation of payments by the Administrative Agent or any Loan Party in a manner
contrary to the provisions of Section 1.15, such Bank shall receive payment of a
proportion of the aggregate amount due and payable to it hereunder as principal
of or interest on the Loans or fees that is greater than the proportion received
by any other Bank in respect of the aggregate 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 so that all such recoveries with respect to such 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 and each Guarantor 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 9.09 shall, with respect to such
participation, be entitled to
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all of the rights of a Bank under Sections 7.02, 9.02 and 9.08 (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 and each Guarantor were directly indebted to the holder of such
participation for Loans in the amount of such participation.
Section 9.10 Assignments and Participations.
(a) Assignments.
(i) Neither the Borrower nor any Guarantor may assign any of
its rights or obligations under the Loan Documents without the prior
written consent of (A) in the case of the Loan Documents referred to in
Section 8.07(a), the Administrative Agent and (B) in the case of any of
the other Loan Documents, the Issuing Bank, the Swing Loan Lender and
each Bank, and no assignment of any such obligation shall release the
Borrower or any Guarantor therefrom unless the Administrative Agent,
the Issuing Bank, the Swing Loan Lender and each Bank, as applicable,
shall have consented to such release in a writing specifically
referring to the obligation from which the Borrower or such Guarantor
is to be released.
(ii) Each Bank may from time to time assign any or all of its
rights and obligations under the 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 Borrower (unless an Event of Default
exists) the Issuing Bank, the Swing Loan Lender and the Administrative
Agent, such consents not to be unreasonably withheld, (B) in the case
of a partial assignment, the assignment shall involve the assignment of
not less than $5,000,000 of the assignor Bank's Commitment, (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 Loan Lender and the Administrative Agent
and (D) 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 assignor
shall be released from the obligations so assigned and, in the case of
an assignment of all of its Loans and Commitment, shall cease to be a
Bank. In the event of any effective assignment by a Bank, the Borrower
shall issue a new Note to the assignee Bank (against, other than in the
case of a partial assignment, receipt of the existing Note of the
assignor Bank). Nothing in this Section 9.10 shall limit the right of
any Bank to assign its interest in the Loans and its Note to a Federal
Reserve Bank as collateral security under Regulation A of the Board of
Governors of the Federal Reserve System, but no such assignment shall
release such Bank from its obligations hereunder.
(b) Participations. Each Bank may from time to time sell or
otherwise grant participations in any or all of its rights and obligations under
the Loan Documents. 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, each Guarantor, the Issuing Bank, the
Swing Loan Lender, the Administrative Agent and the other Banks may continue to
deal solely
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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, Note or the amount of such Bank's Letter of Credit
Participations or any fees payable to such Bank hereunder, (ii) postpone any
date fixed for any reduction of the Commitments or any payment of principal of
or interest on such Bank's Loans, Note or the amount of such Bank's Letter of
Credit Participations or any fees payable to such Bank hereunder, (iii) permit
any Loan Party to assign any of its obligations under the Loan Documents to any
other Person or (iv) 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 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 1.15, 7.02, 7.03, 9.02(d) and 9.07 (subject to any conditions
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; provided, however, that no holder of a
participation shall be entitled to any amounts that would otherwise be payable
to it with respect to its participation unless such amounts would have been
payable to the Bank that granted such participation if such participation had
not been granted.
(c) Loans by SPC Designees. Notwithstanding anything to the
contrary contained herein, any Bank (a "Granting Bank") may grant to a special
purpose funding vehicle (an "SPC") identified as such in writing from time to
time by the Granting Bank to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting
Bank (the "Applicable Granting Bank") would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan the Applicable Granting Bank shall be obligated to make such Loan pursuant
to the terms hereof and (iii) no SPC or Applicable Granting Bank shall be
entitled to receive any greater amount pursuant to Section 1.14, 7.02 or 7.03
than the Applicable Granting Bank would have been entitled to receive had the
Applicable Granting Bank not otherwise granted such SPC the option to provide
any Loan to the Borrower. The making of a Loan by an SPC hereunder shall utilize
the Commitment of the Applicable Granting Bank to the same extent, and as if,
such Loan were made by such Granting Bank. Each party hereto hereby agrees that
no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Bank would otherwise be liable so long as, and to the
extent that, the Applicable Granting Bank makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against or join any other
person in instituting against such SPC any bankruptcy, reorganization,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. Notwithstanding the foregoing,
the Applicable Granting Bank unconditionally agrees to indemnify the Borrower,
the Administrative Agent and each Bank against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be incurred by or
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asserted against the Borrower, the Administrative Agent or such Bank, as the
case may be, in any way relating to or arising as a consequence of any such
forbearance or delay in the initiation of any such proceeding against its SPC.
Each party hereto hereby acknowledges and agrees that no SPC shall have the
rights of a Bank hereunder, such rights being retained by the Applicable
Granting Bank. Accordingly, and without limiting the foregoing, each party
hereby further acknowledges and agrees that no SPC shall have any voting rights
hereunder and that the voting rights attributable to any Loan made by an SPC
shall be exercised only by the Applicable Granting Bank and that each Applicable
Granting Bank shall serve as the administrative agent and attorney in fact for
the SPC to which it granted such option and shall on behalf of such SPC receive
any and all payments made for the benefit of such SPC and take all actions
hereunder to the extent, if any, such SPC shall have any rights hereunder. In
addition, notwithstanding anything to the contrary contained in this Agreement
any SPC may (i) with notice to, but without the prior written consent of any
other party hereto, assign all or a portion of its interest in any Loans to the
Applicable Granting Bank and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC.
Section 9.11 Governing Law.
The rights and duties of the Borrower, each Guarantor, the
Administrative Agent 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 9.12 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 and County of New York, and, by execution and
delivery of this Agreement, the Borrower and each Guarantor (a) accepts,
generally and unconditionally, the non-exclusive 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 9.01(a)(ii), 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 Loan Lender, 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 Loan Lender, 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, the Issuing Bank, the Swing Loan Lender, or any Bank
involving any Loan Document Related Claim shall be brought only in a court
located in the City and State of New York. THE BORROWER, EACH GUARANTOR, THE
AGENT, THE ISSUING BANK, THE SWING LOAN LENDER AND EACH BANK
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HEREBY IRREVOCABLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY
LOAN DOCUMENT RELATED CLAIM.
Section 9.13 LIMITATION OF LIABILITY.
NEITHER THE AGENT, THE ISSUING BANK, THE SWING LOAN LENDER, NOR THE
BANKS 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 DAMAGES SUFFERED BY THE BORROWER
IN CONNECTION WITH ANY LOAN DOCUMENT RELATED CLAIM.
Section 9.14 Severability of Provisions.
Any provision of the 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 waives any provision of Applicable Law that
renders any provision of the Loan Documents prohibited or unenforceable in any
respect.
Section 9.15 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 9.16 Survival of Obligations.
Except as otherwise expressly provided therein, the rights and
obligations of the Borrower, each Guarantor, the Administrative Agent, the
Issuing Bank, the Swing Loan Lender, the Banks and the other Indemnified Persons
under the Loan Documents under Sections 1.14, 9.02 and 10.04 (and each other
Section reasonably related thereto) shall survive the Repayment Date and the
termination of the Security Interest.
Section 9.17 Entire Agreement.
This Agreement, the Notes and the other Loan Documents embody the
entire agreement among the Borrower, each Guarantor, the Administrative Agent,
the Issuing Bank, the Swing Loan Lender, 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 9.18 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
permitted assigns.
Section 9.19 Cash Collateral.
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If, at any time, payment, prepayment or cash collateralization of
Contingent Reimbursement Obligations shall be required pursuant to any provision
of any of the Loan Documents, such payment, prepayment or cash collateralization
shall be made by deposit of funds in Dollars, in the amount of such payment,
prepayment or cash collateralization, into a cash collateral account at the
Administrative Agent's Office, which account shall be under the sole dominion
and control of the Administrative Agent and is hereby pledged to the
Administrative Agent for the benefit of itself, the Banks and the Issuing Bank
as security for the payment of the Contingent Reimbursement Obligations and any
other amounts that may become payable hereunder. 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 have been paid and the
Repayment Date shall have occurred shall be promptly remitted to the Borrower.
Section 9.20 Existing Pledge Agreements.
Each of the Loan Parties that shall have executed and delivered a
Pledge Agreement prior to the Restated Agreement Date hereby confirms that its
Pledge Agreement remains in full force and effect and applies to the Credit
Agreement as amended and restated as of the Restated Agreement Date.
ARTICLE X.
GUARANTY
Section 10.01 Guaranty of Payment and Performance.
Each Guarantor hereby (a) irrevocably, unconditionally and absolutely
guarantees to each Guaranteed Party the due and punctual payment, observance and
performance of all of the Guaranteed Obligations 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 10.03, and
(b) agrees so to pay, observe or perform the same when so due, or deemed to be
due, upon demand; provided, however, that (i) prior to the time, if any, that
Denver becomes a Wholly Owned Subsidiary, the liability of Denver pursuant to
this Section 10.01 on any day shall be limited to the unpaid principal amount of
the Master Intercompany Note on, and accrued and unpaid interest and fees
thereunder as of, such day and (ii) the liability of Los Angeles Daily News
Publishing Company pursuant to this Section 10.01 shall be limited to the
maximum amount permitted under the Contracts governing the Greenco Subordinated
Debt (as such Contracts exist on the Restated Agreement Date).
