CONFORMED COPY
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JOURNAL REGISTER COMPANY
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CREDIT AGREEMENT
Dated as of July 15, 1998
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THE CHASE MANHATTAN BANK,
as Agent
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CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience only.
PAGE
RECITALS.....................................................................1
Section 1. Definitions and Accounting Matters...............................2
1.01 Certain Defined Terms............................................2
1.02 Accounting Terms and Determinations; Fiscal Periods.............26
1.03 Classes and Types of Loans......................................27
Section 2. Commitments.....................................................27
2.01 Loans...........................................................27
2.02 Borrowings......................................................30
2.03 Changes of Commitments..........................................30
2.04 Commitment Fees.................................................31
2.05 Lending Offices.................................................32
2.06 Several Obligations; Remedies Independent.......................33
2.07 Evidence of Debt................................................33
2.08 Conversion or Continuation of Loans; Optional Prepayments.......33
2.09 Mandatory Prepayments...........................................35
2.10 Letters of Credit...............................................36
2.11 Swingline Loans.................................................41
Section 3. Payments of Principal and Interest..............................42
3.01 Repayment of Loans..............................................42
3.02 Interest........................................................45
Section 4. Payments; Pro Rata Treatment; Computations; Etc.................46
4.01 Payments........................................................46
4.02 Pro Rata Treatment..............................................47
4.03 Computations....................................................47
4.04 Minimum Amounts.................................................47
4.05 Certain Notices.................................................48
4.06 Non-Receipt of Funds by the Agent...............................49
4.07 Sharing of Payments, Etc........................................50
Section 5. Yield Protection and Illegality.................................52
5.01 Additional Costs................................................52
5.02 Limitation on Types of Loans....................................53
5.03 Illegality......................................................54
5.04 Treatment of Affected Loans.....................................54
5.05 Compensation....................................................55
5.06 Additional Costs in Respect of Letters of Credit................56
5.07 Taxes...........................................................56
Section 6. Conditions Precedent............................................57
6.01 Effectiveness...................................................57
6.02 Initial and Subsequent Extensions of Credit.....................60
Section 7. Representations and Warranties..................................61
7.01 Corporate Existence.............................................61
7.02 Financial Condition.............................................61
7.03 Litigation......................................................62
7.04 No Breach.......................................................62
7.05 Corporate Action................................................63
7.06 Approvals.......................................................63
7.07 Margin Stock....................................................63
7.08 ERISA...........................................................63
7.09 Taxes...........................................................64
7.10 Investment Company Act..........................................64
7.11 Public Utility Holding Company Act..............................64
7.12 Compliance with Laws............................................64
7.13 Disclosure......................................................64
7.14 Security Documents..............................................65
7.15 Assets of the Borrower..........................................65
7.16 Material Agreements.............................................65
7.17 Solvency........................................................65
7.18 Labor Matters...................................................66
7.19 Hazardous Materials.............................................66
7.20 Subsidiaries, Etc...............................................68
7.21 Copyrights, Permits and Trademarks..............................68
7.22 Capitalization..................................................69
7.23 Year 2000.......................................................69
Section 8. Covenants of the Borrower.......................................69
8.01 Financial Statements; Continuing Disclosure.....................69
8.02 Litigation......................................................73
8.03 Corporate Existence, Etc........................................73
8.04 Insurance.......................................................74
8.05 Prohibition of Fundamental Changes..............................74
8.06 Limitation on Liens.............................................79
8.07 Indebtedness....................................................80
8.08 Investments.....................................................82
8.09 Restricted Payments.............................................82
8.10 Capital Expenditures............................................83
8.11 Leverage Ratios.................................................84
8.12 Fixed Charges Ratio.............................................85
8.13 Interest Coverage Ratio.........................................85
8.14 Working Capital.................................................85
8.15 Lines of Business...............................................85
8.16 Transactions with Affiliates....................................86
8.17 Sale and Leaseback..............................................86
8.18 Amendment of Certain Documents..................................86
8.19 Use of Proceeds.................................................86
8.20 Sales of Accounts...............................................87
8.21 Interest Rate Protection........................................87
8.22 Environmental Matters...........................................87
8.23 Certain Obligations Respecting Subsidiaries.....................88
8.24 Inactive Subsidiaries...........................................89
8.25 Payments of Indebtedness........................................89
Section 9. Events of Default...............................................90
Section 10. The Agent......................................................93
10.01 Appointment, Powers and Immunities.............................93
10.02 Reliance by Agent..............................................94
10.03 Defaults.......................................................94
10.04 Rights as a Lender.............................................94
10.05 Indemnification................................................95
10.06 Non-Reliance on Agent and Other Lenders........................95
10.07 Failure to Act.................................................95
10.08 Resignation or Removal of Agent................................96
10.09 Consents under Other Credit Documents..........................96
Section 11. Miscellaneous..................................................96
11.01 Waiver.........................................................97
11.02 Notices........................................................97
11.03 Expenses, Etc..................................................97
11.04 Amendments, Etc................................................98
11.05 Successors and Assigns.........................................99
11.06 Assignments and Participations.................................99
11.07 Survival......................................................101
11.08 Captions......................................................101
11.09 Counterparts..................................................102
11.10 Governing Law; Submission to Jurisdiction.....................102
11.11 Waiver of Jury Trial..........................................102
11.12 Confidentiality...............................................102
Annex 1 - Commitments and Loans
Annex 2 - Permitted Dispositions
SCHEDULE I - Consents and Approvals
SCHEDULE II - Litigation
SCHEDULE III - Investments
SCHEDULE IV - Subsidiaries
SCHEDULE V - Liens
SCHEDULE VI - Indebtedness
SCHEDULE VII - Hazardous Materials
SCHEDULE VIII - Capitalization
SCHEDULE IX - Inactive Subsidiaries
EXHIBIT A - Form of Borrower Security Agreement
EXHIBIT B-1 - Form of Subsidiary Guarantor Security Agreement
EXHIBIT B-2 - Form of Subsidiary Guarantee
EXHIBIT C - Form of Compliance Certificate
EXHIBIT D - Form of Assignment and Acceptance
EXHIBIT E-1 - Form of Tranche A Term Note
EXHIBIT E-2 - Form of Tranche B Term Note
EXHIBIT E-3 - Form of Revolving Credit Note
EXHIBIT E-4 - Form of Incremental Note
EXHIBIT F - Form of Incremental Loan Activation Notice
EXHIBIT G - Description of Subordination Terms
CREDIT AGREEMENT dated as of July 15, 1998 between: JOURNAL REGISTER
COMPANY, a corporation duly organized and validly existing under the laws of the
State of Delaware (the "BORROWER"); each of the banks and other financial
institutions that is a signatory hereto or which, pursuant to Section 2.01(c) or
11.06(b) hereof, shall become a "Lender" hereunder (individually, a "LENDER"
and, collectively, the "LENDERS"); and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "AGENT").
The Borrower is the borrower under a Credit Agreement dated as of May
2, 1997 with certain of the Lenders and the Agent (as heretofore modified and
supplemented and in effect on the date of this Agreement, the "EXISTING CREDIT
AGREEMENT"). The parties to the Existing Credit Agreement wish to amend in
certain respects and to restate in its entirety the Existing Credit Agreement,
it being the intention of the parties that the loans outstanding under the
Existing Credit Agreement on the Effective Date (other than such loans required
to be paid as of the Effective Date as contemplated hereby) shall continue and
remain outstanding and not be repaid on the Effective Date, but shall be
assigned and reallocated among the Lenders as provided in Section 2.01 hereof.
The Borrower and its subsidiaries are engaged as an integrated group
in the business of publishing, distributing and selling newspapers, and in
related businesses, and in furnishing the required supplies, services,
equipment, credit and other facilities for such integrated operation. The
integrated operation requires financing on such a basis that credit supplied to
the Borrower be made available from time to time to its subsidiaries, as
required for the continued successful operation of the Borrower and its
subsidiaries, separately, and the integrated operation as a whole. In addition,
on the Effective Date, the Borrower intends to consummate the ▇▇▇▇▇▇▇
Acquisition (as defined below). In connection with the foregoing, the Borrower
has requested that the Lenders extend credit to the Borrower (to be made
available by the Borrower to its subsidiaries) in an aggregate principal or face
amount up to but not exceeding $900,000,000 to refinance certain existing
indebtedness of the Borrower and its Subsidiaries and to provide financing for
the ▇▇▇▇▇▇▇ Acquisition, general corporate purposes, other permitted
acquisitions and working capital for the ongoing operations of the Borrower and
its subsidiaries. The Lenders are willing to extend such credit to the Borrower
on the terms and conditions of this Agreement. In addition, at the request of
the Borrower, the Lenders may (but are not obligated to) make available
additional term loans under this Agreement in an aggregate principal amount up
to but not exceeding $500,000,000.
Accordingly, the parties hereto hereby agree that the Existing Credit
Agreement shall, as of the Effective Date, be amended in certain respects and
restated in its entirety as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and VICE VERSA):
"ACQUISITION" shall mean any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Borrower and/or any of its Subsidiaries (a) acquires any going business or all
or substantially all of the assets of any corporation, partnership, joint
venture or other firm or any division of any corporation, partnership, joint
venture or other firm or the right to use or manage or otherwise exploit any
such business or assets, whether through purchase or lease of assets, merger or
otherwise, (b) directly or indirectly acquires control of at least a majority
(in number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors or (c) directly or indirectly
acquires control of a majority ownership interest in any partnership, joint
venture or other firm. The terms "ACQUIRE" and "ACQUIRED" used as a verb shall
have a correlative meaning.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in a form supplied by the Agent.
"AFFILIATE" shall mean, with respect to any specified Person, any
other Person which directly or indirectly controls, or is under common control
with, or is controlled by, such specified Person and, if such other Person is an
individual, any member of the immediate family (including parents, spouse and
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who is
controlled by any such member or trust. As used in this definition, "CONTROL"
(including, with its correlative meanings, "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), PROVIDED that, in any event, any Person which owns directly or
indirectly 10% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 10% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, (a) no individual
shall be an Affiliate of the Borrower or any of its Subsidiaries solely by
reason of his or her being a director, officer or employee of the Borrower or
any of its Subsidiaries and (b) none of the Borrower or any of its Subsidiaries
shall be Affiliates of each other.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or of an Affiliate
of such Lender) as such Lender may from time to time specify to the Agent and
the Borrower as the office by which its Loans of such Type are to be made and
maintained.
"APPLICABLE MARGIN" shall mean, for any day, with respect to any Base
Rate Loan or Eurodollar Loan of a particular Class, the applicable rate per
annum set forth below under the caption "Base Rate Loans other than Tranche B
Term Loans", "Eurodollar Loans other than Tranche B Term Loans", "Base Rate
Loans that are Tranche B Term Loans" or "Eurodollar Loans that are Tranche B
Term Loans", as applicable, based upon the Total Leverage Ratio as of the most
recent determination date:
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Base Rate Eurodollar Base Rate Eurodollar
Loans other Loans other Loans that Loans that
than Tranche than Tranche are Tranche are Tranche B
Total Leverage B Term Loans B Term Loans B Term Loans Term Loans
Ratio: (%) (%) (%) ($)
-------------- ------------- ------------- ------------ -------------
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CATEGORY 1
Greater than 5.5 0.25 1.50 0.50 1.75
to 1
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CATEGORY 2
Less than or equal
to 5.5 to 1 and
greater than or 0 1.25 0.25 1.50
equal to 5.0 to 1
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CATEGORY 3
Less than 5.0 to 1
and greater than
or equal to 4.5 to 0 1.00 0 1.25
1
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CATEGORY 4
Less than 4.5 to 1
and greater than
or equal to 4.0 to 0 0.875 0 1.125
1
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CATEGORY 5
Less than 4.0 to 1
and greater than
or equal to 3.5 to 0 0.75 0 1.00
1
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CATEGORY 6
Less than 3.5 to 1
and greater than
or equal to 3.0 to 0 0.625 0 1.00
1
===============================================================================
CATEGORY 7
Less than 3.0 to 1 0 0.50 0 1.00
===============================================================================
For purposes of this definition, the Total Leverage Ratio (i) for any day during
the period commencing on the Effective Date and ending on the third Business Day
after the first date the Borrower delivers to the Agent consolidated financial
statements of the Borrower for the fiscal quarter ending September 30, 1998
pursuant to Section 8.01(a) hereof shall be deemed to be in Category 2 above and
(ii) for any day thereafter shall be determined on the basis of the then most
recent consolidated financial statements of the Borrower delivered to the Agent
pursuant to Section 8.01(a) or 8.01(b) hereof. Any change in the Applicable
Margins as a result of a change in the Total Leverage Ratio shall be effective
as of the third Business Day following the date the relevant consolidated
financial statements of the Borrower are so delivered to the Agent, PROVIDED
that in the event that the Borrower shall fail to deliver to the Agent any
consolidated financial statements by the respective date required pursuant to
said Section 8.01(a) or 8.01(b), the Applicable Margins shall be deemed to be in
Category 1 above for each day during the period commencing on the date said
financial statements were so required to be delivered and ending on the third
Business Day following the date such financial statements are in fact delivered
to the Agent; PROVIDED, FURTHER, that the Applicable Margins shall be subject to
adjustment based on the foregoing table prior to the delivery of such
consolidated financial statements effective as of the third Business Day
following the date (the "ADJUSTMENT EFFECTIVE DATE") on which the Agent shall
have received a certificate of a Senior Officer (in form and detail satisfactory
to the Agent) setting forth the Total Leverage Ratio for the period in respect
of which such consolidated financial statements are required to be delivered and
annexing thereto calculations of the Total Leverage Ratio, except that in the
event that the Total Leverage Ratio determined on the basis of such consolidated
financial statements when delivered pursuant to Section 8.01(a) or 8.01(b) shall
be in a lower numbered Category in the foregoing table than the Total Leverage
Ratio set forth in such certificate, the Applicable Margin shall automatically
be adjusted retroactively to the Adjustment Effective Date based upon the
foregoing table; PROVIDED, FURTHER, that the Applicable Margins shall be subject
to adjustment based on the foregoing table on and as of any Borrowing Date or
the date of any prepayment described in the following clause (y) if (i) either
(x) a borrowing of Revolving Credit Loans occurs on such Borrowing Date or (y)
the Revolving Credit Loans are prepaid at any time, in each case in excess of
$20,000,000 in aggregate principal amount (unless, in the case of clause (x)
only, the proceeds of such borrowing are to be, and are in fact, used to make
repayments of Term Loans or Incremental Loans, in which case no such adjustment
to the Applicable Margins shall be so required to be made on such Borrowing Date
or the date of such prepayment) and (ii) such borrowing or prepayment, as the
case may be, results in a change in the Total Leverage Ratio as of such
Borrowing Date or the date of such prepayment that would in turn result in a
change in the Applicable Margins as reflected in the certificate of a Senior
Officer (in form and detail satisfactory to the Agent) setting forth the Total
Leverage Ratio after giving effect to such borrowing or prepayment, as the case
may be, and annexing thereto calculations of the Total Leverage Ratio and
delivered to the Agent (x) in the case of such borrowing, as required by Section
6.02(b) hereof and (y) in the case of such prepayment, together with the
relevant notice of prepayment as required by Section 4.05 hereof.
Notwithstanding the provisions of the immediately preceding sentence, no
reduction in the Applicable Margins provided for by this definition shall be
effective earlier than the date three Business Days after the date the Agent
receives a notice from the Borrower specifically requesting such reduction.
"APPROVED FUND" shall mean with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"APPROVED SUBORDINATED DEBT" shall mean Subordinated Debt that
satisfies the requirements of clause (v) of Section 8.07(e) hereof.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.06), and accepted by the Agent, in the form of Exhibit D
hereto or any other form approved by the Agent.
"BANKRUPTCY CODE" shall mean the United States Federal Bankruptcy Code
of 1978, as amended from time to time.
"BASE RATE" shall mean, with respect to any Base Rate Loan, for any
day, the higher of (a) the Federal Funds Rate for such day PLUS 1/2 of 1% and
(b) the Prime Rate for such day. Each change in any interest rate provided for
herein based upon the Base Rate resulting from a change in the Base Rate shall
take effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Loans which bear interest at rates based
upon the Base Rate.
"BORROWER SECURITY AGREEMENT" shall mean a Security Agreement
substantially in the form of Exhibit A hereto between the Borrower and the
Agent, as the same shall be amended, supplemented or otherwise modified and in
effect from time to time.
"BORROWING DATE" shall mean each date on which Loans are made
hereunder.
"BUSINESS DAY" shall mean any day on which commercial banks are not
authorized or required to close in New York City and, if such day relates to a
borrowing of, a payment or prepayment of principal of or interest on, or a
Conversion of or into, or a Continuation of, or an Interest Period for, a
Eurodollar Loan or a notice by the Borrower with respect to any such borrowing,
payment, prepayment, Conversion, Continuation or Interest Period, which is also
a day on which dealings in Dollar deposits are carried out in the London
interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Borrower or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP; PROVIDED that "Capital
Expenditures" (a) shall not include (i) capitalized interest to the extent
otherwise included in "Capital Expenditures" as required by GAAP or (ii) at the
option of the Borrower (which option shall be irrevocable and exercised in
writing by notice to the Agent), any such expenditures (including, without
limitation, Capital Lease Obligations incurred) up to but not exceeding
$5,000,000 in the aggregate in any fiscal year and up to but not exceeding
$10,000,000 in the aggregate and (b) shall include expenses in respect of the
Borrower's and its Subsidiaries' on-line services of up to $1,000,000 in the
aggregate in any fiscal year to the extent that such expenses are excluded from
the definition of "Cash Flow" in this Section 1.01 for such fiscal year in
accordance with clause (c)(ii) of the proviso to such definition.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"CASH EQUIVALENTS" shall mean:
(a) direct obligations of the United States of America, or of any
agency thereof, or obligations guaranteed as to principal and interest
by the United States of America, or of any agency thereof, in either
case maturing not more than 180 days from the date of acquisition
thereof;
(b) certificates of deposit or Eurodollar time deposits maturing
on demand or within 180 days from the date of acquisition thereof
issued by any Lender or bank or trust company organized under the laws
of the United States of America or any state thereof and having
capital, surplus and undivided profits of at least $500,000,000;
(c) commercial paper rated A-1 or better or P-1 or better by
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or ▇▇▇▇▇'▇ Investors Service, Inc., respectively, or
their respective successors, maturing not more than 180 days from the
date of acquisition thereof;
(d) operating deposit accounts with banks (including banks with a
smaller capital, surplus and undivided profits than that specified in
clause (b) above); and
(e) reverse repurchase agreements with a term not in excess of
180 days with any Person relating to obligations referred to in clause
(a) above provided that the obligations of the counterparty to
repurchase the securities originally purchased by the Borrower or any
of its Subsidiaries are secured by readily marketable assets so long
as the documentation governing such agreements requires (subject to
customary minimum collateral transfer requirements) that the fair
market value of such assets (subject to application of any customary
valuation discount percentages) equal or exceed, on at least one date
during every calendar month, the market valuation of such repurchase
obligations on such date (giving effect to any enforceable netting
arrangements).
"CASH FLOW" shall mean, for any period, the sum of the following for
the Borrower and its Subsidiaries for such period, determined on a consolidated
basis without duplication in accordance with GAAP: operating income before
taxes, Interest Expense, amortization and depreciation and extraordinary gains
and losses and excluding all other non-cash subtractions from net operating
income not otherwise excluded and excluding all other non-cash items of income;
PROVIDED that: (a) if any portion of such period occurs on or before June 30,
1997, Cash Flow shall be determined on a Pro Forma Basis for such period as if
the acquisition of The Taunton Daily Gazette occurred on the first day of such
period utilizing the actual Cash Flow of The Taunton Daily Gazette for the
relevant period as increased by (i) for April, 1997, $21,436, (ii) for May, 1997
$21,853 and (iii) for June, 1997, $20,555; (b) except as provided in clause (a)
above, if the Borrower or any of its Subsidiaries shall have made any Permitted
Acquisition or shall have Disposed of one or more Newspapers or other businesses
related to newspaper publishing (or any part of any thereof) to any Person other
than an Obligor during such period, Cash Flow for any portion of such period
occurring prior to the date 12 complete calendar months after the consummation
of such Permitted Acquisition or Disposition, as the case may be, shall be
increased or decreased, as the case may be, by such an amount as shall be agreed
between the Borrower and the Majority Lenders (or, if the Borrower and the
Majority Lenders shall fail to agree as to any such amount within 30 days after
the consummation of such Permitted Acquisition or Disposition, as the case may
be, by the actual amount of the cash flow attributable to such Newspapers or
other business); (c) there shall be excluded from the calculation of Cash Flow
(i) which includes any period during the fiscal year ended December 31, 1997,
expenses in respect of the Borrower's and its Subsidiaries' implementation of
their on-line services of up to $500,000 and (ii) for any fiscal year, other
expenses in respect of the Borrower's and its Subsidiaries' on-line services of
up to $1,000,000; and (d) there shall be excluded from the calculation of Cash
Flow all payments under the Management Bonus Plan and accrued expenses relating
to the discontinuance of JRN's StarShare Plan of up to an aggregate amount of
$35,000,000.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of, damage to or destruction of, or any condemnation or taking
of, such Property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.
"▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ Media, Inc. and its Subsidiaries.
"CHASE" shall mean The Chase Manhattan Bank.
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT PERCENTAGE" shall mean (a) with respect to any Revolving
Credit Lender, such Lender's Revolving Credit Commitment Percentage; (b) with
respect to any Tranche A Term Loan Lender, the ratio of (i) the aggregate
outstanding principal amount of the Tranche A Term Loan(s) held by such Lender
to (ii) the aggregate outstanding principal amount of the Tranche A Term Loans
held by all of the Tranche A Term Loan Lenders; (c) with respect to any Tranche
B Term Loan Lender, the ratio of (i) the aggregate outstanding principal amount
of the Tranche B Term Loan(s) held by such Lender to (ii) the aggregate
outstanding principal amount of the Tranche B Term Loans held by all of the
Tranche B Term Loan Lenders; and (d) with respect to each Series of Incremental
Loans and each Incremental Loan Lender holding Incremental Loans of such Series,
the ratio of (i) the amount of the Incremental Loan of such Series of such
Lender to (ii) the aggregate amount of the Incremental Loan Commitments of such
Series of all of the Incremental Loan Lenders holding Incremental Loans of such
Series (or, if the such Series of Incremental Loan Commitments have expired or
terminated, the ratio of (i) the aggregate outstanding principal amount of the
Incremental Loan(s) of such Series held by such Lender to (ii) the aggregate
outstanding principal amount of the Incremental Loans of such Series held by all
of the Incremental Loan Lenders).
"COMMITMENTS" shall mean, collectively, the Revolving Credit
Commitments, the Tranche A Term Loan Commitments, the Tranche B Term Loan
Commitments and the Incremental Loan Commitments.
"COMPLIANCE CERTIFICATE" shall mean a certificate of the chief
financial officer or controller of the Borrower, substantially in the form of
Exhibit C hereto and appropriately completed.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.08 hereof of Base Rate Loans into Eurodollar Loans or
Eurodollar Loans into Base Rate Loans which may be accompanied by the transfer
by a Lender (at its sole discretion) of a Loan from one Applicable Lending
Office to another.
"CONVERTIBLE DEBT" shall mean Indebtedness (whether senior or
subordinated) of the Borrower that may be converted into capital stock of the
Borrower.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the Letter of Credit Documents, the Subsidiary Guarantee and the Security
Documents.
"DEFAULT" shall mean an Event of Default or an event which with notice
or lapse of time or both would become an Event of Default.
"DISPOSITION" shall mean (a) any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person, excluding any such
sale, assignment, transfer or other disposition in the ordinary course of
business and on ordinary business terms, or (b) the entering into of any
agreement by the Borrower or any of its Subsidiaries with any other Person
pursuant to which such other Person has the right to use or manage or otherwise
exploit any Property (whether now owned or hereafter acquired) of the Borrower
or such Subsidiary and pursuant to which such other Person is entitled, directly
or indirectly, to retain all or a substantial part of the revenues derived from
the use or management or other exploitation of such Property. The terms
"DISPOSE" and "DISPOSED" used as a verb shall have a correlative meaning.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" means any Subsidiary other than a Foreign
Subsidiary.
"EFFECTIVE DATE" shall mean the date upon which the conditions to
effectiveness of this Agreement specified in Section 6 hereof shall have been
satisfied or waived.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written or oral notice, claim, demand or other communication (each, a "claim")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property or health, personal injuries, fines or
penalties arising out of, based on or resulting from (i) the presence, or
Release, of any Hazardous Material at or from any location, whether or not owned
by such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence or Release of Hazardous Materials
or arising from alleged injury or threat of injury to health, safety or the
environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of the environment (including the environment as it affects human
health or safety) or to emissions, discharges, Releases or threatened Releases
of pollutants, contaminants, chemicals or toxic or hazardous substances or
wastes into the indoor or outdoor environment, including, without limitation,
ambient air, soil, surface water, ground water, wetlands, land or subsurface
strata, or otherwise relating to the manufacture, processing, distribution,
generation, recycling, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants, chemicals or toxic or hazardous substances or
wastes (or the effect of the same on human health or safety).
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar Loan
for any Interest Period therefor, the rate appearing on Page 3750 of the Dow
▇▇▇▇▇ Markets Service (or on any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the Eurodollar Base Rate with
respect to such Eurodollar Loan for such Interest Period shall be the rate at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Agent in
immediately available funds to leading banks in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"EURODOLLAR LOANS" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Eurodollar
Base Rate" in this Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the quotient of the
Eurodollar Base Rate for such Loan for such Interest Period DIVIDED BY 1 MINUS
the Reserve Requirement for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning given to such term in
Section 9 hereof.
"EXCESS CASH FLOW" shall mean, for any period, the sum of the
following for such period: (a) Cash Flow MINUS (b) the sum of the following
(without duplication of deductions): (i) Total Debt Service PLUS (ii)
prepayments of principal of the Loans made pursuant to Section 2.08 hereof,
PROVIDED that, in the case of any such prepayments of principal of the Revolving
Credit Loans, the Revolving Credit Commitments shall have been reduced by a like
amount PLUS (iii) prepayments of principal of the Loans made pursuant to Section
2.09 hereof PLUS (iv) Capital Expenditures made as permitted by Section 8.10
hereof (other than Capital Expenditures made pursuant to clause (z) thereof, but
only to the extent funded with the proceeds of Revolving Credit Loans) PLUS (v)
cash payments in respect of Permitted Acquisitions made during such period
(except to the extent made with the proceeds of Loans hereunder) PLUS (vi)
Restricted Payments made as permitted by Section 8.09(c) hereof PLUS (vii) any
net increase in Working Capital (or MINUS any net decrease in Working Capital)
PLUS (viii) costs paid in cash in connection with obtaining Interest Rate
Protection Agreements PLUS (ix) taxes (other than deferred taxes) paid during
such period or paid or expected to be paid in cash thereafter in respect of such
period, in each case in respect of income or activities earned or conducted
during such period.
"EXCLUDED TAXES" shall mean, with respect to the Agent, any Lender,
the Issuing Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its Applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender, any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability
(including as a result of such Foreign Lender's lack of entitlement to an
exemption or reduction of the type referred to therein) to comply with Section
5.07(e) hereof.
"EXISTING CREDIT AGREEMENT" shall have the meaning given to such term
in the second paragraph hereof.
"EXISTING LENDER" shall mean each Lender which is a party to both the
Existing Credit Agreement and this Agreement.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the immediately preceding Business Day as
so published on the next succeeding Business Day, and (b) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to Chase on such day on such transactions as determined by the
Agent.
"FIXED CHARGES RATIO" shall mean, at any date, the ratio of (a) Cash
Flow for the period of four complete consecutive fiscal quarters ended on, or
most recently ended prior to, such date to (b) Total Fixed Charges for such
period.
"FOREIGN LENDER" shall mean any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary which is organized under the
laws of any jurisdiction outside the United States of America, any State thereof
and the District of Columbia.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those which, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"▇▇▇▇▇▇▇ ACQUISITION" means the transactions contemplated by the
▇▇▇▇▇▇▇ Acquisition Agreement that are to take place either prior to or
substantially simultaneously with the Effective Date.
"▇▇▇▇▇▇▇ ACQUISITION AGREEMENT" means the Master Agreement dated as of
May 17, 1998 by and among the sellers set forth on the signature pages thereto,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as the designated stockholder, and the Borrower.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of his,
her or its obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank to issue a letter of credit or
other similar instrument for the benefit of another Person, but excluding
endorsements for collection or deposit in the ordinary course of business. The
terms "GUARANTEE" and "GUARANTEED" used as a verb shall have a correlative
meaning.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls, (b) any chemicals or other materials or
substances that are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of similar import
under any Environmental Law and (c) any other chemical or other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law.
"HEDGING AGREEMENT" means any swap agreement, cap agreement, collar
agreement, put or call, futures contract, forward contract or similar agreement
or arrangement entered into to protect against or mitigate the effect of
fluctuations in the price of the Borrower's publicly issued common stock or in
interest rates, foreign exchange rates or prices of commodities used in the
business of the Borrower and its Subsidiaries and any master agreement, schedule
and confirmation relating to any of the foregoing.
"INACTIVE SUBSIDIARIES" shall mean the Subsidiaries of the Borrower
listed on Schedule XI hereto (subject to Section 8.05(a)(i) hereof).
"INCREMENTAL LOAN" shall mean the loans provided for by Section
2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"INCREMENTAL LOAN ACTIVATION DATE" shall mean, with respect to any
Series of Incremental Loans, the date designated as such in the applicable
Incremental Loan Activation Notice.
"INCREMENTAL LOAN ACTIVATION NOTICE" shall mean a notice substantially
in the form of Exhibit F hereto.
"INCREMENTAL LOAN COMMITMENT" shall mean: (a) for each Lender that
executes and delivers an Incremental Loan Activation Notice, the commitment of
such Lender to make one or more Incremental Loans on and after the related
Incremental Loan Activation Date up to an aggregate principal amount equal to
the amount set opposite the name of such Lender on the Incremental Loan
Activation Notice under the caption "Incremental Loan Commitment" and (b) for
each Lender that acquires all or a portion of another Lender's Incremental Loan
Commitment by assignment pursuant to Section 11.06(b) hereof, the obligation of
such Lender to make Incremental Loans up to an aggregate principal amount equal
to such Lender's Incremental Loan Commitment after giving effect to such
assignment (in each case, as the same may be reduced or increased from time to
time pursuant to Section 2.03 hereof or Section 11.06(b) hereof). The aggregate
principal amount of the Incremental Loan Commitments is zero as of the Effective
Date and shall not exceed $500,000,000.
"INCREMENTAL LOAN LENDER" shall mean a Lender with an Incremental Loan
Commitment or an outstanding Incremental Loan.
"INDEBTEDNESS" shall mean, as to any Person: (a) indebtedness created,
issued or incurred by such Person for borrowed money (whether by loan or the
issuance and sale of debt securities); (b) obligations of such Person to pay the
deferred purchase or acquisition price of property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) such indebtedness or
other obligations of others secured by a Lien on Property of such Person,
whether or not the respective indebtedness or other obligation so secured has
been assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person; (e) Capital Lease
Obligations of such Person; and (f) Indebtedness of others Guaranteed by such
Person; PROVIDED that there shall be excluded from Indebtedness of the Borrower
and its Subsidiaries any of the foregoing obligations of the Borrower or any of
its Subsidiaries described in clauses (a) through (f) above owing to the
Borrower or any other such Subsidiary, as the case may be.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INS" shall mean INS Holdings, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware.
"INTEREST COVERAGE RATIO" shall mean, at any date, the ratio of (a)
Cash Flow for the period of four complete consecutive fiscal quarters ended on,
or most recently ended prior to, such date to (b) cash Interest Expense for such
period.
"INTEREST EXPENSE" shall mean, for any period, interest expense of the
Borrower and its Subsidiaries for such period (determined on a consolidated
basis without duplication in accordance with GAAP) including, without
limitation, the following: (a) all interest in respect of Indebtedness of the
Borrower and its Subsidiaries (including imputed interest expense in respect of
Capital Lease Obligations) paid, accrued or capitalized during such period; PLUS
(b) all commitment and agency fees paid to the Lenders and/or the Agent and all
commitment and agency fees accrued during such period and in either case in
connection with this Agreement (but excluding any legal fees or expenses in
connection with this Agreement and the other Credit Documents); PLUS (c) the net
amounts payable (or MINUS the net amounts receivable) by the Borrower and its
Subsidiaries during such period under Interest Rate Protection Agreements (but
in any event excluding capitalized costs incurred in connection with obtaining
Interest Rate Protection Agreements and the related amortization).
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or the last day of the immediately preceding Interest
Period for such Loan and ending on the numerically corresponding day in the
first, second, third, sixth or (to the extent available from all of the Lenders,
as determined by the Agent) ninth or twelfth month thereafter, as the Borrower
may select as provided in Section 4.05 hereof, except that each Interest Period
which commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (a) if any Interest Period for
any Revolving Credit Loan would otherwise commence before and end after the
Revolving Credit Commitment Termination Date, such Interest Period shall end on
the Revolving Credit Commitment Termination Date; (b) no Interest Period for any
Term Loan of any Class may commence before and end after any Principal Payment
Date unless, after giving effect thereto, the aggregate principal amount of the
Term Loans of such Class having Interest Periods which end after such Principal
Payment Date shall be equal to or less than the aggregate principal amount of
the Term Loans of such Class scheduled to be outstanding after giving effect to
the payments of principal required to be made on such Principal Payment Date;
(c) no Interest Period for any Incremental Loan of any Series may commence
before and end after any Principal Payment Date for Incremental Loans of such
Series unless, after giving effect thereto, the aggregate principal amount of
the Incremental Loans of such Series having Interest Periods which end after
such Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Incremental Loans of such Series scheduled to be
outstanding after giving effect to the payment of principal required to be made
on such Principal Payment Date; (d) each Interest Period which would otherwise
end on a day which is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the immediately preceding Business Day); and (e)
notwithstanding the foregoing, no Interest Period shall have a duration of less
than one month and, if the Interest Period for any Eurodollar Loan would
otherwise be a shorter period (by reason of clause (a), (b), (c) or (d) above or
otherwise), such Loan shall not be available hereunder.
"INTEREST RATE PROTECTION AGREEMENT" means a Hedging Agreement
providing for the transfer or mitigation of interest risks either generally or
under specific contingencies.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
short sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person, but excluding any such
advance, loan or extension of credit having a term not exceeding 90 days
representing the purchase price of inventory or supplies sold by such Person in
the ordinary course of business); (c) the entering into of any Guarantee of, or
other contingent obligation with respect to, Indebtedness or other liability of
any other Person and (without duplication) any amount committed to be advanced,
lent or extended to such Person; or (d) the entering into of any Hedging
Agreement.
"ISSUING LENDER" shall mean Chase, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.10(j).
"JRN" shall mean Journal Register Newspapers, Inc., a non-stock
corporation duly organized and validly existing under the laws of the State of
Delaware.
"LC DISBURSEMENT" means a payment made by the Issuing Lender pursuant
to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time PLUS (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Credit Lender at
any time shall be its Revolving Credit Commitment Percentage of the total LC
Exposure at such time.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Credit Documents, a
Person shall be deemed to own subject to a Lien any Property which 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
other than an operating lease relating to such Property.
"LOANS" shall mean the Revolving Credit Loans, Tranche A Term Loans,
Tranche B Term Loans, Incremental Loans and Swingline Loans.
"MAJORITY LENDERS" shall mean, at any time, Lenders having more than
50% of the sum of (a) the aggregate Revolving Credit Exposures at such time PLUS
(b) the aggregate outstanding principal amount of the Term Loans and Incremental
Loans at such time PLUS (c) the aggregate unused amount of the Commitments at
such time. The "Majority Lenders" of a particular Class of Loans (other than
Revolving Credit Loans) means Lenders having outstanding Loans and unused
Commitments of such Class representing more than 50% of the total outstanding
Loans and unused Commitments of such Class at such time.
"MAJORITY REVOLVING CREDIT LENDERS" shall mean Lenders having more
than 50% of the sum of (a) the aggregate unused amount of the Revolving Credit
Commitments at such time PLUS (b) the aggregate Revolving Credit Exposures at
such time or, if the Revolving Credit Commitments have terminated, Revolving
Credit Lenders holding more than 50% of the aggregate Revolving Credit Exposures
at such time.
"MANAGEMENT BONUS PLAN" shall mean the Borrower's "Management Bonus
Plan" pursuant to which the Borrower has paid (or will pay) management bonuses
up to an aggregate amount of $35,000,000, comprised of approximately 1,100,000
shares of common stock of the Borrower valued at the initial public offering
price of the Borrower's common stock and a cash portion that the Borrower
expects will be used to satisfy the recipients' tax obligations arising from the
shares of common stock.
"MARGIN STOCK" shall mean margin stock within the meaning of
Regulation U and Regulation X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the Property, business, financial condition, operations, assets, liabilities,
capitalization or prospects of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower or any of its Subsidiaries to perform any
of such Person's non-monetary obligations under any of the Transaction
Documents, (c) the validity or enforceability of any of the Transaction
Documents, (d) the rights and remedies of the Lenders and the Agent under any of
the Credit Documents or (e) the timely payment of the principal of or interest
on the Loans or other amounts payable in connection therewith.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and which is covered by Title IV of ERISA.
"NET PROCEEDS" shall mean, with respect to any receipt of proceeds of
any Disposition referred to in Section 2.09(b)(i) hereof or any insurance
payment, or any condemnation award or other compensation in respect of any
Casualty Event referred to in Section 2.09(b)(ii) hereof, the excess, if any,
of: (a) the aggregate amount of such proceeds OVER (b) the sum of (i) the
reasonable fees and out-of-pocket expenses incurred by the Borrower or any of
its Subsidiaries, in the case of any such Disposition, in effecting such
Disposition or, in the case of any such Casualty Event, in collecting such
payment or compensation (as the case may be) PLUS (ii) the taxes paid (or
reasonably estimated to be payable) by the Borrower or any of its Subsidiaries
in connection with any such Disposition or Casualty Event but only to the extent
payable within 120 days of such Disposition or such Casualty Event (as the case
may be) or, if such taxes are not so paid within such 120 days, only if an
amount equal to such taxes is deposited with the Agent for credit to an escrow
account to be held in such account and used to pay the same when due PLUS (iii)
in the case of any such Disposition or Casualty Event, any contractually
required repayments of Indebtedness of the Borrower or any of its Subsidiaries
to the extent secured by a Lien on the related Property.
"NEW LENDER" shall mean each Lender which is a party to this Agreement
but not the Existing Credit Agreement.
"NEWSPAPER" shall mean each newspaper owned or operated by, or
proposed to be Acquired by, any Subsidiary of the Borrower (or, if the context
so requires, a Subsidiary of the Borrower that owns or operates, or proposes to
Acquire, such a newspaper) and may include, without limitation, tangible or
intangible assets used or usable in the operation of such newspaper, real
property used in connection with such newspaper, contracts, leases and
agreements relating to such newspaper, all licenses required for the operation
of such newspaper in accordance with applicable laws and regulations and
copyrights, trademarks, trade names, logos, jingles, service marks, slogans and
promotional materials used in connection with such newspaper.
"NOTES" shall mean the promissory notes (if any) issued by the
Borrower pursuant to Section 2.07(d) hereof.
"OBLIGORS" shall mean, collectively, the Borrower and the Subsidiary
Guarantors.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Credit Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Credit
Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUISITION" shall mean an Acquisition permitted by Section
8.05(b)(v) or (vi) hereof.
"PERMITTED LIENS" shall mean, with respect to Liens on the Property of
the Borrower and/or any of its Subsidiaries, collectively, Liens permitted by
Section 8.06 hereof.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PHILADELPHIA PROJECT" shall mean a planned production/office facility
for the Philadelphia area (or part thereof), including land, buildings and any
and all equipment and other assets used at such facility in the production of
the Borrower's and its Subsidiaries' and their customers' products.
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan or any other amount owing to any of the Lenders or the Agent under or
pursuant to this Agreement or any other Credit Document, a rate per annum equal
to 2% PLUS the Base Rate as in effect from time to time PLUS the Applicable
Margin (PROVIDED that, if any amount in respect of which interest is payable at
the Post-Default Rate is principal of a Eurodollar Loan and the day interest
thereon commences to be payable at the Post-Default Rate is a day other than the
last day of an Interest Period therefor, the "Post-Default Rate" for such
principal shall be, for the period from and including such day to but excluding
the last day of such Interest Period, 2% PLUS the interest rate for such Loan
for such Interest Period as provided in Section 3.02(b) hereof and, thereafter,
the rate provided for above in this definition).
"PRIME RATE" shall mean the rate of interest from time to time
announced by Chase at its principal office in New York, New York as its prime
commercial lending rate.
"PRINCIPAL PAYMENT DATES" shall mean (a) with respect to Term Loans,
the Quarterly Dates occurring in March, June, September and December of each
year, commencing with the Quarterly Date occurring in June, 2000 through and
including (i) March, 2006, with respect to Tranche A Term Loans, and (ii)
September, 2006, with respect to Tranche B Term Loans and (b) with respect to
each Series of Incremental Loans, the dates on which the Borrower is required to
pay each scheduled installment of such Loans as may be hereafter agreed between
the Borrower and the Lenders providing such Loans, PROVIDED that the
requirements of Section 3.01(e) hereof are satisfied.
"PRO FORMA BASIS" mean, as to any Person, for any of the following
events which occur subsequent to the commencement of a period for which the
financial effect of such event is being calculated, and giving effect to the
event for which such calculation is being made, such calculation as will give
PRO FORMA effect to such event as if same had occurred at the beginning of such
period of calculation, and
(a) for purposes of the foregoing calculation, the
transaction giving rise to the need to calculate the PRO FORMA effect
of any of the following events shall be assumed to have occurred on
the first day of the period of twelve consecutive complete calendar
months last ended before the occurrence of the respective event for
which such PRO FORMA effect is being determined (the "REFERENCE
PERIOD"), and in calculating compliance with any ratio, such
compliance will be determined on the basis of the Reference Period
(notwithstanding anything to the contrary contained in the definition
of the relevant ratio in this Section 1.01), except in the case of
calculating compliance with Section 8.14 which will be determined on
the basis of the period of four complete consecutive fiscal quarters
ended on, or most recently ended prior to, such calculation date;
(b) in making any determination in connection with the
incurrence or assumption of any Indebtedness under Section 8.07(e)
hereof or in connection with any Permitted Acquisition, (i) such
Indebtedness shall be deemed to have been incurred or repaid at the
beginning of the Reference Period, (ii) if such Indebtedness is
floating rate debt, Interest Expense for such Indebtedness for such
period shall be computed on a PRO FORMA basis utilizing the average
Eurodollar Base Rate (assuming 3-month interest periods) for the
Reference Period PLUS the Applicable Margin for the relevant type of
such floating rate debt, (iii) if such Indebtedness is fixed rate
debt, Interest Expense for such Indebtedness for the Reference Period
shall be computed on a PRO FORMA basis utilizing such fixed rate and
(iv) any other Indebtedness repaid with the proceeds of such
Indebtedness shall be deemed to have been repaid at the beginning of
the Reference Period and the Interest Expense relating thereto shall
be eliminated from the calculation;
(c) in making any determination of Cash Flow, PRO FORMA
effect shall be given to any Permitted Acquisition or Disposition, in
each case which occurred during the Reference Period or subsequent to
the Reference Period and prior to the Transaction Date, as if such
Permitted Acquisition or Disposition, as the case may be, occurred on
the first day of the Reference Period; and
(d) in the event the Borrower wishes to reflect any pro
forma cost savings in making any determination of Cash Flow in
connection with any Permitted Acquisition or Disposition, the Borrower
shall deliver to the Agent a statement setting forth in reasonable
detail such proposed pro forma cost savings that are projected in good
faith to result from such Permitted Acquisition or Disposition, as the
case may be, for the Reference Period as if such Permitted Acquisition
or Disposition had occurred on the first day of the Reference Period
(and the Agent will promptly furnish such statement to the Lenders for
approval of the Majority Lenders, and if (but only if) such approval
is granted such cost savings (or the portion of such amounts thereof
that the Majority Lenders shall have approved) shall be reflected in
the relevant calculation.
