EXHIBIT 10.1
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FIVE-YEAR CREDIT AGREEMENT
dated as of
November 29, 2001
among
BELO CORP.,
as Borrower,
The Lenders Party Hereto,
and
JPMORGAN CHASE BANK,
as Administrative Agent, and
as Competitive Advance Facility Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Co-Advisors, Co-Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.,
FLEET NATIONAL BANK
and
THE BANK OF NEW YORK
as Co-Syndication Agents
BNP PARIBAS,
as Documentation Agent
THE FUJI BANK, LIMITED
(a member of the MIZUHO FINANCIAL GROUP)
and
SUNTRUST BANK
as Senior Managing Agents
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms ................................................ 1
SECTION 1.02. Classification of Loans and Borrowings ....................... 17
SECTION 1.03. Terms Generally .............................................. 18
SECTION 1.04. Accounting Terms; GAAP ....................................... 18
ARTICLE II
The Credits
SECTION 2.01. Commitments .................................................. 19
SECTION 2.02. Loans and Borrowings ......................................... 19
SECTION 2.03. Requests for Revolving Borrowings ............................ 20
SECTION 2.04. Competitive Bid Procedure .................................... 21
SECTION 2.05. Funding of Borrowings ........................................ 24
SECTION 2.06. Interest Elections ........................................... 25
SECTION 2.07. Termination and Reduction of Commitments ..................... 26
SECTION 2.08. Repayment of Loans; Evidence of Debt ......................... 27
SECTION 2.09. Prepayment of Loans .......................................... 28
SECTION 2.10. Fees ......................................................... 29
SECTION 2.11. Interest ..................................................... 29
SECTION 2.12. Alternate Rate of Interest ................................... 31
SECTION 2.13. Increased Costs .............................................. 31
SECTION 2.14. Break Funding Payments ....................................... 33
SECTION 2.15. Taxes ........................................................ 34
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs .. 35
SECTION 2.17. Mitigation Obligations; Replacement of Lenders ............... 37
SECTION 2.18. Increase in Commitments ...................................... 38
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ......................................... 41
SECTION 3.02. Authorization; Enforceability ................................ 41
SECTION 3.03. Governmental Approvals; No Conflicts ......................... 41
SECTION 3.04. Financial Condition; No Material Adverse Change .............. 42
3
SECTION 3.05. Properties ................................................... 42
SECTION 3.06. Litigation, Labor and Environmental Matters .................. 43
SECTION 3.07. Compliance with Laws and Agreements .......................... 43
SECTION 3.08. Certain Legal Matters ........................................ 43
SECTION 3.09. Taxes ........................................................ 44
SECTION 3.10. ERISA ........................................................ 44
SECTION 3.11. Disclosure ................................................... 44
ARTICLE IV
Conditions
SECTION 4.01. Effective Date ............................................... 45
SECTION 4.02. Each Credit Event ............................................ 46
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ................... 47
SECTION 5.02. Notices of Material Events ................................... 48
SECTION 5.03. Existence; Conduct of Business ............................... 49
SECTION 5.04. Payment of Obligations ....................................... 49
SECTION 5.05. Maintenance of Properties; Insurance ......................... 50
SECTION 5.06. Books and Records; Inspection Rights ......................... 50
SECTION 5.07. Compliance with Laws ......................................... 50
SECTION 5.08. Use of Proceeds .............................................. 51
ARTICLE VI
Negative Covenants
SECTION 6.01. Liens ........................................................ 51
SECTION 6.02. Fundamental Changes .......................................... 51
SECTION 6.03. Transactions with Affiliates ................................. 52
SECTION 6.04. Restrictive Agreements ....................................... 52
SECTION 6.05. Leverage ..................................................... 52
SECTION 6.06. Interest Coverage ............................................ 53
ARTICLE VII
Events of Default
4
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ...................................................... 59
SECTION 9.02. Waivers; Amendments .......................................... 60
SECTION 9.03. Expenses; Indemnity; Damage Waiver ........................... 61
SECTION 9.04. Successors and Assigns ....................................... 62
SECTION 9.05. Survival ..................................................... 65
SECTION 9.06. Counterparts; Integration; Effectiveness ..................... 65
SECTION 9.07. Severability ................................................. 66
SECTION 9.08. Right of Setoff .............................................. 66
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process ... 66
SECTION 9.10. WAIVER OF JURY TRIAL ......................................... 67
SECTION 9.11. Headings ..................................................... 67
SECTION 9.12. Confidentiality .............................................. 68
SECTION 9.13. Interest Rate Limitation ..................................... 68
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Opinion of Counsel -- General Counsel of Belo Corp.
Exhibit B-2 Form of Opinion of Counsel -- ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit B-3 Form of Opinion of Regulatory Counsel -- Wiley, Rein & Fielding
Schedule 2.01 Commitments
Schedule 3.06 Litigation, Labor and Environmental Matters
Schedule 6.01 Liens
Schedule 6.05 Subordinated Debt
CREDIT AGREEMENT dated as of November 29, 2001, among
BELO CORP., the LENDERS party hereto, JPMORGAN CHASE BANK, a
New York banking corporation ("Chase"), as Administrative
Agent (in such capacity, the "Administrative Agent") and as
Competitive Advance Facility Agent (in such capacity, the "CAF
Agent"; and, together with the Administrative Agent, the
"Agents"), BANK OF AMERICA, N.A. ("BofA"), FLEET NATIONAL BANK
and THE BANK OF NEW YORK, as Co-Syndication Agents, BNP
PARIBAS, as Documentation Agent, and THE FUJI BANK, LIMITED
and SUNTRUST BANK, as Senior Managing Agents.
The Borrower (such term and each other capitalized term used and not
otherwise defined herein having the meaning assigned to it in Article I) has
requested the Lenders to extend credit to enable the Borrower to borrow on a
revolving credit basis on and after the date hereof and at any time and from
time to time prior to the Maturity Date. The Borrower has also requested the
Lenders to establish procedures pursuant to which the Borrower may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the Borrower
maturing on or prior to the Maturity Date. The proceeds of borrowings hereunder
are to be used for general corporate purposes, including acquisitions, stock
repurchases, commercial paper backup and the funding of working capital
requirements.