Section 10.02 Limitation on Guaranty.
It is the intention of each Guarantor and the Guaranteed Parties that
the obligations of each Guarantor under the Loan Documents 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 avoidable, the
obligations of each Guarantor under the Loan Documents shall be limited to the
maximum amount that, after giving effect to the incurrence thereof, would not
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render such Guarantor insolvent or unable to pay its Debts as they mature or
leave such Guarantor with an unreasonably small capital. The need for any such
limitation shall be determined, and any such needed limitation shall be
effective, at the time or times that such Guarantor is deemed, under Applicable
Law, to incur obligations hereunder. Any such limitation shall be apportioned
amongst the Guaranteed Obligations of the Guaranteed Parties pro rata in
accordance with their respective amounts thereof. This Section 10.02 is intended
solely to preserve the rights of the Guaranteed Parties under the Loan Documents
to the maximum extent permitted by Applicable Law, and no Guarantor nor any
other Person shall have any right under this Section 10.02 that it would not
otherwise have under Applicable Law. For the purposes of this Section 10.02 and
Section 10.13, "insolvency", "unreasonably small capital" and "inability to pay
Debts as they mature" shall be determined in accordance with Applicable Law.
Section 10.03 Continuance and Acceleration of Guaranteed Obligations
upon Certain Events.
If: (a) any Event of Default specified in Section 6.01(e)
shall occur;
(b) any injunction, stay or the like that enjoins any
acceleration, or demand for the payment, observance or performance, of any
Guaranteed Obligations that would otherwise be required or permitted under the
Loan Documents 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 of the Loan
Documents, 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 to have commenced bearing
interest at the Post-Default Rate and (ii) the Guaranteed Parties to which such
Guaranteed Obligations are owing may, with respect to such Guaranteed
Obligations, exercise all of the rights and remedies under the Loan Documents
that would be available to them during an Event of Default.
Section 10.04 Recovered Payments.
The Guaranteed Obligations shall be deemed not to have been paid,
observed or performed, and each Guarantor's obligations under the Loan Documents
in respect thereof shall continue and not be discharged, to the extent that any
payment, observance or performance thereof by the Borrower or any other
Guarantor or guarantor, or out of the proceeds of the Collateral or any other
collateral, is recovered from or paid over by or for the account of any
Guaranteed Party 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
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compromise by any Guaranteed Party (whether or not consented to by the Borrower,
each Guarantor or any other guarantor) of any claim for any such recovery or
payment over. Each Guarantor hereby expressly agrees that it shall be liable
under the Loan Documents with respect to any Guaranteed Obligation whenever such
a recovery or payment over thereof occurs.
Section 10.05 Binding Nature of Certain Adjudications.
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, if such
Guarantor shall have had the right, or shall have been given the opportunity, to
participate in such action or proceeding and shall have been given notice of
such action or proceeding in time to exercise such right or avail itself of such
opportunity.
Section 10.06 Nature of Guarantor's Obligations.
Each Guarantor's obligations under this Article 10 (a) are absolute and
unconditional, (b) are unlimited in amount except as provided in Section 10.02,
(c) constitute a guaranty of payment and performance 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 10.07 No Release of Guarantor.
THE OBLIGATIONS OF EACH GUARANTOR UNDER THIS ARTICLE 10 SHALL NOT BE
REDUCED, LIMITED OR TERMINATED, NOR SHALL SUCH GUARANTOR BE DISCHARGED FROM ANY
THEREOF, FOR ANY REASON WHATSOEVER (other than, subject to Sections 10.04 and
10.11, the payment, observance and performance 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 such Guarantor shall have received
notice thereof):
(a) (i) any increase in the principal amount of, or interest
rate applicable to, (ii) any extension of the time of payment, observance or
performance of, (iii) any other amendment or modification of any of the other
terms and provisions of, (iv) any release, composition or settlement (whether by
way of acceptance of a plan of reorganization or otherwise) of, (v) any
subordination (whether present or future or contractual or otherwise) of, or
(vi) any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability of, the Guaranteed Obligations;
(b) (i) any failure to obtain, (ii) any release, composition
or settlement of, (iii) any amendment or modification of any of the terms and
provisions of, (iv) any subordination of, or (v) any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability of, any other
guaranties of the Guaranteed Obligations;
(c) (i) any failure to obtain or any release of, (ii) any
failure to protect or preserve, (iii) any release, compromise, settlement or
extension of the time of payment of any obligations
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constituting, (iv) any failure to perfect or maintain the perfection or priority
of any Lien upon, (v) any subordination of any Lien upon, or (vi) any discharge,
disallowance, invalidity, illegality, voidness or other unenforceability of any
Lien or intended Lien upon, the Collateral or any other collateral now or
hereafter securing the Guaranteed Obligations or any other guaranties thereof;
(d) any termination of or change in any relationship between
such Guarantor and the Borrower, including any such termination or change
resulting from a change in the ownership of such Guarantor or the Borrower or
from the cessation of any commercial relationship between such Guarantor and the
Borrower;
(e) any exercise of, or any election not or failure to
exercise, delay in the exercise of, waiver of, or forbearance or other
indulgence with respect to, any right, remedy or power available to the
Guaranteed Parties, including (i) any election not or failure to exercise any
right of setoff, recoupment or counterclaim, (ii) any election of remedies
effected by the Guaranteed Parties, whether or not such election affects the
right to obtain a deficiency judgment, and (iii) any election by the Guaranteed
Parties in any proceeding under the Bankruptcy Code of the application of
Section 1111(b)(2) of such Code; and
(f) ANY OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR
CIRCUMSTANCE THAT (i) VARIES THE RISK OF SUCH GUARANTOR UNDER THE LOAN DOCUMENTS
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 A
GUARANTOR OR THIRD PARTY SURETY THEREUNDER OR DISCHARGE SUCH GUARANTOR OR THIRD
PARTY SURETY FROM ANY THEREOF.
Section 10.08 Certain Waivers.
Each Guarantor waives, in each case to the extent permitted under any
Applicable Law:
(a) any requirement, and any right to require, that any right
or power be exercised or any action be taken against the Borrower, any other
Guarantor or guarantor or the Collateral or any other collateral for the
Guaranteed Obligations;
(b) all defenses (other than payment of the Guaranteed
Obligations) to, and all setoffs, counterclaims and claims of recoupment
against, the Guaranteed Obligations that may at any time be available to the
Borrower or any other Guarantor or guarantor;
(c) (i) notice of acceptance of and intention to rely on the
Loan Documents, (ii) notice of the making or renewal of any Loans, the issuance
of any Letters of Credit or other extensions of credit hereunder and of the
incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any
of the matters referred to in Section 10.07 and (iv) all other notices that may
be required by Applicable Law or otherwise to preserve any rights against such
Guarantor under the Loan Documents, including any notice of default, demand,
dishonor, presentment and protest;
(d) any defense based upon, arising out of or in any way
related to (i) any claim that any sale or other disposition of the Collateral or
any other collateral for the Guaranteed
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Obligations was not conducted in a commercially reasonable fashion or that a
public sale, should the Guaranteed Parties have elected to so proceed, was, in
and of itself, not a commercially reasonable method of sale, (ii) any claim that
any election of remedies by the Guaranteed Parties, including the exercise by
the Guaranteed Parties of any rights against the Collateral or any other
collateral, impaired, reduced, released or otherwise extinguished any right that
such Guarantor might otherwise have had against the Borrower, any other
Guarantor or any other guarantor or against the Collateral or any other
collateral, including any right of subrogation, exoneration, reimbursement or
contribution or right to obtain a deficiency judgment, (iii) any claim based
upon, arising out of or in any way related to any of the matters referred to in
Section 10.07 and (iv) any claim that the Loan Documents should be strictly
construed against the Guaranteed Parties; and
(e) ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT
FOR THIS CLAUSE (e), BE AVAILABLE TO A GUARANTOR OR THIRD PARTY SURETY AS A
DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS UNDER THIS
ARTICLE 10.
Section 10.09 Independent Credit Evaluation.
Each Guarantor has independently, and without reliance on any
information supplied by the Guaranteed Parties, taken, and will continue to
take, whatever steps it deems necessary to evaluate the financial condition and
affairs of the Borrower, and the Guaranteed Parties shall have no duty to advise
any Guarantor of information at any time known to them regarding such financial
condition or affairs.
Section 10.10 Subordination of Rights Against the Borrower, Other
Guarantors and Collateral.