For purposes of this definition, whenever PRO FORMA effect is to be given to any
occurrence or event, the PRO FORMA calculations shall be determined in good
faith by a Senior Officer of the Borrower.
"PROPERTY" shall mean all property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, and any right or
interest in or to any such property of any kind whatsoever.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date of this Agreement.
"REGISTER" shall have the meaning assigned to such term in Section
11.06 hereof.
"REGULATION A", "REGULATION D", "REGULATION U" and "REGULATION X"
shall mean, respectively, Regulation A, Regulation D, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date of this Agreement in United States Federal, state or foreign law
or regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Lender of or under any United States Federal,
state or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (a) any category of liabilities
which includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (b) any category of extensions of credit or other assets which
includes Eurodollar Loans.
"RESTRICTED PAYMENT" shall mean any dividend or other distribution
(whether in cash, securities or other property but excluding dividends payable
solely in additional shares of common stock of the Borrower or, in the case of
dividends on preferred stock of the Borrower, in shares of common stock or
preferred stock of the same issue) with respect to any shares of any class of
capital stock of the Borrower or any of its Subsidiaries, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Borrower or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower.
"REVOLVING CREDIT COMMITMENT" shall mean: (a) for each Revolving
Credit Lender that is a party to this Agreement on the Effective Date, the
obligation of such Lender to make Revolving Credit Loans and to acquire
participations in Letters of Credit and Swingline Loans (and on the Effective
Date to assume obligations in respect of the designation and continuation of
"Revolving Credit Loans" under the Existing Credit Agreement as Revolving Credit
Loans hereunder as provided in Section 2.01(b) hereof) up to an aggregate
principal amount equal to the amount set forth opposite the name of such Lender
on Annex 1 hereto under the caption "Revolving Credit Commitment"; and (b) for
each Revolving Credit Lender that acquires all or a portion of another Revolving
Credit Lender's Revolving Credit Commitment by assignment pursuant to Section
11.06(b) hereof, the obligation of such Lender to make Revolving Credit Loans
and to acquire participations in Letters of Credit and Swingline Loans up to an
aggregate principal amount equal to such Lender's Revolving Credit Commitment
after giving effect to such assignment (in each case, as the same may be reduced
or increased from time to time pursuant to Section 2.03 hereof or Section
11.06(b) hereof). The original aggregate principal amount of the Revolving
Credit Commitments is $400,000,000 as of the Effective Date.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Revolving Credit Lenders (or, if the Revolving Credit
Commitments have expired or terminated, the ratio of (a) the Revolving Credit
Exposure of such Lender to (b) the aggregate Revolving Credit Exposures of the
Revolving Credit Lenders).
"REVOLVING CREDIT COMMITMENT REDUCTION DATES" shall mean the Quarterly
Dates occurring in March, June, September and December of each year, commencing
with the Quarterly Date occurring in June, 2002 through and including the
Revolving Credit Commitment Termination Date.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean the
Quarterly Date occurring in March, 2006.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Credit Loans and its LC Exposure and Swingline Exposure at such time.
"REVOLVING CREDIT LENDERS" shall mean (a) on the Effective Date, the
Lenders having Revolving Credit Commitments as indicated on Annex 1 hereto and
(b) thereafter, the Lenders from time to time having Revolving Credit Exposure
and holding Revolving Credit Commitments after giving effect to any assignments
thereof permitted by Section 11.06 hereof.
"REVOLVING CREDIT LOANS" shall mean the loans provided for by Section
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"SCHEDULED PAYMENT" shall mean each repayment of the principal of the
Tranche A Term Loans required to be made on a Principal Payment Date pursuant to
Section 3.01(a) hereof, each repayment of the principal of the Tranche B Term
Loans required to be made on a Principal Payment Date pursuant to Section
3.01(b) hereof, each repayment of the principal of the Incremental Loans
required to be made on a Principal Payment Date pursuant to Section 3.01(e)
hereof and the reduction in the Revolving Credit Commitments required by Section
2.03(b)(ii) hereof. For purposes of computing Total Debt Service for any period,
the amount of each Scheduled Payment shall be the aggregate principal amount of
the Tranche A Term Loans, Tranche B Term Loans and Incremental Loans actually
repaid during such period pursuant to Section 3.01(a), Section 3.01(b) or
Section 3.01(e) hereof, respectively, on a Principal Payment Date after giving
effect to any reductions in the amount required to be repaid on such Principal
Payment Date pursuant to Section 2.08 or 2.09 hereof PLUS (b) the aggregate
principal amount of the Revolving Credit Loans actually repaid during such
period pursuant to Section 2.09(a) hereof after giving effect to the reduction
in the Revolving Credit Commitments pursuant to Section 2.03(b)(ii) hereof PLUS
(c) the aggregate principal amount of Loans prepaid during such period pursuant
to Section 2.08(c) hereof to the extent such prepaid amount would otherwise have
been required to be paid during such period pursuant to Section 3.01(a), Section
3.01(b) or Section 3.01(e) hereof.
"SECURITY DOCUMENTS" shall mean, collectively, the Borrower Security
Agreement, the Subsidiary Guarantor Security Agreement and all Uniform
Commercial Code financing statements required thereby to be filed with respect
to the security interests created pursuant thereto.
"SENIOR DEBT" shall mean, at any date, Total Debt outstanding as at
such date MINUS the sum of Approved Subordinated Debt PLUS Convertible Debt
(whether the same constitutes senior or subordinated Indebtedness) outstanding
as at such date.
"SENIOR LEVERAGE RATIO" shall mean, at any date, the ratio of (a) the
aggregate principal amount of Senior Debt of the Borrower and its Subsidiaries
outstanding as at such date to (b) Cash Flow for the period of four complete
consecutive fiscal quarters ended on, or most recently ended prior to, such
date.
"SENIOR OFFICER" shall mean the President, Executive Vice President,
Chief Financial Officer, Controller or Vice President-Finance of the Borrower,
as the context requires.
"SERIES" shall have the meaning assigned to such term in Section 1.03
hereof.
"SUBORDINATED DEBT" shall mean any unsecured Indebtedness for which
the Borrower is directly and primarily liable (other than Convertible Debt) that
is expressly subordinated in right of payment to the payment of any other
Indebtedness of the Borrower.
"SUBSIDIARY" shall mean, for any Person, any corporation, partnership
(other than any limited partnership of which such Person is solely a limited
partner) or other entity of which at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
of such corporation, partnership or other entity (irrespective of whether or not
at the time securities or other ownership interests of any other class or
classes of such corporation, partnership or other entity shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person; PROVIDED that ▇▇▇▇▇▇ shall not be deemed to be a Subsidiary for any
purpose of this Agreement other than to the extent ▇▇▇▇▇▇ is included in
historical financial statements relevant hereto. "WHOLLY OWNED SUBSIDIARY" shall
mean any such corporation, partnership or other entity of which all such
securities or other ownership interests, other than directors' qualifying
shares, are so owned or controlled.
"SUBSIDIARY GUARANTEE" shall mean a Guarantee Agreement substantially
in the form of Exhibit B-2 hereto between the Subsidiary Guarantors and the
Agent, as the same shall be amended, supplemented or otherwise modified and in
effect from time to time.
"SUBSIDIARY GUARANTOR SECURITY AGREEMENT" shall mean a Security
Agreement substantially in the form of Exhibit B-1 hereto between the Subsidiary
Guarantors and the Agent, as the same shall be amended, supplemented or
otherwise modified and in effect from time to time.
"SUBSIDIARY GUARANTORS" shall mean each of the Subsidiaries of the
Borrower which are, from time to time, parties to the Subsidiary Guarantee.
"SWINGLINE EXPOSURE" shall mean, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Credit Lender at any time shall be its Revolving Credit
Commitment Percentage of the total Swingline Exposure at such time.
"SWINGLINE LOANS" shall mean the loans provided for by Section 2.11
hereof, which shall be Base Rate Loans.
"SWINGLINE LENDER" shall mean Chase, in its capacity as lender of
Swingline Loans hereunder.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any governmental
authority.
"TERM LOAN LENDERS" shall mean the Tranche A Term Loan Lenders and the
Tranche B Term Loan Lenders.
"TERM LOANS" shall mean the Tranche A Term Loans and the Tranche B
Term Loans.
"TOTAL DEBT" shall mean, at any date, all Indebtedness of the Borrower
and its Subsidiaries that would be listed as a liability on a consolidated
balance sheet of the Borrower and its Subsidiaries as at such date prepared in
accordance with GAAP and including in any event obligations in respect of (a)
agreements-not-to-compete and (b) the liabilities described in Schedule VI
hereto but excluding in any event income taxes payable or deferred, unearned
circulation revenue, liabilities under Plans and liabilities of the type
described in Statement of Financial Accounting Standards Nos. 87, 106, 107 and
109 of the Financial Accounting Standards Board to the extent the same may be
treated as an accrued expense under GAAP.
"TOTAL DEBT SERVICE" shall mean, for any period, the sum of the
following for the Borrower and its Subsidiaries for such period, determined on a
consolidated basis without duplication in accordance with GAAP: (a) Scheduled
Payments and other regularly scheduled payments for such period in respect of
principal of Indebtedness which Indebtedness is included in Total Debt; and (b)
cash Interest Expense for such period.
"TOTAL FIXED CHARGES" shall mean, for any period, the sum of the
following for the Borrower and its Subsidiaries for such period, determined on a
consolidated basis without duplication in accordance with GAAP: (a) Total Debt
Service; (b) Capital Expenditures made as permitted by Section 8.10 hereof
(other than Capital Expenditures made pursuant to clause (z) thereof); and (c)
taxes (other than deferred taxes) paid during such period or paid or expected to
be payable in cash thereafter in respect of such period, in each case in respect
of income or activities earned or conducted during such period.
"TOTAL LEVERAGE RATIO" shall mean, at any date, the ratio of (a) the
aggregate principal amount of Total Debt of the Borrower and its Subsidiaries
outstanding as at such date to (b) Cash Flow for the period of four complete
consecutive fiscal quarters ended on, or most recently ended prior to, such
date.
"TRANCHE A TERM LOAN COMMITMENT" shall mean for each Tranche A Term
Loan Lender that is a party to this Agreement on the Effective Date, the
obligation of such Lender on the Effective Date to make Tranche A Term Loans
and/or to assume obligations in respect of the designation and continuation of
certain "Loans" under the Existing Credit Agreement as Tranche A Term Loans
hereunder as provided in Section 2.01(a) hereof up to an aggregate principal
amount equal to the amount set forth opposite the name of such Lender on Annex 1
hereto under the caption "Tranche A Term Loan Commitment" (as the same may be
reduced pursuant to Section 2.03 hereof). The original aggregate principal
amount of the Tranche A Term Loan Commitments is $250,000,000 as of the
Effective Date.
"TRANCHE A TERM LOAN LENDERS" shall mean (a) on the Effective Date,
the Lenders having Tranche A Term Loan Commitments as indicated on Annex 1
hereto and (b) thereafter, the Lenders from time to time holding Tranche A Term
Loans after giving effect to any assignments thereof permitted by Section 11.06
hereof.
"TRANCHE A TERM LOANS" shall mean the loans provided for by Section
2.01(a) hereof in respect of the Tranche A Term Loan Commitments, which may be
Base Rate Loans and/or Eurodollar Loans.
"TRANCHE B TERM LOAN COMMITMENT" shall mean for each Tranche B Term
Loan Lender that is a party to this Agreement on the Effective Date, the
obligation of such Lender on the Effective Date to make Tranche B Term Loans
and/or to assume obligations in respect of the designation and continuation of
certain "Loans" under the Existing Credit Agreement as Tranche B Term Loans
hereunder as provided in Section 2.01(a) hereof up to an aggregate principal
amount equal to the amount set forth opposite the name of such Lender on Annex 1
hereto under the caption "Tranche B Term Loan Commitment" (as the same may be
reduced pursuant to Section 2.03). The original aggregate principal amount of
the Tranche B Term Loan Commitments is $250,000,000 as of the Effective Date.
"TRANCHE B TERM LOAN LENDERS" shall mean (a) on the Effective Date,
the Lenders having Tranche B Term Loan Commitments as indicated on Annex 1
hereto and (b) thereafter, the Lenders from time to time holding Tranche B Term
Loans after giving effect to any assignments thereof permitted by Section 11.06
hereof.
"TRANCHE B TERM LOANS" shall mean the loans provided for by Section
2.01(a) hereof in respect of the Tranche B Term Loan Commitments, which may be
Base Rate Loans and/or Eurodollar Loans.
"TRANSACTION DOCUMENTS" shall mean, collectively, the Credit
Documents, the ▇▇▇▇▇▇▇ Acquisition Agreement and each other material agreement,
instrument or other document (including all schedules and exhibits thereto)
entered into and delivered in connection with any Acquisition consummated by any
Obligor after the Effective Date if such Acquisition is financed in whole or in
part with the proceeds of Incremental Loans hereunder.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"WORKING CAPITAL" shall mean, at any time, the excess, if any, of the
current assets (net of cash and Cash Equivalents and excluding accrued interest
thereon) of the Borrower and its Subsidiaries over their current liabilities
(excluding any such liabilities in respect of the current portion of long-term
debt, liabilities under Plans and liabilities of the type described in Statement
of Financial Accounting Standards Nos. 87, 106, 107 and 109 of the Financial
Accounting Standards Board and accrued Interest Expense, accrued income taxes
payable or deferred, each determined on a consolidated basis without duplication
in accordance with GAAP).
1.02 ACCOUNTING TERMS AND DETERMINATIONS; FISCAL PERIODS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Agent and the Lenders hereunder shall (unless otherwise disclosed to the Lenders
in writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Lenders hereunder (which, prior
to the delivery of the first consolidated financial statements under Section
8.01 hereof, shall mean the consolidated financial statements of the Borrower
and its Subsidiaries as at December 31, 1997 referred to in Section 7.02(a)
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
consolidated financial statements furnished to the Lenders pursuant to Section
8.01(a) or (b) hereof (or prior to the delivery of the first financial
statements under Section 8.01 hereof, used in the preparation of the
consolidated financial statements of the Borrower and its Subsidiaries as at
December 31, 1997 referred to in Section 7.02(a) hereof) unless (i) the Borrower
shall have objected to determining such compliance on such basis at the time of
delivery of such consolidated financial statements or (ii) the Majority Lenders
shall have objected to so determining such compliance within 30 days after
delivery to the Lenders of such consolidated financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest consolidated financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first consolidated financial statements delivered under Section
8.01 hereof, shall mean the consolidated financial statements of the Borrower
and its Subsidiaries as at December 31, 1997 referred to in Section 7.02(a)
hereof).
(b) The Borrower shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01(a) or
(b) hereof, as the case may be, (i) a description in reasonable detail of any
material variation between the application of accounting principles employed in
the preparation of such statement and the application of accounting principles
employed in the preparation of the immediately preceding annual or quarterly
financial statements as to which no objection has been made in accordance with
the last sentence of paragraph (a) above and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) The Borrower will not, nor will the Borrower permit any of its
Subsidiaries to, change the last day of its fiscal year from December 31, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30, respectively, except that the Borrower may
utilize a 4, 4, 5 week month schedule with a year-end date nearest to December
31.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished by
"Class" and by "Type". The Class of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Revolving Credit Loan, a Tranche A Term Loan, a
Tranche B Term Loan, an Incremental Loan or a Swingline Loan, each of which
constitutes a Class. The "Type" of a Loan refers to whether such Loan is a Base
Rate Loan or a Eurodollar Loan, each of which constitutes a Type. In addition,
Incremental Loans (and Incremental Loan Commitments) are distinguished by
"Series". The Series of an Incremental Loan (or of an Incremental Loan
Commitment) refers to the Incremental Loan Activation Notice pursuant to which
one or more Incremental Loan Lenders assumed an Incremental Loan Commitment and
Incremental Commitments assumed pursuant to each Incremental Loan Activation
Notice and Incremental Loans made in respect thereof, shall each constitute a
Series. Loans may be identified by both Class and Type and Incremental Loans may
also be identified by Series.
Section 2. COMMITMENTS.
2.01 LOANS.
(a) TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS. On the Effective
Date, (i) the "Term Loans", "NEN Acquisition Loans", and "New Britain
Acquisition Loans" (each, as defined in the Existing Credit Agreement) held by
the Existing Lenders under the Existing Credit Agreement immediately prior to
the Effective Date shall automatically, and without any action on the part of
any Person, be designated and continued as Tranche A Term Loans or Tranche B
Term Loans hereunder and each of the New Lenders that is a Term Loan Lender (and
each Existing Lender, if any, whose relative proportion of Tranche A Term Loans
or Tranche B Term Loans hereunder is increasing over its relative proportion of
"Term Loans", "NEN Acquisition Loans", and "New Britain Acquisition Loans" held
by it under the Existing Credit Agreement (each an "INCREASING EXISTING TERM
LOAN LENDER")) shall, by assignments from the Existing Lenders, if any, whose
relative proportion of the Tranche A Term Loans or Tranche B Term Loans
hereunder is decreasing from its relative proportion of "Term Loans", "NEN
Acquisition Loans", and "New Britain Acquisition Loans" held by it under the
Existing Credit Agreement (which assignments shall be deemed to occur
automatically on the Effective Date), acquire a portion of the Tranche A Term
Loans and/or Tranche B Term Loan of the Existing Lenders so designated and
continued (the Term Loan Lenders shall, through the Agent, make such additional
adjustments among themselves as shall be necessary), (ii) each such New Lender
and each Increasing Existing Term Loan Lender severally agrees, on the terms and
conditions of this Agreement, to make one or more term loans (on a non pro-rata
basis) to the Borrower in Dollars and/or (iii) the Borrower shall prepay the
Tranche A Term Loans and the Tranche B Term Loans of the Existing Lenders (on a
non pro-rata basis), in each case in such amounts, such that after giving effect
thereto, (x) the aggregate outstanding principal amount of the Tranche A Term
Loans shall be equal to the original aggregate amount of the Tranche A Term Loan
Commitments and the Tranche A Term Loan Lenders shall hold the Tranche A Term
Loans hereunder ratably in accordance with their respective Tranche A Term Loan
Commitments and (y) the aggregate outstanding principal amount of the Tranche B
Term Loans shall be equal to the original aggregate amount of the Tranche B Term
Loan Commitments and the Tranche B Term Loan Lenders shall hold the Tranche B
Term Loans hereunder ratably in accordance with their respective Tranche B Term
Loan Commitments.
From and after the Effective Date, (i) the Borrower (as provided in
Section 2.08(a) hereof) may Convert Tranche A Term Loans of one Type into
Tranche A Term Loans of another Type (as provided in Section 2.08(a) hereof) or
Continue Tranche A Term Loans of one Type as Tranche A Term Loans of the same
Type (as provided in Section 2.08(a) hereof) and (ii) the Borrower (as provided
in Section 2.08(a) hereof) may Convert Tranche B Term Loans of one Type into
Tranche B Term Loans of another Type (as provided in Section 2.08(a) hereof) or
Continue Tranche B Term Loans of one Type as Tranche B Term Loans of the same
Type (as provided in Section 2.08(a) hereof). Amounts repaid or prepaid in
respect of Term Loans may not be reborrowed.
(b) REVOLVING CREDIT LOANS. On the Effective Date, (i) the "Revolving
Credit Loans" (as defined in the Existing Credit Agreement) held by the Existing
Lenders under the Existing Credit Agreement immediately prior to the Effective
Date shall automatically, and without any action on the part of any Person, be
designated and continued as Revolving Credit Loans outstanding under the
Revolving Credit Commitments, (ii) each Revolving Credit Lender (including,
without limitation, each New Lender that is a Revolving Credit Lender) shall
have a Revolving Credit Commitment in the amount set opposite the name of such
Lender on Annex 1 hereto, (iii) each of the New Lenders that is a Revolving
Credit Lender (and each Existing Lender, if any, whose relative proportion of
Revolving Credit Commitments hereunder is increasing over its relative
proportion of "Revolving Credit Commitments" held by it under the Existing
Credit Agreement (each an "INCREASING EXISTING REVOLVING CREDIT LENDER")) shall,
by assignments from the Existing Lenders, if any, whose relative proportion of
the Revolving Credit Commitments hereunder is decreasing from its relative
proportion of "Revolving Credit Commitments" held by it under the Existing
Credit Agreement (which assignments shall be deemed to occur automatically on
the Effective Date), acquire a portion of the Revolving Credit Loans of the
Existing Lenders so designated and continued (and the Revolving Credit Lenders
shall, through the Agent, make such additional adjustments among themselves as
shall be necessary), (iv) each such New Lender and each Increasing Existing
Revolving Credit Lender severally agrees, on the terms and conditions of this
Agreement, to make (on a non pro-rata basis) a revolving credit loan to the
Borrower in Dollars and/or (v) the Borrower shall prepay the Revolving Credit
Loans of the Existing Lenders (on a non pro-rata basis), in each case in such
amounts, such that after giving effect thereto and any other Revolving Credit
Loans made to the Borrower on the Effective Date, the Revolving Credit Lenders
shall hold the Revolving Credit Loans hereunder ratably in accordance with their
respective Revolving Credit Commitments.
From and after the Effective Date, each Revolving Credit Lender
severally agrees, on the terms of this Agreement, to make Revolving Credit Loans
to the Borrower in Dollars during the period from and including the Effective
Date to but excluding the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of such Lender's Revolving Credit Commitment as then in effect
PROVIDED, that in no event shall Revolving Credit Exposure of such Lender exceed
such Lender's Revolving Credit Commitment or the aggregate Revolving Credit
Exposures of all of the Revolving Credit Lenders exceed the aggregate amount of
the Revolving Credit Commitments of the Revolving Credit Lenders. Subject to the
terms of this Agreement, during such period the Borrower may borrow, prepay and
reborrow the amount of the Revolving Credit Commitments by means of Base Rate
Loans and Eurodollar Loans and may (as provided in Section 2.08(a) hereof)
Convert Revolving Credit Loans of one Type into Revolving Credit Loans of the
other Type or Continue Revolving Credit Loans of one Type as Revolving Credit
Loans of the same Type.
(c) INCREMENTAL LOANS. The Borrower and one or more of the Lenders
(and/or any other bank or financial institution that thereby becomes a "Lender"
hereunder, with the consent of the Agent (which consent shall not be
unreasonably withheld)), may at any time after the Effective Date agree that
such Lender (or other bank or financial institution) shall become an Incremental
Loan Lender by executing and delivering to the Agent an Incremental Loan
Activation Notice specifying the respective Incremental Loan Commitment of such
Incremental Lenders, the Incremental Loan Activation Date, the period of
availability of such Incremental Loan Commitment, the amortization schedule for
such Incremental Loan to be made in respect of such Incremental Loan Commitment,
and otherwise duly completed. Subject to the terms and conditions set forth
herein, each Incremental Loan Lender severally agrees to make one or more
Incremental Loans to the Borrower during the period from and including the
Incremental Loan Activation Date to but excluding the last day of the relevant
availability period for such Incremental Loan Commitment in an aggregate
principal amount up to but not exceeding the amount of such Incremental Loan
Lender's Incremental Loan Commitment. Nothing in this Agreement shall be
construed to obligate any Lender to provide any Incremental Loan Commitment.
From and after the Incremental Loan Activation Date, (i) the Borrower
(as provided in Section 2.08(a) hereof) may Convert Incremental Loans of one
Type into Incremental Loans of another Type (as provided in Section 2.08(a)
hereof) or Continue Incremental Loans of one Type as Incremental Loans of the
same Type (as provided in Section 2.08(a) hereof). Amounts repaid or prepaid in
respect of Incremental Loans may not be reborrowed.
(d) LIMIT ON EURODOLLAR LOANS. No more than sixteen separate Interest
Periods in respect of Eurodollar Loans of a Class may be outstanding from each
Lender at any one time.
2.02 BORROWINGS. The Borrower shall give the Agent (which shall
promptly notify the Lenders) notice of each borrowing hereunder as provided in
Section 4.05 hereof. Not later than 12:00 noon New York time on the date
specified for each borrowing hereunder, each Lender shall make available the
amount of the Loan to be made by it on such date to the Agent, at an account
designated by the Agent, in immediately available funds, for account of the
Borrower. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower by depositing
the same, in immediately available funds, in an account of the Borrower
(designated by the Borrower) maintained with Chase PROVIDED that any Revolving
Credit Loan that is a Base Rate Loan and is made to finance the reimbursement of
an LC Disbursement as provided in Section 2.10(f) hereof shall be remitted by
the Agent to the Issuing Lender. This Section 2.02 shall not apply to Swingline
Loans made by the Swingline Lender, as to which Section 2.11(b) hereof shall
apply.
2.03 CHANGES OF COMMITMENTS.
(a) VOLUNTARY. The Borrower shall have the right to terminate or
reduce the aggregate amount of the Revolving Credit Commitments at any time or
from time to time prior to the Revolving Credit Commitment Termination Date and
shall have the right to terminate or reduce the aggregate amount of the
Incremental Loan Commitments of any Series at any time or from time to time
prior to the date such Commitment is scheduled to terminate as set forth in the
Incremental Loan Activation Notice for such Series; PROVIDED that (i) the
Borrower shall give notice of each such termination or reduction as provided in
Section 4.05 hereof and (ii) each partial reduction shall be in an aggregate
amount at least equal to $1,000,000.
(b) REDUCTION OF REVOLVING CREDIT COMMITMENTS.
(i) The Revolving Credit Commitments shall automatically
terminate at the opening of business on the Revolving Credit
Commitment Termination Date.
(ii) The Revolving Credit Commitments shall automatically
reduce on each Revolving Credit Commitment Reduction Date set forth in
column (A) below to the amount set forth in column (B) below opposite
such Revolving Credit Commitment Reduction Date:
(A) (B)
Revolving Credit Revolving Credit
Commitment Reduction Commitments Reduced
Date Falling on or to the Following
Nearest to: Amounts:
----------- --------
June 30, 2002 $386,250,000
September 30, 2002 $372,500,000
December 31, 2002 $358,750,000
March 31, 2003 $345,000,000
June 30, 2003 $328,750,000
September 30, 2003 $312,500,000
December 31, 2003 $296,250,000
March 31, 2004 $280,000,000
June 30, 2004 $255,000,000
September 30, 2004 $230,000,000
December 31, 2004 $205,000,000
March 31, 2005 $180,000,000
June 30, 2005 $135,000,000
September 30, 2005 $ 90,000,000
December 31, 2005 $ 45,000,000
March 31, 2006 0
PROVIDED that, if at the opening of business on any such Revolving
Credit Commitment Reduction Date the amount of the Revolving Credit
Commitments then in effect is equal to or less than the respective
amount set forth in column (B) above opposite such Revolving Credit
Commitment Reduction Date, no further reductions in the Revolving
Credit Commitments as of such date shall be required pursuant to this
Section 2.03(b)(ii).
(c) TERMINATION OF TERM LOAN COMMITMENTS AND INCREMENTAL LOAN
COMMITMENTS. The Term Loan Commitments of each Class shall terminate after the
borrowing of Loans of such Class on the Effective Date. The Incremental Loan
Commitments of each Series shall terminate on the date specified for such
termination in the Incremental Loan Activation Notice for such Series.
(d) TERMINATION AND REDUCTIONS PERMANENT. Commitments once terminated
or reduced may not be reinstated.
2.04 COMMITMENT FEES.
(a) The Borrower shall pay to the Agent for account of each Revolving
Credit Lender a commitment fee on the daily average unused amount of such
Lender's Revolving Credit Commitment, for the period from and including the
Effective Date to but excluding the earlier of the date such Commitment is
terminated or expires, at a rate per annum equal to 3/8 of 1%, except that for
any day on which the Total Leverage Ratio is less than 4.50 to 1, commitment
fees payable by the Borrower hereunder in respect of the Revolving Credit
Commitments shall be calculated at a rate per annum equal to 1/4 of 1%. For
purposes of computing commitment fees under this paragraph (a), (i) the
Revolving Credit Commitment of a Lender (other than a Lender that is also the
Swingline Lender) shall be deemed to be used to the extent of the outstanding
Revolving Credit Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose) and (ii) the
Revolving Credit Commitment of a Lender that is also the Swingline Lender shall
be deemed to be used to the extent of the outstanding Revolving Credit Loans, LC
Exposure and Swingline Exposure of such Lender.
(b) The Borrower shall pay to the Agent for account of each Lender
having an Incremental Loan Commitment a commitment fee on the daily average
unused amount of such Lender's Incremental Loan Commitment, for the period from
and including such date as shall be agreed between such Lender and the Borrower
to but excluding the earlier of the date such Incremental Loan Commitment is
terminated or expires, at a rate per annum equal to 3/8 of 1%, except that for
any day on which the Total Leverage Ratio is less than 4.50 to 1, commitment
fees payable by the Borrower hereunder in respect of the Incremental Loan
Commitments shall be calculated at a rate per annum equal to 1/4 of 1%.
(c) For purposes of this Section 2.04, the commitment fee rate for any
day during the period commencing on the Effective Date and ending on the third
Business Day after the first date the Borrower delivers to the Agent
consolidated financial statements of the Borrower for the fiscal quarter ending
September 30, 1998 pursuant to Section 8.01(a) hereof shall be 3/8 of 1%. The
commitment fee rate for any day thereafter shall be based upon the Total
Leverage Ratio determined on the basis of the then most recent consolidated
financial statements of the Borrower delivered to the Agent pursuant to Section
8.01(a) or 8.01(b) hereof. Any change in the commitment fee rate as a result of
a change in the Total Leverage Ratio shall be effective as of the third Business
Day following the date the relevant consolidated financial statements of the
Borrower are so delivered to the Agent, PROVIDED that in the event that the
Borrower shall fail to deliver to the Agent any consolidated financial
statements by the respective date required pursuant to said Section 8.01(a) or
8.01(b), the commitment fee rate shall be 3/8 of 1% for each day during the
period commencing on the date said financial statements were so required to be
delivered and ending on the third Business Day following the date such financial
statements are in fact delivered to the Agent. Notwithstanding the provisions of
the immediately preceding sentence, no reduction in the commitment fee rate
provided for by paragraph (a) or (b) of this Section 2.04 shall be effective
earlier than the date three Business Days after the date the Agent receives a
notice from the Borrower specifically requesting such reduction.
(d) Accrued commitment fees shall be payable on each Quarterly Date,
commencing with the first Quarterly Date after the Effective Date, in arrears
and on the earlier of the date the related Commitments are terminated or expire.
2.05 LENDING OFFICES. The Loans of each Type made by each Lender shall
be made and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
2.06 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender. The amounts payable
by the Borrower at any time hereunder and under the Notes to each Lender shall
be, as between the Borrower on the one hand and such Lender on the other hand, a
separate and independent debt and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Lender or the Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes; PROVIDED that this
Section 2.06 shall not be construed to permit acceleration of the Loans or
cancellation of the Commitments by any Lender except in accordance with Section
9 hereof or as otherwise expressly permitted by the terms hereof.
2.07 EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made or continued hereunder by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(b) The Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made or continued hereunder, the Class and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph
(a) or (b) of this Section 2.07 shall be PRIMA FACIE evidence of the existence
and amounts of the obligations recorded therein; PROVIDED that the failure of
any Lender or the Agent to maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(d) Any Lender may request that Loans made or continued by it
hereunder be evidenced by a promissory note(s). In such event, the Borrower, at
its own expense, shall prepare, execute and deliver to such Lender a promissory
note(s) payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and substantially in the form of Exhibit
E-1, E-2, E-3 or E-4 hereto, as appropriate, and such note(s) shall be evidence
of such Loans (and all amounts payable in respect thereof).
2.08 CONVERSION OR CONTINUATION OF LOANS; OPTIONAL PREPAYMENTS.
(a) CONVERSION OR CONTINUATION. Subject to Section 4.04 hereof, the
Borrower shall have the right to Convert Loans of one Type into Loans of the
other Type or to Continue Loans of one Type as Loans of the same Type, at any
time or from time to time; PROVIDED that: (i) the Borrower shall give the Agent
notice of each such Conversion or Continuation as provided in Section 4.05
hereof; (ii) Eurodollar Loans may be Converted only on the last day of an
Interest Period for such Loans and (iii) Swingline Loans may not be Converted or
Continued.
(b) OPTIONAL PREPAYMENTS. Subject to Section 4.04 hereof, the Borrower
shall have the right to prepay Loans in whole or in part without premium or
penalty (but subject to the penultimate sentence of Section 3.02 hereof) at any
time or from time to time; PROVIDED that: (i) the Borrower shall give the Agent
notice of each such prepayment as provided in Section 4.05 hereof (and, upon the
date specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); (ii) Eurodollar Loans may be prepaid at any
time and from time to time, PROVIDED that the Borrower pays any amounts owing
under Section 5.05 hereof in the event of any such prepayment on a date other
than the last day of an Interest Period for such Loans; and (iii) unless such
prepayment is being made pursuant to Section 2.08(c), each such prepayment
shall, at the option of the Borrower, be applied to the prepayment of Revolving
Credit Loans, Tranche A Term Loans, Tranche B Term Loans, Incremental Loans
and/or Swingline Loans (the amount of the Loans of each Class and Series of
Loans so prepaid to be applied ratably to the installments of such Loans then
outstanding).
(c) TERM LOAN AND INCREMENTAL LOAN OPTIONAL PREPAYMENTS. On any
Business Day (the "PREPAYMENT DATE") occurring in any calendar year, the
Borrower shall have the right to prepay in whole but not in part without premium
or penalty (but subject to the penultimate sentence of Section 3.02 hereof) the
one or two quarterly installments of principal of all Term Loans and Incremental
Loans that are scheduled to be paid on the first and/or second (as the case may
be) Principal Payment Dates immediately following the Prepayment Date; PROVIDED
that: (i) the Borrower shall give the Agent notice of each such prepayment as
provided in Section 4.05 hereof (and, upon the date specified in any such notice
of prepayment, the amount to be prepaid shall become due and payable hereunder)
and a certificate of a Senior Officer with respect to each such prepayment,
which notice shall specify that such prepayment is being made pursuant to this
Section 2.08(c) and which certificate shall be in form and detail satisfactory
to the Agent and shall specify the amount of the Term Loans and Incremental
Loans to be prepaid pursuant to this Section 2.08(c) and shall contain a
calculation of interest thereon to be paid as required by the penultimate
sentence of Section 3.02 hereof; (ii) Eurodollar Loans may be prepaid at any
time and from time to time, PROVIDED that the Borrower pays any amounts owing
under Section 5.05 hereof in the event of any such prepayment on a date other
than the last day of an Interest Period for such Loans; (iii) the amount so
prepaid (the "PREPAYMENT AMOUNT") shall be equal to the aggregate principal
amount of all Term Loans and all Incremental Loans scheduled to be paid on the
first and/or second (as the case may be) Principal Payment Dates immediately
following the Prepayment Date PLUS accrued interest on such Loans through the
Prepayment Date (it being understood that if the Agent shall receive an amount
more than the Prepayment Amount, then the amount of such prepayment in excess of
the Prepayment Amount shall be deemed to have been a prepayment of Term Loans
and Incremental Loans made pursuant to Section 2.08(b) hereof); and (iv) the
Borrower may make only one prepayment pursuant to this Section 2.08(c) during
any calendar year.
2.09 MANDATORY PREPAYMENTS.
(a) REVOLVING CREDIT COMMITMENT REDUCTIONS. If, after giving effect to
any termination or reduction of the Revolving Credit Commitments pursuant to
Section 2.03 hereof, the aggregate Revolving Credit Exposures exceeds the
aggregate amount of the Revolving Credit Commitments as then in effect, the
Borrower shall, on the date of such termination or reduction, apply the
aggregate amount of such excess, first, to prepay Swingline Loans, second, to
prepay Revolving Credit Loans and third, to provide cover for LC Exposure as
specified in Section 2.10(k).
(b) DISPOSITIONS AND CASUALTY EVENTS.
(i) If, at any time or from time to time, the Borrower or
any of its Subsidiaries shall receive Net Proceeds from any
Disposition (other than any Disposition permitted under clauses (i),
(ii), (iv), (v), (vi) and (viii) of Section 8.05(c) hereof), the
Borrower shall, within 365 days after receipt of such Net Proceeds
(subject to the proviso below, if such proceeds have not been applied
by such 365th day, then on such 365th day) unless the Borrower shall
have used all or a portion of such proceeds to consummate an
Acquisition, apply or cause to be applied (as provided in Section
2.09(c) hereof) to the prepayment of principal of the Loans (and/or to
provide cover for LC Exposure as specified in Section 2.10(k) hereof)
in an amount equal to the lesser of (i) the amount of such Net
Proceeds or (ii) the amount thereof remaining after the consummation
of such Acquisition; PROVIDED that if on such 365th day such proceeds
have not been so used but the Borrower or any of its Subsidiaries
shall have entered into an agreement with respect to an Acquisition,
then, within 90 days thereafter, the Borrower or such Subsidiary may
use all or a portion of such Net Proceeds (but not in excess of the
aggregate amount of all cash consideration and all cash costs and
expenses in respect of such Acquisition) to consummate such
Acquisition, and any portion of such Net Proceeds not so used shall be
applied to prepay the Loans (and/or to provide cover for LC Exposure
as specified in Section 2.10(k) hereof) in as provided herein.
(ii) Within two Business Days after receipt of any proceeds
by the Borrower or any of its Subsidiaries in respect of any Casualty
Event affecting any Property of the Borrower or any of its
Subsidiaries (except to the extent such proceeds are to be applied (or
are committed to be applied) within 365 days after the date of receipt
of such proceeds towards the repair, reconstruction or replacement of
such Property, and if such proceeds have not been so utilized by such
365th day, then on such 365th day) the Borrower shall apply, or cause
to be applied, an amount equal to the Net Proceeds of such Casualty
Event or such unutilized portion thereof (as provided in Section
2.09(c) hereof), to prepay principal of the Loans (and/or to provide
cover for LC Exposure as specified in Section 2.10(k) hereof).
Notwithstanding the foregoing clauses (i) and (ii), the Borrower shall have no
obligation to make any such application in respect of the Net Proceeds received
in respect of any single Disposition or Casualty Event unless and until the
aggregate amount of all Net Proceeds received in respect of all Dispositions and
Casualty Events exceeds $20,000,000 in the aggregate for any fiscal year, in
which case an amount equal to the amount of such excess shall be so applied.
(c) APPLICATION OF PAYMENTS. Prepayments of Loans made pursuant to
clauses (b)(i) and (ii) of this Section 2.09 shall be applied, first, to the
Tranche A Term Loans, Tranche B Term Loans and Incremental Loans pro rata in
accordance with the respective aggregate principal amounts of the Loans of such
Classes and, with respect to Incremental Loans, pro rata in accordance with the
aggregate principal amounts of the Incremental Loans of each Series (the amount
of the Loans of each such Class and Series so prepaid to be applied ratably to
the installments of such Loans then outstanding) and, if the Tranche A Term
Loans, Tranche B Term Loans and Incremental Loans shall have been paid in full,
the excess shall be applied to the aggregate Revolving Credit Exposures (such
excess to be applied, first, to prepay Swingline Loans, second, to prepay
Revolving Credit Loans and third, to provide cover for LC Exposure as specified
in Section 2.10(k) in an aggregate amount equal to such excess) but not to
reduce the Revolving Credit Commitments.
(d) NOTICE; DELIVERY OF CERTIFICATE. The Borrower shall give notice to
the Agent of each prepayment pursuant to this Section 2.09 in the same manner
and at the same time as is required for any optional prepayment pursuant to
Section 2.08 hereof. At the time it makes any prepayment of the Loans as
required by paragraph (b) above, the Borrower will deliver to the Agent a
certificate of a Senior Officer, in form and detail satisfactory to the Agent,
containing calculations of Net Proceeds or in respect of the related Disposition
or Casualty Event, as the case may be, and any deductions therefrom in respect
of amounts that are not required to be prepaid pursuant to this Section 2.09,
and specifying the amount of each such prepayment.
2.10 LETTERS OF CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01 hereof, the Borrower may
request the Issuing Lender to issue, at any time and from time to time during
the period from and including the Effective Date to but excluding the Revolving
Credit Commitment Termination Date, Letters of Credit for its own account in
such form as is acceptable to the Issuing Lender in its reasonable
determination. Letters of Credit issued hereunder shall constitute utilization
of the Revolving Credit Commitments.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Lender) to the Issuing Lender and the Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (d) of this Section 2.10), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Lender, the Borrower also shall submit a letter of
credit application on the Issuing Lender's standard form in connection with any
request for a Letter of Credit. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Lender relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.
(c) LIMITATIONS ON AMOUNTS. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Lender (determined for
these purposes without giving effect to the participations therein of the
Revolving Credit Lenders pursuant to paragraph (e) of this Section 2.10) shall
not exceed $30,000,000 (MINUS the aggregate outstanding principal or face amount
of the obligations in respect of letters of credit or similar instruments issued
under Section 8.07(g) hereof) and (ii) the aggregate Revolving Credit Exposures
of the Revolving Credit Lenders shall not exceed the aggregate amount of the
Revolving Credit Commitments of the Revolving Credit Lenders.
(d) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date twelve months after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof including any "evergreen" Letter of Credit that provides for
such renewal or extension, twelve months after the then-current expiration date
of such Letter of Credit, so long as such renewal or extension occurs within
three months of such then-current expiration date) and (ii) the date that is
five Business Days prior to the Revolving Credit Commitment Termination Date.
(e) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants to each Revolving Credit Lender, and
each Revolving Credit Lender hereby acquires from the Issuing Lender, a
participation in such Letter of Credit equal to such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the Agent,
for the account of the Issuing Lender, such Revolving Credit Lender's Revolving
Credit Commitment Percentage of each LC Disbursement made by the Issuing Lender
promptly upon the request of the Issuing Lender at any time from the time of
such LC Disbursement until such LC Disbursement is reimbursed by the Borrower or
at any time after any reimbursement payment is required to be refunded to the
Borrower for any reason. Each such payment shall be made in the same manner as
provided in Section 2.02 hereof with respect to Loans made by such Revolving
Credit Lender, and the Agent shall promptly pay to the Issuing Lender the
amounts so received by it from the Revolving Credit Lenders. Promptly following
receipt by the Agent of any payment from the Borrower pursuant to the next
following paragraph, the Agent shall distribute such payment to the Issuing
Lender or, to the extent that the Revolving Credit Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Lender, then to such
Revolving Credit Lenders and the Issuing Lender as their interests may appear.
Any payment made by a Revolving Credit Lender pursuant to this paragraph to
reimburse the Issuing Lender for any LC Disbursement shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) REIMBURSEMENT. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to the Agent an
amount equal to such LC Disbursement not later than 12:00 noon New York time on
(i) the Business Day that the Borrower receives notice of such LC Disbursement,
if such notice is received prior to 10:00 a.m. New York time or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time, PROVIDED that the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance herewith that such payment be financed with the proceeds of a
Revolving Credit Loan or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting Revolving Credit Loan or Swingline
Loan; PROVIDED that any such Revolving Credit Loan shall be a Base Rate Loan. If
the Borrower fails to make such payment when due, the Agent shall notify each
Revolving Credit Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Revolving Credit Lender's
Revolving Credit Commitment Percentage thereof.