The Lenders are willing to extend such credit to the Borrower on the
terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
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"Applicable Percentage" means on any date, with respect to any ABR
Loan or Eurodollar Loan or with respect to the commitment fees referred to in
Section 2.10(a), as the case may be, the applicable percentage set forth in the
table below under the caption "ABR Spread", "Eurodollar Spread" or "Commitment
Fee Percentage", as the case may be, based upon the ratings of the Index Debt of
the Borrower in effect on such date:
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Ratings Commitment Eurodollar ABR
S&P/▇▇▇▇▇'▇/Fitch Fee Percentage Spread Spread
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Category 1 BBB+/Baa1/BBB+ or 0.125% 1.000% 0.0%
higher
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Category 2 BBB/Baa2/BBB 0.150% 1.250% 0.0%
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Category 3 BBB-/Baa3/BBB- 0.175% 1.500% 0.500%
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Category 4 BB+/Ba1/BB+ 0.250% 1.750% 0.750%
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Category 5 BB/Ba2/BB or lower 0.375% 2.000% 1.000%
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For purposes of the foregoing, (i) if no rating for the Index Debt of the
Borrower shall be available from any of ▇▇▇▇▇'▇, S&P or Fitch, such rating
agency shall be deemed to have established a rating for Index Debt of the
Borrower in Category 5, unless the failure of the rating agencies to rate the
Index Debt is not the result of a change in the creditworthiness of the Borrower
or the Index Debt and is not within the control of the Borrower, in which case
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect a new method of determining the Applicable Percentage,
(ii) if the ratings established or deemed to have been established by ▇▇▇▇▇'▇,
S&P and Fitch for the Borrower shall fall within different Categories, the
Applicable Percentage shall be based upon the superior (or numerically lower)
Category, unless the ratings differ by more than one Category, in which case, if
the Index Debt is rated in the same Category by two rating agencies and a lower
Category by the third rating agency, the higher rating shall govern, otherwise
the governing rating shall be the rating next below the highest of the three,
and (iii) if any rating established or deemed to have been established by
▇▇▇▇▇'▇, S&P or Fitch shall be changed (other than as a result of a change in
the rating system of any of ▇▇▇▇▇'▇, S&P or Fitch), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. Each such change in the Applicable Percentage shall
apply to all Eurodollar Loans and all ABR Loans that are outstanding at any time
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of any of ▇▇▇▇▇'▇, S&P or Fitch shall change prior to the
Maturity Date, the Borrower and the Lenders shall negotiate in good faith to
amend the references to specific ratings in this definition to reflect such
changed rating system.
"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 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Belo Corp., a Delaware corporation.
3
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAF Agent" means JPMorgan Chase Bank, in its capacity as
competitive advance facility agent for the Lenders hereunder.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) other than officers of the Borrower and
Continuing Directors shall own, directly or indirectly, beneficially or of
record, shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (b)
a majority of the seats (other than vacant seats) on the board of directors of
the Borrower shall at any time be occupied by persons who are not Continuing
Directors.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13, by any lending office of such Lender or by such
Lender's holding company, if any) with any law, rule or regulation, or any
guideline or directive (whether or not having the force of law) of any
Governmental Authority, or any request of any Governmental Authority with which
such Lender believes in good faith that it would be disadvantageous not to
comply, in each case made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder, expressed as an amount
representing the maximum permitted aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on
4
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Continuing Directors" means (i) the members of the Board of
Directors of the Borrower on the date hereof and (ii) future members of such
Board of Directors who were nominated or appointed by a majority of the
Continuing Directors at the date of their nomination or appointment.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings, labor
controversies and the environmental matters disclosed in Schedule 3.06. The
disclosure of information in Schedule 3.06 or in any other schedule or exhibit
to this Agreement shall not constitute an admission by the Borrower that such
information is material for any purpose, including applicable securities laws,
other than this Agreement and the transactions provided for herein.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the first date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
5
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; or (f) the receipt by the Borrower or any ERISA Affiliate of any
notice concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the jurisdiction under the laws of which
it is organized or managed, or the jurisdiction in which its principal office is
located, or any jurisdiction in which it is doing business other than solely by
reason of this Agreement, or, in the case of any Lender, the jurisdiction in
which its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any U.S. Federal withholding tax that (i) is in effect and
would apply to amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement, unless (and to the extent that) (A)
such withholding tax liability arises or is increased by reason of a Change in
Law occurring after such Foreign Lender becomes a Lender under this Agreement or
(B) such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
withholding tax liability pursuant to Section 2.15(a) or (ii) is imposed on
amounts payable to such Foreign Lender under this Agreement because of its
failure or inability to comply with Section 2.15(e).
"FCC" means the Federal Communications Commission and any successors
thereto.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of
6
New York, or, if such rate is not so published for any day that is a Business
Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Film Contracts" mean contracts or agreements with suppliers which
provide the right to broadcast certain specified film or video tape motion
pictures.
"Financial Officer" means the chief financial officer, vice
president of finance, principal accounting officer, treasurer or controller of
the Borrower.
"Fitch" shall mean Fitch Investors Service, Inc.
"Fixed Rate" means, with respect to any Competitive Loan bearing
interest at a fixed rate, the fixed rate of interest per annum specified by the
Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Funded Debt" means without duplication, all Indebtedness, other
than short-term obligations under Film Contracts.
"GAAP" means generally accepted accounting principles in the United
States of America consistently applied.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" means any agreement by which the Borrower or any
Subsidiary assumes, guarantees, endorses, contingently agrees to purchase or
provide funds for the payment of, or otherwise becomes liable upon, the
Indebtedness of another Person.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement or option, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, without duplication, the Borrower's and each
Subsidiary's (a) obligations for borrowed money, (b) obligations representing
the deferred purchase price of property (including, without limitation, under
Film Contracts) other than accounts payable arising in connection with the
purchase of inventory in the ordinary course of business, (c) obligations,
whether or not assumed, secured by Liens on or payable out of the
7
proceeds or production from property now or hereafter owned or acquired by the
Borrower or any Subsidiary, (d) obligations created under any conditional
purchase or other title retention agreements, (e) Capital Lease Obligations,
letters of credit, bonds or similar instruments and bankers' acceptances, (f)
obligations under Guarantees; provided, however, that Indebtedness shall not
include obligations of the Borrower or any Subsidiary incurred in connection
with the self-insurance program or employee benefit plans and programs of the
Borrower or the Subsidiaries, and (g) obligations to make payments that would be
required to be made in the event of an early termination, on the date
Indebtedness of the Borrower or any Subsidiary is being determined, in respect
of outstanding Hedging Agreements.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means the senior, unsecured, long-term, non-credit
enhanced Indebtedness of the Borrower.