All rights that any Guarantor may at any time have against the
Borrower, any other Guarantor or guarantor or the Collateral or any other
collateral for the Guaranteed Obligations, and all obligations that the Borrower
or any other Guarantor or guarantor may at any time have to any Guarantor, in
each case arising out of the performance by such Guarantor of its obligations
under this Article 10, are hereby expressly subordinated to the prior payment,
observance and performance in full of the Guaranteed Obligations. No Guarantor
shall enforce any of the rights, or attempt to obtain payment or performance of
any of the obligations, subordinated pursuant to this Section 10.10 until the
Guaranteed Obligations have been paid, observed and performed in full, except
that such prohibition shall not apply to routine acts, such as the giving of
notices and the filing of continuation statements, necessary to preserve any
such rights. If any amount shall be paid to or recovered by any Guarantor
(whether directly or by way of setoff, recoupment or counterclaim) on account of
any right or obligation subordinated pursuant to this Section 10.10, such amount
shall be held in trust by such Guarantor for the benefit of the Guaranteed
Parties, not commingled with any of such Guarantor's other funds and forthwith
paid over to the Administrative Agent, in the exact form received, together with
any necessary endorsements, to be applied and credited against, or held as
security for, the Guaranteed Obligations and the obligations of such Guarantor
under the Loan Documents.
Section 10.11 Economic Benefits; Solvency.
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Each Guarantor represents and warrants that:
(a) The execution and delivery by the Administrative Agent and
the Banks of this Agreement, and the extensions of credit by the Banks
hereunder, constitute indirect economic benefit to such Guarantor at least equal
to such amount of its obligations under this Article 10.
(b) The guarantee by such Guarantor of the Guaranteed
Obligations and the incurrence by it of its other obligations under the Loan
Documents will not render such Guarantor insolvent or unable to pay its Debts as
they mature or leave such Guarantor with unreasonably small capital.
(c) It does not intend to incur Debts, including those under
the Loan Documents, that would be beyond its ability to pay as such Debts
mature.
ARTICLE XI.
INTERPRETATION
Section 11.01 Defined Terms.
For the purposes of this Agreement:
"AT&T" means AT&T Broadband, LLC, a Delaware limited liability company.
"Accumulated Funding Deficiency" has the meaning ascribed to that term
in Section 302 of ERISA.
"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 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
9.01(a)(ii).
"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.
"Agreement" means this Agreement, including all schedules, annexes and
exhibits hereto.
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"Agreement Date" means May 12, 1999, being the date that this Agreement
(prior to the amendment and restatement hereof as of the Restated Agreement
Date) originally became effective.
"Applicable Law" means, anything in Section 9.11 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 (iii) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or
admiralty) and arbitrators.
"Bank" means (a) the Administrative Agent and any Person listed on the
signature pages hereof following the Administrative Agent and (b) any Person
that has been assigned any or all of the rights or obligations of a Bank
pursuant to and in accordance with Section 9.10(a).
"Bank Nonparticipation" means (i) the inability of any Bank to acquire
any Letter of Credit Participation pursuant to Section 1.03(e) or to make any
payment required by it under Section 1.03(h) because of such Bank's having been
subject to receivership, insolvency or other similar laws, (ii) the refusal of
any Bank to acquire any Letter of Credit Participation pursuant to Section
1.03(e) or to make any payment required by it under Section 1.03(h) or (iii) 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 Letter of Credit Participation
or to make any such required payment, in each case without limiting the rights
and remedies of the Borrower against such Bank arising out of any of the
foregoing.
"Bank Tax" means any Tax based on or measured by net income or
franchise taxes (imposed in lieu of net income taxes) imposed upon any Bank or
the Administrative Agent by any jurisdiction (or any political subdivision
thereof) in which such Bank, the Administrative Agent or any Lending Office is
organized or located or doing business that is unrelated to this Agreement.
"Base Financial Statements" means the most recent, audited,
consolidated balance sheet of the Borrower and the Consolidated Subsidiaries
referred to in Schedule 5.02(a) and the related statements of income, retained
earnings and cash flows for the fiscal year ended with the date of such balance
sheet.
"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 1/2%.
"Base Rate Loan" means any Loan the interest on which is, or is to be,
as the context may require, computed on the basis of the Base Rate.
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"Base Rate Margin" means, with respect to RC Loans or Term Loans that
are Base Rate Loans outstanding on any day during each period beginning on the
45th day of each fiscal quarter and ending on the 45th day of the immediately
succeeding fiscal quarter, such percentage as set forth in column A of the
following table for RC Loans, and such percentage as set forth in column B of
the following table for Term Loans, in each case opposite the applicable ratio
of Consolidated Debt to Operating Cash Flow determined as of the end of the
fiscal quarter immediately preceding such period:
Applicable Base
Rate Margin
-----------------------------------
Ratio of Consolidated A B
Debt to Operating Cash Flow RC Loans Term Loans
------------------------------ -------- ----------
6.00:1 0.875% 1.125%
<6.00:1 but >or=5.50:1 0.750% 1.125%
<5.50:1 but >or=5.00:1 0.375% 0.875%
<5.00:1 but >or=4.50:1 0.125% 0.625%
<4.50:1 but >or=4.00:1 0.000% 0.375%
<4.00:1 0.000% 0.250%
Notwithstanding the foregoing, if Indebtedness of the Borrower hereunder shall
increase or decrease at any time during any such period (as the result of the
borrowing of Loans, the drawing under Letters of Credit or the repayment of
Loans or such drawings) by an amount sufficient to cause a change in the Base
Rate Margin, such change in the Base Rate Margin shall take effect on the day of
such increase or decrease in Indebtedness hereunder, as the case may be.
Notwithstanding the foregoing, the Base Rate Margin applicable to Term Loans
will be (x) for each day during the period from the Restated Agreement Date to
the sixth month anniversary thereof, 1.125% and (y) for each day during the
period from the sixth month anniversary of the Restated Agreement Date to the
one year anniversary of the Restated Agreement Date, the greater of (i) 0.875%
and (ii) such percentage as set forth in Column B of the above table opposite
the applicable ratio of Consolidated Debt on such day to Operating Cash Flow
determined as of the end of the most recently completed fiscal quarter for which
financial statements have been delivered pursuant to Section 5.01.
"Benefit Plan" means, with respect to any Person, at any time, any
employee benefit plan (including a Multiemployer Benefit Plan) subject to the
funding requirements of Section 302 of ERISA or Section 412 of the Code, for
which the funding requirements 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. Unless otherwise specified, "Benefit Plan" means a Benefit Plan of
the Borrower or any of its ERISA Affiliates.
"Borrower" means MediaNews Group, Inc., a Delaware corporation.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks in New York City are authorized to close.
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"California Partnership" means California Newspapers Partnership, a
Delaware general partnership.
"Capital Expenditures" means any expenditures in respect of the
purchase or other acquisition (by way of the acquisition of securities of a
Person or otherwise) of fixed or capital assets (excluding any such asset
acquired in connection with normal replacement and maintenance programs properly
charged to current operations or acquired with proceeds of insurance for the
purpose of replacement thereof) and excluding Investments to which Section 4.11
is by its express terms inapplicable.
"Capital Security" means, with respect to any Person, (a) any share of
capital stock of, partnership or membership interest in, or other unit of
ownership interest in such Person or (b) any security convertible into, or any
option, warrant or other right to acquire, any share of capital stock of,
partnership or membership interest in, or other unit of ownership interest in
such Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than 90 days from the date of acquisition thereof by the Borrower or a
Consolidated Subsidiary, (b) time deposits and certificates of deposit of a Bank
or any United States commercial bank of recognized standing having capital and
surplus in excess of $500,000,000, with maturities of not more than 90 days from
the date of acquisition thereof by the Borrower or a Consolidated Subsidiary,
(c) fully secured repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (a) entered into with
any bank meeting the qualifications specified in clause (b) above, and (d)
commercial paper issued by the parent corporation of a Bank or any United States
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 and any other commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Ratings Service or at least P-1 or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in each case maturing within 90
days after the date of acquisition thereof by the Borrower or a Consolidated
Subsidiary.
"Cash Flow Percentage" means, as of the date of any sale or exchange of
capital stock or assets, the ratio, expressed as a percentage, derived by
dividing (a) Operating Cash Flow attributable thereto for the four consecutive
fiscal quarters of the Borrower ending on, or most recently ended prior to, such
date for which financial information is available and has been delivered to the
Banks hereunder prior to such date of sale or exchange by (b) Operating Cash
Flow of the Borrower and its Consolidated Subsidiaries for such period.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property subject to a Lien created pursuant to
the Loan Documents.
"Commitment" means, with respect to any Bank, such Bank's Term Loan
Commitment and RC Commitment.
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"Consolidated Debt" means, at any time, the consolidated Indebtedness
of the Borrower and its Restricted Subsidiaries (including, for this purpose,
each JOA, to the extent of the Borrower's common equity ownership on a fully
diluted basis in such JOA) as of such time, minus for purposes of determining
the ratio of Consolidated Debt to Operating Cash Flow and the ratio of
Consolidated Senior Debt to Operating Cash Flow, the aggregate amount, if any,
of (x) cash and Cash Equivalents held at such time by the Borrower and its
Restricted Subsidiaries in excess of $2,000,000 and (y) the Greenco Subordinated
Debt outstanding at such time.
