SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
among
WESTWOOD ONE, INC.,
The Several Lenders
from Time to Time Parties Hereto,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
FLEET NATIONAL BANK,
as Co-Agent,
BANK OF MONTREAL, as Co-Agent,
BANK OF AMERICA, N.A., as Co-Agent.
Dated as of November 17, 2000
TABLE OF CONTENTS
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms..................................................1
1.2 Other Definitional Provisions.................................20
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................20
2.1 Revolving Credit and Additional Revolving Credit Commitments..20
2.3 Commitment Fee................................................22
2.4 Termination or Reduction of Revolving Credit Commitments or
Additional Revolving Credit Commitments......................22
2.5 Term Loans....................................................23
2.6 Intentionally Left Blank......................................24
2.7 Repayment of Loans; Evidence of Debt..........................24
2.8 Optional Prepayments..........................................26
2.9 Mandatory Prepayments and Commitment Reductions...............26
2.10 Conversion and Continuation Options...........................28
2.11 Minimum Amounts and Maximum Number of Tranches................28
2.12 Interest Rates and Payment Dates..............................29
2.13 Computation of Interest and Fees..............................29
2.14 Inability to Determine Interest Rate..........................30
2.15 Pro Rata Treatment and Payments...............................30
2.16 Illegality....................................................31
2.17 Requirements of Law...........................................32
2.18 Taxes.........................................................33
2.19 Indemnity.....................................................34
2.20 Change of Lending Office; Replacement or Prepayment of
Lenders.......................................................35
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................36
3.1 Financial Condition...........................................36
3.2 No Change.....................................................37
3.3 Corporate Existence; Compliance with Law......................37
3.4 Corporate Power; Authorization; Enforceable Obligations.......37
3.5 No Legal Bar..................................................37
3.6 No Material Litigation........................................38
3.7 No Default....................................................38
3.8 Ownership of Property; Liens..................................38
3.9 Intellectual Property.........................................38
3.10 Taxes.........................................................39
3.11 Federal Regulations...........................................39
3.12 ERISA.........................................................39
3.13 Investment Company Act; Other Regulations.....................39
3.14 Subsidiaries..................................................40
3.15 Purpose of Loans..............................................40
3.16 Environmental Matters.........................................40
3.17 Certain Documents.............................................40
SECTION 4. CONDITIONS PRECEDENT..............................................41
4.1 Conditions to Effectiveness...................................41
4.2 Conditions to Each Loan.......................................43
SECTION 5. AFFIRMATIVE COVENANTS.............................................43
5.1 Financial Statements..........................................43
5.2 Certificates; Other Information...............................44
5.3 Payment of Obligations........................................45
5.4 Conduct of Business and Maintenance of Existence..............45
5.5 Maintenance of Property; Insurance............................45
5.6 Inspection of Property; Books and Records; Discussions........45
5.7 Notices.......................................................46
5.8 Additional Guarantors.........................................46
5.9 Unrestricted Subsidiaries; Maintenance of Separate Corporate
Identity.....................................................47
SECTION 6. NEGATIVE COVENANTS................................................48
6.1 Financial Condition Covenants.................................48
6.2 Limitation on Indebtedness....................................48
6.3 Limitation on Liens...........................................49
6.4 Limitation on Guarantee Obligations...........................51
6.5 Limitation on Fundamental Changes.............................51
6.6 Limitation on Sale of Assets..................................52
6.7 Limitation on Restricted Payments.............................52
6.8 Limitation on Investments, Loans and Advances.................53
6.9 Limitation on Optional Payments and Modifications of Debt
Instruments..................................................54
6.10 Limitation on Capital Expenditures............................54
6.11 Limitation on Sale or Discount of Receivables.................54
6.12 Limitation on Transactions with Affiliates....................55
6.13 Limitation on Changes in Fiscal Year..........................55
6.14 Limitation on Negative Pledge Clauses.........................55
6.15 Limitation on Lines of Business...............................55
SECTION 7. EVENTS OF DEFAULT.................................................55
SECTION 8. THE ADMINISTRATIVE AGENT..........................................59
8.1 Appointment...................................................59
8.2 Delegation of Duties..........................................59
8.3 Exculpatory Provisions........................................60
8.4 Reliance by Administrative Agent..............................60
8.5 Notice of Default.............................................60
8.6 Non-Reliance on Administrative Agent and Other Lenders; Lender
Representations..............................................61