"Interest Coverage Ratio" means the ratio of Pro Forma Operating
Cash Flow to Interest Expense.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Expense" means, with respect to the Borrower and the
Subsidiaries for any period, the interest expense of the Borrower and the
Subsidiaries determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) the amortization of debt discounts, (b) the
amortization of all fees (including, without limitation, fees with respect to
interest rate protection agreements) payable in connection with the incurrence
of Indebtedness and (c) the portion of any Capital Lease Obligation allocable to
interest expense.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period, and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 7 days or more
than 360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of
8
such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Joint Venture" means a Subsidiary organized or purchased after the
date hereof by the Borrower (or one or more Subsidiaries) and one or more third
parties owning equity interests in such Subsidiary to engage in one or more
business ventures permitted under Section 6.02(b).
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing 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 to the principal London office of the Administrative Agent or any
Affiliate designated by the Administrative Agent in immediately available funds
in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower
to perform any of its payment obligations under this Agreement or (c) the rights
of or benefits available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans),
of any one or more of the Borrower and the Subsidiaries in a principal amount
for any such Indebtedness in excess of $20,000,000 or in an aggregate principal
amount for all such Indebtedness in excess of $35,000,000.
9
"Material Subsidiary" means each Subsidiary other than Subsidiaries
that, (a) individually do not account for more than (i) 2% of the assets or (ii)
2% of the net revenues and (b) in the aggregate do not account for more than (i)
5% of the assets or (ii) 5% of the net revenues, in each case, at the end of or
for the four fiscal quarters most recently ended, of the Borrower and the
Subsidiaries on a consolidated basis.
"Maturity Date" means November 29, 2006.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Operating Cash Flow" means, for the Borrower and its Subsidiaries
for any relevant period, on a consolidated basis, the sum of (i) earnings before
income taxes for such period (without taking into account extraordinary or
nonrecurring items), plus (ii) depreciation and amortization expense during such
period, plus (iii) Interest Expense actually incurred or accrued during such
period, determined in accordance with GAAP plus (iv) noncash charges to the
extent deducted in computing earnings (provided that any cash payment made with
respect to any noncash charge that has been added pursuant to this clause (iv)
shall be subtracted in computing Operating Cash Flow for the period in which
such cash payment is made); provided, however, that Operating Cash Flow shall
not include (i) any income or loss attributable to any investment accounted for
on the "equity" method of accounting or (ii) losses not in excess of $10,000,000
during any period of four consecutive fiscal quarters, or $25,000,000 in the
aggregate for all periods after September 30, 2001, that in either case are
associated with new business development investments.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution or delivery
of, or otherwise with respect to, this Agreement.
"Participation Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Participation Percentages shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"PBGC" means the Pension Benefit Guarantee Corporation referred to
and defined in ERISA.
"Permitted Liens" means (a) Liens for Taxes not yet due and payable,
mechanic's Liens and materialman's, shipper's or warehouseman's Liens for
services or materials and landlord's Liens for rental amounts for which payment
is not yet due or which are being contested in good faith by appropriate
proceedings, (b) Liens securing any purchase money Indebtedness (including
Capital Lease Obligations relating to assets acquired after the date hereof) if
such Liens do not encumber any property other than the property for the purchase
of which such purchase money Indebtedness was incurred, (c) the currently
existing Liens described in Schedule 6.01 hereto, if any, and renewals thereof,
(d) pledges or deposits made to secure payment of worker's compensation,
unemployment insurance, pensions, or other social security programs, (e)
good-faith pledges or deposits made to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed money), or leases, or to
secure statutory obligations, surety or appeal bonds, or indemnity, performance,
or other similar bonds in the ordinary course of business, (f) encumbrances
consisting of zoning restrictions, easements, utility district assessments or
other restrictions on the use of property, none of which materially impairs the
operation by the Borrower and the Subsidiaries (taken as a whole) of their
business, and none of which is violated by existing or proposed structures or
10
land use where such violation would materially impair the operation by the
Borrower and the Subsidiaries (taken as a whole) of their business, (g) the
following, if the validity or amount thereof is being contested in good faith
and by appropriate and lawful proceedings and so long as levy and execution
thereon have been stayed and continue to be stayed, or they do not in the
aggregate materially detract from the value of any material assets or the
operations of the Borrower and the Subsidiaries taken as a whole: claims and
Liens for Taxes due and payable; claims and Liens upon, and defects of title to,
property, including any attachment of property or other legal process prior to
adjudication of a dispute on the merits; claims and Liens of mechanics,
materialmen, warehousemen, carriers, landlords, or other Liens; and judgment
Liens; (h) any Lien or encumbrance deemed to exist by virtue of any agreement or
arrangement expressly permitted by Section 6.04; and (i) any Lien existing on
any property or asset prior to the acquisition thereof by the Borrower or any
Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time the Person becomes a
Subsidiary; provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the
case may be, (ii) such Lien shall not apply to any other property or assets of
the Borrower or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank as its prime rate in effect at its
principal office in New York; each change in the Prime Rate shall be effective
from and including the date such change is publicly announced as being
effective.
"Pro Forma Operating Cash Flow" means, for any relevant period,
Operating Cash Flow of the Borrower and its Subsidiaries on a consolidated basis
adjusted to include the Operating Cash Flow of any operating units or entities
acquired during such relevant period and to exclude the Operating Cash Flow of
any operating units or entities divested or sold during such relevant period (in
each case, as if the acquisition or divestiture had occurred at the beginning of
such relevant period); provided, that (a) for purposes of determining Pro Forma
Operating Cash Flow, that portion of total Operating Cash Flow attributable to
any Restricted Joint Venture shall, to the extent positive, and subject to
clause (b) below, be excluded to the extent required in order that not more than
5% of total Operating Cash Flow shall be attributable to any one or more
Restricted Joint Ventures, and (b) any portion of Operating Cash Flow
attributable to a Restricted Joint Venture that would otherwise be excluded
under the preceding proviso may nevertheless be included in Pro Forma Operating
Cash Flow to the extent it does not exceed the cash dividends or other cash
distributions received by the Borrower and its other Subsidiaries from such
Restricted Joint Venture during the relevant period.
"Register" has the meaning set forth in Section 9.04.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 51% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time;
provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all
11
purposes after the Loans become due and payable pursuant to Article VII or the
Commitments expire or terminate, the outstanding Competitive Loans of the
Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders.
"Reportable Event" means any reportable event as defined by Section
4043 of ERISA and the regulations issued under such Section with respect to a
Plan (other than a Multiemployer Plan), excluding, however, such events as to
which the PBGC by regulation or by technical update 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 and Section 302 of ERISA shall be a reportable event
regardless of the issuance of any waiver in accordance with Section 412(d) of
the Code.