"Consolidated Fixed Charges" means, as of any date of determination,
the following, determined with respect to the immediately preceding four fiscal
quarters of the Borrower for which financial statements have been delivered
pursuant to Section 5.01(a) or 5.01(c), the sum of (a) all Required Repayments,
and all other payments of principal of the Term Loans and all other Indebtedness
(including capital leases) of the Borrower and its Restricted Subsidiaries
scheduled to have been made during such period, determined on a consolidated
basis, (b) the aggregate amount of Capital Expenditures made by the Borrower and
the Restricted Subsidiaries during such period, (c) Interest Expense for such
period and (d) without duplication, taxes paid in cash and payments in respect
of taxes made by the Borrower or any Restricted Subsidiary pursuant to the the
Denver Tax Sharing Agreement during such period.
"Consolidated Net Income" means, for any period, the amount of
consolidated net income of the Borrower and the Restricted Subsidiaries for such
period (taken as a cumulative whole); provided, that there shall be excluded:
(a) any net income (or net loss) of a Restricted Subsidiary (i) for any period
during which it was not a Restricted Subsidiary or (ii), in case of any such net
income, to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary is not at the time permitted by
operation of the terms of any Contract (other than this Agreement) or Applicable
Law; (b) any net income (or net loss) of any Person (other than a Restricted
Subsidiary) in which the Borrower or any Restricted Subsidiary has an ownership
interest, except to the extent that any such income has actually been received
by the Borrower or such Subsidiary in the form of cash dividends or similar
distributions; (c) any restoration of any contingency reserve, except to the
extent that provision for such reserve was made out of income during such
period; (d) any net gains or losses on the sale or other disposition, not in the
ordinary course of business, of investments and other capital assets; provided,
that there shall also be excluded any related charges for taxes thereon; (e) any
net gain arising from the collection of the proceeds of any insurance policy;
(f) any write-up of any asset; (g) any net gains resulting from the
extinguishment or defeasance of any Indebtedness; (h) any earnings from
discontinued businesses; and (i) any extraordinary gains or losses.
"Consolidated Senior Debt" means, at any time, Consolidated Debt other
than Subordinated Debt as of such time.
"Consolidated Subsidiary" means, with respect to any Person at any
time, any Subsidiary 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.
"Consolidated Tax Subsidiary" means a Subsidiary which could elect to
file consolidated, combined, unitary or similar group Tax returns with the
Borrower or another Subsidiary.
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"Contingent Reimbursement Obligation" means the contingent obligation
of the Borrower to reimburse the Issuing Bank for any Drawings that may in the
future be made under an outstanding Letter of Credit, whenever issued. Without
limiting the foregoing, the amount of all Contingent Reimbursement Obligations
at any time shall be the aggregate amount available to be drawn under
outstanding Letters of Credit at such time.
"Contract" means (a) any agreement, 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.
"Contribution Agreement" means the Contribution Agreement relating to
the formation of the California Partnership dated March 3, 1999 among the
Borrower, Alameda Newspapers, Inc., V&P Publishing, Inc., Internet Media
Publishing, Inc., DR Partners, a Nevada general partnership, Media West-SBC,
Inc., a Delaware corporation, and The Sun Company of San Bernardino, California,
a California corporation.
"Debt" means any Liability that constitutes "debt" or "Debt" under
section 101(12) 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.
"Denver" means the Denver Post Corporation, a Delaware corporation.
"Denver Acquisition Documents" means the Denver Contribution Agreement
and the Denver Shareholders Agreement.
"Denver Contribution Agreement" means the Contribution and Sale
Agreement dated as of May 11, 2000 among Denver, ECP, DNA and DPC.
"Denver Effective Date" means the "Closing Date," as such term is
defined in the Denver Contribution Agreement.
"Denver JOA" means DNA.
"Denver JOA Agreement" means the Joint Operating Agreement dated as of
May 11, 2000 among Denver, ECP, DNA and DPC.
"Denver JOA Documents" means the Denver Contribution Agreement and the
Denver JOA Agreement.
"Denver Shareholders' Agreement" means the Third Amended and Restated
Shareholders' Agreement dated as of June 30, 1999 among the Borrower, Denver and
Media General.
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"Denver Stock Purchase Agreement" means the Stock Purchase Agreement
between the Borrower and Media General in respect of the purchase by the
Borrower of 20 shares of Denver's Class A Common Stock.
"DNA" means Denver Newspaper Agency LLC, a Delaware limited liability
company.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Lending Office" of any Bank or the Swing Loan Lender means
(a) the branch or office of such Bank or the Swing Loan Lender set forth below
such Bank's or the Swing Loan Lender'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 under the heading
"Domestic Lending Office" in the Notice of Assignment given to the Borrower, the
Issuing Bank, the Swing Loan Lender and the Administrative Agent with respect to
such assignment or (b) such other branch or office of such Bank or the Swing
Loan Lender designated by such Bank or the Swing Loan Lender from time to time
as the branch or office at which its Base Rate Loans and Letter of Credit
Participations or Swing Loans, as the case may be, are to be made or maintained.
"DPC" means The Denver Publishing Company, a Colorado corporation.
"Drawing" means the presentation and payment of a drawing under a
Letter of Credit.
"ECP" means Eastern Colorado Production Facilities, Inc., a Delaware
corporation.
"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 Sections 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 relevant interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in the jurisdiction in which such interbank market
is located.
"Eurodollar Lending Office" of any Bank means (a) the branch or office
of such 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 under the
heading "Eurodollar Lending Office" in the Notice of Assignment given to the
Borrower, the Issuing Bank, the Swing Loan Lender and the Administrative Agent
with respect 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
determined by the Administrative Agent to be the rate (rounded upward, if
necessary, to the next higher 1/16 of
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1%) per annum at which The Bank of New York offered or would have offered to
place with first-class banks in the interbank market selected by The Bank of New
York deposits in Dollars in amounts comparable to the Eurodollar Rate Loan of
The Bank of New York to which such Interest Period applies, for a period equal
to such Interest Period, at the time as of which The Bank of New York makes such
determination.
"Eurodollar Rate Loan" means any 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 RC Loans or Term Loans
that are Eurodollar Rate Loans outstanding on any day during any period
beginning on the 45th day of each fiscal quarter and ending on the 45th day of
the immediately succeeding fiscal quarter, such percentage as set forth in
column A of the following table for RC Loans and column B of the following table
for Term Loans, in each case opposite the applicable ratio of Consolidated Debt
to Operating Cash Flow determined as of the end of the fiscal quarter
immediately preceding such period:
Applicable Eurodollar
Rate Margin
-----------------------------------
Ratio of Consolidated A B
Debt to Operating Cash Flow RC Loans Term Loans
------------------------------ -------- ----------
6.00:1 2.125% 2.375%
<6.00:1 but > or = 5.50:1 2.000% 2.375%
<5.50:1 but > or = 5.00:1 1.625% 2.125%
<5.00:1 but > or = 4.50:1 1.375% 1.875%
<4.50:1 but > or = 4.00:1 1.125% 1.625%
<4.00:1 1.000% 1.500%
Notwithstanding the foregoing, if Indebtedness of the Borrower hereunder shall
increase or decrease at any time during any such period (as the result of the
borrowing of Loans, the drawing under Letters of Credit or the repayment of
Loans or such drawings) by an amount sufficient to cause a change in the
Eurodollar Rate Margin, such change in the Eurodollar Rate Margin shall take
effect on the day of such increase or decrease in Indebtedness hereunder, as the
case may be.
Notwithstanding the foregoing, the Eurodollar Rate Margin applicable to Term
Loans will be (x) for each day during the period from the Restated Agreement
Date to the sixth month anniversary thereof, 2.375% and (y) for each day during
the period from the sixth month anniversary of the Restated Agreement Date to
the one year anniversary of the Restated Agreement Date, the greater of (i)
2.125% and (ii) such percentage as set forth in Column B of the above table
opposite the applicable ratio of Consolidated Debt on such day to Operating Cash
Flow determined as of the end of the most recently completed fiscal quarter for
which financial statements have been delivered pursuant to Section 5.01.
"Event of Default" means any of the events specified in Section 6.01.
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"Excess Cash Flow" means, for any period, the excess of (a) Operating
Cash Flow for such period (without giving effect to any adjustment thereto
pursuant to the second sentence of the definition of Operating Cash Flow) over
(b) the sum of (i) Consolidated Fixed Charges for such period, (ii) the amount
of payments of non-operating liabilities as determined in the consolidated
statements of cash flows for such period delivered pursuant to Section 5.01 and
(iii) $2,000,000.
"Excess Net Proceeds" has the meaning set forth in Section
1.08(b)(iii).
"Existing Debt" means (i) any Indebtedness outstanding on the Restated
Agreement Date, to the extent set forth on Schedule 4.05 and (ii) any
Indebtedness that constitutes a renewal, extension or replacement of any
Existing Debt, but only if (A) at the time such Indebtedness is entered into and
immediately after giving effect thereto, no Default would exist, (B) such
Indebtedness is binding only on the obligor or obligors under the Indebtedness
so renewed, extended or replaced, (C) the principal amount of the Indebtedness
does not exceed the principal amount of the Indebtedness so renewed, extended or
replaced, (D) the Indebtedness bears interest at a rate per annum not exceeding
the rate borne by the Indebtedness so renewed, extended or replaced except for
any increase that is commercially reasonable at the time of such increase and
(E) such Indebtedness does not mature earlier, or amortize (whether by scheduled
or mandatory prepayment or commitment reduction, or otherwise) more rapidly,
than the Indebtedness so renewed, extended or replaced.