8.7 Indemnification...............................................62
8.8 Administrative Agent in Its Individual Capacity...............62
8.9 Successor Agents..............................................62
SECTION 9. MISCELLANEOUS.....................................................63
9.1 Amendments and Waivers........................................63
9.2 Notices.......................................................64
9.3 No Waiver; Cumulative Remedies................................64
9.4 Survival of Representations and Warranties....................65
9.5 Payment of Expenses and Taxes.................................65
9.6 Successors and Assigns; Participations and Assignments........66
9.7 Adjustments; Set-off..........................................69
9.8 Counterparts..................................................69
9.9 Severability..................................................69
9.1 Integration...................................................70
9.11 GOVERNING LAW.................................................70
9.12 Submission to Jurisdiction; Waivers...........................70
9.13 Acknowledgements..............................................71
9.14 WAIVERS OF JURY TRIAL.........................................71
9.15 Treatment of Certain Information; Confidentiality.............71
SCHEDULES
I. Commitments
3.1 Dispositions
3.14 Subsidiaries
6.2 Permitted Indebtedness
6.3 Permitted Liens
6.4 Permitted Guarantees
6.8 Permitted Investments
6.12 Permitted Transactions with Affiliates
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
B Form of Amended and Restated Management Services Subordination
Agreement
C Form of Guarantee
D Form of Opinion of Counsel to the Loan Parties
E Form of Assignment and Acceptance
F Form of Borrowing Certificate
G Form of Tax Allocation Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 17,
2000, among WESTWOOD ONE, INC., a Delaware corporation (the "Borrower"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), FLEET NATIONAL BANK, BANK OF MONTREAL and BANK OF
AMERICA, N.A., as co-agents for the Lenders hereunder (in such capacity, the
"Co-Agents") and THE CHASE MANHATTAN BANK, as Administrative Agent for the
Lenders hereunder.
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and certain banks and other
financial institutions are parties to an Amended and Restated Credit Agreement,
dated as of September 30, 1996 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Existing Credit Agreement"), pursuant to which
the lenders thereunder made loans to the Borrower under the terms provided for
therein;
WHEREAS, the Borrower has requested that the Existing Credit Agreement be
amended and restated to, inter alia, provide for an additional revolving credit
facility in the amount of $175,000,000, which additional facility will be
utilized by the Borrower to make acquisitions and to provide financing for the
working capital needs and general corporate purposes of the Borrower and its
Subsidiaries, including the repurchase of shares of its Capital Stock and
capital expenditures; and
WHEREAS, the Administrative Agent and the Lenders are willing so to amend
and restate the Existing Credit Agreement, but only on the terms and conditions
hereof;
NOW, THEREFORE, in consideration of the mutual covenants and premises
hereinafter set forth, effective as of the Second Restatement Effective Date,
the parties hereto hereby amend and restate the Existing Credit Agreement as
follows:
SECTION 1. DEFINITIONS
1.1......Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": 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%. For purposes hereof: "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by Chase
in connection with extensions of credit to debtors); and "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in the
ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective (day of such change
in the Prime Rate or the Federal Funds Effective Rat, respectively.
"ABR Loans": loans the rate of interest applicable to which is based upon
the ABR.
"Additional Revolving Credit Commitment": as to any Lender, the obligation
of such Lender to make Additional Revolving Credit Loans to the Borrower
hereunder in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule I under the
heading "Additional Revolving Credit Commitment", as such amount may be changed
from time to time in accordance with the provisions of this Agreement.
"Additional Revolving Credit Loans": all loans made or deemed made pursuant
to subsection~2.1(b).
"Additional Revolving Credit Note": as defined in subsection~2.7(e).
"Adjustment Date": each date on or after the Closing Date that is the
second Business Day following receipt by the Lenders of both (i)~the financial
statements required to be delivered pursuant to subsection~5.1(a) or 5.1(b), as
applicable, for the most recently completed fiscal period and (ii)~the related
compliance certificate required to be delivered pursuant to subsection~5.2(b)
with respect to such fiscal period.
"Administrative Agent": Chase, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the Lenders
under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person.
"Agreement": this Second Amended and Restated Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Annualized Consolidated Corporate Overhead": for any period, corporate
general and administrative expenses of the Borrower and its Restricted
Subsidiaries for such period as shown on the consolidated financial statements
of the Borrower and its Restricted Subsidiaries for such period delivered to the
Administrative Agent pursuant to subsection~5.1(a) or 5.1(b); provided that
there shall be excluded from "Annualized Consolidated Corporate Overhead"
(a)~all non-cash charges and (b)~all corporate general and administrative
expenses of the Borrower incurred on behalf of, or otherwise attributable to,
Unrestricted Subsidiaries or in connection with management and other services
and activities performed by the Borrower for Unrestricted Subsidiaries.