"Restricted Joint Venture" means a Joint Venture that is subject to
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon its ability, or the ability of the Borrower or a Subsidiary to
cause it, to pay dividends or other distributions with respect to its shares of
capital stock or other equity interests.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amounts of such Lender's Revolving
Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" shall mean Standard and Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Subordinated Debt" means Indebtedness of the Borrower for borrowed
money that satisfies the requirements set forth in Schedule 6.05 hereto.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and the borrowing of the Loans hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
12
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably
in accordance with their respective Participation Percentages. Each Competitive
Loan shall be made in accordance with the procedures set forth in Section 2.04.
The failure of any Lender to
13
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments and Competitive Bids of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.12, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement; provided further, that if the designation of any such foreign branch
or Affiliate shall result in any costs, reductions or Taxes which would not
otherwise have been applicable and for which such Lender would, but for this
proviso, be entitled to request compensation under Section 2.13 or 2.15, such
Lender shall not be entitled to request such compensation unless it shall in
good faith have determined such designation to be necessary or advisable to
avoid any material disadvantage to it.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 10 Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. In order to request
a Revolving Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00
a.m., New York time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
14
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. In order to request Competitive Bids, the Borrower shall
notify the CAF Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York time, four Business Days before
the date of the proposed Borrowing and, in the case of a Fixed Rate Borrowing,
not later than 10:00 a.m., New York time, one Business Day before the date of
the proposed Borrowing; provided that a Competitive Bid Request shall not be
made within five Business Days after the date of any previous Competitive Bid
Request, unless any and all such previous Competitive Bid Requests shall have
been withdrawn or all Competitive Bids received in response thereto rejected.
Each such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the CAF Agent of a written Competitive Bid Request in a
form approved by the CAF Agent and signed by the Borrower. Each such telephonic
and written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the CAF Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the CAF
Agent and must be received by the Administrative Agent by telecopy, in the case
of a Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York time,
three Business Days before the proposed date of such Competitive Borrowing, and
in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York time,
on the proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the CAF Agent may be rejected by
the CAF Agent, and the CAF Agent shall notify the applicable Lender as promptly
as practicable.
15
Each Competitive Bid shall specify (i) the principal amount (which shall be a
minimum of $5,000,000 and an integral multiple of $1,000,000 and which may equal
the entire principal amount of the Competitive Borrowing requested by the
Borrower) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make
such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The CAF Agent shall promptly notify the Borrower by telecopy of
the Competitive Bid Rate and the principal amount specified in each Competitive
Bid and the identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph (d), the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
CAF Agent by telephone, confirmed by telecopy in a form approved by the CAF
Agent, whether and to what extent it has decided to accept or reject each
Competitive Bid, in the case of a Eurodollar Competitive Borrowing, not later
than 10:30 a.m., New York time, three Business Days before the date of the
proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 10:30 a.m., New York time, on the proposed date of the Competitive
Borrowing; provided, that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) the Borrower
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
the Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by the Borrower. A notice given
by the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The CAF Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If any Lender that is the CAF Agent or an Affiliate of the CAF
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the Borrower at least one quarter
of an hour earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the CAF Agent pursuant to paragraph (b) of this
Section.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so
16
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York and designated by the Borrower in the
applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate borne by the applicable Borrowing. If
such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect new
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings, which may not be converted or continued.
(b) In order to make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
17
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) Subject to Section 2.09(d), the Borrower may at any time
terminate, or from time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date, and (ii) to the Administrative Agent for the account of
each applicable Lender the then unpaid principal amount of each Competitive Loan
on the last day of the Interest Period applicable to such Loan.
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(b) 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 by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made 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 Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such 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.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent.
SECTION 2.09. Prepayment of Loans. (a) Subject to Sections 2.09(d)
and 2.14, the Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part.
(b) In the event of any termination of the Commitments, the Borrower
shall prepay all outstanding Borrowings on the date of such termination. In the
event of any reduction of the Commitments, the Borrower shall prepay outstanding
Borrowings to the extent, if any, necessary so that, on the date of and after
giving effect to such reduction, the sum of the Revolving Credit Exposures and
the aggregate principal amount of the outstanding Competitive Loans does not
exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York time, three Business Days before the date of prepayment, or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.07, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.07. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.11.
(d) The Borrower shall not have the right to prepay any Competitive
Loan and shall not terminate or reduce the Commitments if such termination or
reduction would require prepayment of any Competitive Loan.
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SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Percentage per annum on the daily unused amount
of the Commitment of such Lender during the period from and including the date
hereof to but excluding the date on which such Commitment terminates; provided
that for purposes of calculating commitment fees, outstanding Competitive Loans
shall not be counted as usage of the Lenders' Commitments. Accrued commitment
fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof. All commitment
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Borrower agrees to pay to the Administrative Agent for the
accounts of the Lenders, ratably in accordance with their respective
Commitments, the upfront fees separately agreed upon between the Borrower and
the Lenders. The upfront fees shall be payable on the date of this Agreement.
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees and upfront fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate plus
the Applicable Percentage from time to time in effect.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Percentage from time to time in
effect (or, in the case of a Competitive Loan, the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Margin offered by the Lender making
such loan and accepted by the Borrower pursuant to Section 2.04).
(c) Each Fixed Rate Loan shall bear interest at a rate per annum
equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, the rate
otherwise applicable to such Loan as provided above plus 2% or (ii) in the case
of any other amount, the rate applicable to ABR Loans as provided above plus 2%.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Loan (other than an ABR Revolving Loan) prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion and (d) in the event the Commitments are terminated, all
accrued and unpaid interest on the Loans shall be paid on the date of such
termination.