(g) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section 2.10 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Lender under a Letter of Credit
against presentation of a draft or other document that does not comply strictly
with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section 2.10, constitute a legal or
equitable discharge of the Borrower's obligations hereunder.
Neither the Agent, the Lenders nor the Issuing Lender, nor any of
their respective directors, officers, employees, attorneys or agents, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit by the Issuing Lender or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the Issuing
Lender; PROVIDED that the foregoing shall not be construed to excuse the Issuing
Lender from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by the Issuing Lender's gross negligence or willful
misconduct when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that:
(i) the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter
of Credit without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment
upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to
be exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with
the foregoing).
(h) DISBURSEMENT PROCEDURES. The Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The Issuing Lender
shall promptly after such examination notify the Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Lender has made or will make an LC Disbursement thereunder; PROVIDED
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Lender and the Revolving
Credit Lenders with respect to any such LC Disbursement.
(i) INTERIM INTEREST. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Base Rate Loans; PROVIDED
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (f) of this Section 2.10, then clause (x) of the second sentence of
Section 3.02 hereof shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Lender, except that interest accrued on
and after the date of payment by any Revolving Credit Lender pursuant to
paragraph (f) of this Section 2.10 to reimburse the Issuing Lender shall be for
the account of such Revolving Credit Lender to the extent of such payment.
(j) REPLACEMENT OF THE ISSUING LENDER. The Issuing Lender may be
replaced at any time by written agreement between the Borrower, the Agent, the
replaced Issuing Lender and the successor Issuing Lender (which shall be
selected from among the Lenders). The Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Lender pursuant to paragraph (l) of this Section 2.10. From and
after the effective date of any such replacement, (i) the successor Issuing
Lender shall have all the rights and obligations of the replaced Issuing Lender
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Lender" shall be deemed to refer
to such successor or to any previous Issuing Lender, or to such successor and
all previous Issuing Lenders, as the context shall require. After the
replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Lender under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.
(k) CASH COLLATERALIZATION. If either (i) an Event of Default shall
occur and be continuing and the Borrower receives notice from the Agent or the
Majority Lenders (or, if the maturity of the Loans has been accelerated, Lenders
with LC Exposure representing more than 50% of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph (k), or (ii) the
Borrower shall be required to provide cover for LC Exposure pursuant to Section
2.09(a) or (b) hereof, the Borrower shall immediately deposit into the
Collateral Account under and as defined in the Borrower Security Agreement an
amount in cash equal to, in the case of an Event of Default, the LC Exposure as
of such date PLUS any accrued and unpaid interest thereon and, in the case of
cover pursuant to said Section 2.09(a) or (b), the amount required under said
Section 2.09(a) or (b), as the case may be; PROVIDED that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in Section 9(f) or (g) hereof. Such deposit shall be held by
the Agent in the Collateral Account (as so defined) as collateral in the first
instance for the LC Exposure under this Agreement and thereafter for the payment
of the Secured Obligations under and as defined in the Borrower Security
Agreement, and for these purposes the Borrower hereby grants a security interest
to the Agent for the benefit of the Lenders in the Collateral Account (as so
defined) and in any financial assets (as defined in the Uniform Commercial Code
as in effect from time to time in the State of New York) or other property held
therein.
(l) LETTER OF CREDIT FEES. The Borrower agrees to pay (i) to the Agent
for the account of each Revolving Credit Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Margin for Revolving Credit Loans that are
Eurodollar Loans on the average daily amount of such Revolving Credit Lender's
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Revolving Credit Lender's
Revolving Credit Commitment terminates and the date on which such Revolving
Credit Lender ceases to have any LC Exposure, and (ii) to the Issuing Lender a
fronting fee, which shall accrue at the rate of 1/8 of 1% per annum on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements and, with respect to any Letter of
Credit, excluding the LC Exposure of the Issuing Lender with respect thereto
(determined for this purposes after giving effect to the participations therein
of the other Revolving Credit Lenders pursuant to paragraph (e) of this Section
2.10)) during the period from and including the Effective Date to but excluding
the later of the date of termination of the Revolving Credit Commitments and the
date on which there ceases to be any LC Exposure, as well as the Issuing
Lender's standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder. Accrued
participation fees and fronting fees shall be payable on each Quarterly Date,
commencing with the first Quarterly Date after the Effective Date, in arrears
and on the earlier of the date the Revolving Credit Commitments are terminated
or expire.
2.11 SWINGLINE LOANS.
(a) AGREEMENT TO MAKE SWINGLINE LOANS. The Swingline Lender agrees, on
the terms of this Agreement, to make Swingline Loans to the Borrower in Dollars
during the period from and including the Effective Date to but excluding the
Revolving Credit Commitment Termination Date, in an aggregate principal amount
at any time outstanding that will not result in (i) the aggregate principal
amount of outstanding Swingline Loans exceeding $5,000,000 or (ii) the aggregate
Revolving Credit Exposures exceeding the aggregate amount of the Revolving
Credit Commitments of the Revolving Credit Lenders; PROVIDED that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Subject to the terms of this Agreement, during such
period the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) NOTICE REGARDING SWINGLINE LOANS BY THE BORROWER. The Borrower
shall give the Agent (which shall promptly notify the Lenders) notice of each
borrowing of Swingline Loans hereunder as provided in Section 4.05 hereof. The
Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower with the
Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.10(f), by
remittance to the Issuing Lender) by 3:00 p.m. New York time on the requested
date of such Swingline Loan.
(c) PARTICIPATIONS BY REVOLVING CREDIT LENDERS IN SWINGLINE Loans. The
Swingline Lender may by written notice given to the Agent not later than 10:00
a.m. New York time on any Business Day require the Revolving Credit Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice to the Agent shall specify the aggregate amount
of Swingline Loans in which Revolving Credit Lenders will participate. Promptly
upon receipt of such notice, the Agent will give notice thereof to each
Revolving Credit Lender, specifying in such notice such Revolving Credit
Lender's Revolving Credit Commitment Percentage of such Swingline Loan or Loans.
Each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above in this paragraph, to pay to the Agent, for
the account of the Swingline Lender, such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such Swingline Loan or Loans. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Credit Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.02 hereof with respect to Loans made by such Revolving Credit Lender,
and the Agent shall promptly pay to the Swingline Lender the amounts so received
by it from the Revolving Credit Lenders. The Agent shall notify the Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Agent and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Borrower (or other party on behalf of the Borrower) in respect
of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Agent; any such
amounts received by the Agent shall be promptly remitted by the Agent to the
Revolving Credit Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) The Borrower hereby promises to pay to the Agent for account of
each Tranche A Term Loan Lender the aggregate principal amount of the Tranche A
Term Loans held by such Lender in twenty-four consecutive quarterly installments
payable on the Principal Payment Dates, the aggregate principal amount to be
paid on each Principal Payment Date in respect of all Tranche A Term Loans held
by all Tranche A Term Loan Lenders to be in the amount specified below:
Principal Payment Date Aggregate Amount
Occurring In: of Payment
---------------------- ----------------
June 2000 $ 6,250,000
September 2000 $ 6,250,000
December 2000 $ 6,250,000
March 2001 $ 6,250,000
June 2001 $ 7,812,500
September 2001 $ 7,812,500
December 2001 $ 7,812,500
March 2002 $ 7,812,500
June 2002 $ 9,375,000
September 2002 $ 9,375,000
December 2002 $ 9,375,000
March 2003 $ 9,375,000
June 2003 $10,937,500
September 2003 $10,937,500
December 2003 $10,937,500
March 2004 $10,937,500
June 2004 $12,500,000
September 2004 $12,500,000
December 2004 $12,500,000
March 2005 $12,500,000
June 2005 $15,625,000
September 2005 $15,625,000
December 2005 $15,625,000
March 2006 $15,625,000
(b) The Borrower hereby promises to pay to the Agent for account of
each Tranche B Term Loan Lender the aggregate principal amount of the Tranche B
Term Loans held by such Lender in twenty-six consecutive quarterly installments
payable on the Principal Payment Dates, the aggregate principal amount to be
paid on each Principal Payment Date in respect of all Tranche B Term Loans held
by all Tranche B Term Loan Lenders to be in the amount specified below:
Principal Payment Date Aggregate Amount
Occurring In: of Payment
---------------------- ----------------
June 2000 $ 250,000
September 2000 $ 250,000
December 2000 $ 250,000
March 2001 $ 250,000
June 2001 $ 250,000
September 2001 $ 250,000
December 2001 $ 250,000
March 2002 $ 250,000
June 2002 $ 250,000
September 2002 $ 250,000
December 2002 $ 250,000
March 2003 $ 250,000
June 2003 $ 250,000
September 2003 $ 250,000
December 2003 $ 250,000
March 2004 $ 250,000
June 2004 $ 250,000
September 2004 $ 250,000
December 2004 $ 250,000
March 2005 $ 250,000
June 2005 $12,500,000
September 2005 $12,500,000
December 2005 $12,500,000
March 2006 $12,500,000
June 2006 $97,500,000
September 2006 $97,500,000
(c) The Borrower hereby promises to pay to the Agent for account of
each Revolving Credit Lender the full outstanding principal amount of such
Lender's Revolving Credit Loans, and each of such Lender's Revolving Credit
Loans shall mature, on the Revolving Credit Commitment Termination Date.
(d) The Borrower hereby promises to pay to the Swingline Lender the
full outstanding principal amount of each Swingline Loan on the earlier of
Revolving Credit Commitment Termination Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month and is
at least seven Business Days after such Swingline Loan is made; PROVIDED that on
each date that a Revolving Credit Loan is made, the Borrower shall repay all
Swingline Loans then outstanding.
(e) The Borrower hereby promises to pay to the Agent for account of
each Incremental Loan Lender the aggregate principal amount of Incremental Loans
held by such Lender on such days and at such times as shall be agreed by such
Lender and the Borrower in the relevant Incremental Loan Activation Notice,
PROVIDED that if the proceeds (or any part of the proceeds) of such Loans are to
be used to finance Permitted Acquisitions, the Borrower shall not, except upon
the acceleration of such Loans following an Event of Default, agree or be
contractually obligated to repay more than 6% of the original principal amount
of such Loans in the first 12-month period following the borrowing of such
Loans, more than 8% of the original principal amount of such Loans in the second
12-month period following the borrowing of such Loans, more than 10% of the
original principal amount of such Loans in the third 12-month period following
the borrowing of such Loans, more than 12% of the original principal amount of
such Loans in the fourth 12-month period following the borrowing of such Loans,
more than 14% of the original principal amount of such Loans in the fifth
12-month period following the borrowing of such Loans, more than 16% of the
original principal amount of such Loans in the sixth 12-month period following
the borrowing of such Loans, more than 17% of the original principal amount of
such Loans in the seventh 12-month period following borrowing of such Loans or
more than 17% of the original principal amount of such Loans in the eighth
12-month period following the borrowing of such Loans, except that the Borrower
may agree or be contractually obligated to repay all or any part of such Loans
in a single payment, or pursuant to scheduled payments, on or after September
30, 2006.
(f) Any prepayment of Term Loans of any Class or of Incremental Loans
shall be applied to reduce the subsequent scheduled repayments of the Term Loans
of such Class or Incremental Loans to be made pursuant to paragraph (a), (b) or
(e) of this Section 3.01, as the case may be, ratably, in the case of a
prepayment made pursuant to Section 2.08(b) or 2.09(b)(i) or (ii) hereof. Any
prepayment pursuant to Section 2.08(c) hereof shall be applied to reduce the
subsequent scheduled repayments of the Term Loans and Incremental Loans as
therein provided.
3.02 INTEREST. The Borrower hereby promises to pay to the Agent for
account of each Lender interest on the unpaid principal amount of each Loan made
by such Lender for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following rates per
annum:
(a) during such periods such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) PLUS the Applicable Margin;
and
(b) during such periods such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such
Loan for such Interest Period PLUS the Applicable Margin.
Notwithstanding the foregoing, (x) upon the occurrence and during the
continuance of an Event of Default specified in clause (a) of Section 9 hereof
arising by reason of a failure to pay principal of or interest on any of the
Loans or to reimburse any LC Disbursement, the Borrower will (to the fullest
extent permitted by the law of the State of New York) pay to the Agent for
account of each Lender interest at the applicable Post-Default Rate on the full
outstanding principal amount of each of such Lender's Loans (whether or not due
and payable) and the full face amount all unreimbursed LC Disbursements and (y)
upon the occurrence and during the continuance of an Event of Default specified
in said clause (a) arising by reason of a failure to pay any other amount, the
Borrower will (to the fullest extent permitted by the law of the State of New
York) pay to the Agent for account of the Agent or any Lender to which such
amount is owed interest on such amount at the applicable Post-Default Rate.
Accrued interest on each Loan shall be payable (i) in the case of each Base Rate
Loan, quarterly on the Quarterly Dates, commencing with the first Quarterly Date
occurring after the Effective Date, (ii) in the case of each Eurodollar Loan, on
the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three month intervals following the first day of
such Interest Period, and (iii) in the case of each Loan, upon the payment or
prepayment thereof or the Conversion of such Loan to a Loan of the other Type
(but only on the principal amount so paid, prepaid or Converted), except that
(A) interest payable at the Post-Default Rate shall be payable from time to time
on demand and (B) interest payable as a result of a retroactive increase in the
Applicable Margin in accordance with the second proviso of the definition of
"Applicable Margin" in Section 1.01 hereof shall be payable on the third
Business Day after the delivery of the relevant financial statements pursuant to
Section 8.01(a) or 8.01(b) hereof. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and the
Borrower.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts, and all reimbursements of LC
Disbursements, to be made by the Borrower under this Agreement, the Notes and
the other Credit Documents shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at an account
designated by the Agent, not later than 11:00 a.m. New York time on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day).
(b) Any Lender for whose account any such payment is to be made, may
(but shall not be obligated to) debit the amount of any such payment which is
not made by such time to any ordinary deposit account of the Borrower with such
Lender (with notice to the Borrower and the Agent, provided that the failure of
such Lender to so notify the Borrower and the Agent shall not affect the
validity of the actions taken by such Lender as permitted by this paragraph
(b)).
(c) The Borrower shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, specify to the Agent (which
shall notify the intended recipients thereof) the Loans, LC Disbursements or
other amounts payable by the Borrower hereunder to which such payment is to be
applied in which case such payment shall, subject to Section 4.02 hereof and
unless an Event of Default shall have occurred and be continuing, be applied as
so specified (and in the event that the Borrower fails to so specify, or if an
Event of Default has occurred and is continuing, the Agent may distribute such
payment to the Lenders and/or the other Person(s) to which amounts are payable
by the Borrower hereunder in such manner as the Majority Lenders or, in the
absence of instructions from the Majority Lenders, the Agent may determine to be
appropriate, subject to Section 4.02 hereof).
(d) Each payment received by the Agent under this Agreement or any
Note for account of a Lender shall be paid promptly to such Lender in
immediately available funds, for account of such Lender's Applicable Lending
Office for the Loan in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day which is not a Business Day such payment shall be
made on the immediately preceding Business Day.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each payment of commitment fees under Section 2.04 hereof in respect
of Commitments of a particular Class and Series shall be made for account of the
relevant Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class and Series under Section 2.03 hereof shall be
applied to the respective Commitments of such Class and Series of the relevant
Lenders, pro rata according to the amounts of their Commitment Percentages; (b)
the making, Conversion and Continuation of Loans of a particular Class and
Series of a particular Type (other than Conversions provided for by Section 5.04
hereof) shall be made pro rata among the relevant Lenders according to the
amounts of their respective Commitment Percentages and Eurodollar Loans of a
particular Class and Series made, Converted or Continued on the same day but
having different Interest Periods shall be allocated pro rata among the relevant
Lenders according to the amounts of such Loans respectively held by such
Lenders; (c) each payment or prepayment by the Borrower of Loans of a particular
Class and Series (other than Swingline Loans) shall be made for account of the
relevant Lenders pro rata in accordance with the respective unpaid principal
amounts of such Loans held by the relevant Lenders; and (d) each payment of
interest on Loans of a particular Class and Series (other than Swingline Loans)
shall be made for account of the relevant Lenders pro rata in accordance with
the amounts of the interest on such Loans then due and payable to such Lenders.
4.03 COMPUTATIONS. Interest on Eurodollar Loans, commitment fees,
participation fees and fronting fees shall be computed on the basis of a year of
360 days and actual days elapsed (including the first day but excluding the last
day) occurring in the period for which payable and interest on Base Rate Loans
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing,
interest on Base Rate Loans determined by reference to the Federal Funds Rate
shall be computed on the basis of a year of 360 days.
4.04 MINIMUM AMOUNTS. Except for Conversions made pursuant to Section
5.04 hereof and prepayments made pursuant to Section 2.09 hereof, each
borrowing, Conversion, Continuation and prepayment of principal of (a) Base Rate
Loans shall be in an amount equal to $2,000,000 or an integral multiple of
$1,000,000 ($500,000 in the case of Incremental Loans of each Series) in excess
thereof and (b) Eurodollar Loans shall be in an amount equal to $5,000,000
($1,000,000 in the case of Incremental Loans of each Series) or an integral
multiple of $1,000,000 ($500,000 in the case of Incremental Loans of each
Series) in excess thereof (borrowings, Conversions, Continuations or prepayments
of or into Loans of different Types or, in the case of Eurodollar Loans, having
different Interest Periods at the same time hereunder to be deemed separate
borrowings, Conversions, Continuations and prepayments for purposes of the
foregoing, one for each Type or Interest Period), except that each borrowing and
prepayment of Swingline Loans shall be in an amount at least equal to $500,000.
Anything in this Agreement to the contrary notwithstanding, the aggregate
principal amount of Eurodollar Loans having the same Interest Period shall be at
least equal to $5,000,000 ($1,000,000 in the case of Incremental Loans of each
Series) and, if any Eurodollar Loans would otherwise be in a lesser principal
amount for any period, such Loans shall be Base Rate Loans during such period.
4.05 CERTAIN NOTICES. Except as otherwise provided herein, notices by
the Borrower of terminations or reductions of Commitments, of borrowings,
Conversions, Continuations and prepayments of Loans, of Types of Loans and of
the duration of Interest Periods shall be irrevocable and shall be effective
only if received by the Agent (and, in the case of a borrowing or prepayment of
Swingline Loans, the Swingline Lender) not later than 10:00 a.m. (or, in the
case of borrowings or prepayments of Swingline Loans, 12:00 noon) New York time
on the number of Business Days prior to the date of the relevant termination,
reduction, borrowing, Conversion, Continuation or prepayment or the first day of
such Interest Period specified below:
Number of
Notice Business Days Prior
------ -------------------
Termination or
reduction of Commitments 2
Borrowing or prepayment of,
or Conversion into, Base
Rate Loans (other than any
such borrowing on the
Effective Date and any
borrowing or prepayment of
Swingline Loans) 1
Borrowing of Base Rate
Loans on the Effective
Date and any borrowing or
prepayment of Swingline Loans same day
Borrowing or prepayment of,
Conversion into,
Continuation as, or
duration of Interest Period
for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or prepayment shall specify the Loans to be borrowed,
Converted, Continued or prepaid and the amount (subject to Section 4.04 hereof)
and Type of the Loans to be borrowed, Converted, Continued or prepaid and the
date of borrowing, Conversion, Continuation or prepayment (which shall be a
Business Day). Each such notice of borrowing or Continuation of, or Conversion
into, a Eurodollar Loan shall specify the duration of the Interest Period
therefor. The Agent shall promptly notify the Lenders of the contents of each
such notice. In the event that the Borrower fails to select the Type of Loan, or
the duration of any Interest Period for any Eurodollar Loan, within the time
period and otherwise as provided in this Section 4.05, such Loan (if outstanding
as a Eurodollar Loan) will be automatically Converted into a Base Rate Loan on
the last day of the then current Interest Period for such Loan or (if
outstanding as a Base Rate Loan) will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan.
4.06 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent shall have
been notified by a Lender or the Borrower (the "PAYOR") prior to the date on
which the Payor is to make payment to the Agent of (in the case of a Lender) the
proceeds of a Loan to be made by such Lender hereunder or (in the case of the
Borrower) a payment to the Agent for account of one or more of the Lenders
hereunder (such payment being herein called the "REQUIRED PAYMENT"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date (the "ADVANCE DATE") such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to the Federal Funds Rate for such day and, if such
recipient(s) shall fail promptly to make such payment, the Agent shall be
entitled to recover such amount, on demand, from the Payor, together with
interest as aforesaid, PROVIDED that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Agent within three Business Days of the
Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be
made by the Borrower to the Lenders, the Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(and, in case the recipient(s) shall return the Required Payment to
the Agent, without limiting the obligation of the Borrower under
Section 3.02 hereof to pay interest to such recipient(s) at the
Post-Default Rate in respect of the Required Payment) and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Lenders to the Borrower, the Payor and the
Borrower shall each be obligated retroactively to the Advance Date to
pay interest in respect of the Required Payment at the rate of
interest provided for such Required Payment pursuant to Section 3.02
hereof (and, in case the Borrower shall return the Required Payment to
the Agent, without limiting any claim the Borrower may have against
the Payor in respect of the Required Payment).
4.07 SHARING OF PAYMENTS, ETC.
(a) The Borrower agrees that, in addition to (and without limitation
of) any right of set-off, bankers' lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option, to offset balances held by
it for account of the Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans, or
any other amount payable to such Lender hereunder, which is not paid when due
(regardless of whether such balances are then due to the Borrower), in which
case it shall promptly notify the Borrower and the Agent thereof, PROVIDED that
such Lender's failure to give such notice shall not affect the validity thereof.
(b) (i) At any time and from time to time prior to the time that all
of the Loans are declared or become due and payable pursuant to Section 9 hereof
and all of the Commitments hereunder are terminated pursuant to said Section 9,
if any Lender shall obtain payment of any principal of or interest on any Loan
of any Class and Series (other than any Swingline Loan) made by it to the
Borrower under this Agreement or payment of any other amount relating to the
Loans or Commitments of such Class and Series under this Agreement or any other
Credit Document or payment in respect of its participations in LC Disbursements
and Swingline Loans through the exercise of any right of set-off, banker's lien
or counterclaim or similar right or otherwise, and, as a result of such payment,
such Lender shall have received a greater percentage of the principal of or
interest on the Loans or Commitments of such Class and Series or such other
amounts relating to the Loans of such Class and Series or payment in respect of
its participations in LC Disbursements and Swingline Loans then due hereunder by
the Borrower to such Lender than the percentage received by any other Lenders,
it shall promptly purchase from such other Lenders participations in (or, if and
to the extent specified by such Lender, direct interests in) the Loans of such
Class and Series made by such other Lenders (or in interest due thereon, as the
case may be) or such other amounts relating to the Loans or Commitments of such
Class and Series or in LC Disbursements and Swingline Loans, respectively, in
such amounts and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses which may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and/or interest on the Loans of such Class and Series held by
each of the Lenders or such other amounts relating to the Loans or Commitments
of such Class and Series or payment in respect of its participations in LC
Disbursements and Swingline Loans owing to each of the Lenders. To such end all
the Lenders shall make appropriate adjustments among themselves (by the resale
of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(ii) At any time from and after the time that all of the Loans are
declared or become due and payable pursuant to Section 9 hereof and all of the
Commitments hereunder are terminated pursuant to said Section 9, if any Lender
shall obtain payment of any principal of or interest on any Loan (other than any
Swingline Loan) made by it to the Borrower under this Agreement or payment in
respect of its participations in LC Disbursements and Swingline Loans or payment
of any other amount under this Agreement or any other Credit Document through
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise, and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest on the Loans or
payments in respect of its participations in LC Disbursements and Swingline
Loans or such other amounts then due hereunder by the Borrower to such Lender
than the percentage received by any other Lenders, it shall promptly purchase
from such other Lenders participations in (or, if and to the extent specified by
such Lender, direct interests in) the Loans made by such other Lenders (or in
interest due thereon, as the case may be) or LC Disbursements and Swingline
Loans or such other amounts, respectively, in such amounts and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such excess payment (net of any expenses
which may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal and/or interest on the
Loans held by each of the Lenders or payments in respect of its participations
in LC Disbursements and Swingline Loans owing to each of the Lenders or such
other amounts owing to each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) The Borrower agrees that any Lender so purchasing a participation
(or direct interest) in the Loans made by other Lenders (or in interest due
thereon, as the case may be) or payments in respect of its participations in LC
Disbursements and Swingline Loans may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct creditor of the Borrower in the amount of such
participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION AND ILLEGALITY.
5.01 ADDITIONAL COSTS.
(a) The Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate it for
any costs which such Lender determines are attributable to its making or
maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "ADDITIONAL
COSTS"), resulting from any Regulatory Change which:
(i) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized in
the determination of the Eurodollar Rate for such Loan) relating to
any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender (including any of such Loans or any
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof), or any commitment of such Lender (including the
Commitments of such Lender hereunder); or
(ii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or
Commitments.
If any Lender requests compensation from the Borrower under this
Section 5.01(a), the Borrower may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender to make or Continue Eurodollar
Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory
Change giving rise to such request ceases to be in effect (in which case the
provisions of Section 5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of Section 5.01(a)
hereof, in the event that, by reason of any Regulatory Change, any Lender either
(i) incurs Additional Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other liabilities of such
Lender which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Agent), the obligation of such Lender
to make or Continue, or to Convert Base Rate Loans into, Eurodollar Loans
hereunder shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Borrower shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender for any costs which it determines are
attributable to the maintenance by such Lender (or any Applicable Lending
Office), pursuant to any law or regulation or any interpretation, directive or
request (whether or not having the force of law) of any court or governmental or
monetary authority (i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) heretofore or hereafter issued by any government or governmental or
supervisory authority, of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office) to a level below that which such Lender (or any Applicable Lending
Office) could have achieved but for such law, regulation, interpretation,
directive or request).
(d) Each Lender will notify the Borrower of any event occurring after
the date of this Agreement that will entitle such Lender to compensation under
paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but in any
event within 60 days, after such Lender obtains actual knowledge thereof;
PROVIDED, however, that if any Lender fails to give such notice within 60 days
after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to this Section 5.01 in respect of any
costs resulting from such event, only be entitled to payment under this Section
5.01 for costs incurred from and after the date 60 days prior to the date that
such Lender does give such notice; and PROVIDED, FURTHER, that each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such Lender shall have no
obligation to designate an Applicable Lending Office located in the United
States of America. Each Lender will furnish to the Borrower a certificate
setting forth the basis and amount of each request by such Lender for
compensation under paragraph (a) or (c) of this Section 5.01. Determinations and
allocations by any Lender for purposes of this Section 5.01 of the effect of any
Regulatory Change pursuant to Section 5.01(a) or (b) hereof, or of the effect of
capital maintained pursuant to Section 5.01(c) hereof, on its costs or rate of
return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.01, shall be conclusive, PROVIDED that such
determinations and allocations are made on a reasonable basis.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of the Eurodollar Base
Rate for any Interest Period:
(a) the Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining rates of
interest for Eurodollar Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the
Majority Revolving Credit Lenders or, if the related Loans are Loans
of any other Class, the Majority Lenders of such Class determine
(which determination shall be conclusive) and notify the Agent that
the relevant rates of interest referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 hereof upon the basis of which
the rate of interest for Eurodollar Loans for such Interest Period is
to be determined are not likely adequately to cover the cost to such
Lenders of making or maintaining Eurodollar Loans for such Interest
Period;
then the Agent shall give the Borrower and each of the Lenders which are to make
or hold such Loans prompt notice thereof, and so long as such condition remains
in effect, such Lenders shall be under no obligation to make additional
Eurodollar Loans, to Continue Eurodollar Loans or to Convert Base Rate Loans
into Eurodollar Loans and the Borrower shall, on the last day(s) of the then
current Interest Period(s) for the outstanding Eurodollar Loans held by such
Lenders, either prepay such Eurodollar Loans or Convert such Eurodollar Loans
into Base Rate Loans in accordance with Section 2.08 hereof.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder, then such Lender shall promptly notify the Borrower thereof
(with a copy to the Agent) and such Lender's obligation to make or Continue, or
to Convert Base Rate Loans into, Eurodollar Loans shall be suspended until such
time as such Lender may again make and maintain Eurodollar Loans (in which case
the provisions of Section 5.04 hereof shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make or Continue, or to Convert Base Rate Loans into, Eurodollar Loans is
suspended pursuant to Section 5.01 or 5.03 hereof, such Lender's Eurodollar
Loans shall be automatically Converted into Base Rate Loans on the last day(s)
of the then current Interest Period(s) for such Eurodollar Loans (or, in the
case of a Conversion effected as permitted by Section 5.01(b) or 5.03 hereof, on
such earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans of any
Class have been so Converted, all payments and prepayments of
principal which would otherwise be applied to such Lender's Eurodollar
Loans of such Class shall be applied instead to its Base Rate Loans of
such Class; and
(b) all Loans which would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Converted and
Continued instead as Base Rate Loans and all Base Rate Loans of such
Lender which would otherwise be Converted into Eurodollar Loans shall
be made as or shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to the
Conversion of such Lender's Eurodollar Loans of any Class pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans of such Class
held by other Lenders are outstanding, such Lender's Base Rate Loans of such
Class shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Loans of such Class
held by such Lenders and by such Lender are held pro rata (as to principal
amounts, Types and Interest Periods) in accordance with their respective
Commitments.
5.05 COMPENSATION. The Borrower shall pay to the Agent for account of
each Lender, upon the request of such Lender through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense which such Lender determines are
attributable to:
(a) any payment, prepayment (including any mandatory
prepayment) or Conversion of a Eurodollar Loan made by such Lender for
any reason (including, without limitation, the acceleration of the
Loans pursuant to Section 9 hereof but excluding any prepayment made
as of the Effective Date) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) to borrow a Eurodollar
Loan from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 hereof or
to Convert a Base Rate Loan into a Eurodollar Loan on the date for
such Conversion, or to Continue a Eurodollar Loan on the date for such
Continuation, in each case as specified in the relevant notice of
Conversion or Continuation, as the case may be, given pursuant to
Section 2.08(a) hereof or to prepay a Eurodollar Loan on the date for
such prepayment specified in the relevant notice of prepayment given
pursuant to Section 2.08(b) or 2.09(d), as the case may be.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed, Continued or Converted for the period from the date
of such payment, prepayment, Conversion or failure to borrow, Continue or
Convert to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow, Continue or Convert, the Interest Period for
such Loan which would have commenced on the date specified for such borrowing,
Continuation or Conversion) at the applicable rate of interest for such Loan
provided for herein over (ii) the interest component of the amount such Lender
would have bid in the London interbank market for Dollar deposits of leading
banks in amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such Lender).
5.06 ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without
limiting the obligations of the Borrower under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority there shall be imposed, modified or
deemed applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of
Credit issued or to be issued hereunder and the result shall be to increase the
cost to any Lender or Lenders of issuing (or purchasing participations in) or
maintaining its obligation hereunder to issue (or purchase participations in)
any Letter of Credit hereunder or reduce any amount receivable by any Lender
hereunder in respect of any Letter of Credit (which increases in cost, or
reductions in amount receivable, shall be the result of such Lender's or
Lenders' reasonable allocation of the aggregate of such increases or reductions
resulting from such event), then, upon demand by such Lender or Lenders (through
the Agent), the Borrower shall pay immediately to the Agent for account of such
Lender or Lenders, from time to time as specified by such Lender or Lenders
(through the Agent), such additional amounts as shall be sufficient to
compensate such Lender or Lenders (through the Agent) for such increased costs
or reductions in amount. A statement as to such increased costs or reductions in
amount incurred by any such Lender or Lenders, submitted by such Lender or
Lenders to the Borrower shall be conclusive in the absence of manifest error as
to the amount thereof.
5.07 TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Credit Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; PROVIDED that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
5.07) the Agent, Lender or Issuing Lender (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant governmental authority in accordance
with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE BORROWER. In addition, the Borrower
shall pay any Other Taxes to the relevant governmental authority in accordance
with applicable law.
(c) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Agent, each Lender and the Issuing Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 5.07) paid by the Agent, such Lender or the
Issuing Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant governmental authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing
Lender, or by the Agent on its own behalf or on behalf of a Lender or the
Issuing Lender, shall be conclusive absent manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a governmental authority,
the Borrower shall deliver to the Agent the original or a certified copy of a
receipt issued by such governmental authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Agent.
(e) FOREIGN LENDERS. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate. Without limiting
the foregoing, properly completed and executed copies of United States Internal
Revenue Service Form W-8 (or any successor form) certifying to such Foreign
Lender's entitlement to a complete exemption from United States withholding tax
on payments of interest to be made under this Agreement and under any Note
delivered to such Foreign Lender, together with a certificate to the effect that
such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, shall satisfy the requirements of this Section 5.07(e) with respect
to any Foreign Lender that is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code.
Section 6. CONDITIONS PRECEDENT.
6.01 Effectiveness. The effectiveness of this Agreement is subject to
the conditions precedent that, on or prior to August 30, 1998, the Agent shall
have received the following documents (with sufficient copies for each Lender),
each of which shall be reasonably satisfactory to each Lender in form and
substance:
(a) CORPORATE DOCUMENTS. Certificates of the appropriate
governmental authority as to the good standing of each Obligor in its
jurisdiction of organization, certified copies of the charter and
by-laws (or equivalent documents) of each Obligor and of all corporate
or other authority for each of them (including, without limitation,
board of director resolutions and evidence of the incumbency of
officers) with respect to the execution, delivery and performance of
this Agreement and each other Transaction Document to which each is a
party and each other document to be delivered by any of them from time
to time in connection herewith and therewith and the extensions of
credit hereunder (and the Agent and each Lender may conclusively rely
on such certificate until it receives notice in writing from the
Borrower to the contrary).
(b) SENIOR OFFICER'S CERTIFICATE. A certificate of a Senior
Officer, dated the Effective Date, to the effect set forth in clauses
(i) and (ii) of Section 6.02(a) hereof.
(c) BORROWER SECURITY AGREEMENT. The Borrower Security
Agreement, substantially in the form of Exhibit A hereto, duly
executed by the Borrower and the Agent. In addition, the Borrower
shall have taken such other action as the Agent shall have requested
in order to perfect the security interests created pursuant to the
Borrower Security Agreement, including, without limitation, delivering
to the Agent (i) stock certificates with undated stock powers executed
in blank and (ii) appropriately completed and duly executed copies of
Uniform Commercial Code financing statements with respect to the
Property covered by the Borrower Security Agreement, in proper form
for filing in all jurisdictions in which such filing is necessary or
appropriate to establish, perfect, protect and preserve the rights,
titles, interests, remedies, powers, privileges and Liens of the
Agent, for the benefit of the Lenders, thereunder.
(d) SUBSIDIARY GUARANTOR SECURITY AGREEMENT. The Subsidiary
Guarantor Security Agreement, substantially in the form of Exhibit B-1
hereto, duly executed by each of the Subsidiary Guarantors and the
Agent. In addition, the Subsidiary Guarantors shall have taken such
other action as the Agent shall have requested in order to perfect the
security interests created pursuant to the Subsidiary Guarantor
Security Agreement, including, without limitation, delivering to the
Agent (i) stock certificates with undated stock powers executed in
blank and (ii) appropriately completed and duly executed copies of
Uniform Commercial Code financing statements with respect to the
Property covered by the Subsidiary Guarantor Security Agreement, in
proper form for filing in all jurisdictions in which such filing is
necessary or appropriate to establish, perfect, protect and preserve
the rights, titles, interests, remedies, powers, privileges and Liens
of the Agent, for the benefit of the Lenders, thereunder.
(e) SUBSIDIARY GUARANTEE. The Subsidiary Guarantee,
substantially in the form of Exhibit B-2 hereto, duly executed by each
of the Subsidiary Guarantors and the Agent.
(f) REPAYMENT OF CERTAIN AMOUNTS. Evidence that the accrued
and unpaid interest on, any "Loans" held by any Existing Lender under
the Existing Credit Agreement that are required to be prepaid as of
the Effective Date under Section 2.01 hereof, and all accrued and
unpaid commitment fees on the "Revolving Credit Commitments" under the
Existing Credit Agreement held by the Existing Lenders shall have been
paid in full.
(g) OPINIONS OF COUNSEL TO THE OBLIGORS. Opinions of (i)
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special New York counsel to the
Obligors and (ii) local counsel in Kansas and Missouri (which counsel
shall be satisfactory to the Agent) to certain of the Obligors, in
each case addressed to the Lenders and the Agent and dated the
Effective Date, and in form and substance satisfactory to the Agent
(and the Borrower hereby instructs each such counsel to deliver such
opinion to the Lenders and the Agent).
(h) OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE. An opinion
of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to Chase,
addressed to the Lenders and dated the Effective Date, in form and
substance satisfactory to the Agent.
(i) ENVIRONMENTAL SURVEYS. An environmental survey and
assessment prepared by ENVIRON Corporation in form and substance
satisfactory to the Agent with respect to all material owned
Properties to be acquired by the Borrower as part of the ▇▇▇▇▇▇▇
Acquisition.
(j) CONSUMMATION OF ▇▇▇▇▇▇▇ ACQUISITION. Evidence that the
▇▇▇▇▇▇▇ Acquisition shall have been (or shall be simultaneously)
consummated in all material respects in accordance with the terms of
the ▇▇▇▇▇▇▇ Acquisition Agreement (except for any modifications,
supplements or material waivers thereof, or written consents or
determinations made by the parties thereto, that shall be reasonably
satisfactory to the Majority Lenders, and the Agent shall have
received a certificate of a Senior Officer of the Borrower to such
effect and to the effect that attached thereto are true and complete
copies of each material document delivered in connection with the
closing of the ▇▇▇▇▇▇▇ Acquisition pursuant to the ▇▇▇▇▇▇▇ Acquisition
Agreement (including, but only to the extent available after
reasonable efforts, copies of each legal opinion delivered by counsel
to the respective sellers thereunder to the Borrower pursuant to the
▇▇▇▇▇▇▇ Acquisition Agreement in connection with the ▇▇▇▇▇▇▇
Acquisition, together with a letter from each such counsel (or
authorization within such counsel's opinion) authorizing reliance
thereon by the Agent and the Lenders, it being understood that the
Borrower shall request counsel for the respective sellers to deliver
such a reliance letter).
(k) FINANCIAL STATEMENTS. The financial statements referred
to in Section 7.02 hereof.
(l) LIEN SEARCHES. The results of a recent search, by a
Person satisfactory to the Agent, of Uniform Commercial Code, judgment
and tax lien filings in each relevant jurisdiction where Property of
the Obligors (including, without limitation, Property to be acquired
by any of the Obligors pursuant to the ▇▇▇▇▇▇▇ Acquisition) is
located, and the results of such search shall reveal no liens on any
of the Property of the Obligors except for Permitted Liens or Liens to
be discharged on or prior to the Effective Date pursuant to
documentation satisfactory to the Agent.
(m) APPROVALS. All governmental and third party approvals
necessary or, in the discretion of the Agent, advisable in connection
with the ▇▇▇▇▇▇▇ Acquisition, the financing contemplated hereby and
the continuing operations of the Borrower and its Subsidiaries
(including, without limitation, the ownership of the Property to be
acquired pursuant to the ▇▇▇▇▇▇▇ Acquisition) shall have been obtained
and be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose
adverse conditions on the ▇▇▇▇▇▇▇ Acquisition or the financing
thereof.
(n) OTHER DOCUMENTS. The Agent shall have received such
other certificates, opinions, documents and instruments relating to
the transactions contemplated hereby as the Agent or any Lender or
special New York counsel to Chase may reasonably request.
The obligation of any Lender to continue any "Revolving Credit Loan", "Term
Loan", "NEN Acquisition Loan" or "New Britain Acquisition Loan", in each case
under and as defined in the Existing Credit Agreement, as Loans hereunder or to
make any other extension of credit hereunder on the Effective Date is also
subject to the payment by the Borrower of such fees as the Borrower shall have
agreed to pay to any Lender or the Agent in connection herewith, including,
without limitation, the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, special New York counsel to Chase, in connection with the negotiation,
preparation, execution and delivery of this Agreement and the other Credit
Documents and the extensions of credit hereunder (to the extent that statements
for such fees and expenses have been delivered to the Borrower).
From and after the Effective Date the "Notes" under the Existing
Credit Agreement shall be deemed cancelled, and each Existing Lender agrees to
return such "Notes" (if any) held by it to the Borrower as soon as practicable.
6.02 INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT.
(a) The obligation of each Lender to make each Loan to be made by it
to the Borrower hereunder or otherwise extend any credit to the Borrower
(including, without limitation, the continuance of certain loans and commitments
under the Existing Credit Agreement on the Effective Date as provided in Section
2.01 hereof, the making of any other extension of credit hereunder on the
Effective Date, the issuance, extension, renewal or amendment of any Letter of
Credit, and the making of any Incremental Loan) is subject to the further
conditions precedent that both immediately prior to the making of such Loan or
other extension of credit, or such issuance, extension, renewal or amendment,
and after giving effect thereto: (i) no Default shall have occurred and be
continuing; and (ii) the representations and warranties made by the Borrower and
each other Obligor in each of the Credit Documents to which it is a party, shall
be true on and as of the date of the making of such Loan or other extension of
credit, or such issuance, extension, renewal or amendment, with the same force
and effect as if made on and as of such date (except to the extent such
representations and warranties expressly relate to an earlier date). Each notice
of borrowing or request for the issuance, extension, renewal or amendment of a
Letter of Credit by the Borrower hereunder shall be deemed to constitute a
certification to the effect set forth in the foregoing clauses (i) and (ii)
(both as of the date of such notice or request and, unless the Borrower
otherwise notifies the Agent prior to the date of such borrowing, issuance,
extension, renewal or amendment, as of the date of such borrowing, issuance,
extension, renewal or amendment).
(b) In addition, the obligation of each Revolving Credit Lender to
make each Revolving Credit Loan to be made by it to the Borrower hereunder on
any Borrowing Date (including, without limitation, the making of the initial
Revolving Credit Loans) is subject to the further condition precedent that, if
the aggregate principal amount of all Revolving Credit Loans to be made
hereunder on such Borrowing Date is in excess of $20,000,000 (unless the
proceeds of such Loans are to be, and are in fact, used to make repayments of
Term Loans or Incremental Loans), the Agent shall have received a certificate of
a Senior Officer (in form and detail satisfactory to the Agent) setting forth
the Total Leverage Ratio after giving effect to the making of such Revolving
Credit Loans and annexing thereto calculations of the Total Leverage Ratio.
(c) In addition, the obligation of each Revolving Credit Lender to
make each Revolving Credit Loan to be made by it to the Borrower hereunder on
any Borrowing Date (including, without limitation, the making of the initial
Revolving Credit Loans) is subject to the further condition precedent that both
immediately prior to such Loan and after giving effect thereto no action shall
have been taken by the Majority Lenders (including, without limitation, any
modification or amendment to this Agreement or the waiver of any default
hereunder) which action has the effect of causing any condition precedent
specified in clauses (i) and (ii) of paragraph (a) above to be satisfied unless
such action has been consented to by the Majority Revolving Credit Lenders or
such condition precedent would otherwise be satisfied in the absence of such
action by the Majority Lenders.
(d) In addition, the obligation of each Incremental Loan Lender to
make each Incremental Loan to be made by it to the Borrower hereunder
(including, without limitation, the making of the initial Incremental Loans) is
subject to the further condition precedent that immediately after giving effect
to such Loan the Borrower shall be in compliance with Sections 8.11, 8.12, 8.13
and 8.14 hereof (calculated on a Pro Forma Basis as if such Incremental Loan had
been made on the first day of the relevant calculation period).