"Existing Guaranty" means (i) any Guaranty outstanding on the Restated
Agreement Date, to the extent set forth on Schedule 4.06 and (ii) any Guaranty
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (A) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (B) such Guaranty is binding only
on the obligor or obligors under the Guaranty so renewed, extended or replaced,
(C) 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 and (D) 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 Investment" means any Investment outstanding on the Restated
Agreement Date, to the extent set forth on Schedule 4.11, and any renewal or
extension thereof not involving an increase therein as the result of an
additional investment by the Borrower or any Subsidiary.
"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.
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"Fee Letter" means the letter dated December 27, 2000 from The Bank of
New York and BNY Capital Markets, Inc. to the Borrower.
"First Restated Agreement Date" means June 30, 1999, after giving
effect to the amendment and restatement of this Agreement on such date.
"Funded Current Liability Percentage" has the meaning ascribed to that
term in Code Section 401(a)(29).
"Generally Accepted Accounting Principles" or "GAAP" means (a) in the
case of the Base Financial Statements, generally accepted accounting principles
as in effect at the time of issuance of the Base Financial Statements and (b) in
all other cases, the accounting principles followed in the preparation of the
Base Financial Statements.
"Governmental Approval" means any authorization, consent, approval,
license or exemption of, registration or filing with, or report or notice to,
any governmental unit.
"Greenco" means Greenco, Inc., a Delaware corporation.
"Greenco Note" means the subordinated promissory note executed by
Borrower to the order of Greenco, in the form set out in Exhibit A 1 to the
Greenco Note Purchase Agreement, and any replacement note executed by Newco in
substantially the same form.
"Greenco Note Purchase Agreement" means the Subordinated Note Purchase
Agreement dated as of January 30, 1998 between the Borrower and Greenco.
"Greenco Subordinated Debt" means the Indebtedness of Borrower and
Newco under the Greenco Note, including any Guaranty given by Borrower pursuant
to section 8.6(a) of the Greenco Note Purchase Agreement.
"Guaranteed Obligations" means all Liabilities of the Borrower 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 Guaranteed Parties under the Loan Documents or any
Interest Rate Protection Agreement entered into with a Bank or any of its
Affiliates (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 for the benefit of, Persons that are Guaranteed Parties as of
the Restated Agreement Date or that become Guaranteed Parties by reason of any
succession or assignment at any time thereafter and (iii) WHETHER OR NOT AN
ALLOWABLE CLAIM AGAINST THE BORROWER UNDER THE BANKRUPTCY CODE OR OTHERWISE
ENFORCEABLE AGAINST THE BORROWER AND INCLUDING, IN ANY EVENT, INTEREST AND OTHER
LIABILITIES ACCRUING OR ARISING AFTER THE FILING BY OR AGAINST THE BORROWER OF A
PETITION UNDER THE BANKRUPTCY CODE THAT WOULD HAVE SO ACCRUED OR ARISEN BUT FOR
THE FILING OF SUCH A PETITION.
"Guaranteed Parties" means all Persons that are, or at any time were,
the Agent, the Issuing Bank, the Swing Loan Lender, a Bank or any other
Indemnified Person.
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"Guarantor" means (a) each Restricted Subsidiary of the Borrower as of
the Restated Agreement Date (other than the California Partnership, Denver's
Subsidiaries and York Newspaper Company) and, (b) each other Subsidiary that
shall have executed and delivered a Subsidiary Guaranty Supplement, in each case
for so long as any such Subsidiary remains a Restricted Subsidiary.
"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 (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 to the extent that such obligations
are required to be capitalized in accordance with GAAP, (e) any Mandatorily
Redeemable Stock of such Person owned by any Person other than such Person or a
Wholly Owned 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 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 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,
(i) any Indebtedness of others Guaranteed by such Person and (j) any monetary
obligation of such Person arising out of a non-competition agreement entered
into by such Person in connection with the acquisition of assets, stock, or
other equity interest of a third Person. Notwithstanding the foregoing, (x)
Mandatorily Redeemable Stock of the Borrower in an aggregate amount not in
excess of $100,000,000 shall not constitute Indebtedness (except for purposes of
determining Interest Expense) so long as the terms thereof and of any security,
instrument or other item of Indebtedness into which such Mandatorily Redeemable
Stock may be converted (A) do not require the payment, redemption, purchase or
other retirement of any portion thereof prior to the date that is one year after
the Term Loan Maturity Date, and (B) do not provide for, or could not otherwise
result in, the acceleration of any payment required to be made in respect
thereof to a date that is prior to such date, (y) for purposes of Sections 4.20
through 4.24 and for purposes of determining the Base Rate Margin, the
Eurodollar Rate Margin and the commitment fees payable pursuant to Section
1.09(a), Indebtedness of the California Partnership shall constitute
Indebtedness only to the extent of (1) in the case of Existing
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Indebtedness, 100% of the amount thereof and (2) in the case of other
Indebtedness, the percentage thereof equal to the Borrower's percentage
ownership interest in the California Partnership on the date of determination
and (z) the obligations of the Borrower under Section 1.6 of the Denver Stock
Purchase Agreement and under Article 4 of the Denver Shareholders' Agreement
shall not constitute Indebtedness.
"Indemnified Person" means any Person that is, or at any time was, the
Administrative Agent, the Issuing Bank, the Swing Loan Lender, a Bank, an
Affiliate of the Administrative Agent, the Issuing Bank, the Swing Loan Lender
or a Bank or a director, officer, employee or agent of any such Person.
"Information" means data, certificates, reports, statements (including
financial statements), opinions of counsel, documents and other information.
"Installment Payment Date" means the last day of March, June, September
and December of each year.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
trademarks, trademark rights, trade names, trade name rights, company 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 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 or any other country) or licenses
relating thereto.
"Intercompany Debt" means Indebtedness owed by the Borrower or any
Consolidated Subsidiary to the Borrower or any Restricted Subsidiary (other than
so long as such Person is not a Wholly Owned Subsidiary, the California
Partnership, Denver and its Subsidiaries).
"Interest Expense" means, for any period, without duplication, the sum
of all interest payments and payments in the nature of interest under capital
leases and Mandatorily Redeemable Stock, payable during such period by the
Borrower and its Restricted Subsidiaries, with respect to all Indebtedness of
such Persons.
"Interest Payment Date" means the last day of March, June, September
and December of each year.
"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, depending on the Type of
Loan, on the same day in the first, second, third, sixth or, if made available
by all of the Banks, 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
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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 Agreement" means any interest rate protection
agreement, future, option swap, cap or collar agreement or other arrangement
designed to fix interest rates or otherwise hedge against fluctuations in
interest rates.
"Internet Media Publishing" means Internet Media Publishing, Inc., a
Delaware corporation.
"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, or any contribution to the capital of,
any other Person and (c) any other investment in any other Person. For all
purposes hereof, "Investment" shall include any redesignation of a Restricted
Subsidiary as an Unrestricted Subsidiary pursuant to the definition of
"Restricted Subsidiary," and the amount of any such Investment shall be the fair
market value of the Subsidiary so redesignated at the time of such
redesignation, as reasonably determined by the Borrower, and as set forth in a
certificate of a Responsible Officer of the Borrower delivered to the
Administrative Agent, so long as such valuation is reasonably satisfactory to
the Administrative Agent. Notwithstanding the foregoing, "Investment" shall not
include purchases or other acquisitions of Capital Securities of Restricted
Subsidiaries by the Borrower or a Restricted Subsidiary.
"Issuing Bank" means The Bank of New York, or such other Bank as the
Borrower, such Bank and The Bank of New York shall agree, in each case in its
capacity as the issuer of each Letter of Credit.
"JOA" means the Denver JOA, the Salt Lake JOA and any other Person
(other than a Subsidiary) formed and managed pursuant to a joint operating
agreement (providing for a joint operating agency with respect to the
production, sales, distribution and administrative functions for two or more
newspapers in the same market) to which the Borrower or any Restricted
Subsidiary is a party and in which the Borrower or any Restricted Subsidiary has
an equity interest.
"K-T" means ▇▇▇▇▇▇-Tribune, LLC, a Delaware limited liability company.
"LC Commitment" means at any time $15,000,000 minus the pro rata share
thereof (computed on the basis of the RC Commitments at such time) of each
Nonparticipating Bank.
"Lending Office" of any Bank means the Domestic Lending Office or the
Eurodollar Lending Office of such Bank.
"Letter of Credit" means a letter of credit issued by the Issuing Bank
pursuant to Section 1.03.
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"Letter of Credit Participation" means, in the case of any Bank (other
than the Issuing Bank) with respect to any Letter of Credit, the participation
interest of such Bank in such Letter of Credit acquired pursuant to Section
1.03(e) and, in the case of the Issuing Bank, its retained interest in such
Letter of Credit. The amount of the Letter of Credit Participation of a Bank
(including the Issuing Bank) in any Letter of Credit at any time shall be deemed
to be the amount equal to such Bank's pro rata share (determined on the basis of
the RC Commitments at such time of each of the Banks) of the sum of (a) the
aggregate unpaid amount of all Drawings thereunder at such time and (b) the
amount of the Contingent Reimbursement Obligation with respect thereto at such
time that shall not have been prepaid or cash collateralized in accordance with
the terms hereof at such time.