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(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBO Rate for such Interest Period or that a Change
in Law makes it unlawful for any one or more of the Lenders to make a Eurodollar
Loan; or
(b) the Administrative Agent is advised by the Required Lenders
that, as a result of a Change in Law or other unusual events or conditions
affecting the markets in which such Lenders conduct their funding operations,
the LIBO Rate for such Interest Period will be lower than the actual cost to
such Lenders of obtaining the funds necessary to make or maintain their Loans
comprising such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender; or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan or to
increase the cost to such Lender or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material, then the Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this
21
Agreement or the Loans made by such Lender to a level below that which such
Lender or such Lender's holding company could have achieved but for such Change
in Law (taking into consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower will
pay to such Lender, as the case may be, such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section, and setting forth in
reasonable detail the manner in which such amount or amounts shall have been
determined, shall be delivered to the Borrower and shall, if submitted in good
faith, be conclusive absent manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto, (b) the conversion of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, prepay or continue any Revolving
Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice is permitted to be revocable and is revoked in accordance
herewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurodollar Loan
or Fixed Rate Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.17, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event by payment to such Lender of an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of the applicable Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert, prepay or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate, the Adjusted CD Rate or the Fixed
Rate, as the case may be, in effect (or that would have been in effect) for such
Interest Period, over (ii) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for dollar deposits at other banks in
the London interbank market at the commencement of such period. A certificate of
22
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section, and setting forth in reasonable detail the
manner in which such amount or amounts shall have been determined, shall be
delivered to the Borrower and shall, if submitted in good faith, be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof. In the case of
a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBO Rate (not including the Applicable
Percentage added to the LIBO Rate under Section 2.11(b)) that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section, and setting forth
in reasonable detail the manner in which such amount or amounts shall have been
determined, shall be delivered to the Borrower and shall, if submitted in good
faith, be conclusive absent manifest error. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) each of the Agents or Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agents and each Lender within
10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Agents or such Lender, as the case may be, and any liability (including
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, by the Administrative Agent on its own behalf or on behalf
of a Lender, or by the CAF Agent, and setting forth in reasonable detail the
manner in which such amount shall have been determined, shall, if submitted in
good faith, be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
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(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), on or before the date on which it becomes a
Lender, and at such other times as prescribed by applicable law, properly
completed and executed forms prescribed by applicable law (together with such
other documentation or certification as the Borrower may reasonably request)
that will permit the Borrower to make such payments without withholding or at a
reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or otherwise) prior to 12:00
noon, New York time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments
pursuant to Section 2.13, 2.14, 2.15 and 9.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments received for the account of any other Person to the appropriate
recipient in the amount owed to it promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to fully pay all amounts then due hereunder, such
funds shall be applied to the amounts then due hereunder in such order and
priority as the Administrative Agent may elect; provided that any funds that the
Administrative Agent elects to apply to principal, interest or fees then due
shall be applied ratably to all amounts of principal, interest or fees (as the
case may be) then due.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payments giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant other than the Borrower or any Subsidiary or Affiliate thereof.
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim 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) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the
24
account of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(b) or paragraph (d) above, then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the good
faith judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender in such Lender's good faith judgment. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than, at the election of such Lender, any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans (other than, at the election of such Lender, Competitive Loans, as to
which such Lender will continue to have all of its rights hereunder), accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.18. Increase in Commitments. (a) The Borrower and the
Administrative Agent may, at any time and from time to time prior to the 60th
day following the Effective Date, by a written instrument executed by the
Borrower, the Administrative Agent and one or more financial institutions that
may but need not already be Lenders under
25
this Agreement (each such financial institution referred to in this paragraph
(a) being called an "Augmenting Lender"), cause Augmenting Lenders to extend
Commitments or to increase their existing Commitments in amounts set forth in
such instrument and, in the case of Augmenting Lenders that are not already
Lenders, to become Lenders under this Agreement; provided, however, that the
aggregate amount of the Commitments after giving effect to any Commitment or
Commitment increase under this paragraph shall in no event exceed
$1,000,000,000. No Lender shall have any obligation hereunder to become an
Augmenting Lender and any election to do so shall be in the sole discretion of
each Lender. New Commitments and Commitment increases under this Section shall
become effective on the date or dates specified in the instruments executed
pursuant to this Section. Upon the effectiveness of the Commitment or Commitment
increase of any Augmenting Lender, (i) such Augmenting Lender, if not already a
Lender, shall be deemed to be a party to this Agreement and shall be entitled to
all rights, benefits and privileges accorded a Lender hereunder and subject to
all obligations of a Lender hereunder and (ii) Schedule 2.01 shall be deemed to
have been amended to reflect the Commitment or Commitment increase of such
Augmenting Lender.
(b) The Borrower may at any time and from time to time, by written
notice to the Administrative Agent (which shall promptly deliver a copy to each
of the Lenders) given not earlier than the 60th day following the Effective Date
and not later than the third anniversary of the Effective Date, request that the
total Commitments be increased by an amount not greater than $200,000,000. Such
notice shall set forth the amount of the requested increase in the total
Commitments and the date on which such increase is requested to become effective
(which shall be not less than 45 days or more than 60 days after the date of
such notice), and shall offer each Lender the opportunity to increase its
Commitment by its Participation Percentage of the proposed increased amount.
Each Lender shall, by notice to the Borrower and the Administrative Agent given
not more than 20 days after the date of the Borrower's notice, either agree to
increase its Commitment by all or a portion of the offered amount (each Lender
so agreeing being called an "Increasing Lender") or decline to increase its
Commitment (and any Lender that does not deliver such a notice within such
period of 20 days shall be deemed to have declined to increase its Commitment)
(each Lender so declining or deemed to have declined being called a
"Non-Increasing Lender"). No Lender shall have any obligation hereunder to
become an Increasing Lender and any election to do so shall be in the sole
discretion of each Lender. In the event that, on the 20th day after the Borrower
shall have delivered a notice pursuant to the first sentence of this paragraph,
the Lenders shall have agreed pursuant to the preceding sentence to increase
their Commitments by an aggregate amount less than the increase in the total
Commitments requested by the Borrower, the Borrower may arrange for one or more
Lenders or other financial institutions (any such Lender or other financial
institution referred to in this paragraph (b) being called an "Augmenting
Lender"), which may include any Lender, to extend Commitments or increase their
existing Commitments in an aggregate amount equal to the unsubscribed amount;
provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agent (which approval shall not
be unreasonably withheld) and each Augmenting Lender shall execute all such
documentation as the Administrative Agent shall specify to evidence its
Commitment and its status as a Lender hereunder. Increases and new Commitments
created pursuant to this paragraph (b) shall become effective on the date
specified in the notice delivered by the Borrower pursuant to the first sentence
of this paragraph.
(c) Notwithstanding the foregoing, no increase in the total
Commitments (or in the Commitment of any Lender) shall become effective under
paragraph (a) or (b) above unless, (i) on the date of such increase, the
conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be
satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by the President, a Vice-President or a
Financial Officer of the Borrower, and (ii) the Administrative Agent shall have
received documents consistent with those delivered under clauses (b) and (c) of
Section 4.01 as to the corporate
26
power and authority of the Borrower to borrow hereunder and as to the
enforceability of this Agreement after giving effect to such increase.