Section 7. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to each of the Lenders and the Agent that:
7.01 CORPORATE EXISTENCE. Each of the Borrower and its Subsidiaries:
(a) is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation; (b) has all requisite
corporate power, and has all material governmental licenses, authorizations,
consents and approvals necessary, to own its assets and carry on its business as
now being or as proposed to be conducted; and (c) is qualified to do business in
all jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would (either
individually or in the aggregate) have a Material Adverse Effect.
7.02 FINANCIAL CONDITION.
(a) The audited consolidated statements of income, shareholders'
equity and cash flows of the Borrower and its Subsidiaries for the fiscal years
ended on December 31, 1996 and December 31, 1997, and the related consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such years,
are complete and correct and fairly present the consolidated financial condition
and results of operations of the Borrower and its Subsidiaries as at the
respective dates of presentation specified therein and the consolidated results
of their operations for the respective periods of presentation specified
therein, all in accordance with GAAP applied on a consistent basis.
(b) The unaudited consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for the fiscal quarter ended on March 31,
1998, and the related consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, are complete and correct and
fairly present the consolidated financial condition and results of operations of
the Borrower and its Subsidiaries as at the respective dates of presentation
specified therein and the consolidated results of their operations for the
respective periods of presentation specified therein, all in accordance with
GAAP applied on a consistent basis (subject to normal year-end audit
adjustments).
(c) The pro forma consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 1998, adjusted to give effect to the ▇▇▇▇▇▇▇
Acquisition, the incurrence of all Indebtedness and obligations being incurred
in connection herewith and the repayment of Indebtedness required to be repaid
by Section 6.01(f) hereof, was prepared using reasonable estimates and pro forma
adjustments, and is complete and correct and fairly presents the consolidated
pro forma financial condition of the Borrower and its Subsidiaries as at such
date.
(d) Neither the Borrower nor any of its Subsidiaries had on December
31, 1997 any material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
the consolidated balance sheet of the Borrower and its Subsidiaries as at said
date included in the financial statements referred to in paragraph (a) of this
Section 7.02 and except as set forth in Schedule II hereto. Since December 31,
1997, there has been no material adverse change in the financial condition,
business, operations, prospects, assets, liabilities or capitalization of the
Borrower and its Subsidiaries taken as a whole.
7.03 LITIGATION. Except as described in Schedule II hereto, there are
no legal or arbitral proceedings or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Borrower) threatened against the Borrower or any of its Subsidiaries
which might reasonably be expected to be adversely determined and, if so
determined, might reasonably be expected to have a Material Adverse Effect.
7.04 NO BREACH.
(a) The making and performance by the Borrower and each of its
Subsidiaries of the Transaction Documents to which it is or is intended to be a
party will not conflict with or result in a breach of, or require any consent
under, (i) its charter or by-laws, (ii) any applicable law or regulation
(including, without limitation, Regulation U or Regulation X), or (iii) any
judgment, order, writ, injunction or decree of any court or governmental
authority or agency applicable to or binding on the Borrower or any of its
Subsidiaries, as the case may be.
(b) The making and performance by the Borrower and each of its
Subsidiaries of each of the Transaction Documents to which it is or is intended
to be a party as contemplated hereby will not conflict with or result in a
breach of, or require any consent under, any agreement or instrument to which
the Borrower or any of its Subsidiaries is a party or by which it is bound or to
which it is subject, or constitute a default under any such agreement or
instrument, or result in, or require, the creation or imposition of any Lien
(other than the Liens created by the Security Documents) upon any of its
Properties pursuant to the terms of any such agreement or instrument.
7.05 CORPORATE ACTION. The Borrower and each of its Subsidiaries has
all necessary corporate power and authority to execute, deliver and perform its
obligations under each of the Transaction Documents to which it is or is
intended to be a party and the execution, delivery and performance thereof by
the Borrower and each of its Subsidiaries has been duly authorized by all
necessary corporate action on its part; and this Agreement has been duly and
validly executed and delivered by the Borrower and constitutes, and each of the
other Transaction Documents to which the Borrower and each of its Subsidiaries
is intended to be a party when executed and delivered by it will constitute, its
legal, valid and binding obligation, enforceable in accordance with its terms,
except as the same may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
7.06 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency are necessary for the execution, delivery or performance by the Borrower
and each of its Subsidiaries of the Transaction Documents to which it is or is
intended to be a party or for the validity or enforceability thereof except for
the authorizations, approvals, consents, filings and/or registrations listed or
described in Schedule I hereto (each of which has been obtained or made and is
in full force and effect, except as specified in said Schedule I, and true and
complete copies of which have been furnished to the Agent).
7.07 MARGIN STOCK. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock. Neither the making of
any Loan hereunder, nor the use of any of the proceeds thereof, will violate or
be inconsistent with the provisions of Regulation U or Regulation X.
7.08 ERISA. The Borrower and the ERISA Affiliates have fulfilled their
respective obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects with
the presently applicable provisions of ERISA and the Code, and have not incurred
any unsatisfied liability to the PBGC or any Plan or Multiemployer Plan (other
than an obligation to fund or make contributions to any such Plan in accordance
with its terms and in the ordinary course of business or an obligation to pay
premiums when due).
7.09 TAXES. The Borrower and its Subsidiaries have filed all United
States Federal income tax returns and all other material tax returns which are
required to be filed by them and has paid and will pay all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any of
its Subsidiaries, except (a) for any such tax the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained in accordance with GAAP or (b) as specified in
Schedule II hereto. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes and other governmental charges
are, in the opinion of the Borrower, adequate.
7.10 INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.12 COMPLIANCE WITH LAWS. The Borrower and each of its Subsidiaries
is in compliance with, and has obtained all permits, licenses and other
authorizations which are required under, all applicable Federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions, except to the extent failure so to comply, or to
obtain any such permit, license or authorization, would not, individually or in
the aggregate, have a Material Adverse Effect. No Default has occurred and is
continuing.
7.13 DISCLOSURE. To the best knowledge of the Borrower and its
Subsidiaries, no information, report, financial statement, exhibit, schedule or
disclosure letter furnished in writing by or on behalf of the Borrower or any of
its Subsidiaries to the Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Transaction Documents or
included therein or delivered pursuant thereto (including, without limitation,
the Confidential Information Memorandum dated June 1998 with respect to the
facilities provided herein) contains any untrue statement of material fact or
omits or omitted to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Borrower and its Subsidiaries to the Agent and the Lenders in connection with
this Agreement and the other Transaction Documents and the transactions
contemplated hereby and thereby will, to the best knowledge of the Borrower and
its Subsidiaries, be true, complete and accurate in every material respect, or
(in the case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact (other than
matters of a general economic nature) known to the Borrower or any of its
Subsidiaries that could have a Material Adverse Effect that has not been
disclosed herein, in the other Transaction Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby.
7.14 SECURITY DOCUMENTS. On and after the Effective Date, the
Subsidiary Guarantor Security Agreement will create in favor of the Agent, for
the ratable benefit of the Lenders, a legal, valid, enforceable and perfected
security interest in all right, title and interest of the Obligors party thereto
in the collateral described therein, subject to no other Lien, except for
Permitted Liens and except as provided in Section 2(a) of the Subsidiary
Guarantor Security Agreement; PROVIDED that with respect to such security
interest in such collateral located in a state, perfection of such security
interest will occur only after the financing statements (which financing
statements are referred to in Section 6.01(d) hereof) required to be filed in
such state have been properly filed. On and after the Effective Date, the
Borrower Security Agreement will create in favor of the Agent, for the ratable
benefit of the Lenders, a legal, valid, enforceable and perfected security
interest in all right, title and interest of the Borrower in the collateral
described therein, subject to no other Lien, except for Permitted Liens and
except as provided in Section 2(a) of the Borrower Security Agreement; PROVIDED
that with respect to such security interest in such collateral located in a
state, perfection of such security interest will occur only after the financing
statements (which financing statements are referred to in Section 6.01(c)
hereof) required to be filed in such state have been properly filed.
7.15 ASSETS OF THE BORROWER. Each of the Borrower and its Subsidiaries
has good and marketable title in fee simple to, or valid and subsisting
leasehold interests in, all its real property, and good and marketable title to
all of its other Properties, free and clear of Liens (other than Permitted
Liens).
7.16 MATERIAL AGREEMENTS. Neither the Borrower nor any of its
Subsidiaries is (a) a party to any agreement or instrument or subject to any
corporate restriction which has or is likely to have a Material Adverse Effect
or (b) in default under any agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of them is subject in any
manner which is, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect.
7.17 SOLVENCY. After giving effect to the transactions contemplated
hereby and by the other Transaction Documents and the making of the Loans and
other extensions of credit hereunder:
(a) the fair salable value of the assets of the Borrower and
each of its Subsidiaries exceeds and will, immediately following the
making of each Loan and other extension of credit hereunder, exceed
the amount which will be required to be paid on or in respect of its
existing debts and other liabilities as they mature;
(b) neither the Borrower nor any of its Subsidiaries has, or
will have, immediately following the making of each Loan and other
extension of credit hereunder, unreasonably small capital to carry out
its business as conducted or as proposed to be conducted; and
(c) neither the Borrower nor any of its Subsidiaries intends
to, or believes that it will, incur debts beyond its ability to pay
such debts as they mature.
7.18 LABOR MATTERS. Neither the Borrower nor any of its Subsidiaries
has experienced any strike, labor dispute, slow down or work stoppage due to
labor disagreements which has had (during the period of five years prior to the
date hereof) or would have or is continuing to have a Material Adverse Effect.
7.19 HAZARDOUS MATERIALS. The Borrower and each of its Subsidiaries
have obtained all permits, licenses and other authorizations which are required
under all Environmental Laws, except to the extent failure to have any such
permit, license or authorization would not, individually or in the aggregate,
have a Material Adverse Effect. The Borrower and each of its Subsidiaries are in
compliance with the terms and conditions of all such permits, licenses and
authorizations, and are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the extent
failure to comply would not, individually or in the aggregate, have a Material
Adverse Effect.
In addition, except as set forth in Schedule VII hereto:
(a) No notice, notification, demand, request for
information, citation, summons or order has been issued, no complaint
has been filed, no penalty has been assessed and no investigation or
review is pending or, to the best knowledge of the Borrower and its
Subsidiaries, threatened by any Person with respect to any alleged
failure by the Borrower or any of its Subsidiaries to have any permit,
license or authorization required in connection with the conduct of
the business of the Borrower or any of its Subsidiaries or with
respect to any generation, treatment, storage, recycling,
transportation, use, disposal or Release of any Hazardous Materials
generated by the Borrower or any of its Subsidiaries.
(b) To the best of the knowledge of the Borrower and its
Subsidiaries, neither the Borrower nor any of its Subsidiaries has
handled any Hazardous Material, other than as a generator, on any
property now or previously owned or leased by the Borrower or any of
its Subsidiaries to an extent that it has, or may reasonably be
expected to have, a Material Adverse Effect and to the best knowledge
of the Borrower and its Subsidiaries:
(i) no polychlorinated biphenyls are present at
any property currently owned or any premises currently
leased by the Borrower or any of its Subsidiaries;
(ii) no friable asbestos is present at any
property currently owned or any premises currently leased by
the Borrower or any of its Subsidiaries;
(iii) no underground storage tanks for Hazardous
Materials, active or abandoned, are now or were previously
operated at any property currently owned by the Borrower or
any of its Subsidiaries, and, with respect to premises
currently leased by the Borrower or any of its Subsidiaries,
no underground storage tanks for Hazardous Materials, active
or abandoned, are now or were previously operated by the
Borrower or any of its Subsidiaries, except for certain
tanks used for the storage of heating oil or unleaded
gasoline;
(iv) no Hazardous Materials have been Released, in
a reportable quantity, where such a quantity has been
established by statute, ordinance, rule, regulation or
order, at, on or under any property now or previously owned
by the Borrower or any of its Subsidiaries; and
(v) no Hazardous Materials have been otherwise
Released at, on or under any property now or previously
owned or any premises now or currently leased by the
Borrower or any of its Subsidiaries to an extent that it
has, or may reasonably be expected to have, a Material
Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous
Material to any location that is listed on the National Priorities
List ("NPL") under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), listed
for possible inclusion on the NPL by the Environmental Protection
Agency in the Comprehensive Environmental Response and Liability
Information System, as provided for by 40 C.F.R. ss. 300.5
("CERCLIS"), or on any similar state or local list or that is the
subject of Federal, state or local enforcement actions or other
investigations that may lead to Environmental Claims against the
Borrower or any of its Subsidiaries.
(d) No Hazardous Material generated by the Borrower or any
of its Subsidiaries has been recycled, treated, stored, disposed of or
Released by the Borrower or any of its Subsidiaries at any location
other than those listed in Schedule VII hereto, except for certain
tanks used for the storage of heating oil or unleaded gasoline.
(e) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Borrower or
any of its Subsidiaries and no property now, or to the best knowledge
of the Borrower previously, owned or premises leased by the Borrower
or any of its Subsidiaries is listed or proposed for listing on the
National Priorities list promulgated pursuant to CERCLA, on CERCLIS or
on any similar state list of sites requiring investigation or
clean-up.
(f) There are no Liens arising under or pursuant to any
Environmental Laws on any of the property owned or premises leased by
the Borrower or any of its Subsidiaries, and no government actions
have been taken or are in process which could subject any of such
property to such Liens and neither the Borrower nor any of its
Subsidiaries would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any property owned
by it in any deed to such property.
(g) Neither the Borrower nor any of its Subsidiaries has
retained or assumed any liabilities (contingent or otherwise) in
respect of any Environmental Claims (i) under the terms of any
contract or agreement or (ii) by operation of law as a result of the
sale of assets or stock.
(h) There have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or
which are in the possession of the Borrower or any of its Subsidiaries
in relation to any property or facility now or previously owned or
leased by the Borrower or any of its Subsidiaries which have not been
made available to the Lenders.
7.20 SUBSIDIARIES, ETC. Schedule IV hereto sets forth as of the
Effective Date a complete and correct list of all Subsidiaries of the Borrower
(and the respective jurisdiction of incorporation of each such Subsidiary) and
of all Investments held by the Borrower or any of its Subsidiaries in any joint
venture or other Person. Except as otherwise specified in said Schedule IV and
except for the Liens created by the Security Documents, the Borrower owns, free
and clear of Liens, all outstanding shares of each such Subsidiary (and each
such Subsidiary owns, free and clear of Liens, all outstanding shares of its
Subsidiaries) and all such shares are validly issued, fully paid and
non-assessable and the Borrower (or the respective Subsidiary) also owns, free
and clear of Liens, all such Investments. None of the Inactive Subsidiaries of
the Borrower (a) is engaged in any business of any kind whatsoever on the date
hereof or (b) has any Indebtedness or other obligations (contingent or
otherwise) which, if such Inactive Subsidiary failed to pay or perform the same,
would have a Material Adverse Effect.
7.21 COPYRIGHTS, PERMITS AND TRADEMARKS. The Borrower and its
Subsidiaries own or possess, or have a valid license or sub-license in, all
domestic and foreign letters patent, patents, patent applications, patent and
know-how licenses, inventions, technology, permits, trademark registrations and
applications, trademarks, trade names, trade secrets, service marks, copyrights,
product designs, applications, formulae, processes, circulation and other lists
of subscribers or purchasers of newspapers and the industrial property rights
("PROPRIETARY RIGHTS") used or necessary in the operation of its businesses in
the manner in which they are currently being conducted and which are material to
the Property, business, financial condition, operations, assets, liabilities,
capitalization or prospects of the Borrower and its Subsidiaries taken as a
whole. Neither the Borrower nor any of its Subsidiaries is aware of any existing
or threatened infringement or misappropriation of any proprietary rights of
others by the Borrower or any of its Subsidiaries or of any proprietary rights
of the Borrower or any of its Subsidiaries by others which is material to the
financial condition, business, operations, prospects, assets, liabilities or
capitalization of the Borrower and its Subsidiaries taken as a whole.
7.22 CAPITALIZATION. Set forth in Schedule VIII hereto are the number
and type of shares of authorized capital stock of the Borrower on the Effective
Date, and the number of shares that are issued and outstanding, and each of such
issued and outstanding shares has been duly and validly issued and is fully paid
and nonassessable. As of the Effective Date, except as set forth in Schedule
VIII, (x) there are no outstanding Equity Rights with respect to the Borrower or
any of its Subsidiaries and (y) there are no outstanding obligations of the
Borrower or any of its Subsidiaries to repurchase, redeem, or otherwise acquire
any shares of capital stock of the Borrower or any of its Subsidiaries nor are
there any outstanding obligations of the Borrower or any of its Subsidiaries to
make payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any of its Subsidiaries.
7.23 YEAR 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (a) the Borrower's computer
systems and (b) equipment containing embedded microchips (including systems and
equipment supplied by others or, to the extent reasonably controllable by the
Borrower, with which the Borrower's systems interface) and the testing of all
such systems and equipment, as so reprogrammed, will be completed by November 1,
1999, except to the extent that the failure to so complete such reprogramming
and testing could not reasonably be expected to have a Material Adverse Effect.
The cost to the Borrower of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower (including reprogramming
errors and the failure of others' systems or equipment) will not result in a
Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its Subsidiaries are and,
with upgrading, maintenance and capital expenditures, will continue for the term
of this Agreement to be, sufficient to permit the Borrower to conduct its
business without a Material Adverse Effect.
Section 8. COVENANTS OF THE BORROWER. So long as any of the
Commitments are in effect and until payment in full of the principal of and
interest on all Loans, the reimbursement of all LC Disbursements and all other
amounts payable by the Borrower hereunder and the termination or expiration of
all Letters of Credit:
8.01 FINANCIAL STATEMENTS; CONTINUING DISCLOSURE. The Borrower shall
deliver to the Agent:
(a) as soon as available and in any event within 50 days
after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, consolidated and consolidating statements
of income of the Borrower and its Subsidiaries for such fiscal quarter
and for the period from the beginning of the respective fiscal year to
the end of such fiscal quarter, and the related consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as
at the end of such fiscal quarter, setting forth (in the case of such
consolidated statements of income) in comparative form the
corresponding consolidated figures for the corresponding fiscal
quarter in the preceding fiscal year and (in the case of such
consolidated balance sheet) in comparative form the corresponding
consolidated balance sheet figures as at the end of the corresponding
fiscal quarter in the preceding fiscal year, accompanied by a
certificate of a Senior Officer, which certificate shall state that
said financial statements fairly present the financial condition and
results of operations of the Borrower and its Subsidiaries in
accordance with generally accepted accounting principles, consistently
applied, as at the end of, and for, the relevant period (subject to
normal year-end audit adjustments);
(b) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, audited
consolidated statements of income, shareholders' equity and cash flows
of the Borrower and its Subsidiaries and unaudited consolidating
statements of income of the Borrower and its Subsidiaries for such
year, and the related consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of such year, setting
forth in each case in comparative form the corresponding figures for
the preceding fiscal year, and accompanied by (i) an opinion on such
consolidated financial statements of independent certified public
accountants of recognized national standing, which opinion shall state
that said financial statements fairly present the consolidated
financial condition and results of operations of the Borrower and its
Subsidiaries as at the end of, and for, such fiscal year, and a
certificate of such accountants stating that, in making the
examination necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Default and (ii) a certificate
of a Senior Officer, which certificate shall state that such
consolidating financial statements consolidated financial statements
fairly present the consolidating financial condition and results of
operations of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such fiscal year;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which
the Borrower or any of its Subsidiaries shall have filed with the
Securities and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the public
shareholders, if any, of the Borrower or any of its Subsidiaries
generally, copies of all financial statements, reports and proxy
statements so mailed (and, in the case of the annual report of the
Borrower, with sufficient copies for each of the Lenders);
(e) within ten days after the Borrower or any of its
Subsidiaries knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a senior financial
officer of the Borrower setting forth details respecting such event or
condition and the action, if any, that the Borrower or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to PBGC by the
Borrower or an ERISA Affiliate with respect to such event or
condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it
be notified within 30 days of the occurrence of such event
(PROVIDED that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or
before its due date a required installment under Section
412(m) of the Code or Section 302(e) of ERISA, shall be a
reportable event regardless of the issuance of any waivers
in accordance with Section 412(d) of the Code); and any
request for a waiver under Section 412(d) of the Code for
any Plan;
(ii) the distribution under Section 4041 of ERISA
of a notice of intent to terminate any Plan or any action
taken by the Borrower or an ERISA Affiliate to terminate any
Plan;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Borrower or any ERISA Affiliate of a notice
from a Multiemployer Plan that such action has been taken by
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate
that results in liability under Section 4201 or 4204 of
ERISA (including the obligation to satisfy any secondary
liability as a result of a purchaser default) or the receipt
by the Borrower or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under Section
4041A of ERISA;
(v) the institution of a proceeding by a fiduciary
of any Multiemployer Plan against the Borrower or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA, would result in the loss of tax-exempt status
of the trust of which such Plan is a part if the Borrower or
an ERISA Affiliate fails to timely provide security to the
Plan in accordance with the provisions of said Sections;
(f) promptly after the Borrower knows or has reason to know
that any Default has occurred, a notice (which notice shall state that
it is a "Notice of Default") of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter
as possible, a description of the action taken and proposed to be
taken with respect thereto;
(g) promptly upon receipt thereof, a copy of any notice,
filing, claim or other document received by the Borrower in respect of
any Subordinated Debt or Convertible Debt of the Borrower;
(h) promptly after the occurrence thereof, notice of any
strike, labor dispute, slow down or work stoppage due to a labor
disagreement (or any material development regarding any thereof)
affecting the Borrower or any of its Subsidiaries which could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(i) promptly upon obtaining actual knowledge of any claim,
demand, action, event, condition or report or investigation involving
any potential or actual liability of the Borrower or any of its
Subsidiaries arising in connection with (i) any noncompliance with or
violation of the requirements of any Environmental Law which
individually or in the aggregate could reasonably be expected to have
a Material Adverse Effect or (ii) a Release or threatened Release of
any Hazardous Materials into the environment which could reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect or which Release the Borrower or one of its Subsidiaries would
have a duty to report to a governmental authority under any
Environmental Law and which Release could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, a
notice describing the same in reasonable detail;
(j) each time the Borrower furnishes a statement pursuant to
clause (a) or clause (b) of this Section 8.01, a report (in the form
heretofore furnished to the Agent) describing in reasonable detail the
circulation volume and advertising lineage for each of the newspaper
properties of the Borrower and its Subsidiaries for the fiscal quarter
or fiscal year covered by such statement; and
(k) from time to time such other information regarding (i)
the business, affairs or financial condition of the Borrower or any of
its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA), (ii) compliance by the Borrower and any of its
Subsidiaries with its obligations under any Transaction Document and
(iii) such other matters relating to the transactions contemplated
hereby, as any Lender or the Agent may reasonably request.
The Borrower will furnish to the Agent (with sufficient copies for each of the
Lenders), each time it furnishes financial statements pursuant to clause (a) or
(b) of this Section 8.01, a Compliance Certificate, duly completed and executed
by a Senior Officer (i) to the effect that no Default has occurred and is
continuing (or, if any Default has occurred and is continuing, describing the
same in reasonable detail and describing the action taken and proposed to be
taken with respect thereto) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Borrower is in compliance with
Sections 8.05(b)(v) and (vi), 8.05(c)(ii), (iii), (vii) and (viii), 8.06(h), (i)
and (j), 8.07(d) and (e), 8.08(e), 8.09, 8.10, 8.11, 8.12, 8.13, 8.14, 8.20 and
8.26 hereof as of the end of the respective fiscal quarter or fiscal year.
8.02 LITIGATION. The Borrower will promptly give to each Lender notice
of all legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Borrower or any of its
Subsidiaries, except proceedings which, if adversely determined, could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
8.03 CORPORATE EXISTENCE, ETC. The Borrower will, and will cause each
of its Subsidiaries to:
(a) preserve and maintain its corporate existence and all of
its material rights, privileges and franchises (provided that nothing
in this Section 8.03 shall prohibit any transaction expressly
permitted by Section 8.05 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory
authorities if failure to comply with such requirements could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(c) pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties
attach thereto, except for any such tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained
in accordance with GAAP or except to the extent such taxes,
assessments, charges and levies do not exceed $50,000 (as to the
Borrower and its Subsidiaries) in the aggregate;
(d) maintain all of its Property used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep proper books of record and account in which full,
true and correct entries shall be made of all dealings and
transactions in relation to its business and activities, and permit
representatives of any Lender or the Agent, during normal business
hours, to examine, copy and make extracts from its books and records,
to inspect its Properties, and to discuss its business and affairs
with its officers and independent public accountants (and by this
provision the Borrower authorizes said accountants to discuss the
business and affairs of the Borrower with such representatives), all
to the extent reasonably requested by such Lender or the Agent, as the
case may be; and
(f) hold a meeting at least annually with the Lenders (if so
requested by the Agent) to discuss such matters relating to the
financial condition of the Borrower and its Subsidiaries and such
other matters as any of the Lenders shall reasonably request.
8.04 INSURANCE.
(a) The Borrower will, and will cause each of its
Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations
engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured
against by such corporations and carry such other insurance as is
usually carried by such corporations. Each policy of property
insurance required to be maintained by the Borrower and its
Subsidiaries under this Section 8.04 shall name the Agent as loss
payee or additional insured (but only to the extent that any single
loss shall exceed $100,000 (as to the Borrower and its Subsidiaries))
and shall provide that it will not be canceled or reduced, or allowed
to lapse without renewal, except after not less than 30 days' written
notice to the Agent, nor by any occupancy or use of any Property for
purposes more hazardous than permitted by such policy nor by any
foreclosure or other proceedings relating to such Property. The
Borrower will advise the Agent promptly of any policy cancellation,
reduction or material amendment.
(b) After the Effective Date, upon the request of the Agent
at any time or from time to time, not later than 15 Business Days
prior to the termination or expiry date of any insurance required to
be maintained by the Borrower hereunder the Borrower shall deliver to
the Agent certificates of insurance evidencing that such insurance has
been renewed, subject only to the payment of premiums as they become
due. In addition, the Borrower will not modify in any material respect
any of the provisions of any policy with respect to casualty or
liability insurance without delivering the original copy of the
endorsement reflecting such modification to the Agent and, if required
by the Agent in writing, accompanied by a written report of any firm
of independent insurance brokers of nationally recognized standing,
stating that, in their opinion, such policy (as so modified)
adequately protects the interests of the Lenders and the Agent, is in
compliance with the provisions of this Section 8.04 and is comparable
in all respects with insurance carried by responsible owners and
operators of similar Properties. The Borrower shall not obtain or
carry separate insurance concurrent in form or contributing in the
event of loss with that required by this Section 8.04 unless the Agent
is the named insured thereunder, with loss payable as provided herein
(but only to the extent any single loss thereunder shall exceed
$100,000 (as to the Borrower and its Subsidiaries)). The Borrower
shall immediately notify the Agent whenever any such separate
insurance is obtained and shall deliver to the Agent certificates of
insurance evidencing the same.
8.05 PROHIBITION OF FUNDAMENTAL CHANGES.
(a) The Borrower will not, nor will the Borrower permit any
of its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), except that:
(i) any Subsidiary of the Borrower may be merged
or consolidated with or into (x) the Borrower, if the
Borrower shall be the continuing or surviving corporation,
or (y) any other Subsidiary of the Borrower; PROVIDED that
(x) if any such transaction shall be between a Subsidiary of
the Borrower and a Wholly Owned Subsidiary of the Borrower,
the Wholly Owned Subsidiary shall be the continuing or
surviving entity and if any such transaction shall be
between a Subsidiary of the Borrower that is a Subsidiary
Guarantor and a Subsidiary of the Borrower that is not a
Subsidiary Guarantor, the Subsidiary that is a Subsidiary
Guarantor shall be the continuing or surviving entity and
(y) if any such merger or consolidation involves any
Inactive Subsidiary and another Subsidiary that is not an
Inactive Subsidiary, the continuing or surviving entity
thereof shall not be an Inactive Subsidiary for purposes of
this Agreement;
(ii) the capital stock of each Inactive Subsidiary
of the Borrower may be Disposed of and each such Inactive
Subsidiary may be liquidated; and
(iii) JRN and INS may merge into or consolidate
with the Borrower or any of its Subsidiaries, PROVIDED that
the Borrower, if it is a party to such transaction, shall be
the continuing or surviving entity.
(b) The Borrower will not, nor will the Borrower permit any
of its Subsidiaries to, acquire any business or assets from, or any
capital stock or other ownership interest of, or be a party to any
Acquisition of, any Person other than:
(i) purchases by the Borrower and its Subsidiaries
in the ordinary course of business of inventory and other
assets to be sold or used in the ordinary course of
business;
(ii) Investments permitted by Section 8.08 hereof;
(iii) Capital Expenditures made as permitted by
Section 8.10 hereof;
(iv) the ▇▇▇▇▇▇▇ Acquisition;
(v) Acquisitions by the Borrower of Newspapers in
the United States, PROVIDED that (x) no Acquisition of any
Newspaper may be made pursuant to this clause (v) if, after
giving effect thereto, either (A) cash flow attributable to
such Newspaper's commercial printing business, if any, would
have contributed more than 15% of Cash Flow of the Borrower
and its Subsidiaries (calculated on a Pro Forma Basis after
giving effect to such Acquisition) for the period of 12
complete calendar months ended on, or most recently ended
prior to, the date of the consummation of such Acquisition
or (B) cash flow attributable to daily newspapers and their
related publications, mail products, services and other
businesses (including, without limitation, on-line ventures
and audiotext) and any other related activities, if any,
would have contributed less than 50% of Cash Flow of the
Borrower and its Subsidiaries (calculated on a Pro Forma
Basis after giving effect to such Acquisition) for the
period of 12 complete calendar months ended on, or most
recently ended prior to, the date of the consummation of
such Acquisition, (y) no Default shall have occurred and be
continuing or would occur after giving effect to such
Acquisition and (z) at least 5 Business Days prior to the
consummation of such Acquisition (or, if any adjustments
with respect thereto contemplated in the definition of "Pro
Forma Basis" require the consent of the Majority Lenders, at
least 10 Business Days prior to such consummation), the
Agent shall have received a certificate of a Senior Officer
certifying as to the foregoing and containing calculations,
in form and detail satisfactory to the Agent, demonstrating
in reasonable detail compliance with this clause (v) and
Sections 8.07, 8.11, 8.12, 8.13 and 8.14 hereof (calculated
on a Pro Forma Basis after giving effect to such
Acquisition);
(vi) Acquisitions by the Borrower of Newspapers
outside of the United States and Acquisitions of
non-Newspaper Properties, PROVIDED that (x) no such
Acquisition may be made pursuant to this clause (vi) if,
after giving effect thereto, either (A) cash flow
attributable to the Properties so Acquired, if any, would
have contributed more than 20% of Cash Flow of the Borrower
and its Subsidiaries (calculated on a Pro Forma Basis after
giving effect to such Acquisition) for the period of 12
complete calendar months ended on, or most recently ended
prior to, the date of the consummation of such Acquisition
or (B) cash flow attributable to daily newspapers and their
related publications, mail products, services and other
businesses (including, without limitation, on-line ventures
and audiotext) and any other related activities, if any,
would have contributed less than 50% of Cash Flow of the
Borrower and its Subsidiaries (calculated on a Pro Forma
Basis after giving effect to such Acquisition) for the
period of 12 complete calendar months ended on, or most
recently ended prior to, the date of the consummation of
such Acquisition, (y) no Default shall have occurred and be
continuing or would occur after giving effect to such
Acquisition and (z) at least 5 Business Days prior to the
consummation of such Acquisition (or, if any adjustments
with respect thereto contemplated in the definition of "Pro
Forma Basis" require the consent of the Majority Lenders, at
least 10 Business Days prior to such consummation), the
Agent shall have received a certificate of a Senior Officer
certifying as to the foregoing and containing calculations,
in form and detail satisfactory to the Agent, demonstrating
in reasonable detail compliance with this clause (vi) and
Sections 8.07, 8.11, 8.12, 8.13 and 8.14 hereof (calculated
on a Pro Forma Basis after giving effect to such
Acquisition); and
(vii) the Borrower and each of its Subsidiaries
may acquire any business or assets from, or any capital
stock or other ownership interests of, or be a party to any
Acquisition of, each other.
(c) The Borrower will not, nor will the Borrower permit any
of its Subsidiaries to, Dispose of any of its Property or business
(including, without limitation, any capital stock of any such
Subsidiary, receivables and leasehold interests), whether now owned or
hereafter acquired, except:
(i) any inventory or other assets Disposed of in
the ordinary course of business;
(ii) obsolete or worn-out property, tools or
equipment no longer used or useful in its business so long
as the amount thereof Disposed of in any single calendar
year by the Borrower and its Subsidiaries shall not have a
fair market value in excess of $1,000,000;
(iii) any other assets of the Borrower or any of
its Subsidiaries Disposed of for cash in an amount not less
than their fair market value so long as (w) the aggregate
fair market value of all assets Disposed of by the Borrower
and its Subsidiaries (A) during any fiscal year does not
exceed 15% of Cash Flow of the Borrower and its Subsidiaries
for such fiscal year or (B) after the Effective Date does
not exceed 30% of cumulative Cash Flow of the Borrower and
its Subsidiaries for the period from the Effective Date
through the end of the fiscal quarter ended on, or most
recently ended prior to, the date of the consummation of
such Disposition, (x) after giving effect to such
Disposition, Cash Flow attributable to daily newspapers and
their related publications, mail products, services and
other businesses (including, without limitation, on-line
ventures and audiotext) and any other related activities, if
any, would have contributed at least 50% of Cash Flow of the
Borrower and its Subsidiaries (calculated on a Pro Forma
Basis after giving effect to such Disposition) for the
period of 12 complete calendar months ended on, or most
recently ended prior to, the date of the consummation of
such Disposition, (y) no Default shall have occurred and be
continuing or would occur after giving effect to such
Disposition and (z) at least 5 Business Days prior to the
consummation of such Disposition (or, if any adjustments
with respect thereto contemplated in the definition of "Pro
Forma Basis" require the consent of the Majority Lenders, at
least 10 Business Days prior to such consummation), the
Agent shall have received a certificate of a Senior Officer
certifying as to the foregoing and containing calculations,
in form and detail satisfactory to the Agent, demonstrating
compliance with this clause (iii) and Sections 8.07, 8.11,
8.12, 8.13 and 8.14 hereof (calculated on a Pro Forma Basis
after giving effect to such Disposition);
(iv) assets of the Borrower or any of its
Subsidiaries consisting of cash, Cash Equivalents and
Inter-company Notes (as defined in the Subsidiary Guarantor
Security Agreement) Disposed of by the Borrower or any of
its Subsidiaries to each other;
(v) the Borrower and its Subsidiaries may Dispose
of any of its Property or business (including, without
limitation, any capital stock of any of such Person's
Subsidiaries, receivables and leasehold interests), whether
now owned or hereafter acquired, to each other;
(vi) the Borrower and its Subsidiaries may Dispose
of all or any part of the assets identified on Annex 2
hereto for cash in an amount not less than their fair market
value so long as the aggregate fair market value (net of
Disposition-related costs) of the assets so Disposed of by
the Borrower and its Subsidiaries does not exceed
$5,000,000;
(vii) the Borrower and its Subsidiaries may
Dispose of (x) the capital stock of any of their respective
Subsidiaries substantially all of the business of which
consists of the sale, development, installation and/or
maintenance of computer hardware or software or of any of
the assets of any such Subsidiary or (y) any of the assets
of any such Subsidiary used in its commercial printing
activities and not necessary for the operation of any
Newspaper, PROVIDED that (A) each such Disposition shall be
for cash in an amount not less than the fair market value of
the stock or assets so Disposed of, (B) after giving effect
to each such Disposition, Cash Flow attributable to daily
newspapers and their related publications, mail products,
services and other businesses (including, without
limitation, on-line ventures and audiotext) and any other
related activities, if any, would have contributed at least
50% of Cash Flow of the Borrower and its Subsidiaries
(calculated on a Pro Forma Basis after giving effect to such
Disposition) for the period of 12 complete calendar months
ended on, or most recently ended prior to, the date of the
consummation of such Disposition, (C) no Default shall have
occurred and be continuing or would occur after giving
effect to such Disposition and (D) at least 5 Business Days
prior to the consummation of such Disposition (or, if any
adjustments with respect thereto contemplated in the
definition of "Pro Forma Basis" require the consent of the
Majority Lenders, at least 10 Business Days prior to such
consummation), the Agent shall have received a certificate
of a Senior Officer certifying as to the foregoing and
containing calculations, in form and detail satisfactory to
the Agent, demonstrating compliance with this clause (vii)
and Sections 8.07, 8.11, 8.12, 8.13 and 8.14 hereof
(calculated on a Pro Forma Basis after giving effect to such
Disposition); and
(viii) the Borrower and its Subsidiaries may
Dispose of any one or more Newspapers and/or any
non-Newspaper Properties in exchange for one or more
Newspapers having a value (together with the value of any
other consideration received in connection therewith) equal
to or greater than the value of the Properties so Disposed
of, as determined in good faith by the board of directors of
the Borrower or such Subsidiary, as the case may be;
PROVIDED that (x) after giving effect to each such exchange,
Cash Flow attributable to daily newspapers and their related
publications, mail products, services and other businesses
(including, without limitation, on-line ventures and
audiotext) and any other related activities, if any, would
have contributed at least 50% of Cash Flow of the Borrower
and its Subsidiaries (calculated on a Pro Forma Basis after
giving effect to such Disposition) for the period of 12
complete calendar months ended on, or most recently ended
prior to, the date of the consummation of such exchange, (y)
no Default shall have occurred and be continuing or would
occur after giving effect to such Disposition and (z) at
least 5 Business Days prior to the consummation of such
Disposition (or, if any adjustments with respect thereto
contemplated in the definition of "Pro Forma Basis" require
the consent of the Majority Lenders, at least 10 Business
Days prior to such consummation), the Agent shall have
received a certificate of a Senior Officer certifying as to
the foregoing and containing calculations, in form and
detail satisfactory to the Agent, demonstrating compliance
with this clause (viii) and Sections 8.07, 8.11, 8.12, 8.13
and 8.14 hereof (calculated on a Pro Forma Basis after
giving effect to such Disposition).
8.06 LIMITATION ON LIENS. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property (including, without limitation, the Property
covered by the Security Documents), whether now owned or hereafter acquired,
except:
(a) Liens created by the Security Documents;
(b) Liens on assets of its Subsidiaries existing on the date
hereof and listed in Schedule V hereto;
(c) Liens for taxes, assessments or charges imposed on it or
any of its property by any governmental authority not yet due or which
are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of
the Borrower or any of its Subsidiaries, as the case may be, in
accordance with GAAP;
(d) statutory Liens of carriers, warehousemen, mechanics,
materialmen, repairmen, or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate
proceedings;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and return-of-money bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto, all of which, in the aggregate, are not material in amount,
and which do not in any case materially detract from the value of the
Property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(h) Liens (except in the case of real property) securing
Indebtedness incurred by the Borrower or any of its Subsidiaries to
finance the purchase of Property used in the ordinary course of its
business in an aggregate amount not exceeding $10,000,000 (as to the
Borrower and its Subsidiaries) at any one time outstanding, so long as
no such Lien shall cover any other Property or secure any Indebtedness
other than the Indebtedness incurred to purchase such Property;
(i) Liens (except in the case of real property) securing
additional Indebtedness or other obligations of the Borrower or any of
its Subsidiaries in an aggregate amount not exceeding $10,000,000 (as
to the Borrower and its Subsidiaries) at any one time outstanding;
(j) Liens securing Capital Lease Obligations permitted under
Section 8.07(d) hereof, PROVIDED that (i) the aggregate amount of such
obligations so secured under this clause (j) shall not exceed
$50,000,000 at any one time outstanding (MINUS the aggregate value of
the Property subject at such time to sale and leaseback arrangements
permitted under Section 8.17 hereof) and (ii) such Liens encumber only
the respective Properties subject to the respective leases (or other
agreements) governing or evidencing such Capital Lease Obligations;
(k) any extension, renewal or replacement of the foregoing,
PROVIDED that the Liens permitted by this clause (k) shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property); and
(l) until the Effective Date, the Liens in respect of the
Existing Credit Agreement.
8.07 INDEBTEDNESS. The Borrower will not, nor will the Borrower permit
any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness under the Credit Documents to which it is a
party;
(b) Indebtedness in respect of the Existing Credit
Agreement;
(c) Indebtedness of the Borrower or any of its Subsidiaries
(other than Indebtedness in respect of the Existing Credit Agreement)
outstanding on the date hereof and listed on Schedule VI hereto;
(d) Indebtedness of the Borrower or any of its Subsidiaries
(other than Indebtedness described in clauses (a) through (c) above)
in an aggregate principal or face amount not exceeding $100,000,000 at
any one time outstanding;
(e) additional unsecured Indebtedness (including, without
limitation, Subordinated Debt) or unsecured Convertible Debt of the
Borrower, PROVIDED that (i) after giving effect to the incurrence of
any such Indebtedness and the application of proceeds thereof, no
Default shall have occurred and be continuing; (ii) any such
Subordinated Debt or Convertible Debt may be guaranteed by any
Subsidiary of the Borrower (subject to clause (v) or (vi) below, as
applicable), (iii) no scheduled payments, prepayments, redemptions,
retirements, or sinking or defeasance fund or like payments on or in
respect of such Indebtedness shall be required prior to the 91st day
after the last scheduled principal payment date of any of the Loans
(other than Incremental Loans of a Series, the Incremental Loan
Activation Notice with respect to which was executed and delivered
after the date of incurrence by the Borrower of such Indebtedness),
except that scheduled payments, prepayments, redemptions or sinking
fund or like payments or final maturity on or in respect of an
aggregate principal amount of Convertible Debt not exceeding
$200,000,000 may be required prior to the last scheduled principal
payment date of any of the Loans; (iv) the covenants and defaults with
respect to such Indebtedness shall be no more restrictive on the
Borrower and its Subsidiaries than the covenants and defaults under
this Agreement; (v) in the case of any Subordinated Debt that
constitutes Approved Subordinated Debt, the subordination terms
relating thereto shall be no less favorable to the Lenders than those
set forth in Exhibit G hereto or otherwise shall be satisfactory in
form and substance to the Majority Lenders, PROVIDED that, in the case
of any Guarantee by any Subsidiary of such Subordinated Debt, the
obligations of such Subsidiary in respect of such Guarantee shall be
subordinated in right of payment to such Subsidiary's obligations
under the Subsidiary Guarantee to the same as, or to a greater extent
than, the subordination provisions applicable to the Borrower in
respect of such Subordinated Debt); (vi) in the case of any
Convertible Debt (whether senior or subordinated) that is Guaranteed
by any Subsidiary of the Borrower, the obligations of such Subsidiary
in respect of such Guarantee shall be subordinated in right of payment
to such Subsidiary's obligations under the Subsidiary Guarantee on
terms no less favorable to the Lenders than those set forth in Exhibit
G hereto or otherwise satisfactory in form and substance to the
Majority Lenders; and (vii) at least 5 Business Days prior to the
incurrence of such Indebtedness (or, if any adjustments with respect
thereto contemplated in the definition of "Pro Forma Basis" require
the consent of the Majority Lenders, at least 10 Business Days prior
to such incurrence), the Agent shall have received a certificate of a
Senior Officer certifying as to the foregoing and containing
calculations, in form and detail satisfactory to the Agent,
demonstrating compliance with this paragraph (e) and Sections 8.07,
8.11, 8.12, 8.13 and 8.14 hereof (calculated on a Pro Forma Basis
after giving effect to such incurrence and the application of proceeds
thereof as if such Indebtedness had been incurred on the first day of
the relevant calculation period) and, in the case of any Subordinated
Debt, specifying whether or not such Indebtedness constitutes Approved
Subordinated Debt (and attaching copies of the definitive indenture,
loan agreement or other agreement governing such Indebtedness);
(f) Indebtedness evidenced by promissory notes issued in
connection with repurchases of stock and/or options contemplated by
Section 8.09(c) hereof; and
(g) obligations of the Borrower or any of its Subsidiaries
in respect of letters of credit or similar instruments (other than any
Letter of Credit issued pursuant to Section 2.10 hereof) issued or
accepted by banks and other financial institutions (including, without
limitation, any Lender) for account of the Borrower or such
Subsidiary, as the case may be, in an aggregate face or principal
amount not exceeding $30,000,000 at any one time outstanding (MINUS
the aggregate LC Exposure at such time), PROVIDED that if any such
letter of credit or similar instrument is issued by any Lender (or any
of its Affiliates) the obligations of the obligor(s) thereof will be
secured and/or guaranteed, on a PARI PASSU basis with the obligations
hereunder, on the terms of, and pursuant to, the Security Documents
and the Subsidiary Guarantee.