"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.
"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.
"LLC Interests" means all of the outstanding limited liability company
interests of K-T.
"Loan" means any RC Loan, Term 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.
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"Loan Documents" means (a) this Agreement, the Notes, and the Pledge
Agreements and (b) all other material agreements, documents and instruments
relating to, arising out of, or in any way connected with (i) any agreement,
document or instrument referred to in clause (a), or (ii) any other agreement,
document or instrument referred to in this clause (b).
"Loan Party" means any Person (other than the Administrative Agent, the
Issuing Bank, the Swing Loan Lender, the Documentation Agent or a Bank) that is
a party to a Loan Document.
"Los Angeles Daily News" means the Los Angeles Daily News Publishing
Company, a Delaware 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 (other than
upon the occurrence of an event of default in connection therewith), (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.
"Master Intercompany Note" means the promissory note in the form of
Exhibit A-3, dated the Restated Agreement Date, issued by Denver in favor of the
Borrower.
"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 materially adverse effect
on such Persons' business, assets, Liabilities, financial conditions, 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 its utility in such Loan Party's business or a
materially 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.
"Media General" means Media General, Inc., a Virginia corporation.
"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 and bankers' acceptance
with remaining maturity of not more than one year, any
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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 for underlying
securities of the types described in clauses (a) and (b) above entered into with
any financial institution meeting the qualifications specified in clause (b)
above, and (d) any commercial paper issued by any Bank or the parent corporation
of any Bank and any other commercial paper rated A-1 or higher by Standard &
Poor's Ratings Services, a division of the McGraw Hill Companies, Inc. or
Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. and in any case having a remaining
maturity of not more than one year and any other short-term instrument consented
to by the Administrative Agent.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"1999 Indenture" means the Indenture dated as of March 16, 1999 between
the Borrower and The Bank of New York, as trustee, with respect to the 1999
Subordinated Notes.
"1999 Subordinated Notes" means the 8-5/8% Senior Subordinated Notes
due 2011, Series A and Series B, of the Borrower.
"1997 Indenture" means the Indenture dated October 1, 1997 between the
Borrower and The Bank of New York, as trustee, with respect to the 1997
Subordinated Notes.
"1997 Subordinated Notes" means the 8-3/4% Senior Subordinated Notes
due 2009, Series A and Series B, of the Borrower.
"Net Proceeds" means the proceeds received by the Borrower or any
Subsidiary in cash from the sale, lease, assignment or other disposition of any
asset or property (other than sales of assets in the ordinary course of
business, which, for purposes of this definition, shall not include any
disposition of assets in which the total consideration received or receivable is
in excess of $500,000), net of (a) reasonable and customary fees, costs and
expenses incurred in connection with such sale, lease, assignment or other
disposition and payable by or on behalf of the seller or the transferor of the
assets to which such sale or disposition relates, (b) the amount of all foreign,
Federal, state and local taxes payable as a direct consequence of such sale,
lease, assignment or other disposition and (c) the amount of the Indebtedness
and other Liabilities, if any, attributable to or associated with such asset or
property and repaid out of such proceeds. For this purpose, all proceeds of
insurance paid on account of the loss of or damage to any such asset or
property, or group of assets or properties, and awards of compensation for any
such asset or property, or group of assets or properties, taken by condemnation
or eminent domain shall be deemed to be Net Proceeds (provided that, in the case
of proceeds from insurance paid with respect to any loss or damage to any asset,
such proceeds, or any portion thereof, shall not constitute Net Proceeds if the
Administrative Agent has received notice from the Borrower or any Subsidiary of
its intention to use such proceeds or portion thereof at the time of such loss
or damage, and such proceeds or portion thereof are in fact so used within one
year after the occurrence of such loss or damage to repair, restore or replace
such asset).
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"Newco" shall have the meaning ascribed thereto in the Greenco Note
Purchase Agreement.
"New England Internet Media Publishing" means New England Internet
Media Publishing, Inc., a Delaware corporation.
"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 such designation.
"Note" means any promissory note in the form of Exhibit A-1 or, as the
context may require, any Swing Note.
"Notice of Assignment" means any notice to the Borrower, the Issuing
Bank, the Swing Loan Lender and the Administrative Agent with respect to an
assignment pursuant to Section 9.10(a) in the form of Schedule 9.10(a).
"Operating Cash Flow" means, as of any date of determination, the
following, determined with respect to the immediately preceding four fiscal
quarters of the Borrower for which financial statements of the Borrower have
been delivered pursuant to Section 5.01(a) or 5.01(c), as the case may be: (A)
revenues less (B) the sum of (i) cost of sales, (ii) management fees and (iii)
selling, general and administrative expenses (excluding, for any such period of
four fiscal quarters ending on or prior to March 31, 2001, expenses incurred in
connection with the internet activities of the Borrower and the Restricted
Subsidiaries, in an aggregate amount not in excess of $1,000,000), in each case
for clauses (A) and (B), of the Borrower and its Restricted Subsidiaries
(including, for this purpose, each JOA), for such period, determined on a
consolidated basis and in accordance with GAAP (except that such items will be
included for each JOA on a pro rata consolidation basis) plus (C) the lesser of
(i) dividends received in cash from any Person (other than each JOA) not
constituting a Restricted Subsidiary hereunder for such period and (ii) the
Borrower's and its Restricted Subsidiaries' percentage interest in the net
income of such Person; provided that, (x) if any such Restricted Subsidiary
(including, for this purpose, each JOA that is not otherwise a Restricted
Subsidiary) is not a Wholly Owned Restricted Subsidiary of the Borrower,
revenues, cost of sales, management fees and selling, general and administrative
expenses of such Restricted Subsidiary and its Subsidiaries shall be included
only to the extent of the Borrower's direct or indirect common equity ownership
on a fully diluted basis therein or, in the case of the Salt Lake JOA or any
other JOA, any greater or lesser percentage thereof representing the allocation
to the Borrower or any Restricted Subsidiary of the profits and losses of such
JOA pursuant to, in the case of the Salt Lake JOA, the Salt Lake JOA Agreement
and, in each other case, the applicable Contract providing for such allocation,
a copy of which shall have been furnished to the Administrative Agent (provided,
that, so long as (a) no dividends or other distributions have been made to Media
General or its Affiliates in respect of the Capital Securities of Denver owned
by it or its Affiliates (other than payments under the Denver Tax Sharing
Agreement) and (b) the liability of Denver pursuant to Section 10.01 continues
to be limited in accordance with the proviso contained therein and has not been
reduced to zero, 100% of the revenues, cost of sales, management fees and
selling, general and administrative expenses of Denver and its Subsidiaries
shall be included) and (y) operating cash
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flow of any Restricted Subsidiary (including, for this purpose, each JOA) shall
be excluded if and to the extent that, the declaration of dividends or
distribution by that Subsidiary of such operating cash flow is not, at the time,
permitted directly or indirectly, by the terms of its charter, or any agreement,
instrument, judgment, decree, order, statute, rule or government regulation
applicable to that Subsidiary. Notwithstanding the foregoing, Operating Cash
Flow for any period shall be calculated after giving effect on a pro forma basis
for the period of such calculation to (a) the sale or other disposition of any
Restricted Subsidiary (including, for this purpose, the redesignation of a
Restricted Subsidiary as an Unrestricted Subsidiary pursuant to the definition
of "Restricted Subsidiary") or of all or substantially all of the assets of any
Restricted Subsidiary during such period and up to and including the date of
determination (the "Reference Period") and (b) the acquisition by the Borrower
or any Restricted Subsidiary during the Reference Period of any other Person
which, as a result of such acquisition, becomes a Restricted Subsidiary of the
Borrower (including, for this purpose, the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary pursuant to the definition of "Restricted
Subsidiary"), or the acquisition of assets during the Reference Period from any
Person which constitutes all or substantially all of an operating unit or
business of such Person, as if such sale or disposition or acquisition
(including any such redesignation) occurred on the first day of the period of
such calculation; provided that to the extent that this sentence requires that
pro forma effect be given to an acquisition of, or an acquisition of all or
substantially all of an operating unit or business from, any Person, such pro
forma calculation shall be based upon the four full fiscal quarters of such
Person or operating unit or business for which financial information is
available immediately preceding such acquisition.
"Participating Bank" means a Bank that is not a Nonparticipating Bank.
A Participating Bank shall remain a Participating Bank in all Letters of Credit
with respect to which it was a Participating Bank prior to its designation as a
Nonparticipating Bank.
"Participating Bank Percentage" means, for a Participating Bank, with
respect to any Letter of Credit, the fraction, expressed as a percentage, the
numerator of which is such Participating Bank's RC Commitment and the
denominator of which is the sum of the aggregate amount of the RC Commitments of
all Banks that are, at the time of issuance of such Letter of Credit,
Participating Banks.