(d) On the effective date (the "Increase Effective Date") of any
increase in the total Commitments pursuant to paragraph (a) or (b) above (the
"Commitment Increase"), (i) the aggregate principal amount of the Loans
outstanding (the "Initial Loans") immediately prior to giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Lender and each Augmenting Lender that shall have been a
Lender prior to the Commitment Increase shall pay to the Administrative Agent in
same day funds an amount equal to the difference between (A) the product of (1)
such Lender's Participation Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings
(as hereinafter defined) and (B) the product of (1) such Lender's Participation
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender
that shall not have been a Lender prior to the Commitment Increase shall pay to
Administrative Agent in same day funds an amount equal to the product of (1)
such Augmenting Lender's Participation Percentage (calculated after giving
effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings, (iv) after the Administrative Agent receives the funds
specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to
each Non-Increasing Lender the portion of such funds that is equal to the
difference between (A) the product of (1) such Non-Increasing Lender's
Participation Percentage (calculated without giving effect to the Commitment
Increase) multiplied by (2) the amount of the Initial Loans, and (B) the product
of (1) such Non-Increasing Lender's Participation Percentage (calculated after
giving effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase,
the Borrower shall be deemed to have made new Borrowings (the "Subsequent
Borrowings") in an aggregate principal amount equal to the aggregate principal
amount of the Initial Loans and of the Types and for the Interest Periods
specified in a Borrowing Request delivered to the Administrative Agent in
accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing
Lender and each Augmenting Lender shall be deemed to hold its Participation
Percentage of each Subsequent Borrowing (calculated after giving effect to the
Commitment Increase) and (vii) the Borrower shall pay each Increasing Lender and
each Non-Increasing Lender any and all accrued but unpaid interest on the
Initial Loans. The deemed payments made pursuant to clause (i) above shall be
subject to compensation by the Borrower pursuant to the provisions of Section
2.14 if the Increase Effective Date occurs other than on the last day of the
Interest Period relating thereto.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required and, (ii) possesses all requisite authority and power and material
licenses, permits, franchises (including, without limitation, licenses, permits
and franchises issued by the FCC), and valid and subsisting network affiliation
agreements in the case of each Subsidiary that operates a network affiliated
television broadcasting enterprise, to conduct its business as presently
conducted.
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SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except (i) such as have been
obtained or made and are in full force and effect, and (ii) routine filings
after the Effective Date with Securities and Exchange Commission and the FCC
made pursuant to the requirements of 47 CFR 73.3613, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any Subsidiary or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture, or
other material agreement or instrument binding upon the Borrower or any
Subsidiary or its assets, or give rise to a right thereunder to require any
material payment to be made by the Borrower or any Subsidiary, and (d) will not
result in the creation or imposition of any Lien other than a Permitted Lien on
any asset of the Borrower or any Subsidiary.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of earnings, shareholders equity and cash flows (i) as of
and for the fiscal year ended December 31, 2000, reported on by Ernst & Young
LLP, independent auditors, and (ii) as of and for the fiscal quarter ended
September 30, 2001, certified by a Financial Officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since September 30, 2001, there has been no material adverse
change in the business, assets, operations or condition, financial or otherwise,
of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title or interest that do not interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Borrower and the Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation, Labor and Environmental Matters. (a) There
are not any actions, suits or proceedings by or before any arbitrator or
Governmental Authority now pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
28
(b) Except for the Disclosed Matters, there are no actual or, to the
knowledge of the Borrower, threatened labor controversies, including strikes,
work stoppages, work slow downs or National Labor Relations Board proceedings
affecting the Borrower or its Subsidiaries, that could, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(c) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, neither the Borrower nor any
Subsidiary (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(d) There has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or materially increased
the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Certain Legal Matters. (a) Neither the Borrower nor
any Subsidiary is (i) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (ii) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
(b) Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of buying or carrying margin stock, within the meaning of Regulation
U of the Board. Margin stock will at all times constitute less than 25% of the
assets of the Borrower individually and the Borrower and the Subsidiaries on a
consolidated basis that are subject to the restrictions of Section 6.01 and
6.02.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all tax returns and reports required to have been
filed and paid or caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, shall
have set aside on its books adequate reserves or (b) to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. As of the
Effective Date, the present value of all accrued benefit liabilities under each
Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87), determined at the most recent annual valuation
date for such Plan, does not exceed by more than $25,000,000 the fair market
value of the assets of such Plan, determined at the most recent annual valuation
date for such Plan, and the present value of all accrued benefit liabilities of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87), determined at the most recent annual
valuation dates for such Plans, does not exceed
29
by more than $25,000,000 the fair market value of the assets of all such
underfunded Plans, determined at the most recent annual valuation date for such
Plans.
SECTION 3.11. Disclosure. There are no agreements, instruments or
corporate restrictions to which the Borrower or any of its Subsidiaries is
subject, and no other matters known to the Borrower, that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
None of the reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected and pro forma financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions of ▇▇▇ ▇. ▇▇▇▇, the General Counsel of the Borrower, ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Borrower, and Wiley, Rein & Fielding, special
regulatory counsel to the Borrower, substantially in the forms of Exhibits ▇-▇,
▇-▇ and B-3 hereto and covering such other matters relating to this Agreement
and the Transactions as the Required Lenders shall reasonably request. Each of
such opinions shall be addressed to the Administrative Agent and the Lenders and
shall be dated the Effective Date. The Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating to this
Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (b) and (c) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
30
(f) The Borrower shall have terminated the Amended and Restated
Credit Agreement dated as of August 29, 1997, among A.H. Belo Corporation and
the lenders and agents party thereto, and shall have repaid or prepaid all
principal, interest, fees and other amounts due or outstanding thereunder.
Notwithstanding the foregoing, the obligations of the Lenders to
make Loans hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived) on or prior to December 30, 2001. The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing (but not on the occasion of any
interest election pursuant to Section 2.06 that does not increase the
outstanding principal amount of the Loans of any Lender), is subject to the
satisfaction of the following conditions:
(a) In the case of a Borrowing of Revolving Loans, the
Administrative Agent shall have received a Borrowing Request for such Borrowing
in accordance with Section 2.03; or, in the case of a Borrowing of Competitive
Loans, Borrower shall have accepted the Competitive Bid or Bids in respect of
such Loans in accordance with Section 2.04.
(b) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing.