8.08 INVESTMENTS. The Borrower will not, nor will the Borrower permit
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the date hereof and listed on
Schedule III hereto;
(c) Hedging Agreements entered into in the ordinary course
of the Borrower's financial planning and not for speculative purposes,
including, without limitation, the Interest Rate Protection Agreements
required by Section 8.21 hereof;
(d) subject to Section 8.05 hereof, additional Investments
by the Borrower and its Subsidiaries in each other;
(e) additional Investments by the Borrower and its
Subsidiaries not exceeding an aggregate amount of $50,000,000 (as to
the Borrower and its Subsidiaries);
(f) Investments by the Borrower in the Inactive Subsidiaries
of the Borrower outstanding on the date hereof; and
(g) Acquisitions expressly permitted by Section 8.05 hereof.
8.09 RESTRICTED PAYMENTS. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to, make any Restricted Payment except for:
(a) cash dividends paid by the Borrower on its common stock
not exceeding in any fiscal year of the Borrower an amount equal to
(x) if immediately prior to the making of such dividend payment and
after giving effect thereto, the Total Leverage Ratio is less than 4.5
to 1, 50% of the cumulative Excess Cash Flow (commencing with the
fiscal year ending December 31, 1997) and after deducting any cash
dividends theretofore made after December 31, 1997 as permitted under
this clause (a) (or Section 8.09(a) of the Existing Credit Agreement)
or (y) if immediately prior to the making of such dividend payment or
after giving effect thereto, the Total Leverage Ratio is equal to or
greater than 4.5 to 1, 25% of the cumulative Excess Cash Flow
(commencing with the fiscal year ending December 31, 1997) and after
deducting any cash dividends theretofore made after December 31, 1997
as permitted under this clause (a) (or Section 8.09(a) of the Existing
Credit Agreement), PROVIDED that no such dividend shall be made on any
date if a Default has occurred and is continuing on such date or would
occur after giving effect thereto;
(b) additional cash dividends paid by the Borrower on its
common stock not exceeding $4,000,000 in any fiscal year of the
Borrower; and
(c) repurchases of common stock of the Borrower or options
therefor from any Person (including, without limitation, any of its
Affiliates) in an aggregate amount not to exceed $30,000,000 in any
fiscal year so long as no Default has occurred and is continuing on
the date of such repurchase or would occur after giving effect
thereto.
8.10 CAPITAL EXPENDITURES. The Borrower will not, nor will the
Borrower permit any of its Subsidiaries to, make any Capital Expenditure on any
date during any of the fiscal years of the Borrower set forth below if (a) Cash
Flow for the period of 12 complete consecutive months ending on, or most
recently ended prior to, such date MINUS (b) the sum of the aggregate amount of
Capital Expenditures made by the Borrower and its Subsidiaries during such 12
month period and the amount of such Capital Expenditure proposed to be made
would be less than the amount set forth below opposite such year:
YEAR AMOUNT
1998 $140,000,000
1999 $145,000,000
2000 $155,000,000
2001 $165,000,000
2002 $175,000,000
2003 $185,000,000
2004 $195,000,000
2005 $205,000,000
2006 $215,000,000
PROVIDED that (x) to the extent the Borrower or any of its Subsidiaries shall
sell or otherwise dispose of any capital asset in the ordinary course of
business or receive insurance proceeds in respect of any capital asset that is
the subject of a Casualty Event and, subject to the requirements of Sections
2.09(b), apply (or commit to apply) the proceeds thereof within 365 days after
such Disposition or reasonably promptly after such Casualty Event to acquire a
like capital asset, the amount of such proceeds so applied shall not be deemed
to be a Capital Expenditure within the period in which such acquisition is made,
(y) notwithstanding any of the foregoing, the Borrower and its Subsidiaries may
make Capital Expenditures in an aggregate amount not exceeding $30,000,000 (as
to the Borrower and its Subsidiaries) during any fiscal year of the Borrower and
(z) notwithstanding any of the foregoing, the Borrower and its Subsidiaries may
make Capital Expenditures in respect of the Philadelphia Project in an aggregate
amount not exceeding $50,000,000 (it being understood that the Borrower and its
Subsidiaries may make Capital Expenditures in respect of the Philadelphia
Project in excess of $50,000,000 to the extent permitted to be made under any
other provisions of this Section 8.10).
8.11 LEVERAGE RATIOS.
(a) The Borrower shall be subject to either paragraph (b) or paragraph
(c) of this Section 8.11 as provided in this paragraph (a). From and after the
Effective Date and until the Borrower has elected to be subject to paragraph (c)
of this Section 8.11 as provided in the next succeeding sentence, the Borrower
shall be subject to paragraph (b) of this Section 8.11. From and after the
incurrence by the Borrower of Indebtedness permitted under Section 8.07(e)
hereof, the Borrower may from time to time elect to be subject to either
paragraph (b) or paragraph (c) of this Section 8.11. Each such election shall be
irrevocable, shall be in writing, shall become effective on the third Business
Day after receipt by the Agent thereof and shall remain in effect until
superseded by a subsequent election that has been delivered by the Borrower to
the Agent and has become effective as provided above.
(b) The Borrower will not, at any time during any period set forth
below during which the Borrower is subject to this paragraph (b), permit the
Total Leverage Ratio to exceed the ratio set forth under the caption "Total
Leverage Ratio" below opposite such period:
PERIOD TOTAL LEVERAGE RATIO
From and including the Effective Date
through and including December 30, 1999 6.00 to 1
From and including December 31, 1999
through and including December 30, 2000 5.75 to 1
From and including December 31, 2000
through and including December 30, 2001 5.50 to 1
From and including December 31, 2001
through and including December 30, 2002 5.25 to 1
From and including December 31, 2002
through and including December 30, 2003 5.00 to 1
From and including December 31, 2003
through and including December 30, 2004 4.75 to 1
From and including December 31, 2004
and at all times thereafter 4.50 to 1
PROVIDED that in the event that (i) at any time during which the Borrower is
subject to paragraph (c) of this Section 8.11 any Convertible Debt is refinanced
with the proceeds of Loans and (ii) at the time of or following such refinancing
the Borrower elects to be subject to this paragraph (b) as provided in paragraph
(a) above, then the Borrower will not, at any time during any period set forth
above during which the Borrower is subject to this paragraph (b), permit the
Total Leverage Ratio to exceed the lesser of (x) 5.00 to 1 and (y) the ratio set
forth above opposite the relevant period.
(c) The Borrower will not, at any time during any period set forth
below during which the Borrower is subject to this paragraph (c), permit either
(i) the Total Leverage Ratio to exceed the ratio set forth below under the
caption "Total Leverage Ratio" opposite such period or (ii) the Senior Leverage
Ratio to exceed the ratio set forth below under the caption "Senior Leverage
Ratio" opposite such period:
PERIOD TOTAL LEVERAGE SENIOR LEVERAGE
RATIO RATIO
From and including the
Effective Date through 6.50 to 1 5.00 to 1
and including December
30, 2001
From and including
December 31, 2001 through 6.00 to 1 4.75 to 1
and including December
30, 2002
From and including
December 31, 2002 through 5.75 to 1 4.50 to 1
and including December
30, 2003
From and including
December 31, 2003 and at 5.50 to 1 4.25 to 1
all times thereafter
8.12 FIXED CHARGES RATIO. The Borrower will not at any time permit the
Fixed Charges Ratio to be less than 1 to 1.
8.13 INTEREST COVERAGE RATIO. The Borrower will not at any time permit
the Interest Coverage Ratio to be less than 2 to 1.
8.14 WORKING CAPITAL. The Borrower will not at any time permit Working
Capital to be less than zero.
8.15 LINES OF BUSINESS. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to engage to any substantial extent in any
business other than the business of printing, publishing, distributing and
selling newspapers or other publications (whether in print or electronic form)
and proprietary information data bases in connection therewith, solicitation of
advertising, dissemination of news and information, commercial printing, and
activities relating to the sale, development, installation and/or maintenance of
computer hardware or software of the types engaged in on the date hereof and
other activities incidental or related to each of the foregoing.
8.16 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by
this Agreement (including, without limitation, Section 8.05 hereof), the
Borrower will not, nor will the Borrower permit any of its Subsidiaries to,
directly or indirectly: (a) make any Investment in an Affiliate of the Borrower;
(b) transfer, sell, lease, assign or otherwise Dispose of any assets to an
Affiliate of the Borrower; (c) merge into or consolidate with or purchase or
acquire assets from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate of the Borrower
(including, without limitation, Guarantees and assumptions of obligations of an
Affiliate of the Borrower); PROVIDED that (i) any Affiliate of the Borrower who
is an individual may serve as a director, officer or employee of the Borrower or
its Subsidiaries and receive reasonable compensation for his or her services in
such capacity and (ii) the Borrower and its Subsidiaries may enter into
transactions providing for the purchase or sale of inventory and other assets or
the provision of services (including, without limitation, printing and
advertising representation services) in the ordinary course of business if the
monetary or business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Subsidiaries as the monetary or business
consideration which would obtain in a comparable transaction with a Person not
an Affiliate of the Borrower.
8.17 SALE AND LEASEBACK. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to, enter into any arrangement with any other
Person (other than the Borrower and its Subsidiaries) providing for the leasing
by the Borrower or any of its Subsidiaries of real or personal property which
has been or is to be sold or transferred by the Borrower or any of its
Subsidiaries to such other Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the Borrower or any of its Subsidiaries, except that the Borrower
and its Subsidiaries may enter into any such arrangements so long as the
aggregate value of Property subject thereto at any time shall not exceed
$50,000,000.
8.18 AMENDMENT OF CERTAIN DOCUMENTS. The Borrower will not, without
the prior written consent of the Majority Lenders, amend or otherwise modify, or
consent to any amendment or other modification of, or waive any provision of any
agreement, instrument or other document evidencing or governing any Subordinated
Debt, Convertible Debt or any other Indebtedness of the Borrower incurred
pursuant to Section 8.07(e) hereof if such amendment or waiver would result in
such Subordinated Debt, Convertible Debt or other Indebtedness not complying
with the requirements of said Section 8.07(e).
8.19 USE OF PROCEEDS. The Borrower will use the proceeds of the
Revolving Credit Loans and the Incremental Loans solely (a) for general
corporate purposes of the Borrower and its Subsidiaries, including for working
capital requirements of the Borrower and its Subsidiaries in the ordinary course
of business, (b) for extensions of credit to any of its Subsidiaries and (c) to
finance Permitted Acquisitions. In all events, the Borrower will use the
proceeds of the Loans in compliance with all applicable legal and regulatory
requirements, including, without limitation, Regulation U and Regulation X.
8.20 SALES OF ACCOUNTS. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to, sell, with or without recourse, or discount
or otherwise sell for less than the face value thereof, any of their notes or
accounts receivable except that the Borrower or any of its Subsidiaries may
sell, without recourse, accounts receivable of individual account debtors that
the Borrower or such Subsidiary reasonably and in good faith believes to be
uncollectible or otherwise difficult to collect in the ordinary course of
business so long as the aggregate face amount (less applicable reserves) of all
such accounts receivable of the Borrower and its Subsidiaries so sold in any
fiscal year of the Borrower does not exceed $500,000 (as to the Borrower and its
Subsidiaries).
8.21 INTEREST RATE PROTECTION. Not later than 197 days after the
Effective Date, the Borrower and/or its Subsidiaries will have in place and
thereafter maintain in full force and effect (and in a manner reasonably
satisfactory to the Agent) one or more Interest Rate Protection Agreements with
one or more of the Lenders or Affiliates of Lenders (or with another bank or
financial institution having a capital, surplus and undivided profits of at
least $500,000,000) such that the average maximum rate of interest payable by
the Borrower shall not exceed 10% per annum for consecutive periods (each of
which, at the time such Interest Rate Protection Agreement is entered into,
shall be of at least two years' duration) as to a principal amount at least
equal to the Applicable Percentage of either of the following amounts (at the
election of the Borrower): (a) the aggregate principal amount of the Loans
scheduled to be outstanding during the respective period; or (b) the aggregate
principal amount of Total Debt scheduled to be outstanding during the respective
period; PROVIDED that the Borrower's obligations under clause (b) above shall be
deemed satisfied to the extent of the aggregate principal amount of Indebtedness
of the Borrower scheduled to be outstanding during the respective period that
bears interest at a fixed rate per annum that is less than or equal to 10%. For
purposes of this Section 8.21, "APPLICABLE PERCENTAGE" shall mean (i) 0%, for
any period during which the Total Leverage Ratio is less than 3.5 to 1, (ii)
33-1/3%, for any period during which the Total Leverage Ratio is less than or
equal to 5.25 to 1 and greater than or equal to 3.5 to 1, and (iii) 50%,
otherwise (in each case as demonstrated by the most recent consolidated
financial statements of the Borrower and related Compliance Certificate required
to be delivered under Section 8.01 hereof).
8.22 ENVIRONMENTAL MATTERS. The Borrower will, and will cause each of
its Subsidiaries to, comply in all material respects with all Environmental Laws
now or hereafter applicable to the Borrower and its Subsidiaries, and shall
obtain, at or prior to the time required by applicable Environmental Laws, all
environmental, health and safety permits, licenses and other authorizations
necessary for its operations and maintain such authorizations in full force and
effect.
8.23 CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES.
(a) The Borrower will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that each of
the Subsidiaries of the Borrower is a Wholly Owned Subsidiary (except for any
stock or other equity interests of such Subsidiary which is owned by a third
party as of the Effective Date, as listed in Schedule IV hereto). In the event
that any additional shares of capital stock or other ownership interests shall
be issued by any Subsidiary, the respective Obligor agrees forthwith to deliver
to the Agent pursuant to the relevant Security Document the certificates
evidencing such shares of stock or other ownership interests (in the case of a
Foreign Subsidiary, only to the extent required under paragraph (b) below), if
any, accompanied by undated stock or transfer powers executed in blank and to
take such other action as the Agent shall request to perfect the security
interest created therein pursuant to the relevant Security Document; PROVIDED
that, in the event of any Domestic Subsidiary organized as a partnership or
limited liability company, the Borrower shall cause each of the partners or
members thereof, as the case may be, to enter into a pledge agreement in form
and substance satisfactory to the Agent pursuant to which the Agent, on behalf
of the Lenders, shall be granted a first priority perfected security interest in
all of the equity interests of such partnership or limited liability company to
secure the obligations owing to the Lenders hereunder and under the other Credit
Documents, subject to no other Lien (and the organizational document for such
partnership or limited liability company shall expressly authorize each such
partner or member to so pledge its equity interests therein and shall contain no
other restriction against the Agent enforcing such security interest and
transferring such equity interests to a third party).
(b) The Borrower will take such action, and will cause each of its
Subsidiaries to take such action, from time to time as shall be necessary to
ensure that all Subsidiaries of the Borrower are "Subsidiary Guarantors" under
the Subsidiary Guarantee. Without limiting the generality of the foregoing, in
the event that the Borrower or any of its Subsidiaries shall form or acquire any
new Subsidiary after the date hereof, the Borrower and its Subsidiaries will
cause such new Subsidiary to:
(i) become a "Subsidiary Guarantor" under the Subsidiary
Guarantee and under the Subsidiary Guarantor Security Agreement
pursuant to an instrument satisfactory to the Agent;
(ii) cause such Subsidiary to take such action (including
delivering such shares of stock, executing and delivering such Uniform
Commercial Code financing statements as shall be necessary to create
and perfect valid and enforceable first priority Liens on
substantially all of the Property of such new Subsidiary (other than
real Property interests) as collateral security for the obligations of
such new Subsidiary thereunder; and
(iii) deliver such proof of corporate action, incumbency of
officers and other documents (other than opinions of counsel) as is
consistent with those delivered by each Obligor pursuant to Section
6.01 on the Effective Date or as the Agent shall have reasonably
requested;
PROVIDED that if such Subsidiary is a Foreign Subsidiary, such
Subsidiary shall not be required to become a Subsidiary Guarantor
under the Subsidiary Guarantee or a Securing Party under the
Subsidiary Guarantor Security Agreement and, if such Subsidiary is a
direct Domestic Subsidiary of the Borrower or of a Domestic Subsidiary
of the Borrower, the Borrower shall forthwith pledge, or cause such
Subsidiary to pledge, to the Agent (for the benefit of the Lenders)
under the relevant Security Document (or, at the request of the Agent,
under a pledge or other similar agreement governed by the law of such
Foreign Subsidiary's jurisdiction of organization) (x) 65% of the
voting capital stock of such Foreign Subsidiary having ordinary voting
power for the election of the board of directors of such Subsidiary
and (y) 100% of all other stock of such Foreign Subsidiary
(c) The Borrower will not, and will not permit any of its Subsidiaries
to, enter into, incur or permit to exist any indenture, agreement, instrument or
other arrangement that, directly or indirectly, prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence or payment of Indebtedness, the granting of
Liens, the declaration or payment of dividends, the making of loans, advances or
Investments or the sale, assignment, transfer or other disposition of Property,
in each case by any Subsidiary; PROVIDED that the foregoing shall not apply to
(i) restrictions and conditions imposed by law or by this Agreement, (ii)
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iii) restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (iv) customary provisions in leases and other contracts entered
into in the ordinary course of business restricting the assignment thereof and
(v) any such restriction in existence on the date hereof and that could not have
a Material Adverse Effect.
8.24 INACTIVE SUBSIDIARIES. Anything in this Agreement to the contrary
notwithstanding, except as permitted under Section 8.05(a)(i) hereof, (a) the
Borrower will not, nor will the Borrower permit any of its Subsidiaries to,
engage in any transaction or any other business with or for the benefit of any
Inactive Subsidiary, and (b) the Borrower will not permit any of its Inactive
Subsidiaries to engage in any business or create or incur any Indebtedness or
create or incur any other obligations (contingent or otherwise) after the date
hereof.
8.25 PAYMENTS OF INDEBTEDNESS. Neither the Borrower nor any of its
Subsidiaries will purchase, redeem, retire or otherwise acquire for value, or
set apart any money for a sinking, defeasance, or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any Indebtedness incurred as permitted by Section 8.07(e)
hereof, except for (a) regularly scheduled payments of interest in respect
thereof in accordance with the instruments governing such Indebtedness and (b)
with respect to Convertible Debt, regularly scheduled payments of principal in
respect thereof in accordance with the instruments governing such Convertible
Debt, to the extent permitted by Section 8.07(e) hereof).
Section 9. EVENTS OF DEFAULT. If one or more of the following events
(herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) the Borrower shall default in the payment (including any
required prepayment) when due of any principal of or interest on any
Loan, any reimbursement of an LC Disbursement or any other amount
payable by the Borrower hereunder or under any of the other Credit
Documents; or any Obligor shall default in the payment when due of any
amount payable by such Obligor under any of the Credit Documents; or
(b) the Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
Indebtedness (other than as described in paragraph (a) above)
aggregating $10,000,000 or more, or in the payment when due of any
amount under any Interest Rate Protection Agreement for a notional
principal amount exceeding $10,000,000; or any event specified in any
note, agreement, indenture or other document evidencing or relating to
any such Indebtedness or any event specified in any Interest Rate
Protection Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated
maturity or to have the interest rate thereon reset to a level so that
securities evidencing such Indebtedness trade at a level specified in
relation to the par value thereof or, in the case of an Interest Rate
Protection Agreement, to permit the payments owing under such Interest
Rate Protection Agreement to be liquidated; or
(c) any representation, warranty or certification made or
deemed made by any Obligor in any Transaction Document (or in any
modification or supplement thereto), or in any certificate furnished
to any Lender or the Agent pursuant to the provisions thereof, shall
prove to have been false or misleading as of the time made, deemed
made or furnished in any material respect; or
(d) the Borrower shall default in the performance of any of
its obligations under clause (f) of Section 8.01 hereof, clause (a) of
Section 8.03 hereof (as to the obligation to maintain the corporate
existence of the Borrower and its Subsidiaries only), clause (a) of
Section 8.04 hereof, Sections 8.05 through 8.21 (inclusive) hereof,
Section 8.23 hereof or Section 8.25 hereof; or the Borrower or any
other Obligor shall default in the performance of any of its or their
other obligations hereunder or under any of the other Credit Documents
to which the Borrower or any other Obligor is a party and such default
shall continue unremedied for a period of 30 days after notice thereof
to the Borrower by the Agent or any Lender (through the Agent); or
(e) the Borrower or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) the Borrower or any of its Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under
the Bankruptcy Code (as now or hereafter in effect), (iv) file a
petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, or (vi)
take any corporate action for the purpose of effecting any of the
foregoing; or
(g) a proceeding or case shall be commenced, without the
application or consent of the Borrower or any of its Subsidiaries, in
any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Borrower or such
Subsidiary or of all or any substantial part of its assets, or (iii)
similar relief in respect of the Borrower or such Subsidiary under any
law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 or more days; or an order for relief
against the Borrower or such Subsidiary shall be entered in an
involuntary case under the Bankruptcy Code; or
(h) a final judgment or judgments for the payment of money
in excess of $10,000,000 in the aggregate shall be rendered by a court
or courts against the Borrower and/or any of its Subsidiaries and the
same shall not be discharged (or adequate provision shall not be made
for such discharge), or a stay of execution thereof shall not be
procured, within 45 days from the date of entry thereof and the
Borrower or such Subsidiary shall not, within said period of 45 days,
or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal; or
(i) an event or condition specified in Section 8.01(e)
hereof shall occur or exist with respect to any Plan or Multiemployer
Plan and, as a result of such event or condition, together with all
other such events or conditions, the Borrower or any ERISA Affiliate
shall incur or in the opinion of the Majority Lenders shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan
or PBGC (or any combination of the foregoing) which is material in
relation to the financial condition, business, operations, prospects,
assets, liabilities or capitalization of the Borrower and its
Subsidiaries taken as a whole; or
(j) except for any expiration or termination in accordance
with its terms or resulting from any action by the Agent or any
Lender, any of the Liens created by the Security Documents, shall not
constitute a valid and perfected Lien on the collateral described
therein (to the extent perfection by filing, registration, recordation
or possession is required herein or therein) in favor of the Agent,
free and clear of all other Liens (other than Permitted Liens); or
except for expiration in accordance with its terms, any of the
Security Documents shall for whatever reason be terminated or cease to
be in full force and effect, or the enforceability thereof shall be
contested by the Borrower or any other Obligor; or
(k) Any of the following events shall occur and be
continuing:
(i) any person or group (within the meaning of
Rule 13d-5 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") and Section 13(d) and 14(d) of
the Exchange Act (other than (collectively, the "WARBURG
ENTITIES") (i) Warburg, ▇▇▇▇▇▇ Capital Company, L.P., a
Delaware limited partnership, (ii) Warburg, ▇▇▇▇▇▇ Capital
Partners, L.P., a Delaware limited partnership, (iii)
Warburg, ▇▇▇▇▇▇ Investors, L.P., a Delaware limited
partnership, (iv) Warburg, ▇▇▇▇▇▇ & Co., a New York general
partnership, (v) any other venture banking fund in which
Warburg, ▇▇▇▇▇▇ & Co. is the general partner and (vi) any
Subsidiary of, or any successor to, any of the foregoing
entities) becomes, directly or indirectly, in a single
transaction or in a related series of transactions by way of
merger, consolidation or other business combination or
otherwise, the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than 35% (or such higher
percentage as shall be owned at such time by the Warburg
Entities) of the capital stock of the Borrower on a
fully-diluted basis (in other words, giving effect to the
exercise of any warrants, options and conversion and other
rights); or
(ii) a majority of the Board of Directors of the
Borrower shall no longer be composed of individuals (x) who
are members of said Board on the Effective Date, (y) whose
election or nomination to said Board has been approved by
individuals referred to in the foregoing clause (x)
constituting at the time of such election or nomination at
least a majority of said Board or (z) whose election or
nomination to said Board was approved by individuals
referred to in the foregoing clauses (x) and (y)
constituting at the time of such election or nomination at
least a majority of said Board; or
(l) there shall have been asserted against the Borrower or
any of its Subsidiaries an Environmental Claim that, in the judgment
of the Majority Lenders is reasonably likely to be determined
adversely against the Borrower or such Subsidiary, and the amount
thereof (either individually or in the aggregate) is reasonably likely
to have a Material Adverse Effect (insofar as such amount is payable
by the Borrower or such Subsidiary but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor);
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9 with respect to any
Obligor, (A) the Agent may and, upon request of the Majority Revolving
Credit Lenders (and, if at the time of such Event of Default there are
any outstanding unused Incremental Loan Commitments, Lenders having
outstanding unused Incremental Loan Commitments representing more than
50% of the total outstanding unused Incremental Loan Commitments at
such time) shall, by notice to the Borrower, terminate the Commitments
and they shall thereupon terminate, and (B) the Agent may and, upon
request of the Majority Lenders shall, by notice to the Borrower
declare the principal amount then outstanding of, and the accrued
interest on, the Loans all reimbursement obligations in respect of LC
Disbursements and all other amounts payable by the Borrower hereunder
and under the Notes (including, without limitation, any amounts
payable under Section 5.05 hereof) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower; and (2) in the case
of the occurrence of an Event of Default referred to in clause (f) or
(g) of this Section 9 with respect to any Obligor, the Commitments
shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans, all
reimbursement obligations in respect of LC Disbursements and all other
amounts payable by the Borrower hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05
hereof) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower.
Section 10. THE AGENT.
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Credit Documents with such powers as are specifically delegated
to the Agent by the terms of this Agreement and of the other Credit Documents,
together with such other powers as are reasonably incidental thereto. The Agent
(which term as used in this sentence and in Section 10.05 and the first sentence
of Section 10.06 hereof shall include reference to its Affiliates and its own
and its Affiliates' officers, directors, employees and agents): (a) shall have
no duties or responsibilities except those expressly set forth in this Agreement
and in the other Credit Documents, and shall not by reason of this Agreement or
any other Credit Document be a trustee for any Lender; (b) shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or in any other Transaction Document, or
in any certificate or other document referred to or provided for in, or received
by any of them under, this Agreement or any other Transaction Document, or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement, any Note or any other Transaction Document or any other
document referred to or provided for herein or therein or for any failure by the
Borrower or any other Person to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Credit Document; and (d)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other Credit Document or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. The 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 selected by it in good faith. The Agent may deem and treat the
payee of any Note as the holder thereof for all purposes hereof unless and until
a notice of the assignment or transfer thereof shall have been filed with the
Agent, together with the consent of the Borrower to such assignment or transfer
(to the extent provided in Section 11.06(b) hereof).
10.02 RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice or other communication (including, without limitation, any
thereof by telephone, telecopy, telex, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent 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 Agent. As to any
matters not expressly provided for by this Agreement or any other Credit
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders or, if provided herein, in accordance with the
instructions given by the Majority Revolving Credit Lenders or all of the
Lenders as is required in such circumstance, and such instructions of such
Lenders and any action taken or failure to act pursuant thereto shall be binding
on all of the Lenders.
10.03 DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default unless the Agent has received notice from
a Lender or the Borrower specifying such Default and stating that such notice is
a "Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall (subject to Section 10.07 hereof) take such action with
respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders, PROVIDED that, unless
and until the Agent shall have received such directions, the 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 interest of
the Lenders except to the extent that this Agreement expressly requires that
such action be taken, or not be taken, only with the consent or upon the
authorization of the Majority Lenders, the Majority Revolving Credit Lenders or
all of the Lenders.
10.04 RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, Chase (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Chase (and any successor acting as
Agent) and its Affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to, make investments in and generally engage in
any kind of banking, trust or other business with the Borrower (and any of its
Subsidiaries or Affiliates) as if it were not acting as the Agent, and Chase and
its Affiliates may accept fees and other consideration from the Borrower for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
10.05 INDEMNIFICATION. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Section 11.03 hereof, but without limiting the
obligations of the Borrower under said Section 11.03) ratably in accordance with
the aggregate principal amount of the Loans held by the Lenders (or, if no Loans
are at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, 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 Agent (including by any Lender) arising out of or by reason of any
investigation in or in any way relating to or arising out of this Agreement or
any other Transaction Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Borrower is
obligated to pay under Section 11.03 hereof, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, PROVIDED that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
10.06 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or under any other
Credit Document. The Agent shall not be required to keep itself informed as to
the performance or observance by the Borrower of this Agreement or any of the
other Credit Documents or any other document referred to or provided for herein
or therein or to inspect the Properties or books of the Borrower or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder or
under the Security Documents or delivered to the Agent with the intent that such
notices, reports and other documents and information shall be distributed to the
Lenders pursuant to the terms hereof, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
of its Subsidiaries (or any of its Affiliates) that may come into the possession
of the Agent or any of its Affiliates.
10.07 FAILURE TO ACT. Except for action expressly required of the
Agent hereunder and under the other Credit Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction from the Lenders
of their indemnification obligations under Section 10.05 hereof against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.08 RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Lenders and the Borrower, and the Agent may
be removed at any time with or without cause by the Majority Lenders. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent from among the Lenders. If no successor Agent shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a bank which has an office in the United States of America, with a
combined capital and surplus of at least $500,000,000, PROVIDED that if such
successor Agent shall not have an office in New York, New York at which payments
hereunder and notices delivered hereunder and under the Security Documents are
to be made, then the parties hereto agree to effect such modifications to this
Agreement and the Security Documents as shall be appropriate to permit such
payments to be made and such notices to be delivered to a non-New York office.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Section 10 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 Agent.
10.09 CONSENTS UNDER OTHER CREDIT DOCUMENTS. Except as otherwise
provided in Section 11.04 hereof with respect to this Agreement and the Notes,
the Agent may, with the prior written consent of the Majority Lenders (but not
otherwise), consent to any modification, supplement or waiver under any of the
Credit Documents, PROVIDED that, without the prior consent of each Lender, the
Agent shall not (except as expressly provided in the Credit Documents) (a)
release any material portion of the collateral or otherwise terminate any Lien
with respect thereto under any Security Document or (b) release all or
substantially all of the Subsidiary Guarantors from their respective obligations
under any Security Document to which it is a party or the Subsidiary Guarantee,
except that no such consent shall be required, and the Agent is hereby
authorized, to release any such collateral, terminate any such Lien or release
any such Subsidiary Guarantor in connection with a Disposition as permitted
hereby or by any of the other Credit Documents or to which the Majority Lenders
have consented.
Section 11. MISCELLANEOUS.
11.01 WAIVER. No failure on the part of the Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 NOTICES. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement or any Note) shall be given or made by telecopy,
telegraph, cable or otherwise in writing and telecopied, telegraphed, cabled,
mailed or delivered to the intended recipient at (i) in the case of the Borrower
and the Agent, the "Address for Notices" specified below its name on the
signature pages hereof and (ii) in the case of each of the Lenders, the address
(or telecopy number) set forth in its Administrative Questionnaire; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier, delivered to the telegraph or cable office or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
11.03 EXPENSES, ETC. The Borrower agrees to pay or reimburse each of
the Lenders and the Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Agent (including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to Chase)
in connection with (i) the negotiation, preparation, execution and delivery of
this Agreement and the other Credit Documents, the making of the Loans hereunder
and the syndication of the credit facilities hereby provided and (ii) the
negotiation or preparation of any modification, supplement or waiver of any of
the terms of this Agreement or any of the other Credit Documents (whether or not
consummated); (b) all reasonable out-of-pocket costs and expenses of the Lenders
and the Agent (including, without limitation, the reasonable fees and expenses
of legal counsel) in connection with (i) any Default and any enforcement or
collection proceedings resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
11.03; and (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Credit Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Credit Document or any other document referred to therein.
The Borrower hereby agrees to indemnify the Agent, each Lender, the
Affiliates of the Agent and of each Lender and their respective directors,
officers, employees, attorneys and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them (including, without limitation, any and all losses, liabilities,
claims, damages or expenses incurred by the Agent or any Lender, whether or not
the Agent or any Lender is a party thereto) arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to the Loans
hereunder or any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the Loans hereunder, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified). Without limiting the generality of the foregoing, the Borrower
will indemnify the Agent and each Lender from, and hold the Agent and each
Lender harmless against, any losses, liabilities, claims, damages or expenses
described in the preceding sentence (excluding, as provided in the preceding
sentence, any loss, liability, claim, damage or expense incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified)
arising under any Environmental Law as a result of the past, present or future
operations of the Borrower or any of its Subsidiaries (or any predecessor in
interest to the Borrower or any of its Subsidiaries), or the past, present or
future condition of any site or facility owned, operated or leased at any time
by the Borrower or any of its Subsidiaries (or any such predecessor in
interest), or any Release or threatened Release of any Hazardous Materials at or
from any such site or facility, including any such Release or threatened Release
that shall occur during any period when the Agent or any Lender shall be in
possession of any such site or facility following the exercise by the Agent or
any Lender of any of its rights and remedies hereunder or under any of the
Security Documents.
11.04 AMENDMENTS, ETC. Except as otherwise expressly provided herein,
any provision of this Agreement or the Notes or any of the other Credit
Documents may be amended or modified only by an instrument signed by the
Borrower and the Majority Lenders, or by the Borrower and the Agent acting with
the written consent of the Majority Lenders, and any provision of this Agreement
or any of the other Credit Documents may be waived by the Majority Lenders or by
the Agent acting with the consent of the Majority Lenders; PROVIDED that no such
instrument shall (i) increase any Commitment of any Lender or the aggregate
amount of the Commitments (other than, in each case, as a result of the
execution and delivery of an Incremental Loan Activation Notice), or extend the
date or decrease the amount of any scheduled reduction thereof pursuant to
Section 2.03 hereof, without the written consent of each Lender directly
affected thereby, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender directly affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of reduction or expiration of any Commitment, without the written
consent of each Lender directly affected thereby, (iv) alter the manner in which
payments or prepayments of principal, interest or other amounts hereunder shall
be applied as among the Lenders or Types or Classes of Loans, without the
written consent of each Lender, (v) alter the obligations of the Borrower to
prepay Loans without the written consent of each Lender or (vi) change any of
the provisions of this Section 11.04 or the definition of the terms "Majority
Lenders" or "Majority Revolving Credit Lenders", or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; and PROVIDED FURTHER that
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Agent, the Issuing Lender or the Swingline Lender hereunder without the
prior written consent of the Agent, the Issuing Lender or the Swingline Lender,
as the case may be.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) The Borrower may not assign its rights or obligations hereunder or
under the Notes without the prior consent of all of the Lenders and the Agent.
(b) Each Lender may assign any of its Loans, its Notes, and its
Commitments (but only with the consent of the Borrower and the Agent, and, in
the case of any assignment of Revolving Credit Commitments, the Issuing Lender
and the Swingline Lender, which consent in each case shall not be unreasonably
withheld); PROVIDED that (i) no such consent shall be required in the case of
any assignment to another Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender or an Affiliate of a Lender and no consent by the
Borrower shall be required if a Default has occurred and is continuing; (ii)
each such assignment shall be in an amount at least equal to $5,000,000 (unless
(x) such assignment is to another Lender, an Affiliate of a Lender or an
Approved Fund with respect to a Lender or an Affiliate of a Lender, (y) after
giving effect to such assignment and all other such assignments by such
assigning Lender occurring simultaneously or substantially simultaneously
therewith, such assigning Lender shall hold no Commitments or Loans hereunder or
(z) the Borrower and the Agent shall otherwise agree); (iii) each such
assignment by a Lender of its Revolving Credit Exposure or Revolving Credit
Commitment (and obligation to acquire participations in Letters of Credit and
Swingline Loans) shall be made in such manner so that the same portion of its
Revolving Credit Exposure and Revolving Credit Commitment (and obligation to
acquire participations in Letters of Credit and Swingline Loans) is assigned to
the respective assignee; (iv) each such assignment by a Lender of its
Incremental Loans of a particular Series or Incremental Loan Commitments of a
particular Series shall be made in such manner so that the same portion of its
Incremental Loans of such Series and Incremental Loan Commitments of such Series
is assigned to the respective assignee; (v) the parties to each assignment shall
execute and deliver to the Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; and (vi) the assignee, if it is not
already a Lender, shall deliver to the Agent an Administrative Questionnaire.
Upon acceptance and recording pursuant to paragraph (d) of this Section 11.06,
from and after the effective date specified in each Assignment and Acceptance,
the assignee thereunder shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the Borrower and the
Agent), the obligations, rights and benefits of a Lender hereunder holding the
Commitment(s), Loans, LC Exposure and Swingline Exposure (or portions thereof)
assigned to it (in addition to the Commitment(s), Loans, LC Exposure and
Swingline Exposure, if any, theretofore held by such assignee) and the assigning
Lender shall, to the extent of such assignment, be released from the
Commitment(s) (or portion(s) thereof) so assigned.
(c) MAINTENANCE OF REGISTER BY THE AGENT. The Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices in New
York City a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Borrower, the Agent, the
Issuing Lender and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) EFFECTIVENESS OF ASSIGNMENTS. Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section 11.06 and any written consent to such
assignment required by paragraph (b) of this Section 11.06, the Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of its rights and obligations hereunder and
under the other Credit Documents, in which event each such participant shall be
entitled to the rights and benefits of the provisions of Section 8.01(k) hereof
with respect to its participation in such rights and obligations as if (and the
Borrower shall be directly obligated to such participant under such provisions
as if) such participant were a "Lender" for purposes of said Section, but shall
not have any other rights or benefits under this Agreement or any Note (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement (the "PARTICIPATION AGREEMENT") executed by
such Lender in favor of the participant). All amounts payable by the Borrower to
any Lender under Section 5 hereof shall be determined as if such Lender had not
sold or agreed to sell any participations in such Loan and as if such Lender
were funding all of such Loan in the same way that it is funding the portion of
such Loan in which no participations have been sold. In no event shall a Lender
that sells a participation be obligated to the participant under the
Participation Agreement to take or refrain from taking any action hereunder or
under such Lender's Note except that such Lender may agree in the Participation
Agreement that it will not, without the consent of the participant, agree to (i)
the increase or extension of the term, or the extension of the time or waiver of
any requirement for the reduction or termination, of such Lender's Commitments,
(ii) the extension of any date fixed for the payment of principal of or interest
on the related Loan or Loans or any portion of any fees payable to the
participant, (iii) the reduction of any payment of principal thereof, (iv) the
reduction of the rate at which either interest is payable thereon or (if the
participant is entitled to any part thereof) commitment fee is payable hereunder
to a level below the rate at which the participant is entitled to receive
interest or commitment fee (as the case may be) in respect of such participation
or (v) release any collateral or otherwise terminate any Lien under the Security
Documents (other than in connection with the Disposition of Property permitted
hereunder or to which the Majority Lenders have consented hereunder).
(f) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.06, any Lender may (without notice
to the Borrower, the Agent or any other Lender and without payment of any fee)
(i) assign and pledge all or any portion of its Loans and its Notes to secure
obligations of such Lender, including any such pledge to any Federal Reserve
Bank pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank and this Section 11.06 shall not apply to any such pledge or
assignment of security interest and (ii) assign all or any portion of its rights
under this Agreement and its Loans and its Notes to an Affiliate of such Lender.
No such assignment shall release the assigning Lender from its obligations
hereunder.
(g) A Lender may furnish any information concerning the Borrower
and/or any of its Subsidiaries in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.12 hereof.
(h) Anything in this Section 11.06 to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to the Borrower or any of its Subsidiaries or any Affiliates without the prior
consent of each Lender.
11.07 SURVIVAL. The obligations of the Borrower under Sections 5.01,
5.05, 5.06 and 11.03 hereof, and the obligations of the Lenders under Section
10.05 hereof, shall survive the repayment of the Loans and the termination of
the Commitments. In addition, each representation and warranty made, or deemed
to be made by a notice of any Loan or other extension of credit hereunder,
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender shall be deemed to have waived, by reason of making any
Loan or other extension of credit hereunder, any Default that may arise by
reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender or the Agent may have had notice or
knowledge or reason to believe that such representation or warranty was false or
misleading at the time such Loan or other extension of credit hereunder was
made.
11.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York State Court sitting in New York County for the purposes of all
legal proceedings arising out of or relating to this agreement or the
transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
11.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.12 CONFIDENTIALITY. Each Lender and the Agent agrees to keep
confidential, in accordance with their customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking or investment practices, all non-public information provided to such
Lender by or on behalf of the Borrower or any of its Subsidiaries or Affiliates
in connection with this Agreement and identified as being confidential at the
time the same is delivered to the Lenders or the Agent; PROVIDED that any Lender
or the Agent may disclose such information (a) to the extent required by
statute, rule, regulation or judicial process, (b) to counsel for any of the
Lenders or the Agent, (c) to examiners, auditors or accountants, (d) to the
Agent or any other Lender (or to Chase Securities Inc.), (e) in connection with
any litigation to which any one or more of the Lenders or the Agent is a party,
(f) to a subsidiary or Affiliate of any Lender or the Agent, (g) to any assignee
or participant (or prospective assignee or participant) of or in any rights and
obligations under this Agreement and the other Credit Documents so long as such
assignee or participant (or prospective assignee or participant) first executes
and delivers to the respective Lender a confidentiality agreement containing
provisions substantially the same as those of this Section 11.12, (h) to any
other Person in the course of the enforcement of any Lender's or the Agent's
rights or remedies hereunder or under any other Credit Document, (i) to any
other creditor of any Obligor at any time during the continuance of an Event of
Default or (j) that subsequently becomes publicly available (other than by
reason of a breach by any Lender or the Agent of its obligations under this
Section 11.12).
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the day and year first above written.
JOURNAL REGISTER COMPANY
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
LENDERS
THE CHASE MANHATTAN BANK,
Individually, Issuing Lender,
Swingline and as Agent
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
ABN AMRO BANK N.V. BANK OF MONTREAL, CHICAGO BRANCH
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Vice President Title: Director
By /S/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
THE BANK OF NEW YORK BANK OF TOKYO MITSUBISHI
TRUST COMPANY
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Senior Vice President Title: Vice President
BANKBOSTON, N.A. BANQUE NATIONALE DE PARIS
By /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Director Title: Vice President
By /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Vice President
CIBC INC. CITY NATIONAL BANK
By /S/ ▇▇▇▇▇▇ ▇▇▇▇ By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------- -------------------------------
Title: Executive Director Title: Senior Vice President
CIBC ▇▇▇▇▇▇▇▇▇▇▇
Corp., As Agent
COMPAGNIE FINANCIERE DE CIC COOPERATIVE CENTRALE
ET DE L'UNION EUROPEENNE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By /S/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------
Title: Vice President
By /S/ W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
By /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: First Vice President
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
CRESTAR BANK DAI-ICHI KANGYO BANK, LTD.