"Partnership Agreement" means the Partnership Agreement relating to the
California Partnership dated March 31, 1999 among West Coast MediaNews, Donrey
Newspapers LLC, The Sun Company of San Bernardino, California and MediaWest-SBC,
Inc.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Guaranty" means any Guaranty that is (a) an endorsement of a
check for collection in the ordinary course of business or (b) a Guaranty of and
only of the obligations of the Loan Parties under the Loan Documents.
"Permitted Lien" means (a) with respect to any asset that does not
constitute Collateral, (i) any Lien securing and only securing the obligations
of the Loan Parties under the Loan Documents; (ii) 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,
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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(v) and foreclosure, distraint, sale or other similar proceedings
shall not have been commenced; (iii) any Lien on the properties and assets of a
Restricted Subsidiary of the Borrower securing an obligation owing to the
Borrower; (iv) 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; (v)
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; (vi) any Lien existing on (A) any property or asset of any Person at the
time such Person becomes a Restricted Subsidiary or (B) any property or asset at
the time such property or asset is acquired by the Borrower or a Restricted
Subsidiary, but only, in the case of either (A) or (B), if and so long as (1)
such Lien was not created in contemplation of such Person becoming a Restricted
Subsidiary or such property or asset being acquired, (2) such Lien is and will
remain confined to the property or asset subject to it at the time such Person
becomes a Restricted Subsidiary or such property or asset is acquired and to
fixed improvements thereafter erected on such property or asset, (3) such Lien
secures only the obligation secured thereby at the time such Person becomes a
Restricted Subsidiary or such property or asset is acquired and (4) the
obligation secured by such Lien is not in default; (vii) 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; (viii) any Lien
securing Purchase Money Indebtedness but only if, in the case of each such Lien,
(A) 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 (B) such Lien attached to such property or
asset within 30 days of the acquisition of such property or asset; (ix) any Lien
constituting a renewal, extension or replacement of a Lien constituting a
Permitted Lien by virtue of clause (vi), (vii), (viii) or (ix) of this
definition, but only if (A) at the time such Lien is granted and immediately
after giving effect thereto, no Default would exist, (B) 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, (C) the principal amount of the obligations secured by such
Lien does not exceed the principal amount of the obligations secured by the Lien
so renewed, extended or replaced and (D) 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; or (x)
any encumbrance constituting a Lien contained in the Denver Acquisition
Documents; 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 contained in the
Greenco Note Purchase Agreement, so long as such covenant or restriction is not
binding on any Person other than Newco, or in the 1997 Indenture, the 1999
Indenture, or the Partnership Agreement or the Denver Acquisition Documents, (c)
any covenant or restriction binding upon any Person at the time such Person
becomes a Restricted Subsidiary of the Borrower if the same is not created in
contemplation thereof, (d) any covenant or restriction of the type contained in
Section 4.07 that
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is contained in any Contract evidencing or providing for the creation of or
concerning Purchase Money Indebtedness (other than the Greenco Note) so long as
such covenant or restriction is limited to the property purchased therewith, (e)
any covenant or restriction described in Schedule 4.15, but only to the extent
such covenant or restriction is there identified by specific reference to the
provision of the Contract in which such covenant or restriction is contained or
(f) 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), (d),
(e) or (f), (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.
"Permitted Tax Sharing Agreements" means (i) the Tax Sharing Agreement
between the Borrower, Media General and Denver entered into pursuant to the
Denver Acquisition Documents and (ii) any other tax sharing agreement entered
into by the Borrower or any Subsidiary and pertaining to the taxes of any
Subsidiary that is not a Wholly Owned Subsidiary, in form and substance
reasonably satisfactory to the Administrative Agent.
"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 Agreements" means collectively (a) each of the Pledge
Agreements between each Subsidiary and the Administrative Agent and the Pledge
Agreement between the Borrower and the Administrative Agent, in each case in
substantially the form of Exhibit C and (b) any other pledge agreement entered
into pursuant to Section 4.03, in each case in substantially the form of Exhibit
C.
"Post-Default Rate" means the rate otherwise applicable under Section
1.04(a) plus 2.00%.
"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
public announcement 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.
"Pro Forma Consolidated Interest Expense" means, as of any date of
determination, Interest Expense projected to be paid during the period of four
full fiscal quarters of the Borrower next succeeding such date on all
Indebtedness. For purposes of computing projected interest for any period under
the preceding sentence, (i) it shall be assumed that the amount of Indebtedness
outstanding on the first day of such period remains outstanding during the
entire period except to the extent that such Indebtedness is subject to a
mandatory payment or prepayment of principal during such period, (ii) if such
Person has committed to incur additional Indebtedness during such period,
interest on such additional Indebtedness shall be taken into account from and
after the date on which such Person is committed to incur it and (iii) where
interest varies with or depends on a floating rate, the rate in effect on the
first day of such period
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will be assumed to be in effect and remain constant during the entire period for
which interest is being computed after giving effect to interest rate swaps and
similar obligations which are in effect on such day and will continue in effect
for more than half of the period of such calculation.
"Pro Forma Debt Service" means, as of any date of determination, the
sum of (i) all Required Repayments, and all other payments of principal of all
Indebtedness of the Borrower and its Restricted Subsidiaries scheduled to be
made during the period of four full fiscal quarters of the Borrower next
succeeding such date of determination, and (ii) Pro Forma Consolidated Interest
Expense for such period.
"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.
"Purchase Money Indebtedness" means (a) Indebtedness of the Borrower
that is incurred to finance part or all of (but not more than) the purchase
price of tangible property and related assets, provided that (i) neither the
Borrower nor any Restricted 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) and (ii)
bears interest at a rate per annum that is commercially reasonable at the time
such Indebtedness is incurred.
"RC Commitment" of any Bank means (i) 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 in accordance with Section
9.10(a), the amount of the assignor's RC Commitment assigned to such Bank, in
either case as the same may be reduced from time to time pursuant to Section
1.08 or increased or reduced from time to time pursuant to assignments in
accordance with Section 9.10(a) or (ii) as the context may require, the
obligation of such Bank to make RC Loans in an aggregate unpaid principal amount
not exceeding such amount.
"RC Loan" means any amount advanced by a Bank pursuant to Section
1.01(b).
"RC Maturity Date" means June 30, 2006.
"Regulation A" means Regulation A of the Board of Governors of the
Federal Reserve System.
"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.
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"Regulatory Change" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law), or any
change therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the Restated Agreement Date, 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, or otherwise or (b) enacted,
adopted, issued or proposed before or after the Restated Agreement Date,
including any such Applicable Law, interpretation, directive, request, guideline
or change that imposes, increases or modifies any Tax, reserve requirement,
insurance charge, special deposit requirement, assessment or capital adequacy
requirement, but excluding any such Applicable Law, interpretation, directive,
request, guideline or change that imposes, increases or modifies any income or
franchise tax imposed upon a Bank by any jurisdiction (or any political
subdivision thereof) in which such Bank or any of its Lending Offices is located
or doing business.
"Reinvested Amount" means, with respect to any Net Proceeds, the
portion thereof that, as of the last day of the Reinvestment Contract Period
with respect thereto, shall have been reinvested pursuant to acquisitions
described in Section 4.09(e) in a manner not prohibited by this Agreement or
will be so reinvested pursuant to a Reinvestment Contract entered into by all of
the parties thereto on or prior to such last day.
"Reinvestment Contract" means a binding contract entered into by the
Borrower or a Subsidiary providing for acquisitions described in Section 4.09(e)
in a manner not prohibited by this Agreement.
"Reinvestment Contract Period" means, with respect to any sale or
disposition of assets by the Borrower or any Subsidiary, the period from the
date of such sale or disposition to the date that is 270 days after the date of
such sale or disposition.
"Reinvestment Period" means, with respect to any sale or disposition of
assets by the Borrower or any Subsidiary, the period from the date of such sale
or disposition to the date that is 360 days after the date of such sale or
disposition.
"Repayment Date" means the later of (i) the termination of the
Commitments in their entirety (whether as a result of the occurrence of the Term
Loan Maturity Date, the reduction thereof to zero pursuant to Section 1.08 or
the termination thereof pursuant to Section 6.02), (ii) the payment in full of
all principal of and interest on the Loans and Drawings and all fees and other
amounts payable or accrued hereunder and (iii) the expiration or cancellation
of, or the reduction to zero of the amount available to be drawn under, all
outstanding 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 a Reportable Event as to which the provision of 30 days'
notice to the PBGC is waived under applicable regulations), 4062(e) or 4063(a)
or the regulations thereunder with respect to such Benefit Plan, (b) any event
requiring such Person or any of its ERISA Affiliates to provide security to such
Benefit Plan under Code Section 401(a)(29) or (c) any failure to make a payment
required by Code Section 412(m) with respect to such Benefit Plan.
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"Representation and Warranty" means any representation or warranty made
by the Borrower, any Guarantor or any other Loan Party pursuant to or under (a)
Section 2.02, 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 SUCH LOAN PARTY.