'Annualized Consolidated Operating Cash Flow" or "ACOCF": for any period,
the aggregate amount (determined on a consolidated basis without duplication in
accordance with GAAP), for the Borrower and its Restricted Subsidiaries, of
(a)~the sum of (i)~net revenues of the Borrower and its Restricted Subsidiaries
for such period (calculated before taxes and excluding (A)~any net gain or loss
arising from the sale of capital assets during such period; (B)~any gain arising
from any write-up of assets during such period; (C~net earnings for such period
of any Person in which the Borrower or any of its Restricted Subsidiaries has an
ownership interest unless such net earnings shall have actually been received by
the Borrower or such Restricted Subsidiary in the form of cash distributions
(other than cash distributions received by the Borrower from an Unrestricted
Subsidiary); (D)~any portion of the net earnings of any Restricted Subsidiary of
the Borrower or any of its Restricted Subsidiaries for such period which for any
reason is unavailable for payment of dividends to the Borrower or any other such
Restricted Subsidiary; (E)~any gain realized during such period arising from the
acquisition of any securities of the Borrower or any of its Restricted
Subsidiaries; (F)~any "extraordinary", "unusual" or "non-recurring" earnings or
"extraordinary", "unusual" or "non-recurring" losses for such period as such
terms are interpreted under GAAP; and (G) any interest income of the Borrower
and its Restricted Subsidiaries realized during such period)~minus
(ii)~operating expenses of the Borrower and its Restricted Subsidiaries for such
period (excluding depreciation, amortization, interest expense and other
non-cash charges accrued, and income taxes paid or accrued (other than any such
taxes attributable to the revenues of Unrestricted Subsidiaries for which the
Borrower has not been or is not entitled to be reimbursed, or in respect of
which the Borrower has not received or is not entitled to receive a credit,
pursuant to the terms of any Tax Allocation Agreement), for such period by the
Borrower and its Restricted Subsidiaries) minus (b)~Annualized Consolidated
Corporate Overhead for such period; provided that for purposes of calculating
Annualized Consolidated Operating Cash Flow when such term is used in
determining the Total Debt Ratio, if the Borrower or any of its Restricted
Subsidiaries shall have acquired or disposed of one or more businesses (or any
part thereof) during such period, Annualized Consolidated Operating Cash Flow
for such period shall be computed as if (in the case of an acquisition) such
business (or part thereof) had been owned by the Borrower or such Restricted
Subsidiary for the whole of such period or (in the case of a disposition) such
business (or part thereof) had been disposed of prior to the first day of such
period.
"Applicable Margin": during the period from the Second Restatement
Effective Date until the first Adjustment Date, the Applicable Margin shall
equal (i)~with respect to ABR Loans, 0% per annum and (ii)~with respect to
Eurodollar Loans, 0.500% per annum, in the case of Revolving Credit and Term
Loans, and 0.625%, in the case of Additional Revolving Credit Loans; such
Applicable Margin will be adjusted on each Adjustment Date to the applicable
rate per annum set forth under the column heading "Alternate Base Rate Loans" or
"Eurodollar Loans" on the applicable table set forth below which corresponds to
the Total Debt Ratio determined from the financial statements and compliance
certificate relating to the end of the fiscal quarter immediately preceding such
Adjustment Date;
(i) for Revolving Credit and Term Loans:
----------------------------------- ----------------------------------- -----------------------------------
Total Debt Alternate Base Eurodollar
Ratio Rate Loans Loans
----------------------------------- ----------------------------------- -----------------------------------
----------------------------------- ----------------------------------- -----------------------------------
Greater than or equal to 5.00:1 0.250% 1.250%
----------------------------------- ----------------------------------- -----------------------------------
----------------------------------- ----------------------------------- -----------------------------------
less than 5.00:1 and greater than
or equal to 4.25:1 0.000% 1.000%
----------------------------------- ----------------------------------- -----------------------------------
----------------------------------- ----------------------------------- -----------------------------------
less than 4.25:1 and greater than 0.000% 0.750%
----------------------------------- ----------------------------------- -----------------------------------
----------------------------------- ----------------------------------- -----------------------------------
less than 3.25:1 and greater than 0.000% 0.500%
or equal to 3.00:1
----------------------------------- ----------------------------------- -----------------------------------
----------------------------------- ----------------------------------- -----------------------------------
less than 3.00:1 and greater than 0.000% 0.500%
----------------------------------- ----------------------------------- -----------------------------------