By /S/ J. ▇▇▇▇ ▇▇▇▇▇▇ By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Vice President Title: Assistant Vice President
DRESDNER BANK AG, NEW YORK AND FIRST HAWAIIAN BANK
GRAND CAYMAN BRANCHES
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
By /S/ ▇▇▇▇ ▇▇▇▇▇▇▇ Title: Assistant Vice President
--------------------------------
Title: First Vice President
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Assistant Treasurer
THE FIRST NATIONAL BANK OF FIRST UNION NATIONAL BANK
MARYLAND
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
By /S/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President
--------------------------------
Title: Vice President
FLEET BANK N.A. GENERAL ELECTRIC CAPITAL
CORPORATION
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Duly Authorized
Signatory
GREAT WEST LIFE & ANNUITY KEY CORPORATE CAPITAL INC.
INSURANCE COMPANY
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Senior Portfolio
-------------------------------- Manager
Title: Vice President Investments
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Assistant Vice President
Investments
KZH-CNC CORPORATION THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Authorized Signatory By /S/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Deputy General Manager
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Authorized Signatory
MICHIGAN NATIONAL BANK NATEXIS BANQUE BFCE
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------- -------------------------------
Title: Relationship Manager Title: Associate
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
Group Manager
NATIONSBANK, N.A. PARIBAS
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Vice-President Title: Director
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Director
PNC BANK, NATIONAL ASSOCIATION THE ROYAL BANK OF SCOTLAND plc
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Senior Banking Officer Title: Vice President
SUMMIT BANK SUNTRUST BANK CENTRAL FLORIDA,
N.A.
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------
Title: Vice President By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A. US TRUST
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /S/ ▇▇▇▇▇▇▇, ▇. ▇.
-------------------------------- -------------------------------
Title: Vice President Title: Vice President
LENDERS
DEEPROCK & COMPANY
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By /S/ PAYSON ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
LENDERS
AMSOUTH BANK
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Commercial Banking Officer
EXHIBIT A
[CONFORMED COPY]
BORROWER SECURITY AGREEMENT
BORROWER SECURITY AGREEMENT dated as of July 15, 1998 between
JOURNAL REGISTER COMPANY, a corporation duly organized and validly existing
under the laws of the State of Delaware (the "BORROWER") and THE CHASE MANHATTAN
BANK, as administrative agent for the banks and other financial institutions
party to the Credit Agreement referred to below (in such capacity, together with
its successors in such capacity, the "AGENT").
The Borrower and the Agent are parties to a Borrower Security
Agreement dated as of May 13, 1997 (as heretofore modified and supplemented and
in effect on the date hereof, the "EXISTING BORROWER SECURITY Agreement"),
pursuant to which the Borrower pledged and granted a security interest in the
Collateral (as so defined in the Existing Borrower Security Agreement) as
security for the Secured Obligations (as so defined) including, INTER ALIA,
obligations of the Borrower under a Credit Agreement dated as of May 2, 1997
with certain banks and the Agent (as heretofore modified and supplemented and in
effect on the date of this Agreement, the "EXISTING CREDIT AGREEMENT").
Substantially concurrently herewith, the parties to the Existing Credit
Agreement are amending in certain respects and restating in its entirety the
Existing Credit Agreement pursuant to a Credit Agreement dated as of the date
hereof (as modified and in effect from time to time, the CREDIT AGREEMENT").
To induce said banks and the Agent to enter into the Credit
Agreement and to extend credit thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower has agreed to pledge and grant a security interest in the Collateral
(as hereinafter defined) as security for the Secured Obligations (as so
defined), and to confirm the prior pledge and grant of a security interest in
the "Collateral" (as defined in the Existing Borrower Security Agreement)
pursuant to the Existing Borrower Security Agreement and in that connection to
amend and restate in its entirety the Existing Borrower Security Agreement.
Accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein:
"ACCOUNTS" shall have the meaning ascribed thereto in Section
3(d) hereof.
"BUSINESS" shall mean the business of newspaper publishing and
offset printing and the other businesses from time to time, now or
hereafter, conducted by the Borrower and its Subsidiaries.
"COLLATERAL" shall have the meaning ascribed thereto in Section 3
hereof.
"COLLATERAL ACCOUNT" shall have the meaning ascribed thereto in
Section 4.01 hereof.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now owned
or hereafter acquired by the Borrower, that are associated with the
Business, including each Copyright identified in Annex 2 hereto.
"COPYRIGHTS" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation,
all renewals and extensions thereof, the right to recover for all past,
present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
"DOCUMENTS" shall have the meaning ascribed thereto in Section
3(j) hereof.
"EQUIPMENT" shall have the meaning ascribed thereto in Section
3(h) hereof.
"EQUITY COLLATERAL" shall mean, collectively, the Collateral
described in clauses (a) through (c) of Section 3 hereof and the proceeds
of and to any such property and, to the extent related to any such
property or such proceeds, all books, correspondence, credit files,
records, invoices and other papers.
"INSTRUMENTS" shall have the meaning ascribed thereto in Section
3(e) hereof.
"INTELLECTUAL PROPERTY" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets used or useful in the Business;
(b) all licenses or user or other agreements granted to the Borrower with
respect to any of the foregoing, in each case whether now or hereafter
owned or used including, without limitation, the licenses or other
agreements with respect to the Copyright Collateral, the Patent Collateral
or the Trademark Collateral listed in Annex 5 hereto; (c) all information,
customer lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and
automatic machinery software and programs, and the like pertaining to the
operation by the Borrower of the Business; (d) all field repair data,
sales data and other information relating to sales or service of products
now or hereafter manufactured and which pertain to the Business; (e) all
accounting information which pertains to the Business and all media in
which or on which any of the information or knowledge or data or records
which pertain to the Business may be recorded or stored and all computer
programs used for the compilation or printout of such information,
knowledge, records or data; (f) all licenses, consents, permits,
variances, certifications and approvals of governmental agencies now or
hereafter held by the Borrower pertaining to the operation by the Borrower
and its Subsidiaries of the Business; and (g) all causes of action, claims
and warranties now or hereafter owned or acquired by the Borrower in
respect of any of the items listed above.
"INTER-COMPANY NOTES" shall mean, collectively, each promissory note
issued by any Subsidiary Guarantor and owing to the Borrower or any other
Subsidiary Guarantor, whether now existing or hereinafter coming into
existence.
"INVENTORY" shall have the meaning ascribed thereto in Section
3(f) hereof.
"ISSUERS" shall mean each direct Subsidiary of the Borrower.
"MOTOR VEHICLES" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"PATENT COLLATERAL" shall mean all Patents, whether now owned or
hereafter acquired by the Borrower, that are associated with the Business,
including each Patent identified in Annex 3 hereto.
"PATENTS" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable under and with
respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, the right to ▇▇▇ for past, present
and future infringements thereof, and all rights corresponding thereto
throughout the world.
"PLEDGED EQUITY" shall have the meaning ascribed thereto in Section
3(a) hereof.
"SECURED OBLIGATIONS" shall mean, collectively, (a) the obligations
of the Borrower to pay the principal of and interest on the Loans made (or
as of the Effective Date, continued) by the Lenders to, and the Notes held
by each Lender of, the Borrower and all other amounts from time to time
owing to the Lenders or the Agent by the Borrower under the Credit
Agreement (including, without limitation, all LC Disbursements and
interest thereon) and the Notes and interest thereon, (b) the obligations
of the Borrower and/or any of its Subsidiaries to pay all amounts from
time to time owing to any Lender or any Affiliate of a Lender by the
Borrower and/or any of its Subsidiaries in respect of any Hedging
Agreement entered into by the Borrower and/or any of its Subsidiaries and
such Lender or such Affiliate, (c) the obligations of the Borrower to pay
all amounts owing from time to time in respect of letters of credit or
similar instruments issued under Section 8.07(g) of the Credit Agreement
issued by any Lender or any Affiliate of a Lender for account of the
Borrower and (d) all obligations of the Borrower to the Lenders and the
Agent hereunder and under the other Credit Documents (other than the
Credit Agreement and the Notes) to which the Borrower is a party.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now owned
or hereafter acquired by the Borrower, that are associated with the
Business, including each Trademark identified in Annex 4 hereto.
Notwithstanding the foregoing, the Trademark Collateral does not and shall
not include any Trademark which would be rendered invalid, abandoned, void
or unenforceable by reason of its being included as part of the Trademark
Collateral.
"TRADEMARKS" shall mean all trade names, trademarks and service
marks, logos, trademark and service ▇▇▇▇ registrations, and applications
for trademark and service ▇▇▇▇ registrations, including, without
limitation, all renewals of trademark and service ▇▇▇▇ registrations, all
rights corresponding thereto throughout the world, the right to recover
for all past, present and future infringements thereof, all other rights
of any kind whatsoever accruing thereunder or pertaining thereto,
together, in each case, with the product lines and goodwill of the
business connected with the use of, and symbolized by, each such trade
name, trademark and service ▇▇▇▇.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as
in effect in the State of New York from time to time.
Section 2. REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to the Lenders and the Agent that:
(a) the Borrower is the sole beneficial owner of the Collateral in
which it purports to grant a security interest pursuant to Section 3
hereof and no Lien exists or will exist upon any such Collateral at any
time (and, with respect to the Equity Collateral, no right or option to
acquire the same exists in favor of any other Person), except for Liens
permitted under Section 8.06 of the Credit Agreement and except for the
pledge and security interest in favor of the Agent for the benefit of the
Lenders created or provided for herein which pledge and security interest
constitutes a first priority perfected pledge and security interest in and
to all of such Collateral (other than Intellectual Property registered or
otherwise located outside of the United States of America);
(b) the Pledged Equity evidenced by the certificates identified in
Annex 1 hereto is, and all other Pledged Equity in which the Borrower
shall hereafter grant a security interest pursuant to Section 3 hereof
will be, duly authorized, validly issued, fully paid and nonassessable (in
the case of any equity interest in a corporation) and duly issued and
outstanding (in the case of any equity interest in any other entity) and
none of such Pledged Equity is or will be subject to any contractual
restriction, or any restriction under the charter, by-laws, partnership
agreement, limited liability company agreement or other organizational
document of the respective Issuers of such Pledged Equity, upon the
transfer of such Pledged Equity (except for any such restriction contained
herein or in the Credit Agreement);
(c) the Pledged Equity identified in Annex 1 hereto constitutes all
of the issued and outstanding shares of capital stock, partnership
interest, limited liability company or other ownership interest of any
class or character of the Issuers beneficially owned by the Borrower on
the date hereof (whether or not registered in the name of the Borrower)
and said Annex 1 correctly identifies, as at the date hereof, the
respective Issuers of such Pledged Equity, the respective class and (in
the case of any corporate Issuer) par value of the shares comprising such
Pledged Equity and the respective number of shares (and registered owner
thereof) evidenced by each such certificate;
(d) Annexes 2, 3 and 4 hereto, respectively, set forth a complete
and correct list of all Copyrights, Patents and Trademarks owned by the
Borrower on the date hereof; except pursuant to licenses and other user
agreements entered into by the Borrower in the ordinary course of
business, which are listed in Annex 5 hereto, the Borrower owns and
possesses the right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark listed in said
Annexes 2, 3 and 4, and all registrations listed in said Annexes 2, 3 and
4 are valid and in full force and effect; except as may be set forth in
said Annex 5, the Borrower owns and possesses the right to use all
Copyrights, Patents and Trademarks necessary for the operation of the
Business;
(e) Annex 5 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property
on the date hereof;
(f) to the Borrower's knowledge, (i) except as set forth in Annex 5
hereto, there is no violation by others of any right of the Borrower with
respect to any Copyright, Patent or Trademark listed in Annexes 2, 3 and 4
hereto and (ii) the Borrower is not, in connection with the Business,
infringing in any respect upon any Copyright, Patent or Trademark of any
other Person; and no proceedings have been instituted or are pending
against the Borrower or, to the Borrower's knowledge, threatened, and no
claim against the Borrower has been received by the Borrower, alleging any
such violation, except as may be set forth in said Annex 5;
(g) the Borrower does not own any Trademarks registered in the
United States of America to which the last sentence of the definition of
Trademark Collateral applies;
(h) any goods now or hereafter produced by the Borrower or any of
its Subsidiaries included in the Collateral have been and will be produced
in compliance with the requirements of the Fair Labor Standards Act, as
amended; and
(i) Annex 6 hereto correctly and completely specifies the location
of the chief executive office or principal place of business of the
Borrower and also correctly and completely specifies the place at which
all Inventory or Equipment of the Borrower is located.
Section 3. COLLATERAL. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, the Borrower hereby pledges and grants to the Agent
(and confirms the prior pledge and grant to the Agent pursuant to the Existing
Borrower Security Agreement, which are hereby confirmed hereunder), for the
benefit of the Lenders as hereinafter provided, a security interest in all of
the Borrower's right, title and interest in, to and under the following
property, whether now owned by the Borrower or hereafter acquired and whether
now existing or hereafter coming into existence, and wherever located (all being
collectively referred to herein as "COLLATERAL"):
(a) the shares of capital stock (whether common or preferred) of, or
partnership, limited liability company or other ownership interest in, the
respective Issuers identified in Annex 1 hereto and all other shares of
capital stock or partnership, limited liability company or other ownership
interest of whatever class or character of the Issuers, now or hereafter
owned by the Borrower, together with in each case the certificates
evidencing the same (collectively, the "PLEDGED EQUITY");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Equity, or representing a distribution or
return of capital upon or in respect of the Pledged Equity, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Equity or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Equity;
(c) without affecting the obligations of the Borrower under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which any Issuer is not the
surviving entity, all ownership interests of any class or character of the
successor entity (unless such successor entity is the Borrower itself)
formed by or resulting from such consolidation or merger;
(d) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Borrower constituting any right to the
payment of money, including (but not limited to) all moneys due and to
become due to the Borrower in respect of any loans or advances for the
purchase price of Inventory or Equipment or other goods sold or leased or
for services rendered, all moneys due and to become due to the Borrower
under any guarantee (including a letter of credit) of the purchase price
of Inventory or Equipment sold by the Borrower and all tax refunds and any
and all rights of the Borrower in any escrow or trust account, whether
fixed or contingent, and, upon the termination or revocation thereof or
return of sums contained in any escrow or trust account or otherwise, any
and all amounts due to, to become due to, or received by, the Borrower
therefrom, whether as a result of one or more orders of a Bankruptcy Court
or otherwise (such accounts, general intangibles and moneys due and to
become due being herein called collectively "ACCOUNTS");
(e) all Inter-company Notes, instruments, chattel paper or letters
of credit (each as defined in the Uniform Commercial Code) of the Borrower
including, without limitation, any of the foregoing evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of
exchange, trade acceptances and the Inter-company Notes (herein
collectively called "INSTRUMENTS");
(f) all inventory (as defined in the Uniform Commercial Code) of the
Borrower, including Motor Vehicles held by the Borrower for lease, fuel,
tires and other spare parts, all goods obtained by the Borrower in
exchange for such inventory, and any products made or processed from such
inventory including all substances, if any, commingled therewith or added
thereto (herein collectively called "INVENTORY");
(g) all Intellectual Property and all other accounts or general
intangibles of the Borrower not constituting Intellectual Property or
Accounts;
(h) all equipment (as defined in the Uniform Commercial Code) of the
Borrower, including all Motor Vehicles used in the Business (herein
collectively called "EQUIPMENT");
(i) each contract and other agreement of the Borrower relating to
the sale or other disposition of Inventory or Equipment;
(j) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Borrower covering, evidencing or
representing Inventory or Equipment (herein collectively called
"DOCUMENTS");
(k) all rights, claims and benefits of the Borrower against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by the Borrower, including, without limitation, any
such rights, claims or benefits against any Person storing or transporting
such Inventory or Equipment;
(l) the balance from time to time in the Collateral Account;
(m) all tangible property (including all machinery, apparatus,
equipment, fittings, personal property, and any other fixtures
whatsoever), now or hereafter located on or attached to real estate, and
any and all products and accessions to any such property which may exist
at any time;
(n) all rents, revenues, proceeds, issues, profits, royalties,
income and other benefits derived from real estate, and from any
improvements or fixtures thereon;
(o) all proceeds of insurance in effect with respect to any real
estate, or with respect to improvements or fixtures thereon, and any and
all awards made for the taking by eminent domain, or by any proceeding or
purchase in lieu thereof, of any real estate, or any improvements or
fixtures thereon, including without limitation any awards resulting from
any damage to any real estate, improvements or fixtures for which
compensation shall be given by any governmental authority; and
(p) all other tangible and intangible property of the Borrower,
including, without limitation, proceeds, products and accessions of and to
any of the property of the Borrower described in clauses (a) through (o)
above in this Section 3 (including, without limitation, any proceeds of
insurance thereon), and, to the extent related to any property described
in said clauses or such proceeds, products and accessions, all books,
correspondence, credit files, records, invoices and other papers,
including, without limitation, all tapes, cards, computer runs and other
papers and documents in the possession or under the control of the
Borrower or any computer bureau or service company from time to time
acting for the Borrower.
Section 4. CASH PROCEEDS OF COLLATERAL.
4.01 COLLATERAL ACCOUNT. There has heretofore been established at
Chase a cash collateral account (the "COLLATERAL ACCOUNT"), which may be a
"securities account" (as defined in Section 8-501 of the Uniform Commercial
Code, in the name and under the sole dominion and control of the Agent (and, in
the case of a securities account, in respect of which the Agent is the
"entitlement holder" (as defined in Section 8-102(a)(7) of the Uniform
Commercial Code)), into which there shall be deposited from time to time the
cash proceeds of any of the Collateral (including proceeds of insurance thereon)
required to be delivered to the Agent pursuant hereto and into which the
Borrower may from time to time deposit any additional amounts which it wishes to
pledge to the Agent for the benefit of the Lenders as additional collateral
security hereunder or that, as provided in Section 2.10(k) of the Credit
Agreement, the Borrower is required to pledge as collateral security hereunder.
The balance from time to time in the Collateral Account shall constitute part of
the Collateral hereunder and shall not constitute payment of the Secured
Obligations until applied as hereinafter provided. Except as expressly provided
in the next sentence, the Agent shall remit the collected balance outstanding to
the credit of the Collateral Account to or upon the order of the Borrower as the
Borrower shall from time to time instruct. However, at any time following the
occurrence and during the continuance of an Event of Default, the Agent may
(and, if instructed by such of the Lenders as are required for such purpose
under the Credit Agreement, shall), in its (or their) discretion, apply or cause
to be applied (subject to collection) the balance from time to time outstanding
to the credit of the Collateral Account to the payment of the Secured
Obligations in the manner specified in Section 5.09 hereof. The balance from
time to time in the Collateral Account shall be subject to withdrawal only by
the Agent and only as provided herein.
4.02 PROCEEDS OF ACCOUNTS. Except as permitted by Section 5.01(b)
hereof, the Borrower shall instruct all account debtors and other Persons
obligated in respect of all Accounts to make all payments in respect of the
Accounts either (a) directly to the Agent (by instructing that such payments be
remitted to a post office box which shall be in the name and under the control
of the Agent) or (b) to one or more other banks in the United States of America
(by instructing that such payments be remitted to a post office box which shall
be in the name and under the control of the Agent) under arrangements, in form
and substance satisfactory to the Agent, pursuant to which the Borrower shall
have irrevocably instructed such other bank (and such other bank shall have
agreed) to remit all proceeds of such payments directly to the Agent for deposit
into the Collateral Account. All payments made to the Agent, as provided in the
preceding sentence, shall be immediately deposited in the Collateral Account. In
addition to the foregoing, the Borrower agrees that if the proceeds of any
Collateral hereunder (including payments made in respect of Accounts) shall be
received by it, the Borrower shall as promptly as possible deposit such proceeds
into the Collateral Account. Until so deposited, all such proceeds shall be held
in trust by the Borrower for and as the property of the Agent (for the benefit
of the Lenders) and shall not be commingled with any other funds or property of
the Borrower.
4.03 INVESTMENT OF BALANCE IN COLLATERAL ACCOUNT. Amounts on deposit
in the Collateral Account shall be invested from time to time in such Cash
Equivalents as the Borrower (or, after the occurrence and during the continuance
of a Default, the Agent) shall determine, which Cash Equivalents shall be held
in the name and be under the control of the Agent, provided that (i) at any time
after the occurrence and during the continuance of an Event of Default, the
Agent may (and, if instructed by such of the Lenders as are required for such
purpose under the Credit Agreement, shall) in its (or their) discretion at any
time and from time to time elect to liquidate any such Cash Equivalents and to
apply or cause to be applied the proceeds thereof to the payment of the Secured
Obligations in the manner specified in Section 5.09 hereof and (ii) if requested
by the Borrower, such Cash Equivalents may be held in the name and under the
control of one or more of the Lenders.
4.04 COVER FOR LC EXPOSURE. Amounts deposited into the Collateral
Account as cover for LC Exposure under the Credit Agreement pursuant to Section
2.09(a), (b) or (c) or Section 2.10(k) thereof shall be held by the
Administrative Agent in a separate sub-account (designated "LC Exposure
Sub-Account") and all amounts held in such sub-account shall constitute
collateral security FIRST for the LC Exposure outstanding from time to time and
SECOND as collateral security for the other Secured Obligations hereunder.
Section 5. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Borrower
hereby agrees with each Lender and the Agent as follows:
5.01 DELIVERY AND OTHER PERFECTION. The Borrower shall:
(a) if any of the above-described shares, securities, monies or
property required to be pledged by the Borrower under clauses (a), (b) and
(c) of Section 3 hereof are received by the Borrower, forthwith either (x)
transfer and deliver to the Agent such shares or securities so received by
the Borrower (together with the certificates for any such shares and
securities duly endorsed in blank or accompanied by undated stock powers
duly executed in blank) all of which thereafter shall be held by the
Agent, pursuant to the terms of this Agreement, as part of the Collateral
(and until so transferred and delivered to the Agent, all such shares,
securities, monies or property shall be held in trust by the Borrower for
and as the property of the Agent (for the benefit of the Lenders) or (y)
take such other action as the Agent shall deem necessary or appropriate to
duly record the Lien created hereunder in such shares, securities, monies
or property referred to in said clauses (a), (b) and (c);
(b) deliver and pledge to the Agent (for the benefit of the Lenders)
any and all Instruments, including, without limitation, all Inter-company
Notes, endorsed and/or accompanied by such instruments of assignment and
transfer in such form and substance as the Agent may request; PROVIDED
that so long as no Default shall have occurred and be continuing, the
Borrower may retain for collection in the ordinary course any Instruments
received by it in the ordinary course of business and the Agent shall,
promptly upon request of the Borrower, make appropriate arrangements for
making any other Instrument pledged by the Borrower available to it for
purposes of presentation, collection or renewal (any such arrangement to
be effected, to the extent deemed appropriate by the Agent, against trust
receipt or like document); PROVIDED, FURTHER, that so long as no Default
shall have occurred and be continuing, if any Inter-company Note pledged
by the Borrower has been transferred by the Borrower to a Subsidiary
Guarantor as permitted by Section 8.05(c)(iv) of the Credit Agreement, the
Agent shall, promptly upon the request of the Borrower, deliver such
Inter-company Note to such Subsidiary Guarantor for purposes of effecting
such transfer, PROVIDED that, except in connection with the cancellation
of such Inter-company Note, the Agent shall receive in exchange therefor,
a substitute Inter-company Note payable to the such Subsidiary Guarantor
in a like aggregate unpaid principal amount;
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate any security interest granted pursuant
hereto or to enable the Agent to exercise and enforce its rights hereunder
with respect to such security interest, including, without limitation,
causing any or all of the Equity Collateral to be transferred of record
into the name of the Agent or its nominee (and the Agent agrees that if
any Equity Collateral is transferred into its name or the name of its
nominee, the Agent will thereafter promptly give to the Borrower copies of
any notices and communications received by it with respect to the Equity
Collateral pledged by the Borrower hereunder), provided that notices to
account debtors in respect of any Accounts or Instruments shall be subject
to the provisions of clause (i) below;
(d) without limiting the obligations of the Borrower under Section
5.04(c) hereof, upon the acquisition after the date hereof by the Borrower
of any Equipment covered by a certificate of title or ownership, cause the
Agent to be listed as the lienholder on such certificate of title and
within 120 days of the acquisition thereof deliver evidence of the same to
the Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Agent may reasonably require in order to reflect the
security interests granted by this Agreement;
(f) furnish to the Agent from time to time (but, unless a Default
shall have occurred and be continuing, no more frequently than quarterly)
statements and schedules further identifying and describing the Copyright
Collateral, the Patent Collateral and the Trademark Collateral,
respectively, and such other reports in connection with the Copyright
Collateral, the Patent Collateral and the Trademark Collateral, as the
Agent may reasonably request, all in reasonable detail;
(g) promptly upon request of the Agent, following receipt by the
Agent of any statements, schedules or reports pursuant to clause (f)
above, modify this Agreement by amending Annex 2, 3 or 4 hereto, as the
case may be, to include any Copyright, Patent or Trademark which becomes
part of the Collateral under this Agreement;
(h) permit representatives of the Agent, upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Collateral, and permit
representatives of the Agent to be present at the Borrower's place of
business to receive copies of all communications and remittances relating
to the Collateral, and forward copies of any notices or communications
received by the Borrower with respect to the Collateral all in such manner
as the Agent may require;
(i) upon the occurrence and during the continuance of any Default,
upon request of the Agent, promptly notify (and the Borrower hereby
authorizes the Agent so to notify) each account debtor in respect of any
Accounts or Instruments that such Collateral has been assigned to the
Agent hereunder, and that any payments due or to become due in respect of
such Collateral are to be made directly to the Agent; and
(j) in the event of any termination, revocation or return of sums
contained in any escrow account, trust account or escrow or trust
arrangement in which the Borrower has a direct or indirect interest,
whether legal or equitable, promptly deposit any amounts recovered by the
Borrower from any such account or from any Person who theretofore received
any such amount from any such account, directly into the Collateral
Account.
5.02 OTHER FINANCING STATEMENTS AND LIENS. Except as otherwise
permitted under Section 8.06 of the Credit Agreement, without the prior written
consent of the Agent (granted with the authorization of such of the Lenders as
are required for such purpose under the Credit Agreement), the Borrower shall
not file or suffer to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Agent is not named as the sole secured
party for the benefit of the Lenders.
5.03 PRESERVATION OF RIGHTS. The Agent shall not be required to take
steps necessary to preserve any rights against prior parties to any of the
Collateral.
5.04 SPECIAL PROVISIONS RELATING TO CERTAIN COLLATERAL.
(a) EQUITY COLLATERAL.
(1) The Borrower will cause the Equity Collateral to constitute at
all times 100% of the ownership interests of any class or character of each
Issuer then outstanding.
(2) So long as no Event of Default shall have occurred and be
continuing, the Borrower shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Equity Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Borrower agrees that it will not vote the Equity
Collateral in any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any such other instrument or agreement; and
the Agent shall execute and deliver to the Borrower or cause to be executed and
delivered to the Borrower all such proxies, powers of attorney, dividend and
other orders, and all such instruments, without recourse, as the Borrower may
reasonably request for the purpose of enabling the Borrower to exercise the
rights and powers which it is entitled to exercise pursuant to this Section
5.04(a)(2).
(3) Unless and until an Event of Default has occurred and is
continuing, but subject to the provisions of Section 8.09 of the Credit
Agreement which limit the right of the Borrower and its Subsidiaries to declare
or make any Restricted Payment, the Borrower shall be entitled to receive and
retain any dividends or distributions in respect of the Equity Collateral.
(4) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any Lender
exercises any available right to declare any Secured Obligation due and payable
or seeks or pursues any other relief or remedy available to it under applicable
law or under this Agreement, the Credit Agreement, any other Credit Document or
any other agreement relating to such Secured Obligation, all dividends and other
distributions on the Equity Collateral shall be paid directly to the Agent and
retained by it in the Collateral Account as part of the Equity Collateral,
subject to the terms of this Agreement, and, if the Agent shall so request in
writing, the Borrower agrees to execute and deliver to the Agent appropriate
additional dividend, distribution and other orders and documents to that end,
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Agent shall, upon request of the Borrower
(except to the extent theretofore applied to the Secured Obligations) be
returned by the Agent to the Borrower.
(b) INTELLECTUAL PROPERTY.
(1) For the purpose of enabling the Agent to exercise rights and
remedies under Section 5.05 hereof at such time as the Agent shall be lawfully
entitled to exercise such rights and remedies, and for no other purpose, the
Borrower hereby grants to the Agent, to the extent assignable, an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to the Borrower) to use, assign, license or sublicense any of the
Intellectual Property (other than the Trademark Collateral or goodwill
associated therewith) now owned or hereafter acquired by the Borrower, wherever
the same may be located, including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored and to all
computer programs used for the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 8.05 of the Credit Agreement which limit
the right of the Borrower and its Subsidiaries to dispose of their property, so
long as no Event of Default shall have occurred and be continuing, the Borrower
will be permitted to exploit, use, enjoy, protect, license, sublicense, assign,
sell, dispose of or take other actions with respect to the Intellectual Property
in the ordinary course of the Business. In furtherance of the foregoing, unless
an Event of Default shall have occurred and is continuing the Agent shall from
time to time, upon the request of the Borrower, execute and deliver any
instruments, certificates or other documents, in the form so requested, which
the Borrower shall have certified are appropriate (in its judgment) to allow it
to take any action permitted above (including relinquishment of the license
provided pursuant to clause (1) immediately above as to any specific
Intellectual Property). Further, upon the payment in full of all of the Secured
Obligations and cancellation or termination of the Commitments and LC Exposure
or earlier expiration of this Agreement or release of the Collateral, the Agent
shall grant back to the Borrower the license granted pursuant to clause (1)
immediately above. The exercise of rights and remedies under Section 5.05 hereof
by the Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Borrower in accordance with the first
sentence of this clause (2).
(c) MOTOR VEHICLES.
(1) At the request of the Agent, the Borrower shall deliver to the
Agent originals of the certificates of title or ownership for the Motor Vehicles
owned by it with the Agent listed as lienholder.
(2) Upon the acquisition after the date hereof by the Borrower of
any Motor Vehicle, at the request of the Agent the Borrower shall deliver to the
Agent originals of the certificates of title or ownership for such Motor
Vehicle, together with the manufacturer's statement of origin, with the Agent
listed as lienholder; provided, however, if the Motor Vehicle to be acquired is
subject to a purchase money security interest, the Agent shall be listed as a
junior lienholder to the Person holding such purchase money security interest.
(3) Without limiting Section 5.10 hereof, the Borrower hereby
appoints the Agent as its attorney-in-fact, effective the date hereof and
terminating upon the termination of the obligations of the Borrower under this
Agreement, for the purpose of (i) executing on behalf of the Borrower title or
ownership applications for filing with appropriate state agencies to enable
Motor Vehicles now owned or hereafter acquired by the Borrower to be retitled
and the Agent listed as lienholder thereon, (ii) filing such applications with
such state agencies and (iii) executing such other documents and instruments on
behalf of, and taking such other action in the name of, the Borrower as the
Agent may deem necessary or advisable to accomplish the purposes hereof
(including, without limitation, the purpose of creating in favor of the Agent
(for the benefit of the Lenders) a perfected lien on the Motor Vehicles and
exercising the rights and remedies of the Agent under Section 5.05 hereof). This
appointment as attorney-in-fact is irrevocable and coupled with an interest.
(4) Any certificates of title or ownership delivered pursuant to the
terms hereof shall be accompanied by odometer statements for each Motor Vehicle
covered thereby.
5.05 EVENTS OF DEFAULT, ETC. During the period during which an Event
of Default shall have occurred and be continuing:
(i) the Borrower shall, at the request of the Agent, assemble the
Collateral owned by it at such place or places, reasonably convenient to
both the Agent and the Borrower, designated in its request;
(ii) the Agent may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may extend the
time of payment, arrange for payment in installments, or otherwise modify
the terms of, any of the Collateral;
(iii) the Agent shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform Commercial
Code (whether or not said Code is in effect in the jurisdiction where the
rights and remedies are asserted) and such additional rights and remedies
to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Agent were the sole and absolute
owner thereof (and the Borrower agrees to take all such action as may be
appropriate to give effect to such right);
(iv) the Agent in its discretion may, in its name or in the name of
the Borrower or otherwise, demand, ▇▇▇ for, collect or receive any money
or property at any time payable or receivable on account of or in exchange
for any of the Collateral, but shall be under no obligation to do so; and
(v) the Agent may, upon 10 Business Days' prior written notice to
the Borrower of the time and place, with respect to the Collateral or any
part thereof which shall then be or shall thereafter come into the
possession, custody or control of the Agent, the Lenders or any of their
respective agents, sell, lease, assign or otherwise dispose of all or any
of such Collateral, at such place or places as the Agent deems best, and
for cash or on credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of time or place
thereof (except such notice as is required above or by applicable statute
and cannot be waived) and the Agent or any Lender or anyone else may be
the purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent permitted
by law, at any private sale), and thereafter hold the same absolutely,
free from any claim or right of whatsoever kind, including any right or
equity of redemption (statutory or otherwise), of the Borrower, any such
demand, notice or right and equity being hereby expressly waived and
released. In the event of any sale, assignment, or other disposition of
any of the Trademark Collateral, the goodwill of the Business connected
with and symbolized by the Trademark Collateral subject to such
disposition shall be included, and the Borrower shall supply to the Agent
or its designee, for inclusion in such sale, assignment or other
disposition, all Intellectual Property relating to such Trademark
Collateral. The Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the Agent in
Section 5.04(b)(1) hereof, shall be applied in accordance with Section 5.09
hereof.
The Borrower recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Agent may be compelled, with respect to any sale of all or
any part of the Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. The Borrower
acknowledges that any such private sales may be at prices and on terms less
favorable to the Agent than those obtainable through a public sale without such
restrictions, and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Agent shall have no obligation to engage in public sales and
no obligation to delay the sale of any Collateral for the period of time
necessary to permit the respective Issuer thereof to register it for public
sale.
5.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Borrower shall remain liable for any
deficiency.
5.07 REMOVALS, ETC. Without at least 30 days' prior written notice
to the Agent, the Borrower shall not (i) maintain any of its books or records
with respect to the Collateral at any office or maintain its chief executive
office or its principal place of business at any place, or permit any Inventory
or Equipment to be located anywhere other than at one of the locations
identified in Annex 6 hereto or in transit from one of such locations to another
or (ii) change its corporate name, or the name under which it does business,
from the name shown on the Borrower's signature page hereto.
5.08 PRIVATE SALE. The Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 hereof conducted in a commercially
reasonable manner. The Borrower hereby waives any claims against the Agent or
any Lender arising by reason of the fact that the price at which the Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale or was less than the aggregate amount of the
Secured Obligations, even if the Agent accepts the first offer received and does
not offer the Collateral to more than one offeree.
5.09 APPLICATION OF PROCEEDS. Except as otherwise herein expressly
provided and except as provided below in this Section 5.09, the proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Agent under Section
4 hereof or this Section 5, shall be applied by the Agent:
FIRST, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Agent and the fees and expenses of its agents and counsel,
and all expenses, and advances made or incurred by the Agent in connection
therewith;
NEXT, to the payment in full of the Secured Obligations in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
FINALLY, after payment in full of the Secured Obligations, to the
payment to the Borrower, or its successors or assigns, or as a court of
competent jurisdiction may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "LC Exposure Sub-Account" of the Collateral Account pursuant to Section 4.04
hereof shall be applied FIRST to the LC Exposure outstanding from time to time
and SECOND to the other Secured Obligations in the manner provided above in this
Section 5.09.
As used in this Section 5, "PROCEEDS" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Borrower or any issuer of or obligor on
any of the Collateral.
5.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted
by this Agreement to the Agent while no Event of Default has occurred and is
continuing, upon the occurrence and during the continuance of any Event of
Default the Agent is hereby appointed the attorney-in-fact of the Borrower for
the purpose of carrying out the provisions of this Section 5 and taking any
action and executing any instruments which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Agent shall be entitled under
this Section 5 to make collections in respect of the Collateral, the Agent shall
have the right and power to receive, endorse and collect all checks made payable
to the order of the Borrower representing any dividend, payment, or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
5.11 PERFECTION. Prior to or concurrently with the execution and
delivery of this Agreement, the Borrower shall (i) file such financing
statements and other documents in such offices as the Agent may request to
perfect the security interests granted by Section 3 hereof, (ii) cause the Agent
(to the extent requested by any Lender) to be listed as the lienholder on all
certificates of title or ownership relating to Motor Vehicles owned by the
Borrower, (iii) deliver to the Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in blank and (iv)
deliver to the Agent the Inter-company Notes owing to the Borrower and
outstanding on the date hereof, endorsed and/or accompanied by such instruments
of assignment and transfer in such form and substance as the Agent may
reasonably request.
5.12 TERMINATION. When all Secured Obligations shall have been paid
in full and the Commitments of the Lenders under the Credit Agreement and all LC
Exposure shall have expired or been terminated, the obligations of the Borrower
under this Agreement shall terminate, and the Agent shall forthwith cause to be
assigned, transferred and delivered, against receipt but without any recourse,
warranty or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Borrower and to be
released and cancelled all licenses and rights referred to in Section 5.04(b)(1)
hereof. The Agent shall also execute and deliver to the Borrower upon such
termination such Uniform Commercial Code termination statements, certificates
for terminating the Liens on the Motor Vehicles and such other documentation as
shall be reasonably requested by the Borrower to effect the termination and
release of the Liens on the Collateral.
5.13 EXPENSES. The Borrower agrees to pay to the Agent all
out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to, the enforcement of any of the provisions of this
Section 5, or performance by the Agent of any obligations of the Borrower in
respect of the Collateral which the Borrower has failed or refused to perform,
or any actual or attempted sale, or any exchange, enforcement, collection,
compromise or settlement in respect of any of the Collateral, and for the care
of the Collateral and defending or asserting rights and claims of the Agent in
respect thereof, by litigation or otherwise, including expenses of insurance,
and all such expenses shall be Secured Obligations to the Agent secured under
Section 3 hereof.
5.14 FURTHER ASSURANCES. The Borrower agrees that, from time to time
upon the written request of the Agent, the Borrower will execute and deliver
such further documents and do such other acts and things as the Agent may
reasonably request in order fully to effect the purposes of this Agreement.
5.15 RELEASE OF MOTOR VEHICLES. So long as no Default shall have
occurred and be continuing, upon the request of the Borrower, the Agent shall
execute and deliver to the Borrower such instruments as the Borrower shall
reasonably request to remove the notation of the Agent as lienholder on any
certificate of title for any Motor Vehicle; PROVIDED that any such instruments
shall be delivered, and the release effective only upon receipt by the Agent of
a certificate from the Borrower stating that the Motor Vehicle the lien on which
is to be released is to be sold or has suffered a Casualty Event (with title
thereto passing to the casualty insurance company therefor in settlement of the
claim for such loss) and any proceeds of such sale or Casualty Event, unless
such proceeds are not required to be applied as provided in Section 2.09(b) or
(c) of the Credit Agreement, being paid to the Agent hereunder.
5.16 RELEASE OF COLLATERAL. So long as no Default shall have
occurred and be continuing, upon the request of the Borrower, the Agent shall
execute and deliver to the Borrower such instruments as the Borrower shall
reasonably request to release any Collateral that is the subject of a
Disposition that is permitted by the Credit Agreement or to which the Majority
Lenders have consented.
Section 6. MISCELLANEOUS.
6.01 NO WAIVER. No failure on the part of the Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
6.02 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall
be governed by, and construed in accordance with, the law of the State of New
York. The Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State Court sitting in New York County for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Borrower irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
6.03 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.04 NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
address or telecopier number specified pursuant to Section 11.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 11.02.
6.05 WAIVERS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the
Borrower and the Agent (with the consent of such of the Lenders as are required
for such purpose under the Credit Agreement). Any such amendment or waiver shall
be binding upon the Borrower, the Agent and each Lender, each holder of any
Secured Obligation and the Borrower.
6.06 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Borrower, the Agent, the Lenders and each holder of the Secured Obligations
(provided, however, that the Borrower shall not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent, acting
with the consent of such of the Lenders as are required for such purpose under
the Credit Agreement).
6.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one and the same instrument
and any of the parties hereto may execute this Agreement by signing any such
counterpart.
6.08 AGENTS. The Agent may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
6.09 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Borrower
Security Agreement to be duly executed as of the day and year first above
written.
JOURNAL REGISTER COMPANY
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Executive Vice President
THE CHASE MANHATTAN BANK,
as Agent
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
ANNEX 1
LIST OF PLEDGED EQUITY
REGISTERED
ISSUER CERTIFICATE NOS. OWNER NUMBER OF SHARES
------ ---------------- ---------- ----------------
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
TITLE DATE FILED REGISTRATION NO. EFFECTIVE DATE
----- ---------- ---------------- --------------
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
PATENT
FILE DATE COUNTRY REGISTRATION NO.
---- ------ ------- ----------------
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
U.S. TRADEMARKS
APPLICATION (A)
REGISTRATION (R) REGISTRATION
▇▇▇▇ OR SERIES NO. (S) OR FILING DATE
---- ----------------- --------------
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
ANNEX 6
LIST OF LOCATIONS
State Street Square
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
EXHIBIT B-1
[CONFORMED COPY]
SUBSIDIARY GUARANTOR SECURITY AGREEMENT
SUBSIDIARY GUARANTOR SECURITY AGREEMENT dated as of July 15, 1998
between each of the Subsidiaries of Journal Register Company (the "BORROWER")
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereof (individually a "SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY
GUARANTORS" and, together with the Borrower, the "OBLIGORS"); and THE CHASE
MANHATTAN BANK, as administrative agent for the banks and other financial
institutions party to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "AGENT").
The Subsidiary Guarantors and the Agent are parties to a Security
Agreement dated as of December 21, 1994 (as heretofore modified and supplemented
(including, without limitation, by Amendment No. 1 to JCI/JNI Security Agreement
dated as of May 13, 1997) and in effect on the date hereof, the "EXISTING
SUBSIDIARY GUARANTOR SECURITY AGREEMENT"), pursuant to which the Subsidiary
Guarantors pledged and granted a security interest in the Collateral (as defined
in the Existing Subsidiary Guarantor Security Agreement) as security for the
Secured Obligations (as so defined) including, INTER ALIA, obligations of the
Borrower under a Credit Agreement dated as of May 2, 1997 with certain banks and
the Agent (as heretofore modified and supplemented and in effect on the date of
this Agreement, the "EXISTING CREDIT AGREEMENT"). Substantially concurrently
herewith, the parties to the Existing Credit Agreement are amending in certain
respects and restating in its entirety the Existing Credit Agreement pursuant to
a Credit Agreement dated as of the date hereof (as modified and supplemented and
in effect from time to time, the "CREDIT AGREEMENT"). In addition, in connection
with the amendment and restatement of the Existing Credit Agreement, the
Subsidiary Guarantors and the Agent are amending and restating in its entirety
the Guarantee Agreement dated as of December 21, 1994 pursuant to a Guarantee
Agreement dated as of the date hereof (as modified and supplemented and in
effect from time to time, the "SUBSIDIARY GUARANTEE") whereby the Subsidiary
Guarantors guarantee the obligations of the Borrower under the Credit Documents
and certain other obligations of the Borrower.