"Required Banks" means, (a) until such time as all of the Banks shall
have executed this Agreement as of the Restated Agreement Date, Banks having at
least 51% of the Loans (including, if any Swing Loans are outstanding at such
time, such Banks' pro rata share thereof based on the Commitments at such time)
and Letter of Credit Participations outstanding or, if there are no Loans or
Letter of Credit Participations outstanding, at least 51% of the aggregate
amount of the Commitments and (b) thereafter, Banks having (i) at least 51% of
the aggregate amount of the RC Commitments at such time or, if there are no RC
Commitments at such time, at least 51% of the aggregate amount of RC Loans
outstanding at such time, and (ii) at least 51% of the aggregate amount of the
Term Loans outstanding.
"Required Repayments" means, for any period, an amount equal to the
excess, if any, of (i) the outstanding amount of RC Loans and Letter of Credit
Participations at the beginning of such period over (ii) the aggregate amount of
the RC Commitments at the end of such period.
"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" means, with respect to any Person, the chief
executive officer, the chief operating officer, the chief financial officer or
treasurer such Person.
"Restated Agreement Date" means January 2, 2001, which date is the date
the executed copies of this Agreement, as amended and restated as of such date,
were delivered by all parties hereto and, accordingly, the date this Agreement,
as amended and restated as of such date, became effective and, for the first
time, binding on such parties.
"Restricted Payment" means (a) any payment with respect to or on
account of any of the Borrower's or any Restricted Subsidiary's Capital
Securities, including any dividend or other distribution on, or any payment of
interest on or principal of, any such Capital Securities, (other than, in the
case of any such payment of interest or principal, any such Capital Securities
constituting Indebtedness for all purposes hereof), (b) any payment on account
of the principal of or interest or premium, if any, on any Subordinated Debt
(other than any regularly scheduled payment of interest thereon and any
repayment of principal thereof upon the stated maturity thereof (subject to the
subordination provisions applicable thereto)) or (c) any payment on account of
any purchase, redemption, retirement, exchange, defeasance or conversion of, or
on
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account of any claim relating to or arising out of the offer, sale or purchase
of, any such Capital Security or any Subordinated Debt. 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 of any capital
stock of the Borrower other than Mandatorily Redeemable Stock that would
constitute Indebtedness in accordance with the definition thereof.
Notwithstanding the foregoing, "Restricted Payment" shall not include purchases
or other acquisitions of Capital Securities of Restricted Subsidiaries by the
Borrower or a Restricted Subsidiary.
"Restricted Subsidiary" means (a) each Subsidiary of the Borrower in
existence on the Restated Agreement Date and (b) each Subsidiary of the Borrower
formed, created or acquired by the Borrower or a Restricted Subsidiary after the
Restated Agreement Date, unless such Subsidiary is designated by the Borrower as
an Unrestricted Subsidiary in a notice to the Administrative Agent given prior
to such formation, creation or acquisition; provided that any Subsidiary which
owns, directly or indirectly, the Capital Securities of any Restricted
Subsidiary shall, for so long as it is a Subsidiary, be a Restricted Subsidiary,
and provided, further, that any such Restricted Subsidiary may be redesignated
by the Borrower as an Unrestricted Subsidiary, effective on the date specified
by the Borrower in a notice to the Administrative Agent and the Banks given not
less than five Business Days prior to such specified date, so long as (1) no
Default, including but not limited to a Default under Section 4.10(e), shall
have occurred and be continuing both before and after giving effect to such
redesignation (and by delivering such notice the Borrower shall be deemed to
have made a Representation and Warranty to such effect) and (2) such notice
shall be accompanied by a certificate of a Responsible Officer of the Borrower,
in form and content satisfactory to the Administrative Agent, demonstrating
that, on a pro forma basis determined as if such redesignation had been
consummated on the first day of the most recently completed four fiscal quarters
of the Borrower, the Borrower would have been in compliance at all times with
the requirements of Sections 4.20 through 4.24; provided, further, that any
Unrestricted Subsidiary may be redesignated by the Borrower as a Restricted
Subsidiary, effective on the date specified by the Borrower in a notice to the
Administrative Agent and the Banks given not less than five Business Days prior
to such specified date, so long as (1) no Default shall have occurred and be
continuing after giving effect to such redesignation, (and by delivering such
notice the Borrower shall be deemed to have made a Representation and Warranty
to the effect set forth in this clause (1)) and (2) such notice shall be
accompanied by a certificate of a Responsible Officer of the Borrower, in form
and content satisfactory to the Administrative Agent, demonstrating that, on a
pro forma basis determined as if such redesignation had been consummated on the
first day of the most recently completed four fiscal quarters of the Borrower,
such redesignation would not have resulted in a failure by the Borrower to be in
compliance at all times with the requirements of Sections 4.20 through 4.24.
"Salt Lake Acquisition" means the purchase by the Borrower of all of
the LLC Interests from AT&T Broadband pursuant to the Salt Lake Acquisition
Agreement.
"Salt Lake Acquisition Agreement" means the Acquisition Agreement dated
as of December 1, 2000 between the Borrower and AT&T Broadband.
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"Salt Lake Acquisition Documents" means the Salt Lake Acquisition
Agreement, the Salt Lake JOA Agreement, the Salt Lake Management Agreement and
the Salt Lake Option Agreement.
"Salt Lake JOA" means Newspaper Agency Corporation, a Utah corporation.
"Salt Lake JOA Agreement" means the Joint Operating Agreement dated as
of January 1, 1983 between Kearns-Tribune Corporation, a Utah corporation, and
The Deseret News Publishing Company, a Utah corporation.
"Salt Lake Management Agreement" means the Management Agreement dated
as of July 31, 1997 between K-T and SLT Publishing.
"Salt Lake Option Agreement" means the Option Agreement dated as of
July 31, 1997 between K-T and SLT Publishing.
"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.
"SLT Publishing" means the Salt Lake Tribune Publishing Company, LLC, a
Utah limited liability company.
"Subordinated Debt" means (i) the 1997 Subordinated Notes, (ii) the
1999 Subordinated Notes, (iii) the Greenco Note and (iv) any other Indebtedness
that is subordinated on terms and conditions, and that is subject to other terms
and conditions, satisfactory in form and substance to the Required Banks.
"Subsidiary" means, with respect to any Person, any other Person (a)
(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) any other
ownership interests of which ordinarily constitute a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one of more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries or (b) that otherwise constitutes a Consolidated
Subsidiary of such first Person. Unless otherwise specified, "Subsidiary" means
a Subsidiary of the Borrower.
"Subsidiary Guaranty Supplement" means each Subsidiary Guaranty
Supplement entered into pursuant to Section 4.03, in each case in substantially
the form of Exhibit B.
"Swing Loan" means any amount advanced by the Swing Loan Lender
pursuant to Section 1.01(c) hereof.
"Swing Loan Lender" means The Bank of New York.
"Swing Loan Percentage" means, for any Bank, at any time, a fraction,
expressed as a percentage, the numerator of which is such Bank's RC Commitment
at such time and the denominator of which is the aggregate amount of the RC
Commitments at such time.
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"Swing Note" means any promissory note in the form of Exhibit A-2.
"Tax" means any federal, state or foreign tax, assessment or other
governmental charge or levy of any nature (including any withholding tax) upon a
Person or upon its assets, revenues, income or profits including without
limitation, interest, penalties and additional allowances with respect to such
items.
"Term Loan" means any amount advanced by a Bank pursuant to Section
1.01(a).
"Term Loan Commitment" of any Bank means the amount set forth opposite
such Bank's name under the heading Term Loan Commitment on Annex A.
"Term Loan Maturity Date" means December 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(c), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042 or (d) the appointment of a trustee
to administer such Benefit Plan under ERISA Section 4042.
"Treasury Regulation" means the regulations promulgated by the United
States Department of the Treasury under the Code.
"Type" means, with respect to 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
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).
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower that is
not a Restricted Subsidiary.
"West Coast MediaNews" means West Coast Media News LLC, a Delaware
limited liability company.
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"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person 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.
Section 11.02 Other Interpretive Provisions.
(a) Except as otherwise specified herein, all references
herein or in any other Loan Document (i) to any Person shall be deemed to
include such Person's permitted 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
as permitted hereby.
(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.
(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 Swing Loan Lender, any Bank 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 Loan Lender, 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 or duties of the
Administrative Agent under the Loan Documents shall be deemed to include the
rights or duties of such Person as the Secured Party under the Pledge
Agreements, (ii) a reference to costs incurred by a Bank in connection with the
Loan Documents shall be deemed to include costs incurred by such Person as a
Principal under (and as defined in) the Pledge Agreements and (iii) a reference
to the obligations of the Borrower or any other Loan
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Party under the Loan Documents shall be deemed to include the obligations of
such Person in any capacity under the Loan Documents.
Section 11.03 Accounting Matters.
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 changes in Generally Accepted Accounting Principles
that may from time to time be approved by a significant segment of the
accounting profession.
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 the time of
its initial execution and delivery, at and as of the Restated Agreement Date
(after giving effect to the consummation of the transactions contemplated to
occur on or prior to such date pursuant to the Denver JOA Documents and the Salt
Lake Acquisition Documents), (b) in the case of any Representation and Warranty
contained in this Agreement or any other document at the time any Loan is made
or Letter of Credit is issued, 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.
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.
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