(c) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to matters specified in paragraphs (b) and
(c) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of
earnings, stockholders' equity and cash flows as of the end of and for such
year, all reported on by Ernst & Young LLP or other independent public
accountants of recognized national standing (without a "going concern" or like
emphasis paragraph and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its condensed consolidated balance
sheet and related statements of earnings and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its
31
consolidated Subsidiaries on a consolidated basis in accordance with GAAP for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X (and accordingly, such statements will not include all of
the information and footnotes required by GAAP for complete financial
statements);
(c) concurrently with each delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) identifying the Restricted Joint Ventures and
setting forth reasonably detailed calculations demonstrating compliance with
Sections 6.05 and 6.06 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the most recent audited
financial statements referred to in Section 3.04 or delivered pursuant to this
Section 5.01 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether, in connection with their audit, anything
came to their attention that caused them to believe that the Borrower had failed
to comply with the terms, covenants, provisions or conditions of Sections 6.05
and 6.06;
(e) promptly after the same become publicly available, copies of all
annual and quarterly reports to shareholders, reports to the Securities and
Exchange Commission on Form 10-K, Form 10-Q, Form 8-K or any successor form,
proxy statements and registration statements (other than those relating only to
employee benefit plans) filed or distributed by the Borrower or any Subsidiary;
and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $15,000,000;
(d) the receipt of any notice from the FCC or any other Governmental
Authority of the expiration without renewal, termination or suspension of, or
the institution of any proceedings to terminate or suspend, any main transmitter
license granted by the FCC or any other material license now or hereafter held
by the Borrower or any Subsidiary which is required to operate any television
broadcasting station in compliance with all applicable laws; and,
(e) any other development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
32
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each Subsidiary to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
the business of the Borrower and its Subsidiaries taken as a whole; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.02.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each Subsidiary to, pay its Indebtedness and other obligations, including
tax liabilities, before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower
will, and will cause each Subsidiary to, (a) keep and maintain all property
material to the conduct of the business of the Borrower and its Subsidiaries
taken as a whole in good working order and condition, ordinary wear and tear and
obsolescence excepted, (b) keep and maintain all licenses, permits, franchises
and major network affiliation agreements (including those with American
Broadcasting Companies, Inc. ("ABC"), National Broadcasting Companies ("NBC"),
the Columbia Broadcasting System, Inc. ("CBS"), or Fox Broadcasting Company
("FOX") necessary for their business except as the loss of the same could not
individually or in the aggregate reasonably be expected to cause a Material
Adverse Effect, it being understood and agreed that a change from one such major
network to another shall not be considered to have such an effect; and (b)
maintain, with financially sound and reputable insurance companies, insurance in
such amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower
will, and will cause each Subsidiary to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each Subsidiary to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at reasonable times and as often as shall be
reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will
cause each Subsidiary to, comply with all laws (including Environmental Laws),
regulations and orders of any Governmental Authority applicable to it or its
property, except to the extent that failures to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08. Use of Proceeds. The Borrower will cause the proceeds
of the Loans to be used only for the purposes referred to in the preamble to
this Agreement. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
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ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except that the Borrower and the Subsidiaries may assign or sell delinquent
receivables and rights in respect thereof and may create, incur, assume or
permit to exist (a) Permitted Liens and (b) other Liens securing obligations in
an aggregate amount at any time not greater than $40,000,000.
SECTION 6.02. Fundamental Changes. (a) The Borrower will not merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired), or liquidate or dissolve,
except that any Subsidiary or other Person may merge into the Borrower if the
Borrower is the surviving corporation and at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing and
the Borrower shall be in compliance with the financial covenants contained in
this Article VI on a pro forma basis with such merger being deemed to have
occurred at the beginning of each relevant period.
(b) The Borrower will not, and will not permit any Subsidiary to,
engage to an extent material to the Borrower and the Subsidiaries on a
consolidated basis in any business other than businesses of the type conducted
by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
SECTION 6.03. Transactions with Affiliates. The Borrower will not,
and will not permit any Subsidiary to, enter into any transaction (including,
without limitation, the purchase or sale of any property or service) with, or
make any payment or transfer to, any of its Affiliates (other than the Borrower
or any Subsidiary) except in the ordinary course of business and upon terms no
less favorable to the Borrower or such Subsidiary than the Borrower or such
Subsidiary could obtain in a comparable arms-length transaction.
SECTION 6.04. Restrictive Agreements. The Borrower will not, and
will not permit any Subsidiary (other than a Joint Venture) to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon the ability
of any Subsidiary to pay dividends or other distributions with respect to its
shares of capital stock or other equity interests or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary, other than such restrictions on
Subsidiaries in which the aggregate equity investment of the Borrower and its
other Subsidiaries (other than any Joint Venture) does not exceed $20,000,000.
SECTION 6.05. Leverage. The Borrower will not:
(a) Permit the ratio of Funded Debt of the Borrower and the Subsidiaries,
determined on a consolidated basis, to Pro Forma Operating Cash Flow as of
the end of and for any period of four consecutive fiscal quarters ending
in any period set forth below to be greater than the ratio set forth below
for such period:
34
Period Ratio
------ -----
Effective Date through September 30, 2003 5.50 to 1.00
Thereafter 5.00 to 1.00
(b) Permit the ratio of Funded Debt (excluding Subordinated Debt) of the
Borrower and the Subsidiaries, determined on a consolidated basis, to Pro
Forma Operating Cash Flow as of the end of and for any period of four
consecutive fiscal quarters ending in any period set forth below to be
greater than the ratio set forth below for such period:
Period Ratio
------ -----
Effective Date through June 30, 2002 5.50 to 1.00
July 1, 2002 through December 31, 2002 5.25 to 1.00
January 1, 2003 through September 30, 2003 5.00 to 1.00
Thereafter 4.50 to 1.00
(c) Permit Funded Debt of Subsidiaries (other than Funded Debt owed to the
Borrower or any other Subsidiary) to constitute more than 10% of the
Funded Debt that would at any time be permitted to exist under clause (a)
of this Section 6.05.
SECTION 6.06. Interest Coverage. The Borrower will not permit the
ratio of Pro Forma Operating Cash Flow to Interest Expense for any period of
four consecutive fiscal quarters ending in any period set forth below to be less
than the ratio set forth below for such period:
Period Ratio
------ -----
Effective Date through December 31, 2003 2.50 to 1.00
Thereafter 3.00 to 1.00
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement, or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement, shall prove to have
been incorrect in any material respect when so made or deemed made;
(b) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise;
(c) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (b) above)
payable under this Agreement, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of three Business Days;
35
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), (b) or (e), Section 5.03
(with respect to the Borrower's existence) or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(c) or (d), and such failure
shall continue unremedied for a period of five Business Days;
(f) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (b), (c), (d) or (e) above) and such failure shall continue unremedied
for a period of 30 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;
(g) the Borrower or any Subsidiary shall fail to make any payment of
principal, regardless of amount, in respect of any Material Indebtedness, when
and as the same shall become due and payable;
(h) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity;
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Material Subsidiary or its debts, or of a
substantial part of the property or assets of the Borrower or a Material
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Material Subsidiary or for a substantial part of the property or
assets of the Borrower or any Material Subsidiary; and such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(j) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (i) above, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Material Subsidiary or for a substantial part of the
property or assets of the Borrower or any Material Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(k) one or more judgments for the payment of money in an amount in
excess of $20,000,000 individually or $35,000,000 (in each case net of insurance
coverage) in the aggregate shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any property or assets of the Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
36
(m) any main transmitter license, permit or authorization issued to
the Borrower or any Subsidiary by the FCC shall be forfeited, revoked or not
renewed, or any proceeding with respect to any such forfeiture or revocation
shall be instituted by the FCC, where such forfeiture, revocation or non-renewal
or such proceeding, as the case may be, shall be reasonably likely to result in
a Material Adverse Effect;
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (i) or (j) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other liabilities of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in any event with
respect to the Borrower described in clause (i) or (j) above, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other liabilities of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints the Agents as its
agents and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to the Agents by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Agents shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing (a)
the Agents shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, and (b) the
Agents shall not have any duty to take any discretionary action or exercise any
discretionary powers permitted hereunder unless requested to do so in writing by
the Required Lenders. No Agent shall be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders or in the
absence of its own gross negligence or wilful misconduct. In addition, the
Agents shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with
this Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement,
37
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Agents.
The Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each of the Agents may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
Each of the Agents may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by such
Agent. The Administrative Agent, the CAF Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through
Affiliates or its or its Affiliates' employees. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent, to the Affiliates of
the Administrative Agent, the CAF Agent and any such sub-agent and to the
directors, officers, employees, agents and advisors of the Administrative Agent,
the CAF Agent, any such sub-agent and their respective Affiliates.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders, with the consent
of the Borrower (which shall not be unreasonably withheld) shall have the right
to appoint a successor Agent from among the Lenders. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, with the consent of the Borrower
(which shall not be unreasonably withheld), on behalf of the Lenders, appoint a
successor Agent from among the Lenders which shall be a bank with an office in
The City of New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall 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 the Agent's resignation hereunder, the provisions
of this Article and Section 9.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share at the time reimbursement is sought (based on its
Commitment hereunder or, if the Commitments shall have expired or terminated,
based on its portion of the total Revolving Credit Exposures and outstanding
Competitive Loans) of any expenses incurred for the benefit of the Lenders by
the Agent, including counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, that shall not have been
reimbursed by the Borrower and (b) to indemnify and hold harmless each of the
Agents and any of its directors, officers, employees or agents, on demand, in
the amount of such pro rata share, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by or asserted against it in its capacity as Agent or any
of them in any way relating to or arising out of this Agreement or any action
taken or omitted by it or any of them under this Agreement, to the extent the
same shall not have been reimbursed by the Borrower, provided that no Lender
shall be liable to any Agent or any such other indemnified person for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are determined by a
court of
38
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
None of the institutions named as Co-Syndication Agents,
Documentation Agent or Senior Managing Agents in the heading of this Agreement
shall, in their capacities as such, have any duties or responsibilities of any
kind under this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of the Chief Financial Officer (Telecopy No. 214-977-8209) with
a copy to the General Counsel (Telecopy No. 214-977-2013);
(b) if to the Administrative Agent or the CAF Agent, to JPMorgan
Chase Bank at Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
212-552-5656), with a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. 212-4584);
(c) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by telecopy or on the
date five Business Days after dispatch by certified or registered mail if
mailed, except that notices and communications to the Agents pursuant to Article
II shall be deemed to have been given only when received by the Agents.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the CAF Agent or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the CAF Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would
39
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) except pursuant to Section 2.18, increase or decrease
the Commitment of any Lender (except for a ratable decrease in the Commitments
of all the Lenders), without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, or (iv) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required in order to waive, amend or modify any
rights hereunder or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, hereunder
without the prior written consent of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
agrees to pay (i) all reasonable out-of-pocket expenses incurred by any Agent
and its Affiliates, including the reasonable fees, charges and disbursements of
Cravath, Swaine & ▇▇▇▇▇, counsel for the Agents, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Agents or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Agents or any Lender, in connection with
the enforcement or protection of its rights in connection with this Agreement.
(b) The Borrower agrees to indemnify each of the Agents and each
Lender, each Affiliate of any of them and each of the respective directors,
officers, employees, agents and advisors of the foregoing (each such Person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds thereof, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee (BUT SHALL BE AVAILABLE TO
THE EXTENT THEY ARE DETERMINED TO HAVE RESULTED FROM, IN WHOLE OR IN PART, THE
SIMPLE NEGLIGENCE OF SUCH INDEMNITEE).
40
(c) To the extent permitted by applicable law, the Borrower agrees
not to assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable no later
than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto and their respective
successors and assigns permitted hereby) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and, except in the case of an assignment limited to rights
in respect of an outstanding Competitive Loan, the Administrative Agent, must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $15,000,000, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause shall not apply to rights in respect of outstanding Competitive Loans,
(iv) the Lenders party to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
paragraph (b), (c),(i), (j) or (n) of Article VII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 9.03).
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York 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 Commitment of,
and principal amount of the Loans 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 Administrative Agent and the Lenders may
41
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
above and any written consent to such assignment required by paragraph (b)
above, the Administrative Agent shall (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Lenders. No assignment shall be effective unless it
has been recorded in the Register as provided in this paragraph (d).
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
("Participants") in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Agents, and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) below,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
In connection with any sale of a participation pursuant to this paragraph, the
selling Lender shall obtain from the Participant an undertaking to be bound by
the provisions of Section 9.12. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with paragraph (b)
above shall be treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance with this
paragraph.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank to secure extensions of
credit by such Federal Reserve Bank to such Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such Federal Reserve Bank for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon
42
by the Lenders and shall survive the execution and delivery of this Agreement
and the making of any Loans, regardless of any investigation made by the Lenders
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15, 9.03 and
9.12 shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans
or the termination of the Commitments, this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Agents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Agents and when the Agents shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that
43
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the CAF Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business including any potential acquisition or proposed business transaction,
other than any such information that is available to the Agents or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof
44
(other than information obtained by any Lender in the course of examining the
books or records of the Borrower or any Subsidiary as permitted by Section 5.06)
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BELO CORP.,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/Treasurer
JPMORGAN CHASE BANK, individually, as
Administrative Agent and as CAF Agent,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., individually and
as Co-Syndication Agent,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
FLEET NATIONAL BANK, individually and
as Co-Syndication Agent,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK, individually and
as Co-Syndication Agent,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
46
BNP PARIBAS, individually and as
Documentation Agent,
by
/S/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
THE FUJI BANK, LIMITED., individually
and as Senior Managing Agent,
by
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
SUNTRUST BANK, individually and as
Senior Managing Agent,
by
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MELLON BANK, N.A.,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Lending Officer
US BANK NATIONAL ASSOCIATION,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST HAWAIIAN BANK,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
47
HIBERNIA NATIONAL BANK,
by
/S/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Portfolio Manager