To induce said banks and the Agent to enter into the Credit
Agreement and to extend credit thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Subsidiary Guarantors have agreed to pledge and grant a security interest in the
Collateral (as hereinafter defined) as security for the Secured Obligations (as
so defined), and to confirm the prior pledge and grant of a security interest in
the "Collateral" (as defined in the Existing Subsidiary Guarantor Security
Agreement) pursuant to the Existing Subsidiary Guarantor Security Agreement and
in that connection to amend and restate in its entirety the Existing Subsidiary
Guarantor Security Agreement. Accordingly, the parties hereto hereby agree as
follows:
Section 1. DEFINITIONS. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein:
"ACCOUNTS" shall have the meaning ascribed thereto in Section
3(d) hereof.
"BUSINESS" shall mean the business of newspaper publishing and
offset printing and the other businesses from time to time, now or
hereafter, conducted by the Borrower and its Subsidiaries.
"COLLATERAL" shall have the meaning ascribed thereto in Section 3
hereof.
"COLLATERAL ACCOUNT" shall have the meaning ascribed thereto in
Section 4.01 hereof.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now owned
or hereafter acquired by any of the Subsidiary Guarantors, that are
associated with the Business, including each Copyright identified in Annex
2 hereto.
"COPYRIGHTS" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation,
all renewals and extensions thereof, the right to recover for all past,
present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
"DOCUMENTS" shall have the meaning ascribed thereto in Section
3(j) hereof.
"EQUIPMENT" shall have the meaning ascribed thereto in Section
3(h) hereof.
"EQUITY COLLATERAL" shall mean, collectively, the Collateral
described in clauses (a) through (c) of Section 3 hereof and the proceeds
of and to any such property and, to the extent related to any such
property or such proceeds, all books, correspondence, credit files,
records, invoices and other papers.
"INSTRUMENTS" shall have the meaning ascribed thereto in Section
3(e) hereof.
"INTELLECTUAL PROPERTY" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets used or useful in the Business;
(b) all licenses or user or other agreements granted to any of the
Subsidiary Guarantors with respect to any of the foregoing, in each case
whether now or hereafter owned or used including, without limitation, the
licenses or other agreements with respect to the Copyright Collateral, the
Patent Collateral or the Trademark Collateral listed in Annex 5 hereto;
(c) all information, customer lists, identification of suppliers, data,
plans, blueprints, specifications, designs, drawings, recorded knowledge,
surveys, engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and
automatic machinery software and programs, and the like pertaining to the
operation by any of the Subsidiary Guarantors of the Business; (d) all
field repair data, sales data and other information relating to sales or
service of products now or hereafter manufactured and which pertain to the
Business; (e) all accounting information which pertains to the Business
and all media in which or on which any of the information or knowledge or
data or records which pertain to the Business may be recorded or stored
and all computer programs used for the compilation or printout of such
information, knowledge, records or data; (f) all licenses, consents,
permits, variances, certifications and approvals of governmental agencies
now or hereafter held by any of the Subsidiary Guarantors pertaining to
the operation by the Borrower and its Subsidiaries of the Business; and
(g) all causes of action, claims and warranties now or hereafter owned or
acquired by any of the Subsidiary Guarantors in respect of any of the
items listed above.
"INTER-COMPANY NOTES" shall mean, collectively, each promissory note
issued by any Subsidiary Guarantor and owing to the Borrower or any other
Subsidiary Guarantor, whether now existing or hereinafter coming into
existence.
"INVENTORY" shall have the meaning ascribed thereto in Section
3(f) hereof.
"ISSUERS" shall mean, collectively, the respective corporations
identified in Annex 1 hereto under the caption "ISSUER".
"MOTOR VEHICLES" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"PATENT COLLATERAL" shall mean all Patents, whether now owned or
hereafter acquired by any of the Subsidiary Guarantors, that are
associated with the Business, including each Patent identified in Annex 3
hereto.
"PATENTS" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable under and with
respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, the right to ▇▇▇ for past, present
and future infringements thereof, and all rights corresponding thereto
throughout the world.
"PLEDGED EQUITY" shall have the meaning ascribed thereto in Section
3(a) hereof.
"SECURED OBLIGATIONS" shall mean, collectively, (a) the obligations
of the Borrower to pay the principal of and interest on the Loans made (or
as of the Effective Date, continued) by the Lenders to, and the Notes held
by each Lender of, the Borrower and all other amounts from time to time
owing to the Lenders or the Agent by the Borrower under the Credit
Documents (including, without limitation, all LC Disbursements and
interest thereon) and interest thereon, (b) the obligations of the
Borrower and/or any of its Subsidiaries to pay all amounts from time to
time owing to any Lender or any Affiliate of a Lender by the Borrower
and/or any of its Subsidiaries in respect of any Hedging Agreement entered
into by the Borrower and/or any of its Subsidiaries and such Lender or
such Affiliate, (c) the obligations of the Borrower to pay all amounts
owing from time to time in respect of letters of credit or similar
instruments issued under Section 8.07(g) of the Credit Agreement issued by
any Lender or any Affiliate of a Lender for account of the Borrower and
(d) all obligations of any Subsidiary Guarantor to the Lenders and the
Agent hereunder and under the other Credit Documents to which such
Subsidiary Guarantor is a party.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now owned
or hereafter acquired by any of the Subsidiary Guarantors, that are
associated with the Business, including each Trademark identified in Annex
4 hereto. Notwithstanding the foregoing, the Trademark Collateral does not
and shall not include any Trademark which would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part
of the Trademark Collateral.
"TRADEMARKS" shall mean all trade names, trademarks and service
marks, logos, trademark and service ▇▇▇▇ registrations, and applications
for trademark and service ▇▇▇▇ registrations, including, without
limitation, all renewals of trademark and service ▇▇▇▇ registrations, all
rights corresponding thereto throughout the world, the right to recover
for all past, present and future infringements thereof, all other rights
of any kind whatsoever accruing thereunder or pertaining thereto,
together, in each case, with the product lines and goodwill of the
business connected with the use of, and symbolized by, each such trade
name, trademark and service ▇▇▇▇.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as
in effect in the State of New York from time to time.
Section 2. REPRESENTATIONS AND WARRANTIES. Each Subsidiary
Guarantor represents and warrants to the Lenders and the Agent that:
(a) such Subsidiary Guarantor is the sole beneficial owner of the
Collateral in which it purports to grant a security interest pursuant to
Section 3 hereof and no Lien exists or will exist upon any such Collateral
at any time (and, with respect to the Equity Collateral, no right or
option to acquire the same exists in favor of any other Person), except
for Liens permitted under Section 8.06 of the Credit Agreement and except
for the pledge and security interest in favor of the Agent for the benefit
of the Lenders created or provided for herein which pledge and security
interest constitutes a first priority perfected pledge and security
interest in and to all of such Collateral (other than Intellectual
Property registered or otherwise located outside of the United States of
America);
(b) the Pledged Equity evidenced by the certificates identified
under the name of such Subsidiary Guarantor in Annex 1 hereto is, and all
other Pledged Equity in which such Subsidiary Guarantor shall hereafter
grant a security interest pursuant to Section 3 hereof will be, duly
authorized, validly issued, fully paid and nonassessable (in the case of
any equity interest in a corporation) and duly issued and outstanding (in
the case of any equity interest in any other entity) and none of such
Pledged Equity is or will be subject to any contractual restriction, or
any restriction under the charter, by-laws, partnership agreement, limited
liability company agreement or other organizational document of the
respective Issuers of such Pledged Equity, upon the transfer of such
Pledged Equity (except for any such restriction contained herein or in the
Credit Agreement);
(c) the Pledged Equity evidenced by the certificates identified
under the name of such Subsidiary Guarantor in Annex 1 hereto constitutes
all of the issued and outstanding shares of capital stock, partnership
interest, limited liability company or other ownership interest of any
class or character of the Issuers beneficially owned by such Subsidiary
Guarantor on the date hereof (whether or not registered in the name of
such Subsidiary Guarantor) and said Annex 1 correctly identifies, as at
the date hereof, the respective Issuers of such Pledged Equity, the
respective class and (in the case of any corporate Issuer) par value of
the shares comprising such Pledged Equity and the respective number of
shares (and registered owner thereof) evidenced by each such certificate;
(d) Annexes 2, 3 and 4 hereto, respectively, set forth under the
name of such Subsidiary Guarantor a complete and correct list of all
Copyrights, Patents and Trademarks owned by such Subsidiary Guarantor on
the date hereof; except pursuant to licenses and other user agreements
entered into by such Subsidiary Guarantor in the ordinary course of
business, which are listed in Annex 5 hereto, such Subsidiary Guarantor
owns and possesses the right to use, and has done nothing to authorize or
enable any other Person to use, any Copyright, Patent or Trademark listed
in said Annexes 2, 3 and 4, and all registrations listed in said Annexes
2, 3 and 4 are valid and in full force and effect; except as may be set
forth in said Annex 5, the Subsidiary Guarantors own and possess the right
to use all Copyrights, Patents and Trademarks necessary for the operation
of the Business;
(e) Annex 5 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property
on the date hereof;
(f) to such Subsidiary Guarantor's knowledge, (i) except as set
forth in Annex 5 hereto, there is no violation by others of any right of
such Subsidiary Guarantor with respect to any Copyright, Patent or
Trademark listed in Annexes 2, 3 and 4 hereto, respectively, under the
name of such Subsidiary Guarantor and (ii) such Subsidiary Guarantor is
not, in connection with the Business, infringing in any respect upon any
Copyright, Patent or Trademark of any other Person; and no proceedings
have been instituted or are pending against such Subsidiary Guarantor or,
to such Subsidiary Guarantor's knowledge, threatened, and no claim against
such Subsidiary Guarantor has been received by such Subsidiary Guarantor,
alleging any such violation, except as may be set forth in said Annex 5;
(g) such Subsidiary Guarantor does not own any Trademarks registered
in the United States of America to which the last sentence of the
definition of Trademark Collateral applies;
(h) any goods now or hereafter produced by such Subsidiary Guarantor
or any of its Subsidiaries included in the Collateral have been and will
be produced in compliance with the requirements of the Fair Labor
Standards Act, as amended; and
(i) Annex 6 hereto correctly and completely specifies the location
of the chief executive office or principal place of business of such
Subsidiary Guarantor and also correctly and completely specifies the place
at which all Inventory or Equipment of such Subsidiary Guarantor is
located.
Section 3. COLLATERAL. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, the Subsidiary Guarantors hereby pledge and grant to
the Agent (and confirm the prior pledge and grant to the Agent pursuant to the
Existing Subsidiary Guarantor Security Agreement, which are hereby confirmed
hereunder), for the benefit of the Lenders as hereinafter provided, a security
interest in all of the Subsidiary Guarantors' right, title and interest in, to
and under the following property, whether now owned by the Subsidiary Guarantors
or hereafter acquired and whether now existing or hereafter coming into
existence, and wherever located (all being collectively referred to herein as
"COLLATERAL"):
(a) the shares of capital stock (whether common or preferred) of, or
partnership, limited liability company or other ownership interest in, the
respective Issuers identified in Annex 1 hereto under the names of the
respective Subsidiary Guarantors and all other shares of capital stock or
partnership, limited liability company or other ownership interest of
whatever class or character of the Issuers, now or hereafter owned by the
Subsidiary Guarantors, together with in each case the certificates
evidencing the same (collectively, the "PLEDGED EQUITY");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Equity, or representing a distribution or
return of capital upon or in respect of the Pledged Equity, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Equity or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Equity;
(c) without affecting the obligations of the Subsidiary Guarantors
under any provision prohibiting such action hereunder or under the Credit
Agreement, in the event of any consolidation or merger in which any Issuer
is not the surviving entity, all ownership interests of any class or
character of the successor entity (unless such successor entity is such
Subsidiary Guarantor itself) formed by or resulting from such
consolidation or merger;
(d) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Subsidiary Guarantors constituting any
right to the payment of money, including (but not limited to) all moneys
due and to become due to the Subsidiary Guarantors in respect of any loans
or advances for the purchase price of Inventory or Equipment or other
goods sold or leased or for services rendered, all moneys due and to
become due to the Subsidiary Guarantors under any guarantee (including a
letter of credit) of the purchase price of Inventory or Equipment sold by
the Subsidiary Guarantors and all tax refunds and any and all rights of
the Subsidiary Guarantors in any escrow or trust account, whether fixed or
contingent, and, upon the termination or revocation thereof or return of
sums contained in any escrow or trust account or otherwise, any and all
amounts due to, to become due to, or received by, the Subsidiary
Guarantors therefrom, whether as a result of one or more orders of a
Bankruptcy Court or otherwise (such accounts, general intangibles and
moneys due and to become due being herein called collectively "ACCOUNTS");
(e) all Inter-company Notes, instruments, chattel paper or letters
of credit (each as defined in the Uniform Commercial Code) of the
Subsidiary Guarantors including, without limitation, any of the foregoing
evidencing, representing, arising from or existing in respect of, relating
to, securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of
exchange, trade acceptances and the Inter-company Notes (herein
collectively called "INSTRUMENTS");
(f) all inventory (as defined in the Uniform Commercial Code) of the
Subsidiary Guarantors, including Motor Vehicles held by the Subsidiary
Guarantors for lease, fuel, tires and other spare parts, all goods
obtained by the Subsidiary Guarantors in exchange for such inventory, and
any products made or processed from such inventory including all
substances, if any, commingled therewith or added thereto (herein
collectively called "INVENTORY");
(g) all Intellectual Property and all other accounts or general
intangibles of the Subsidiary Guarantors not constituting Intellectual
Property or Accounts;
(h) all equipment (as defined in the Uniform Commercial Code) of the
Subsidiary Guarantors, including all Motor Vehicles used in the Business
(herein collectively called "EQUIPMENT");
(i) each contract and other agreement of the Subsidiary
Guarantors relating to the sale or other disposition of Inventory or
Equipment;
(j) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Subsidiary Guarantors covering, evidencing
or representing Inventory or Equipment (herein collectively called
"DOCUMENTS");
(k) all rights, claims and benefits of the Subsidiary Guarantors
against any Person arising out of, relating to or in connection with
Inventory or Equipment purchased by the Subsidiary Guarantors, including,
without limitation, any such rights, claims or benefits against any Person
storing or transporting such Inventory or Equipment;
(l) the balance from time to time in the Collateral Account;
(m) all tangible property (including all machinery, apparatus,
equipment, fittings, personal property, and any other fixtures
whatsoever), now or hereafter located on or attached to real estate, and
any and all products and accessions to any such property which may exist
at any time;
(n) all rents, revenues, proceeds, issues, profits, royalties,
income and other benefits derived from real estate, and from any
improvements or fixtures thereon;
(o) all proceeds of insurance in effect with respect to any real
estate, or with respect to improvements or fixtures thereon, and any and
all awards made for the taking by eminent domain, or by any proceeding or
purchase in lieu thereof, of any real estate, or any improvements or
fixtures thereon, including without limitation any awards resulting from
any damage to any real estate, improvements or fixtures for which
compensation shall be given by any governmental authority; and
(p) all other tangible and intangible property of the respective
Subsidiary Guarantors, including, without limitation, proceeds, products
and accessions of and to any of the property of the Subsidiary Guarantors
described in clauses (a) through (o) above in this Section 3 (including,
without limitation, any proceeds of insurance thereon), and, to the extent
related to any property described in said clauses or such proceeds,
products and accessions, all books, correspondence, credit files, records,
invoices and other papers, including, without limitation, all tapes,
cards, computer runs and other papers and documents in the possession or
under the control of the respective Subsidiary Guarantors or any computer
bureau or service company from time to time acting for the respective
Subsidiary Guarantors.
Section 4. CASH PROCEEDS OF COLLATERAL.
4.01 COLLATERAL ACCOUNT. There has heretofore been established at
Chase a cash collateral account (the "COLLATERAL ACCOUNT"), which may be a
"securities account" (as defined in Section 8-501 of the Uniform Commercial
Code, in the name and under the sole dominion and control of the Agent (and, in
the case of a securities account, in respect of which the Agent is the
"entitlement holder" (as defined in Section 8-102(a)(7) of the Uniform
Commercial Code)), into which there shall be deposited from time to time the
cash proceeds of any of the Collateral (including proceeds of insurance thereon)
required to be delivered to the Agent pursuant hereto and into which the
Subsidiary Guarantors may from time to time deposit any additional amounts which
any of them wishes to pledge to the Agent for the benefit of the Lenders as
additional collateral security hereunder. The balance from time to time in the
Collateral Account shall constitute part of the Collateral hereunder and shall
not constitute payment of the Secured Obligations until applied as hereinafter
provided. Except as expressly provided in the next sentence, the Agent shall
remit the collected balance outstanding to the credit of the Collateral Account
to or upon the order of the Subsidiary Guarantors as the Subsidiary Guarantors
through the Borrower shall from time to time instruct. However, at any time
following the occurrence and during the continuance of an Event of Default, the
Agent may (and, if instructed by such of the Lenders as are required for such
purpose under the Credit Agreement, shall), in its (or their) discretion, apply
or cause to be applied (subject to collection) the balance from time to time
outstanding to the credit of the Collateral Account to the payment of the
Secured Obligations in the manner specified in Section 5.09 hereof. The balance
from time to time in the Collateral Account shall be subject to withdrawal only
by the Agent and only as provided herein.
4.02 PROCEEDS OF ACCOUNTS. Except as permitted by Section 5.01(b)
hereof, each Subsidiary Guarantor shall instruct all account debtors and other
Persons obligated in respect of all Accounts to make all payments in respect of
the Accounts either (a) directly to the Agent (by instructing that such payments
be remitted to a post office box which shall be in the name and under the
control of the Agent) or (b) to one or more other banks in the United States of
America (by instructing that such payments be remitted to a post office box
which shall be in the name and under the control of the Agent) under
arrangements, in form and substance satisfactory to the Agent, pursuant to which
such Subsidiary Guarantor shall have irrevocably instructed such other bank (and
such other bank shall have agreed) to remit all proceeds of such payments
directly to the Agent for deposit into the Collateral Account. All payments made
to the Agent, as provided in the preceding sentence, shall be immediately
deposited in the Collateral Account. In addition to the foregoing, each
Subsidiary Guarantor agrees that if the proceeds of any Collateral hereunder
(including payments made in respect of Accounts) shall be received by it, such
Subsidiary Guarantor shall as promptly as possible deposit such proceeds into
the Collateral Account. Until so deposited, all such proceeds shall be held in
trust by such Subsidiary Guarantor for and as the property of the Agent (for the
benefit of the Lenders) and shall not be commingled with any other funds or
property of such Subsidiary Guarantor.
4.03 INVESTMENT OF BALANCE IN COLLATERAL ACCOUNT. Amounts on deposit
in the Collateral Account shall be invested from time to time in such Cash
Equivalents as the Subsidiary Guarantors through the Borrower (or, after the
occurrence and during the continuance of a Default, the Agent) shall determine,
which Cash Equivalents shall be held in the name and be under the control of the
Agent, provided that (i) at any time after the occurrence and during the
continuance of an Event of Default, the Agent may (and, if instructed by such of
the Lenders as are required for such purpose under the Credit Agreement, shall)
in its (or their) discretion at any time and from time to time elect to
liquidate any such Cash Equivalents and to apply or cause to be applied the
proceeds thereof to the payment of the Secured Obligations in the manner
specified in Section 5.09 hereof and (ii) if requested by the Subsidiary
Guarantors through the Borrower, such Cash Equivalents may be held in the name
and under the control of one or more of the Lenders.
Section 5. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Subsidiary
Guarantors hereby jointly and severally agree with each Lender and the Agent as
follows:
5.01 DELIVERY AND OTHER PERFECTION. Each Subsidiary Guarantor
shall:
(a) if any of the above-described shares, securities, monies or
property required to be pledged by such Subsidiary Guarantor under clauses
(a), (b) and (c) of Section 3 hereof are received by such Subsidiary
Guarantor, forthwith either (x) transfer and deliver to the Agent such
shares or securities so received by such Subsidiary Guarantor (together
with the certificates for any such shares and securities duly endorsed in
blank or accompanied by undated stock powers duly executed in blank) all
of which thereafter shall be held by the Agent, pursuant to the terms of
this Agreement, as part of the Collateral (and until so transferred and
delivered to the Agent, all such shares, securities, monies or property
shall be held in trust by such Subsidiary Guarantor for and as the
property of the Agent (for the benefit of the Lenders) and shall not be
commingled with any other funds or property of such Subsidiary Guarantor)
or (y) take such other action as the Agent shall deem necessary or
appropriate to duly record the Lien created hereunder in such shares,
securities, monies or property referred to in said clauses (a), (b) and
(c);
(b) deliver and pledge to the Agent (for the benefit of the Lenders)
any and all Instruments, including, without limitation, all Inter-company
Notes, endorsed and/or accompanied by such instruments of assignment and
transfer in such form and substance as the Agent may request; PROVIDED
that so long as no Default shall have occurred and be continuing, such
Subsidiary Guarantor may retain for collection in the ordinary course any
Instruments received by it in the ordinary course of business and the
Agent shall, promptly upon request of such Subsidiary Guarantor through
the Borrower, make appropriate arrangements for making any other
Instrument pledged by such Subsidiary Guarantor available to it for
purposes of presentation, collection or renewal (any such arrangement to
be effected, to the extent deemed appropriate by the Agent, against trust
receipt or like document); PROVIDED, FURTHER, that so long as no Default
shall have occurred and be continuing, if any Inter-company Note pledged
by such Subsidiary Guarantor has been transferred by such Subsidiary
Guarantor to another Obligor as permitted by Section 8.05(c)(iv) of the
Credit Agreement, the Agent shall, promptly upon the request of such
Subsidiary Guarantor, deliver such Inter-company Note to such Obligor for
purposes of effecting such transfer, PROVIDED that, except in connection
with the cancellation of such Inter-company Note, the Agent shall receive
in exchange therefor, a substitute Inter-company Note payable to the new
Obligor in a like aggregate unpaid principal amount;
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate any security interest granted pursuant
hereto or to enable the Agent to exercise and enforce its rights hereunder
with respect to such security interest, including, without limitation,
causing any or all of the Equity Collateral to be transferred of record
into the name of the Agent or its nominee (and the Agent agrees that if
any Equity Collateral is transferred into its name or the name of its
nominee, the Agent will thereafter promptly give to the respective
Subsidiary Guarantor copies of any notices and communications received by
it with respect to the Equity Collateral pledged by such Subsidiary
Guarantor hereunder), provided that notices to account debtors in respect
of any Accounts or Instruments shall be subject to the provisions of
clause (i) below;
(d) without limiting the obligations of such Subsidiary Guarantor
under Section 5.04(c) hereof, upon the acquisition after the date hereof
by such Subsidiary Guarantor of any Equipment covered by a certificate of
title or ownership, cause the Agent to be listed as the lienholder on such
certificate of title and within 120 days of the acquisition thereof
deliver evidence of the same to the Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Agent may reasonably require in order to reflect the
security interests granted by this Agreement;
(f) furnish to the Agent from time to time (but, unless a Default
shall have occurred and be continuing, no more frequently than quarterly)
statements and schedules further identifying and describing the Copyright
Collateral, the Patent Collateral and the Trademark Collateral,
respectively, and such other reports in connection with the Copyright
Collateral, the Patent Collateral and the Trademark Collateral, as the
Agent may reasonably request, all in reasonable detail;
(g) promptly upon request of the Agent, following receipt by the
Agent of any statements, schedules or reports pursuant to clause (f)
above, modify this Agreement by amending Annex 2, 3 or 4 hereto, as the
case may be, to include any Copyright, Patent or Trademark which becomes
part of the Collateral under this Agreement;
(h) permit representatives of the Agent, upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Collateral, and permit
representatives of the Agent to be present at such Subsidiary Guarantor's
place of business to receive copies of all communications and remittances
relating to the Collateral, and forward copies of any notices or
communications received by such Subsidiary Guarantor with respect to the
Collateral all in such manner as the Agent may require;
(i) upon the occurrence and during the continuance of any Default,
upon request of the Agent, promptly notify (and such Subsidiary Guarantor
hereby authorizes the Agent so to notify) each account debtor in respect
of any Accounts or Instruments that such Collateral has been assigned to
the Agent hereunder, and that any payments due or to become due in respect
of such Collateral are to be made directly to the Agent; and
(j) in the event of any termination, revocation or return of sums
contained in any escrow account, trust account or escrow or trust
arrangement in which any Subsidiary Guarantor has a direct or indirect
interest, whether legal or equitable, promptly deposit any amounts
recovered by such Subsidiary Guarantor from any such account or from any
Person who theretofore received any such amount from any such account,
directly into the Collateral Account.
5.02 OTHER FINANCING STATEMENTS AND LIENS. Except as otherwise
permitted under Section 8.06 of the Credit Agreement, without the prior written
consent of the Agent (granted with the authorization of such of the Lenders as
are required for such purpose under the Credit Agreement), the Subsidiary
Guarantors shall not file or suffer to be on file, or authorize or permit to be
filed or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to the Collateral in which the Agent is not named as the
sole secured party for the benefit of the Lenders.
5.03 PRESERVATION OF RIGHTS. The Agent shall not be required to take
steps necessary to preserve any rights against prior parties to any of the
Collateral.
5.04 SPECIAL PROVISIONS RELATING TO CERTAIN COLLATERAL.
(a) EQUITY COLLATERAL.
(1) The Subsidiary Guarantors will cause the Equity Collateral to
constitute at all times 100% of the ownership interests of any class or
character of each Issuer then outstanding (or, in the case of the ownership by
New Haven Register, Inc. of the shares of The Hartford Times, Inc. ("HTI"), such
percentage of the total number of shares of each class of capital stock of HTI
owned as of the date hereof).
(2) So long as no Event of Default shall have occurred and be
continuing, the Subsidiary Guarantors shall have the right to exercise all
voting, consensual and other powers of ownership pertaining to the Equity
Collateral for all purposes not inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any other instrument or agreement referred to
herein or therein, provided that the Subsidiary Guarantors jointly and severally
agree that they will not vote the Equity Collateral in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement, the Notes
or any such other instrument or agreement; and the Agent shall execute and
deliver to the Subsidiary Guarantors or cause to be executed and delivered to
the Subsidiary Guarantors all such proxies, powers of attorney, dividend and
other orders, and all such instruments, without recourse, as the Subsidiary
Guarantors may reasonably request for the purpose of enabling the Subsidiary
Guarantors to exercise the rights and powers which they are entitled to exercise
pursuant to this Section 5.04(a)(2).
(3) Unless and until an Event of Default has occurred and is
continuing, but subject to the provisions of Section 8.09 of the Credit
Agreement which limit the right of each of the Borrower and its Subsidiaries to
declare or make any Restricted Payment, the Subsidiary Guarantors shall be
entitled to receive and retain any dividends or distributions in respect of the
Equity Collateral.
(4) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any Lender
exercises any available right to declare any Secured Obligation due and payable
or seeks or pursues any other relief or remedy available to it under applicable
law or under this Agreement, the Credit Agreement, any other Credit Document or
any other agreement relating to such Secured Obligation, all dividends and other
distributions on the Equity Collateral shall be paid directly to the Agent and
retained by it in the Collateral Account as part of the Equity Collateral,
subject to the terms of this Agreement, and, if the Agent shall so request in
writing, the Subsidiary Guarantors jointly and severally agree to execute and
deliver to the Agent appropriate additional dividend, distribution and other
orders and documents to that end, provided that if such Event of Default is
cured, any such dividend or distribution theretofore paid to the Agent shall,
upon request of the Subsidiary Guarantors (except to the extent theretofore
applied to the Secured Obligations) be returned by the Agent to the Subsidiary
Guarantors.
(b) INTELLECTUAL PROPERTY.
(1) For the purpose of enabling the Agent to exercise rights and
remedies under Section 5.05 hereof at such time as the Agent shall be lawfully
entitled to exercise such rights and remedies, and for no other purpose, the
Subsidiary Guarantors hereby grant to the Agent, to the extent assignable, an
irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to the Subsidiary Guarantors) to use, assign, license or
sublicense any of the Intellectual Property (other than the Trademark Collateral
or goodwill associated therewith) now owned or hereafter acquired by the
Subsidiary Guarantors, wherever the same may be located, including in such
license reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 8.05 of the Credit Agreement which limit
the right of the Borrower and its Subsidiaries to dispose of their property, so
long as no Event of Default shall have occurred and be continuing, the
Subsidiary Guarantors will be permitted to exploit, use, enjoy, protect,
license, sublicense, assign, sell, dispose of or take other actions with respect
to the Intellectual Property in the ordinary course of the business of the
Subsidiary Guarantors. In furtherance of the foregoing, unless an Event of
Default shall have occurred and is continuing the Agent shall from time to time,
upon the request of the Subsidiary Guarantors through the Borrower, execute and
deliver any instruments, certificates or other documents, in the form so
requested, which the Subsidiary Guarantors through the Borrower shall have
certified are appropriate (in their judgment) to allow them to take any action
permitted above (including relinquishment of the license provided pursuant to
clause (1) immediately above as to any specific Intellectual Property). Further,
upon the payment in full of all of the Secured Obligations and cancellation or
termination of the Commitments and LC Exposure or earlier expiration of this
Agreement or release of the Collateral, the Agent shall grant back to the
Subsidiary Guarantors the license granted pursuant to clause (1) immediately
above. The exercise of rights and remedies under Section 5.05 hereof by the
Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Subsidiary Guarantors in accordance with
the first sentence of this clause (2).
(c) MOTOR VEHICLES.
(1) At the request of the Agent, each Subsidiary Guarantor shall
deliver to the Agent originals of the certificates of title or ownership for the
Motor Vehicles owned by it with the Agent listed as lienholder.
(2) Upon the acquisition after the date hereof by any Subsidiary
Guarantor of any Motor Vehicle, at the request of the Agent such Subsidiary
Guarantor shall deliver to the Agent originals of the certificates of title or
ownership for such Motor Vehicle, together with the manufacturer's statement of
origin, with the Agent listed as lienholder; PROVIDED, however, if the Motor
Vehicle to be acquired is subject to a purchase money security interest, the
Agent shall be listed as a junior lienholder to the Person holding such purchase
money security interest.
(3) Without limiting Section 5.10 hereof, each Subsidiary Guarantor
hereby appoints the Agent as its attorney-in-fact, effective the date hereof and
terminating upon the termination of the obligations of the Subsidiary Guarantors
under this Agreement, for the purpose of (i) executing on behalf of such
Subsidiary Guarantor title or ownership applications for filing with appropriate
state agencies to enable Motor Vehicles now owned or hereafter acquired by such
Subsidiary Guarantor to be retitled and the Agent listed as lienholder thereon,
(ii) filing such applications with such state agencies and (iii) executing such
other documents and instruments on behalf of, and taking such other action in
the name of, such Subsidiary Guarantor as the Agent may deem necessary or
advisable to accomplish the purposes hereof (including, without limitation, the
purpose of creating in favor of the Agent (for the benefit of the Lenders) a
perfected lien on the Motor Vehicles and exercising the rights and remedies of
the Agent under Section 5.05 hereof). This appointment as attorney-in-fact is
irrevocable and coupled with an interest.
(4) Any certificates of title or ownership delivered pursuant to the
terms hereof shall be accompanied by odometer statements for each Motor Vehicle
covered thereby.
5.05 EVENTS OF DEFAULT, ETC. During the period during which an Event
of Default shall have occurred and be continuing:
(i) each Subsidiary Guarantor shall, at the request of the Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Agent and such Subsidiary Guarantor, designated in
its request;
(ii) the Agent may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may extend the
time of payment, arrange for payment in installments, or otherwise modify
the terms of, any of the Collateral;
(iii) the Agent shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform Commercial
Code (whether or not said Code is in effect in the jurisdiction where the
rights and remedies are asserted) and such additional rights and remedies
to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Agent were the sole and absolute
owner thereof (and each Subsidiary Guarantor agrees to take all such
action as may be appropriate to give effect to such right);
(iv) the Agent in its discretion may, in its name or in the name of
the Subsidiary Guarantors or otherwise, demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(v) the Agent may, upon 10 Business Days' prior written notice to
the Subsidiary Guarantors of the time and place, with respect to the
Collateral or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the Agent, the Lenders or
any of their respective agents, sell, lease, assign or otherwise dispose
of all or any of such Collateral, at such place or places as the Agent
deems best, and for cash or on credit or for future delivery (without
thereby assuming any credit risk), at public or private sale, without
demand of performance or notice of intention to effect any such
disposition or of time or place thereof (except such notice as is required
above or by applicable statute and cannot be waived) and the Agent or any
Lender or anyone else may be the purchaser, lessee, assignee or recipient
of any or all of the Collateral so disposed of at any public sale (or, to
the extent permitted by law, at any private sale), and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise), of
the Subsidiary Guarantors, any such demand, notice or right and equity
being hereby expressly waived and released. In the event of any sale,
assignment, or other disposition of any of the Trademark Collateral, the
goodwill of the Business connected with and symbolized by the Trademark
Collateral subject to such disposition shall be included, and the
Subsidiary Guarantors shall supply to the Agent or its designee, for
inclusion in such sale, assignment or other disposition, all Intellectual
Property relating to such Trademark Collateral. The Agent may, without
notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place
to which the same may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the Agent in
Section 5.04(b)(1) hereof, shall be applied in accordance with Section 5.09
hereof.
The Subsidiary Guarantors recognize that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Agent may be compelled, with respect to any sale of
all or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Subsidiary Guarantors acknowledge that any such private sales may be at prices
and on terms less favorable to the Agent than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agree
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Agent shall have no obligation to engage in
public sales and no obligation to delay the sale of any Collateral for the
period of time necessary to permit the respective Issuer thereof to register it
for public sale.
5.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Subsidiary Guarantors shall remain
liable for any deficiency.
5.07 REMOVALS, ETC. Without at least 30 days' prior written notice
to the Agent, the Subsidiary Guarantors shall not (i) maintain any of their
books or records with respect to the Collateral at any office or maintain their
chief executive office or their principal place of business at any place, or
permit any Inventory or Equipment to be located anywhere other than at one of
the locations identified in Annex 6 hereto under their respective names or in
transit from one of such respective locations to another or (ii) change the
respective corporate names, or the respective names under which they do
business, from the names shown on the signature pages hereto.
5.08 PRIVATE SALE. The Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 hereof conducted in a commercially
reasonable manner. The Subsidiary Guarantors hereby waive any claims against the
Agent or any Lender arising by reason of the fact that the price at which the
Collateral may have been sold at such a private sale was less than the price
which might have been obtained at a public sale or was less than the aggregate
amount of the Secured Obligations, even if the Agent accepts the first offer
received and does not offer the Collateral to more than one offeree.
5.09 APPLICATION OF PROCEEDS. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Agent under Section 4 hereof or this Section 5, shall be applied by the
Agent:
FIRST, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Agent and the fees and expenses of its agents and counsel,
and all expenses, and advances made or incurred by the Agent in connection
therewith;
NEXT, to the payment in full of the Secured Obligations in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
FINALLY, after payment in full of the Secured Obligations, to the
payment to the respective Subsidiary Guarantor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
As used in this Section 5, "PROCEEDS" of Collateral shall mean cash, securities
and other property realized in respect of, and distributions in kind of,
Collateral, including any thereof received under any reorganization, liquidation
or adjustment of debt of the Subsidiary Guarantors or any issuer of or obligor
on any of the Collateral.
5.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted
by this Agreement to the Agent while no Event of Default has occurred and is
continuing, upon the occurrence and during the continuance of any Event of
Default the Agent is hereby appointed the attorney-in-fact of the Subsidiary
Guarantors for the purpose of carrying out the provisions of this Section 5 and
taking any action and executing any instruments which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Agent shall be entitled under
this Section 5 to make collections in respect of the Collateral, the Agent shall
have the right and power to receive, endorse and collect all checks made payable
to the order of any Subsidiary Guarantor representing any dividend, payment, or
other distribution in respect of the Collateral or any part thereof and to give
full discharge for the same.
5.11 PERFECTION. Prior to or concurrently with the execution and
delivery of this Agreement, each Subsidiary Guarantor shall (i) file such
financing statements and other documents in such offices as the Agent may
request to perfect the security interests granted by Section 3 hereof, (ii)
cause the Agent (to the extent requested by any Lender) to be listed as the
lienholder on all certificates of title or ownership relating to Motor Vehicles
owned by such Subsidiary Guarantor, (iii) deliver to the Agent all certificates
identified in Annex 1 hereto, accompanied by undated stock powers duly executed
in blank and (iv) deliver to the Agent the Inter-company Notes owing to such
Subsidiary Guarantor and outstanding on the date hereof, endorsed and/or
accompanied by such instruments of assignment and transfer in such form and
substance as the Agent may reasonably request.
5.12 TERMINATION. When all Secured Obligations shall have been paid
in full and the Commitments of the Lenders under the Credit Agreement and all LC
Exposure shall have expired or been terminated, the obligations of the
Subsidiary Guarantors under this Agreement shall terminate, and the Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect thereof, to or on the order of the
respective Subsidiary Guarantors and to be released and cancelled all licenses
and rights referred to in Section 5.04(b)(1) hereof. The Agent shall also
execute and deliver to the respective Subsidiary Guarantors upon such
termination such Uniform Commercial Code termination statements, certificates
for terminating the Liens on the Motor Vehicles and such other documentation as
shall be reasonably requested by the respective Subsidiary Guarantors to effect
the termination and release of the Liens on the Collateral.
5.13 EXPENSES. The Subsidiary Guarantors jointly and severally agree
to pay to the Agent all out-of-pocket expenses (including reasonable expenses
for legal services of every kind) of, or incident to, the enforcement of any of
the provisions of this Section 5, or performance by the Agent of any obligations
of the Subsidiary Guarantors in respect of the Collateral which the Subsidiary
Guarantors have failed or refused to perform, or any actual or attempted sale,
or any exchange, enforcement, collection, compromise or settlement in respect of
any of the Collateral, and for the care of the Collateral and defending or
asserting rights and claims of the Agent in respect thereof, by litigation or
otherwise, including expenses of insurance, and all such expenses shall be
Secured Obligations to the Agent secured under Section 3 hereof.
5.14 FURTHER ASSURANCES. The Subsidiary Guarantors agree that, from
time to time upon the written request of the Agent, the Subsidiary Guarantors
will execute and deliver such further documents and do such other acts and
things as the Agent may reasonably request in order fully to effect the purposes
of this Agreement.
5.15 RELEASE OF MOTOR VEHICLES. So long as no Default shall have
occurred and be continuing, upon the request of any Subsidiary Guarantor, the
Agent shall execute and deliver to such Subsidiary Guarantor such instruments as
such Subsidiary Guarantor shall reasonably request to remove the notation of the
Agent as lienholder on any certificate of title for any Motor Vehicle; PROVIDED
that any such instruments shall be delivered, and the release effective only
upon receipt by the Agent of a certificate from such Subsidiary Guarantor
stating that the Motor Vehicle the lien on which is to be released is to be sold
or has suffered a Casualty Event (with title thereto passing to the casualty
insurance company therefor in settlement of the claim for such loss) and any
proceeds of such sale or Casualty Event, unless such proceeds are not required
to be applied as provided in Section 2.09(b)(i) or (ii) of the Credit Agreement,
being paid to the Agent hereunder.
5.16 RELEASE OF COLLATERAL. So long as no Default shall have
occurred and be continuing, upon the request of a Subsidiary Guarantor, the
Agent shall execute and deliver to such Subsidiary Guarantor such instruments as
such Subsidiary Guarantor shall reasonably request to release any Collateral
that is the subject of a Disposition that is permitted by the Credit Agreement
or to which the Majority Lenders have consented.
Section 6. MISCELLANEOUS.
6.01 NO WAIVER. No failure on the part of the Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
6.02 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall
be governed by, and construed in accordance with, the law of the State of New
York. Each Subsidiary Guarantor hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York State Court sitting in New York County for the purposes of all
legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each Subsidiary Guarantor irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
6.03 WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR, THE AGENT AND
EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.04 NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at the
Borrower's address or telecopier number specified pursuant to Section 11.02 of
the Credit Agreement and shall be deemed to have been given at the times
specified in said Section 11.02. Any notice to be delivered to any Subsidiary
Guarantor hereunder may be delivered to the Borrower on behalf of such
Subsidiary Guarantor.
6.05 WAIVERS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each
Subsidiary Guarantor and the Agent (with the consent of such of the Lenders as
are required for such purpose under the Credit Agreement). Any such amendment or
waiver shall be binding upon each Subsidiary Guarantor, the Agent and each
Lender, each holder of any Secured Obligation and the Subsidiary Guarantors.
6.06 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Subsidiary Guarantor, the Agent, the Lenders and each holder of the Secured
Obligations (PROVIDED, however, that no Subsidiary Guarantor shall assign or
transfer its rights or obligations hereunder without the prior written consent
of the Agent, acting with the consent of such of the Lenders as are required for
such purpose under the Credit Agreement).
6.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one and the same instrument
and any of the parties hereto may execute this Agreement by signing any such
counterpart.
6.08 AGENTS. The Agent may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
6.09 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Subsidiary
Guarantor Security Agreement to be duly executed as of the day and year first
above written.
SUBSIDIARY GUARANTORS
ALL HOME DISTRIBUTION, INC.
ASHEBORO PUBLICATIONS, INC.
▇▇▇▇▇▇ COMMUNICATIONS, LTD.
▇▇▇▇▇▇ FREEPORT PENNYSAVER, INC.
PENNYSAVER HOME DISTRIBUTION CORP.
▇▇▇▇▇▇ MEDIA, INC
▇▇▇▇▇▇ PENNYSAVER, INC.
▇▇▇▇▇▇ PENNYSAVER II, INC.
▇▇▇▇▇▇ PENNYSAVER III, INC.
▇▇▇▇▇▇ PENNYSAVER IV, INC.
THE HARTFORD TIMES, INC.
INS HOLDINGS, INC.
INS HOLDINGS (KANSAS), INC.
INTEGRATED NEWSPAPER SYSTEMS, INC.
INTERCOUNTY ACQUISITION
CORPORATION
JOURNAL COMPANY, INC.
JOURNAL NEWS, INC.
JOURNAL REGISTER EAST HOLDING
COMPANY, INC.
JOURNAL REGISTER EAST, INC.
JOURNAL REGISTER NEWSPAPERS, INC.
JOURNAL REGISTER SUPPLY, INC.
THE ▇▇▇▇▇ NEWS, INC.
MIDDLETOWN ACQUISITION CORP.
NORTHEAST HOLDING COMPANY, INC.
NORTHEAST PUBLISHING COMPANY, INC.
ORANGE COAST PUBLISHING COMPANY
REGISTER COMPANY, INC.
ST. LOUIS SUN PUBLISHING COMPANY
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
CAPITOL CITY PUBLISHING COMPANY, LLC
CENTRAL ACQUISITION, LLC
HOUSATONIC ACQUISITION, LLC
NEW HAVEN REGISTER, LLC
OMMA ACQUISITION, LLC
THE SARATOGIAN, LLC
SUBURBAN NEWSPAPERS OF GREATER ST.LOUIS, LLC
TAUNTON ACQUISITION, LLC
TIMES HERALD PUBLISHING COMPANY, LLC
BY /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Manager
AGENT
THE CHASE MANHATTAN BANK,
as Agent
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
ANNEX 1
LIST OF PLEDGED EQUITY
[NAME OF SUBSIDIARY GUARANTOR]
REGISTERED
ISSUER CERTIFICATE NOS. OWNER NUMBER OF SHARES
------ ---------------- ---------- ----------------
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[NAME OF SUBSIDIARY GUARANTOR]
TITLE DATE FILED REGISTRATION NO. EFFECTIVE DATE
----- ---------- ---------------- --------------
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
JOURNAL NEWS, INC.
------------------
FILE PATENT COUNTRY REGISTRATION NO. DATE
---- ------ ------- ---------------- ----
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
U.S. TRADEMARKS
[NAME OF SUBSIDIARY GUARANTOR]
------------------------------
APPLICATION (A)
REGISTRATION (R) REGISTRATION
▇▇▇▇ OR SERIES NO. (S) OR FILING DATE
---- ----------------- --------------
FOREIGN TRADEMARKS
------------------
[NAME OF SUBSIDIARY GUARANTOR]
------------------------------
APPLICATION (A)
REGISTRATION OR
▇▇▇▇ REGISTRATION (R) COUNTRY FILING DATE (F)
---- ---------------- ------- ---------------
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[NAME OF SUBSIDIARY GUARANTOR]
------------------------------
ANNEX 6
LIST OF LOCATIONS
[NAME OF SUBSIDIARY GUARANTOR]
------------------------------
EXHIBIT B-2
[CONFORMED COPY]
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of July 15, 1998, between each of
the corporations identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto (each individually, a "SUBSIDIARY GUARANTOR" and,
collectively, the "SUBSIDIARY GUARANTORS"); and THE CHASE MANHATTAN BANK, as
agent for the lenders or other financial institutions or entities party, as
lenders, to the Credit Agreement referred to below (in such capacity, together
with its successors in such capacity, the "AGENT").
The Subsidiary Guarantors and the Agent are parties to a
Guarantee Agreement dated as of December 21, 1994 (as heretofore modified and
supplemented and in effect on the date hereof, the "EXISTING SUBSIDIARY
GUARANTEE "), pursuant to which the Subsidiary Guarantors guaranteed the prompt
payment in full of the Guaranteed Obligations (as so defined) including, INTER
ALIA, obligations of the Borrower under a Credit Agreement dated as of May 2,
1997 with certain banks and the Agent (as heretofore modified and supplemented
and in effect on the date of this Agreement, the "EXISTING CREDIT AGREEMENT").
Substantially concurrently herewith, the parties to the Existing Credit
Agreement are amending in certain respects and restating in its entirety the
Existing Credit Agreement pursuant to a Credit Agreement dated as of the date
hereof (as modified and supplemented and in effect from time to time, the
"CREDIT AGREEMENT").
To induce said lenders to enter into the Credit Agreement and
to extend credit thereunder and to extend credit to the Borrower that would
constitute Other Indebtedness (as hereinafter defined), and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Subsidiary Guarantor has agreed to guarantee the Guaranteed
Obligations (as hereinafter defined), and in that connection to amend and
restate in its entirety the Existing Subsidiary Guarantee. Accordingly, the
parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein, the term "OTHER
INDEBTEDNESS" shall mean (a) the obligations of the Borrower and/or any of its
Subsidiaries to pay all amounts from time to time owing to any Lender or any
Affiliate of a Lender by the Borrower and/or any of its Subsidiaries in respect
of any Hedging Agreement entered into by the Borrower and/or any of its
Subsidiaries and such Lender or such Affiliate and (b) the obligations of the
Borrower to pay all amounts owing from time to time in respect of letters of
credit or similar instruments issued under Section 8.07(g) of the Credit
Agreement issued by any Lender or any Affiliate of a Lender for account of the
Borrower.
Section 2. THE GUARANTEE.
2.01 THE GUARANTEE. The Subsidiary Guarantors hereby jointly
and severally guarantee to each Lender and the Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Loans made by the Lenders to, and the Note(s) held by each Lender of, the
Borrower and all other amounts from time to time owing to the Lenders or the
Agent by the Borrower under the Credit Agreement and under the Notes and all LC
Disbursements and all Other Indebtedness and interest thereon, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "GUARANTEED OBLIGATIONS"). The Subsidiary Guarantors
hereby further jointly and severally agree that if the Borrower shall fail to
pay in full when due (whether at stated maturity, by acceleration or otherwise)
any of the Guaranteed Obligations, the Subsidiary Guarantors will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal. In addition to the foregoing, the Subsidiary Guarantors agree, as
principal obligors and not as guarantors only, to pay to the Agent and each of
the Lenders forthwith upon demand, in immediately available funds, all fees,
expenses and costs, including, without limitation, reasonable attorney's fees
and expenses, incurred or expended by any of them in connection with this
Guarantee and the preservation and enforcement of its or their rights hereunder,
together with interest on amounts recoverable under this Guarantee from the time
such amounts become due until payment at the Post-Default Rate.
2.02 OBLIGATIONS UNCONDITIONAL. The obligations of the
Subsidiary Guarantors under Section 2.01 hereof are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.02 that the obligations of the Subsidiary
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
the Credit Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor
of, the Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall be released or shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
2.03 REINSTATEMENT. The obligations of the Subsidiary
Guarantors under this Section 2 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the Agent and
each Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
2.04 SUBROGATION. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration or termination of the Commitments
under the Credit Agreement they shall not exercise any right or remedy arising
by reason of any performance by them of their guarantee in Section 2.01 hereof,
whether by subrogation or otherwise, against the Borrower or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
2.05 REMEDIES. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under the Credit Agreement and the Notes may be
declared to be forthwith due and payable as provided in Section 9 of the Credit
Agreement (and shall be deemed to have become automatically due and payable in
the circumstances provided in said Section 9) for purposes of Section 2.01
hereof notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Subsidiary Guarantors for purposes of said Section
2.01.
2.06 INSTRUMENT FOR THE PAYMENT OF MONEY. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Section 2 constitutes
an instrument for the payment of money, and consents and agrees that any Lender
or the Agent, at its sole option, in the event of a dispute by such Subsidiary
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
2.07 CONTINUING GUARANTEE. The guarantee in this Section 2 is
a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.08 RIGHTS OF CONTRIBUTION. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the Properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) made by such
Excess Funding Guarantor in respect of such Guaranteed Obligations. The payment
obligation of a Subsidiary Guarantor to any Excess Funding Guarantor under this
Section 2.08 shall be subordinate and subject in right of payment to the prior
payment in full of the obligations of such Subsidiary Guarantor under the other
provisions of this Section 2 and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations.
For purposes of this Section 2.08, (i) "EXCESS FUNDING
GUARANTOR" shall mean, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "EXCESS PAYMENT" shall mean, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Share of such Guaranteed Obligations and (iii) "PRO RATA SHARE"
shall mean, for any Subsidiary Guarantor, the ratio (expressed as a percentage)
of (x) the amount by which the aggregate fair saleable value of all Properties
of such Subsidiary Guarantor (excluding any shares of stock of any other
Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of
such Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all Properties of the Borrower and all of
the Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantors hereunder) of the
Borrower and all of the Subsidiary Guarantors as of the date hereof. If any
entity becomes a Subsidiary Guarantor hereunder subsequent to the date hereof,
then for purposes of this Section 2.08 such subsequent Subsidiary Guarantor
shall be deemed to have been a Subsidiary Guarantor as of the date hereof and
the aggregate present fair saleable value of Properties, and the amount of the
debts and liabilities, of such Subsidiary Guarantor as of the date hereof shall
be deemed to be equal to such value and amount on the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
2.09 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 2.01 hereof would otherwise, taking into account the provisions of
Section 2.08 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 2.01, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, the Agent, the Lenders or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
Section 3. REPRESENTATIONS AND WARRANTIES. Each Subsidiary
Guarantor represents and warrants to the Lenders and the Agent that:
3.01 CORPORATE EXISTENCE. Such Subsidiary Guarantor: (a) is a
corporation duly organized and validly existing and in good standing under the
laws of the jurisdiction of its incorporation; (b) has all requisite corporate
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would (either
individually or in the aggregate) have a material adverse effect on its
financial condition, operations, business or prospects.
3.02 LITIGATION. Except as listed or described in Schedule II
to the Credit Agreement, there are no legal or arbitral proceedings or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of such Subsidiary Guarantor) threatened against
such Subsidiary Guarantor which might reasonably be expected to be adversely
determined and, if so determined, might reasonably be expected (either
individually or in the aggregate) to have a material adverse effect on the
financial condition, operations, business or prospects of such Subsidiary
Guarantor or on the ability of such Subsidiary Guarantor to perform its
obligations hereunder or on the rights and remedies of the Agent or the Lenders
hereunder or on the validity or enforceability of this Guarantee.
3.03 NO BREACH. None of the execution and delivery of this
Guarantee Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of such
Subsidiary Guarantor, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
agreement or instrument to which such Subsidiary Guarantor is a party or by
which it is bound or to which it is subject, or constitute a default under any
such agreement or instrument, or result in the creation or imposition of any
Lien upon any of the revenues or assets of such Subsidiary Guarantor pursuant to
the terms of any such agreement or instrument.
3.04 CORPORATE ACTION. Such Subsidiary Guarantor has all
necessary corporate power and authority to execute, deliver and perform its
obligations under this Guarantee Agreement; the execution, delivery and
performance by such Subsidiary Guarantor of this Guarantee Agreement have been
duly authorized by all necessary corporate action on its part; and this
Guarantee Agreement has been duly and validly executed and delivered by such
Subsidiary Guarantor and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as the same may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
3.05 APPROVALS. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by such
Subsidiary Guarantor of this Guarantee Agreement or for the validity or
enforceability hereof.
Section 4. MISCELLANEOUS.
4.01 NO WAIVER. No failure on the part of the Agent or any
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
4.02 NOTICES. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the Borrower's "Address for Notices" specified pursuant to Section
11.02 of the Credit Agreement (with such copies as specified therein) and shall
be deemed to have been given at the times specified in said Section 11.02.
4.03 EXPENSES. The Subsidiary Guarantors jointly and severally
agree to reimburse each of the Lenders and the Agent for all reasonable costs
and expenses of the Lenders and the Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (i) any
Default and any enforcement or collection proceedings relating thereto,
including, without limitation, (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 4.04.
4.05 AMENDMENTS, ETC. The terms of this Guarantee Agreement
may be waived, altered or amended only by an instrument in writing duly executed
by each Subsidiary Guarantor and the Agent (with the written consent of such of
the Lenders as are required for such purpose in Section 10.09 of the Credit
Agreement). Any such amendment or waiver shall be binding upon the Agent and
each Lender and each other holder of any of the Guaranteed Obligations.
4.06 SUCCESSORS AND ASSIGNS. This Guarantee Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of each Subsidiary Guarantor, the Agent, the Lenders and each holder of any of
the Guaranteed Obligations (PROVIDED, however, that no Subsidiary Guarantor
shall assign or transfer its rights hereunder without the prior written consent
of the Agent).
4.07 CAPTIONS. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Guarantee Agreement.
4.08 COUNTERPARTS. This Guarantee Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Guarantee
Agreement by signing any such counterpart.
4.09 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
4.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Guarantee
Agreement shall be governed by, and construed in accordance with, the law of the
state of New York. Each Subsidiary Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York County for the
purposes of all legal proceedings arising out of or relating to this Guarantee
Agreement or the transactions contemplated hereby. Each Subsidiary Guarantor
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
4.11 WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR, THE
AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS GUARANTEE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this
Guarantee Agreement to be duly executed and delivered as of the day and year
first above written.
SUBSIDIARY GUARANTORS
---------------------
ALL HOME DISTRIBUTION, INC.
ASHEBORO PUBLICATIONS, INC.
▇▇▇▇▇▇ COMMUNICATIONS, LTD.
▇▇▇▇▇▇ FREEPORT PENNYSAVER, INC.
PENNYSAVER HOME DISTRIBUTION CORP.
▇▇▇▇▇▇ MEDIA, INC
▇▇▇▇▇▇ PENNYSAVER, INC.
▇▇▇▇▇▇ PENNYSAVER II, INC.
▇▇▇▇▇▇ PENNYSAVER III, INC.
▇▇▇▇▇▇ PENNYSAVER IV, INC.
THE HARTFORD TIMES, INC.
INS HOLDINGS, INC.
INS HOLDINGS (KANSAS), INC.
INTEGRATED NEWSPAPER SYSTEMS, INC.
INTERCOUNTY ACQUISITION
CORPORATION
JOURNAL COMPANY, INC.
JOURNAL NEWS, INC.
JOURNAL REGISTER EAST HOLDING
COMPANY, INC.
JOURNAL REGISTER EAST, INC.
JOURNAL REGISTER NEWSPAPERS, INC.
JOURNAL REGISTER SUPPLY, INC.
THE ▇▇▇▇▇ NEWS, INC.
MIDDLETOWN ACQUISITION CORP.
NORTHEAST HOLDING COMPANY, INC.
NORTHEAST PUBLISHING COMPANY, INC.
ORANGE COAST PUBLISHING COMPANY
REGISTER COMPANY, INC.
ST. LOUIS SUN PUBLISHING COMPANY
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
CAPITOL CITY PUBLISHING COMPANY, LLC
CENTRAL ACQUISITION, LLC
HOUSATONIC ACQUISITION, LLC
NEW HAVEN REGISTER, LLC
OMMA ACQUISITION, LLC
THE SARATOGIAN, LLC
SUBURBAN NEWSPAPERS OF GREATER ST. LOUIS, LLC
TAUNTON ACQUISITION, LLC
TIMES HERALD PUBLISHING COMPANY, LLC
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Manager
AGENT
-----
THE CHASE MANHATTAN BANK, as Agent
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
EXHIBIT C
[Form of Compliance Certificate]
CERTIFICATE OF COMPLIANCE WITH CREDIT AGREEMENT
DATED AS OF _______, 1998
JOURNAL REGISTER COMPANY
This Compliance Certificate is delivered pursuant to Section 8.01 of
the Credit Agreement dated as of , 1998 (as amended, supplemented or otherwise
modified and in effect from time to time, the "CREDIT AGREEMENT") between
Journal Register Company (the "BORROWER"), the Lenders party thereto and The
Chase Manhattan Bank, as Agent. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned them in the Credit Agreement.
Entries on Annex A hereto shall relate to the periods referred to in the Credit
Agreement for determination thereof and represent descriptive references only to
the corresponding components set forth in the relevant sections of the Credit
Agreement (and the definitions therein ancillary thereto). This Compliance
Certificate relates to the fiscal [QUARTER/YEAR] of the Borrower ended
-----------, ----.
I, _____________________, the __________________ of the Borrower,
hereby certify that (a) no Default has occurred and is continuing; (b) the
financial statements annexed hereto fairly present the financial condition and
results of operations of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles, consistently applied, as at the end of
[THE RELEVANT PERIOD] [(SUBJECT TO NORMAL YEAR-END AUDIT ADJUSTMENTS)] and (c)
the information contained in Annex A hereto is true and correct.
JOURNAL REGISTER COMPANY
By__________________________
Name:
Title:
Date:____________________
ANNEX A
COMPLIANCE CERTIFICATE
For the fiscal [QUARTER/YEAR]
ended on ________, 199_ (the "CALCULATION PERIOD")
Section 8.05(c)(ii)
-------------------
The aggregate fair market value of obsolete or worn-out
property, tools or equipment of the Borrower and its
Subsidiaries disposed of pursuant to Section 8.05(c)(ii)
during the Calculation Period $________
Aggregate year to date $________
MAXIMUM permitted in any calendar year $1,000,000
---------
Section 8.05(c)(iii)
-------------------
The aggregate fair market value of the assets of the
Borrower and its Subsidiaries sold for cash pursuant
to Section 8.05(c)(iii) during the Calculation Period $________
Aggregate year to date $________
Aggregate since the Effective Date $________
(a) MAXIMUM permitted in any fiscal year is equal to
15% of Cash Flow of the Borrower and its Subsidiaries
for such fiscal year (as determined in item (b) in $________
Section 8.11(b) below)
(b) MAXIMUM permitted after the Effective Date is equal
to 30% of cumulative Cash Flow of the Borrower (as
determined in item (b) in Section 8.11(b) below) $________
Section 8.05(c)(vi)
-------------------
The aggregate fair market value of the assets identified
on Annex 2 to the Credit Agreement sold for cash pursuant
to Section 8.05(c)(vi) of the Credit Agreement $________
MAXIMUM permitted $________
Section 8.06(h)
---------------
The maximum aggregate amount of Indebtedness of the
Borrower and its Subsidiaries outstanding at any time
during the Calculation Period secured by Liens
permitted by Section 8.06(h) $_________
MAXIMUM permitted at any time $10,000,000
-----------
Section 8.06(i)
---------------
The maximum aggregate amount of Indebtedness of the
Borrower and its Subsidiaries outstanding at any time
during the Calculation Period secured by additional
Liens as permitted by Section 8.06(i) $_________
MAXIMUM permitted at any time $10,000,000
-----------
Section 8.06(j)
---------------
(a) The maximum aggregate amount of Capital Lease
Obligations permitted under Section 8.07(d) and
outstanding at any time during the Calculation
Period secured by Liens as permitted by Section
8.06(j) $_________
(b) The aggregate value of the Property subject to
the sale and leaseback arrangements permitted
under Section 8.17 $_________
MAXIMUM permitted at any time ($50,000,000 minus (b)
above) $_________
Section 8.07(d)
---------------
The maximum aggregate amount of Indebtedness of the
Borrower and its Subsidiaries (other than Indebtedness
permitted by 8.07(a) and (c)) outstanding at any time
during the Calculation Period pursuant to Section 8.07(d) $_________
MAXIMUM permitted at any time $100,000,000
Section 8.07(e)
---------------
The maximum aggregate amount of Convertible Debt of
the Borrower outstanding at any time during the
Calculation Period pursuant to Section 8.07(e) and
having scheduled payments, prepayments, redemptions,
retirements, or sinking or defeasance fund or like payments
or final maturity on or in respect of such Indebtedness
required prior to the 91st day after the last scheduled
principal payment date of any of the Loans $_________
MAXIMUM permitted at any time $200,000,000
Section 8.08(e)
---------------
The aggregate amount of additional Investments made by
the Borrower and its Subsidiaries as permitted by 8.08(e) $_________
MAXIMUM permitted $50,000,000
-----------
Section 8.09(a)
---------------
The aggregate amount of cash dividends paid by the
Borrower on its common stock during the Calculation
Period $_________
(a) Cumulative Excess Cash Flow $________
(b) The Total Leverage Ratio as at the date of such
payment ______ to 1
MAXIMUM permitted cash dividends in any fiscal year
(i) If (b) above is less than 4.50 to 1, 50% of
the amount in clause (a) above $________
(ii) If (b) above is greater than or equal to 4.50 to
1, 25% of the amount in clause (a) above $________
Section 8.09(b)
---------------
The aggregate amount of additional cash dividends
paid by the Borrower on its common stock during the
Calculation Period pursuant to Section 8.09(b) $_________
MAXIMUM permitted in any fiscal year $4,000,000
---------
Section 8.09(c)
---------------
The aggregate amount of common stock of the Borrower
or options thereto repurchased from any management
official upon his or her death or termination of
employment for cash or promissory notes $_________
MAXIMUM permitted in any fiscal year $30,000,000
----------
Section 8.10
------------
(a) The aggregate Capital Expenditures made by the
Borrower and its Subsidiaries during the
Calculation Period $_________
(b) The aggregate amount of proceeds from sales of
assets in the ordinary course of business pursuant
to Section 8.05(c)(i) or from insurance in
respect of any capital asset subject to a Casualty
Event applied or to be applied or committed to be
applied to the purchase of like assets within 365
days of such sale or Casualty Event $_________
(c) Total Capital Expenditures ((a) MINUS (b)) $_________
-----
(d) Cash Flow for the period of twelve complete
consecutive months ended on, or most recently
ended prior to, the last day of the Calculation
Period (as determined in item (b) in $_________
Section 8.11(b) below)
(e) Capital Expenditures made during the period
of twelve complete consecutive months ended on,
or most recently ended prior to, the last day
of the Calculation Period $_________
(f) Cash Flow (as determined in item (d) above)
MINUS Capital Expenditures (as determined in
item (e) above) $_________
MAXIMUM (the greater of (i) $30,000,000 and
(ii) the result of item (f) above PLUS $[INSERT
APPROPRIATE AMOUNT FROM SECTION 8.10 OF THE
CREDIT AGREEMENT] during [INSERT APPROPRIATE
YEAR FROM THE CREDIT AGREEMENT] $_________
Section 8.10(z)
Capital Expenditures made in respect of the Philadelphia
Project in excess of the amounts set forth above $_________
MAXIMUM permitted $50,000,000
-----------
Section 8.11(b)
---------------
(a) Total Debt (as defined in the Credit Agreement)
of the Borrower and its Subsidiaries as at the
last day of the Calculation Period $_________
(b) Cash Flow of the Borrower and its Subsidiaries
for the four quarters ended on or most recently
ended prior to the last day of the Calculation Period:
(i) operating income before taxes, Interest
Expense, amortization and depreciation
and extraordinary gains and losses $_________
(ii) other non-cash subtractions from net
operating income and all other non-cash
items of income are $_________
(iii) additions (or subtractions for) the
acquisition of the Taunton Daily Gazette $_________
(iv) adjustments for Permitted Acquisitions or
Dispositions $_________
(v) expenses in respect of the Borrower's and
its Subsidiaries' implementation of their
on-line services of up to $500,000 for any
period during the fiscal year ended
December 31, 1997 $_________
(vi) other expenses in respect of the Borrower's
and its Subsidiaries' on-line services of up
to $1,000,000 for any fiscal year $_________
(vii) payments under the Management Bonus
Plan and accrued expenses relating to the
discontinuance of JRN's StarShare Plan $_________
not exceeding $35,000,000
(c) Cash Flow ((i) MINUS (ii) PLUS (or MINUS)
(iii) PLUS (or MINUS) (iv) PLUS (v) PLUS
(vi) PLUS $_________ (vii) $_________
(d) The ratio of (a) to (c) _____ to 1
MAXIMUM [INSERT APPROPRIATE RATIO FROM
SECTION 8.11(A) OF THE CREDIT AGREEMENT] during ______ to 1
[INSERT PERIOD FROM THE CREDIT AGREEMENT]
Section 8.11(c)
---------------
(a) [Total Debt/Senior Debt] (as defined in the
Credit Agreement) of the Borrower and its
Subsidiaries as at the last day of the $_________
Calculation Period
(b) Cash Flow of the Borrower and its Subsidiaries
for the four quarters ended on or most recently
ended prior to the last day of the Calculation
Period (as determined in item (b) in
Section 8.11(b) above): $_________
(c) The ratio of (a) to (b) _____ to 1
MAXIMUM [INSERT APPROPRIATE RATIO FROM
SECTION 8.11(C) OF THE CREDIT AGREEMENT] during ______ to 1
[INSERT PERIOD FROM THE CREDIT AGREEMENT]
Section 8.12
------------
(a) Cash Flow of the Borrower and its Subsidiaries for
the four quarters ended on or most recently ended
prior to the last day of the Calculation Period (as
determined in item (b) in Section 8.11(b) above) $_________
(b) Total Debt Service of the Borrower and its
Subsidiaries for the Calculation Period:
(i) Scheduled Payments and other regularly
scheduled payments for the Calculation
Period in respect of principal of $__________
Indebtedness which Indebtedness is
included in Total Debt; PLUS
(ii) cash Interest Expense; $__________
Equals $__________
(c) Capital Expenditures made during such Calculation
Period (other than Capital Expenditures made
pursuant to Section 8.10(z)) $__________
(d) taxes (other than deferred taxes) $__________
The ratio of (a) to ((b) PLUS (c) PLUS (d)) _____ to 1
---- ----
MINIMUM permitted 1 TO 1
------
Section 8.13
------------
(a) Cash Flow of the Borrower and its Subsidiaries for
the four quarters ended on or most recently ended
prior to the last day of the Calculation Period (as
determined in item (b) in Section 8.11(b) above) $_________
(b) cash Interest Expense of the Borrower and its
Subsidiaries or the four quarters ended on or most
recently ended prior to the last day of the
Calculation Period $_________
The Interest Coverage Ratio ((a) to (b)) _____ to 1
MINIMUM permitted 2 TO 1
------
Section 8.14
------------
The Working Capital of the Borrower and its Subsidiaries
as at the last day of the Calculation Period $_________
MINIMUM permitted $0.00
Section 8.20
------------
(a) The aggregate face amount of accounts
receivable sold by the Borrower and its
Subsidiaries for less than the face value $_________
during the Calculation Period
(b) Aggregate year to date (less applicable $_________
reserves)
MAXIMUM permitted for any fiscal year $500,000
--------
EXHIBIT D
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 15, 1998
(as amended and in effect on the date hereof, the "THE CREDIT Agreement"),
between Journal Register Company, the Lenders named therein and The Chase
Manhattan Bank, as Agent for the Lenders. Terms defined in the Credit Agreement
are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "ASSIGNED Interest") in the Assignor's rights and
obligations under the Credit Agreement, including the interests set forth on the
reverse hereof in the Commitment(s) of the Assignor on the Assignment Date and
Loan(s) owing to the Assignor which are outstanding on the Assignment Date,
together with unpaid interest accrued on the assigned Loans to the Assignment
Date, the participations in Letters of Credit, LC Disbursements and Swingline
Loans held by the Assignor on the Assignment Date, and the amount, if any, set
forth on the reverse hereof of the fees accrued to the Assignment Date for the
account of the Assignor. The Assignee hereby acknowledges receipt of a copy of
the the Credit Agreement. From and after the Assignment Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement and,
to the extent of the interests assigned by this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
5.07(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the Agent
pursuant to Section 11.06(b) of the the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("ASSIGNMENT DATE")(1):
Percentage Assigned of
Facility/Commitment
(set forth, to at
least 8 decimals, as a
percentage of the
Facility and the
aggregate Commitments
Principal Amount of all Lenders
Facility Assigned thereunder
-------- ---------------- -----------------------
Commitment Assigned: $ %
Revolving Credit Commitment:
Incremental Loan Commitment:
Loans:
Revolving Credit Loans:
Tranche A Term Loans:
Tranche B Term Loans:
Incremental Loans:
Fees Assigned (if any):
The terms set forth above and on the reverse side hereof are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
-------------------
By:_________________________
Name:
Title:
----------------------------
(1) Must be at least five Business Days after execution hereof by all
required parties.
[NAME OF ASSIGNEE], as Assignee
-------------------
By:_________________________
Name:
Title:
The undersigned hereby consent to the within assignment:(2)
JOURNAL REGISTER COMPANY
By:_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent,
as Swingline Lender
and as Issuing Lender
By:_________________________
Name:
Title:
-------------------------
(2) Consents to be included to the extent required by Section 11.06(b) of the
Credit Agreement.
EXHIBIT E-1
[Form of Tranche A Term Note]
TRANCHE A TERM NOTE
$[____________] [____________], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, JOURNAL REGISTER COMPANY, a Delaware corporation
(the "BORROWER") hereby promises to pay to the order of [_____________________]
(the "BANK"), for account of its respective Applicable Lending Offices provided
for by the Credit Agreement referred to below, at the principal office of The
Chase Manhattan Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal
sum of [_______________] Dollars, in lawful money of the United States of
America and in immediately available funds, in the respective principal amounts
payable on the Principal Payment Dates, and to pay interest on the unpaid
principal amount hereof, at such office, in like money and funds, for the period
commencing on the date hereof until such principal sum shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Tranche A Term Loan made by the Bank to the
Borrower under the Credit Agreement, and the date such Term Loan is Converted
from a Loan of one Type into a Loan of another Type, and the amount of each
payment or prepayment made on account of the principal of such Term Loan, shall
be recorded by the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any continuation
thereof, PROVIDED that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Tranche A Term Loans made by the Bank.
This Note is one of the Notes under the Credit Agreement dated as of
_________, 1998 (as at any time amended or otherwise modified, the "CREDIT
AGREEMENT") between the Borrower, the lenders named therein (including the Bank)
and The Chase Manhattan Bank, as Agent, and evidences the Tranche A Term Loans
made by the Bank thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity
of this Note upon the occurrence of certain events and for prepayments of Term
Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
JOURNAL REGISTER COMPANY
By_________________________
Name:
Title:
TRANCHE A TERM LOAN
This Note evidences the Tranche A Term Loans made, Continued or
Converted under the within-described Credit Agreement to the Borrower of the
Type, bearing interest at the rates and having Interest Periods (if applicable)
of the duration set forth below, subject to the payments, prepayments,
Continuations and Conversions of principal set forth below:
Amount
Paid,
Date Duration Prepaid,
Continued Type of Continued Unpaid
or of Interest Interest or Principal Notation
Converted Loan Rate Period Converted Amount Made By
--------- ---- -------- --------- --------- --------- --------
EXHIBIT E-2
[Form of Tranche B Term Note]
TRANCHE B TERM NOTE
$[____________] [____________], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, JOURNAL REGISTER COMPANY, a Delaware corporation
(the "BORROWER") hereby promises to pay to the order of [_____________________]
(the "BANK"), for account of its respective Applicable Lending Offices provided
for by the Credit Agreement referred to below, at the principal office of The
Chase Manhattan Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal
sum of [_______________] Dollars, in lawful money of the United States of
America and in immediately available funds, in the respective principal amounts
payable on the Principal Payment Dates, and to pay interest on the unpaid
principal amount hereof, at such office, in like money and funds, for the period
commencing on the date hereof until such principal sum shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of the Tranche B Term Loan made by the Bank to the
Borrower under the Credit Agreement, and the date such Term Loan is Converted
from a Loan of one Type into a Loan of another Type, and the amount of each
payment or prepayment made on account of the principal of such Term Loan, shall
be recorded by the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any continuation
thereof, PROVIDED that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Tranche B Term Loans made by the Bank.
This Note is one of the Notes under the Credit Agreement dated as of
_________, 1998 (as at any time amended or otherwise modified, the "CREDIT
AGREEMENT") between the Borrower, the lenders named therein (including the Bank)
and The Chase Manhattan Bank, as Agent, and evidences the Tranche B Term Loans
made by the Bank thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity
of this Note upon the occurrence of certain events and for prepayments of Term
Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
JOURNAL REGISTER COMPANY
By_________________________
Name:
Title:
TRANCHE B TERM LOAN
This Note evidences the Tranche B Term Loans made, Continued or
Converted under the within-described Credit Agreement to the Borrower of the
Type, bearing interest at the rates and having Interest Periods (if applicable)
of the duration set forth below, subject to the payments, prepayments,
Continuations and Conversions of principal set forth below:
Amount
Paid,
Date Duration Prepaid,
Continued Type of Continued Unpaid
or of Interest Interest or Principal Notation
Converted Loan Rate Period Converted Amount Made By
--------- ---- -------- --------- --------- --------- --------
EXHIBIT E-3
[Form of Revolving Credit Note]
REVOLVING CREDIT NOTE
$[____________] [____________], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, JOURNAL REGISTER COMPANY, a Delaware corporation
(the "BORROWER") hereby promises to pay to the order of [_____________________]
(the "BANK"), for account of its respective Applicable Lending Office provided
for by the Credit Agreement referred to below, at the principal office of The
Chase Manhattan Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal
sum of [_______________] Dollars (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Revolving Credit Loans made by the Bank
to the Borrower under the Credit Agreement), in lawful money of the United
States of America and in immediately available funds on the Revolving Credit
Commitment Termination Date, and to pay interest on the unpaid principal amount
of each such Revolving Credit Loan, at such office, in like money and funds, for
the period commencing on the date of such Revolving Credit Loan until such
Revolving Credit Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Revolving Credit Loan made by the Bank to the
Borrowers under the Credit Agreement, and the date such Revolving Credit Loan is
Converted from a Loan of one Type into a Loan of another Type, and the amount of
each payment or prepayment made on account of the principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any continuation
thereof, PROVIDED that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Revolving Credit Loans made by the Bank.
This Note is one of the Notes under the Credit Agreement dated as of
_________, 1998 (as at any time amended or otherwise modified, the "CREDIT
AGREEMENT") between the Borrower, the lenders named therein (including the Bank)
and The Chase Manhattan Bank, as Agent, and evidences Revolving Credit Loans
made by the Bank thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity
of this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
JOURNAL REGISTER COMPANY
By_________________________
Name:
Title:
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or
Converted under the within-described Credit Agreement to the Borrower, on the
dates, in the principal amounts, of the Types, bearing interest at the rates and
having Interest Periods (if applicable) of the duration set forth below, subject
to the payments, prepayments, Continuations and Conversions of principal set
forth below:
Amount
Paid,
Date Duration Prepaid,
Continued Type of Continued Unpaid
or of Interest Interest or Principal Notation
Converted Loan Rate Period Converted Amount Made By
--------- ---- -------- --------- --------- --------- --------
EXHIBIT E-4
[Form of Incremental Note]
INCREMENTAL NOTE
$[____________] [____________], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, JOURNAL REGISTER COMPANY, a Delaware corporation
(the "BORROWER") hereby promises to pay to the order of [_____________________]
(the "BANK"), for account of its respective Applicable Lending Offices provided
for by the Credit Agreement referred to below, at the principal office of The
Chase Manhattan Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal
sum of [_______________] Dollars, in lawful money of the United States of
America and in immediately available funds, in the respective principal amounts
payable on the Principal Payment Dates, and to pay interest on the unpaid
principal amount hereof, at such office, in like money and funds, for the period
commencing on the date hereof until such principal sum shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Incremental Loan made by the Bank to the Borrower
under the Credit Agreement, and the date such Incremental Loan is Converted from
a Loan of one Type into a Loan of another Type, and the amount of each payment
or prepayment made on account of the principal of such Incremental Loan, shall
be recorded by the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any continuation
thereof, PROVIDED that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Incremental Loans made by the Bank.
This Note is one of the Notes under the Credit Agreement dated as of
_________, 1998 (as at any time amended or otherwise modified, the "CREDIT
AGREEMENT") between the Borrower, the lenders named therein (including the Bank)
and The Chase Manhattan Bank, as Agent, and evidences the Incremental Loans made
by the Bank thereunder. Capitalized terms used in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity
of this Note upon the occurrence of certain events and for prepayments of
Incremental Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
JOURNAL REGISTER COMPANY
By_________________________
Name:
Title:
INCREMENTAL LOAN
This Note evidences the Incremental Loan made, Continued or
Converted under the within-described Credit Agreement to the Borrower of the
Type, bearing interest at the rates and having Interest Periods (if applicable)
of the duration set forth below, subject to the payments, prepayments,
Continuations and Conversions of principal set forth below:
Amount
Paid,
Date Duration Prepaid,
Continued Type of Continued Unpaid
or of Interest Interest or Principal Notation
Converted Loan Rate Period Converted Amount Made By
--------- ---- -------- --------- --------- --------- --------
EXHIBIT F
INCREMENTAL LOAN ACTIVATION NOTICE
To: The Chase Manhattan Bank,
as Administrative Agent under the Credit Agreement
referred to below
Reference is hereby made to the Credit Agreement dated as of
_________, 1998 (as modified and supplemented and in effect from time to time,
the "CREDIT AGREEMENT") among ▇▇▇▇▇▇▇▇ Broadcast Group, Inc., the Subsidiary
Guarantors party thereto, the Lenders party thereto, The Chase Manhattan Bank,
as Administrative Agent for the Lenders and NationsBank of Texas, N.A., as
Documentation Agent. Terms defined in the Credit Agreement and not defined
herein are used herein as defined therein.
This notice is an Incremental Loan Activation Notice referred to in
the Credit Agreement, and the Borrower and the Lender signatory hereto (the
"INCREMENTAL LOAN LENDER") hereby notify you that:
1. The Incremental Loan Activation Date is ___________.
2. The Incremental Loan Commitment of the Incremental Loan Lender
is set forth opposite the Incremental Loan Lender's name on
the signature pages hereof under the caption "Incremental Loan
Commitment".
The Incremental Loan Lender and the Borrower hereby agree that (a)
the rate of commitment fee payable by the Borrower to the Incremental Loan
Lender under Section 2.04 of the Credit Agreement on the daily average unused
amount of the Incremental Loan Lender's Incremental Loan Commitment shall be
______________ , (b) the Applicable Rate for Incremental Loans shall be
______________, and (c) the Incremental Loan Commitment of the Incremental Loan
Lender shall terminate on ____________.
JOURNAL REGISTER COMPANY
By____________________________
Name:
Title:
INCREMENTAL LOAN COMMITMENT [NAME OF INCREMENTAL LOAN LENDER]
$
By____________________________
Name:
Title:
CONSENTED TO:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_______________________
Name:
Title:
EXHIBIT G
DESCRIPTION OF SUBORDINATION TERMS
The payment of principal of, premium, if any, and interest on the
Subordinated Debt (the "NOTES") will be subordinated in right of payment, as set
forth in the applicable indenture or other agreement governing the Notes (the
"INDENTURE"), to the prior payment in full in cash of all Senior Debt (as
defined below), whether outstanding on the date of the Indenture or thereafter
incurred.
Upon any distribution to creditors of Journal Register Company (the
"COMPANY") in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceedings relating to the
Company or its property, in an assignment for the benefit of creditors or any
marshalling of the Company's assets and liabilities, the holders of Senior Debt
will be entitled to receive payment in full in cash of all amounts in respect of
Senior Debt (including interest after the commencement of any such proceedings
at the rate specified in the applicable Senior Debt (whether or not such
interest is allowed as a claim in such proceedings)) before the holders of Notes
will be entitled to receive any payment with respect to the Notes, and until all
amounts in respect of Senior Debt are paid in full in cash any distribution to
which the holders of Notes would be entitled shall be made to the holders of
Senior Debt (except that holders of Notes may receive and retain (i) Permitted
Junior Securities (as defined below) and (ii) payments on account of, and in
accordance with the terms of, the Notes made from funds held in any defeasance
trust permitted under the Indenture).
The Company also may not make any direct or indirect payment upon or in
respect of Notes (except in Permitted Junior Securities or from funds held in
any defeasance trust as provided above) if (i) a default in the payment of the
principal of, premium, if any, or interest on Designated Senior Debt (as defined
below) occurs and is continuing, whether at maturity, on account of mandatory
redemption or prepayment, acceleration or otherwise, or (ii) any other default
occurs and is continuing with respect to Designated Senior Debt that permits
holders of the Designated Senior Debt as to which such default relates to
accelerate its maturity and the trustee or agent for the holders of the Notes
receives a written notice of such default (a "PAYMENT BLOCKAGE NOTICE") from the
holders of any Designated Senior Debt (or a representative on their behalf).
Payments on the Notes may and shall be resumed (a) in the case of a payment
default, upon the date on which such default is cured or waived and (b) in case
of a nonpayment default, upon the earlier of the date on which such nonpayment
default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is so received, unless any of the events described in
clause (i) of the first sentence of this paragraph has then occurred and is
continuing. No new period of payment blockage may be commenced unless and until
360 days have elapsed since the date of commencement of the payment blockage
period resulting from the immediately prior Payment Blockage Notice. No
nonpayment default that existed or was continuing on the date of delivery of a
Payment Blockage Notice with respect to the Designated Senior Debt initiating
such blockage (to the extent that the holders of such Designated Senior Debt, or
a trustee or agent, giving such Payment Blockage Notice had knowledge of such
existing or continuing default) shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such default shall have been waived for a period
of not less than 90 consecutive days.
If a distribution or payment is made to holders of the Notes that, due
to the subordination provisions, should not have been made to them, such holders
will be required to hold such distribution or payment in trust for the holders
of Senior Debt and pay it over to them (pursuant to such written instructions as
the holders of Senior Debt or a representative on their behalf may provide to
such holders of the Notes) as their interests may appear.
The failure to make a payment pursuant to the Notes because of the
restrictions under the subordination provisions described herein shall not be
construed as preventing the occurrence of an event of default under the
Indenture and such restrictions shall not have any effect on the right of the
holders of the Notes to accelerate the Notes.
The Indenture will require that the Company promptly notify holders of
Senior Debt if payment of the Notes is accelerated.
Certain Definitions
-------------------
"CREDIT FACILITIES" means, with respect to the Company, one or more
debt facilities (including, without limitation, the Senior Credit Facility) or
commercial paper facility with banks or other institutional lenders providing
for revolving credit loans, other borrowings (including term loans), receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, increased, replaced or refinanced in whole or in part from
time to time.
"DESIGNATED SENIOR DEBT" means (i) any Indebtedness outstanding under
or in respect of the Senior Credit Facility and (ii) any other Senior Debt
which, at the time of determination, has an aggregate principal amount
outstanding, together with any commitments to lend additional amounts, of at
least $25.0 million, if the instrument governing such other Senior Debt
expressly provides that it is "Designated Senior Debt" for purposes of the
Indenture.
"OBLIGATIONS" means any principal, premium, if any, interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing
interest is allowed in such proceeding), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees and other
liabilities or amounts payable under the documentation governing any
Indebtedness (to be customarily defined in the Indenture) or in respect thereof.
"PERMITTED JUNIOR SECURITIES" means any securities of the Company or
any other Person that are (i) equity interests without special covenants or (ii)
debt securities expressly subordinated in right of payment to all Senior Debt
(and any debt securities issued in exchange for Senior Debt) to substantially
the same extent as, or to a greater extent than, the Notes are subordinated to
Senior Debt pursuant to the Indenture, in any event pursuant to a court order so
providing and as to which (a) the rate of interest on such securities shall not
exceed the effective rate of interest on the Notes on the date of the Indenture,
(b) such securities shall not be entitled to the benefits of covenants or
defaults materially more beneficial to the holders of such securities than those
in effect with respect to the Notes on the date of the Indenture and (c) such
securities shall not provide for amortization (including sinking fund and
mandatory prepayment provisions) commencing prior to the date 91 days following
the final scheduled maturity date of the Senior Debt (as modified by the plan of
reorganization or readjustment pursuant to which such securities are issued).
"SENIOR CREDIT FACILITY" means that certain Credit Agreement, dated as
of [_____], 1998 between Journal Register Company, various lending institutions
and The Chase Manhattan Bank as Administrative Agent thereunder providing for up
to $900 million of Indebtedness, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, restated, modified, renewed, extended,
refunded, increased, replaced or refinanced in whole or in part from time to
time and any agreement (and related documents) providing therefor (including,
without limitation, any agreement in respect of any successor credit facility),
whether by the same or any other lender, creditor, group of lenders or group of
creditors.
"SENIOR DEBT" means (i) all Obligations owed by the Company under, or
with respect to, the Senior Credit Facility or any other Credit Facility, (ii)
any other Indebtedness (such term to be customarily defined in the Indenture)
permitted under the terms of the Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is in parity with or
subordinated in right of payment to the Notes, (iii) all obligations of the
Company under or in respect of interest rate swaps, caps,
shapeType1fFlipH0fFlipV0lineColor16777215fPreferRelativeResize0collars, options
and similar arrangements and foreign currency ▇▇▇▇▇▇ and (iv) all modifications,
renewals, extensions, replacements, refinancings and refundings of any of the
foregoing, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is expressly provided that such
indebtedness, obligations or guarantees, as the case may be, or such
modifications, renewals, extensions, replacements, refinancings or refundings
thereof, are not senior or superior in right of payment to the Notes.
Notwithstanding anything to the contrary in the foregoing sentence, Senior Debt
will not include any of the following, to the extent it may constitute
Indebtedness: (a) any obligation of the Company to any of its subsidiaries or
affiliates or any of such affiliate's subsidiaries; (b) any liability for
federal, state, local or other taxes owed or owing by the Company (other than
such taxes owed or owing to the lenders under the Senior Credit Facility); (c)
any accounts payable or other liability to trade creditors arising in the
ordinary course of business (or guarantees thereof or instruments evidencing
such liabilities); (d) any Indebtedness, guarantee or obligation of the Company
(including, without limitation, the Notes) which is expressly subordinate or
junior by its terms in right of payment to any other Indebtedness, guarantee or
obligation of the Company; (e) that portion of any Indebtedness incurred in
violation of the debt covenant under the Indenture (other than Indebtedness
under (i) the Senior Credit Facility or (ii) any other Credit Facility that is
incurred on the basis of a representation by the Company to the applicable
lenders that it is permitted to incur such Indebtedness under the Indenture); or
(f) any obligations in respect of capital stock of the Company.