----------------------------------- ----------------------------------- -----------------------------------
less than 2.00:1 0.000% 0.500%
----------------------------------- ----------------------------------- -----------------------------------
(ii) for Additional Revolving Credit Loans:
-------------------------------- ----------------------------------- ---------------------------------------
Total Debt Alternate Base Eurodollar
Ratio Rate Loans Loans
-------------------------------- ----------------------------------- ---------------------------------------
-------------------------------- ----------------------------------- ---------------------------------------
greater than or equal to 5.00:1 0.125% 1.125%
-------------------------------- ----------------------------------- ---------------------------------------
-------------------------------- ----------------------------------- ---------------------------------------
less than 5.00:1 and greater
than or equal to 4.25:1 0.125% 1.125%
-------------------------------- ----------------------------------- ---------------------------------------
-------------------------------- ----------------------------------- ---------------------------------------
less than 4.25:1 and greater 0.125% 1.125%
-------------------------------- ----------------------------------- ---------------------------------------
-------------------------------- ----------------------------------- ---------------------------------------
less than 3.25:1 and greater 0.125% 1.125%
than or equal to 3.00:1
-------------------------------- ----------------------------------- ---------------------------------------
-------------------------------- ----------------------------------- ---------------------------------------
less than 3.00:1 and greater 0.000% 0.875%
-------------------------------- ----------------------------------- ---------------------------------------
-------------------------------- ----------------------------------- ---------------------------------------
less than 2.00:1 0.000% 0.625%
-------------------------------- ----------------------------------- ---------------------------------------
provided that in the event that the financial statements required to be
delivered pursuant to subsection~5.1(a) or 5.1(b), as applicable, and the
related compliance certificate required to be delivered pursuant to
subsection~5.2(b), are not delivered when due, then
(a) if such financial statements and certificate are delivered after
the date such financial statements and certificate were required to be
delivered (without giving effect to any applicable cure period) and the
Applicable Margin increases from that previously in effect as a result of
the delivery of such financial statements, then the Applicable Margin
during the period from the date upon which such financial statements were
required to be delivered (without giving effect to any applicable cure
period) until the date upon which they actually are delivered shall, except
as otherwise provided in clause~(c) below, be the Applicable Margin as so
increased;
(b) if such financial statements and certificate are delivered
(without giving effect to any cure period) after the date such financial
statements and certificate were required to be delivered and the Applicable
Margin decreases from that previously in effect as a result of the delivery
of such financial statements, then such decrease in the Applicable Margin
shall not become applicable until the date upon which the financial
statements and certificate actually are delivered; and
(c) if such financial statements and certificate are not delivered
prior to the expiration of the applicable cure period, then, effective upon
such expiration, for the period from the date upon which such financial
statements and certificate were required to be delivered (after the
expiration of the applicable cure period) until two Business Days following
the date upon which they actually are delivered, the Applicable Margin for
any class of Loans (i.e. Revolving Credit, Additional Revolving Credit or
Term) shall be the highest applicable margins for such class of Loans
provided for in the schedule above (it being understood that the foregoing
shall not limit the rights of the Administrative Agent and the Lenders set
forth in subsection~2.12(c) or Section~7).
~Applicable Percentage~: with respect to any Lender, (a) in the case of
Revolving Credit Loans and Commitments, the percentage of the aggregate
Revolving Credit Commitments represented by such Lender's Revolving Credit
Commitment and (b) in the case of Additional Revolving Credit Loans and
Commitments, the percentage of the aggregate Additional Revolving Credit
Commitments represented by such Lender's Additional Revolving Credit Commitment.
If the Revolving Credit Commitments or Additional Revolving Credit Commitments
have terminated or expired, the Applicable Percentage shall be determined based
upon the Revolving Credit Commitments or Additional Revolving Credit
Commitments, as applicable, most recently in effect, giving effect to any
assignments.
"Assignee": as defined in subsection~9.6(c).
"Available Additional Revolving Credit Commitments": at any time, an amount
equal to the excess, if any, of (a)~the amount of Additional Revolving Credit
Commitments then in effect over (b the aggregate principal amount of all
Additional Revolving Credit Loans then outstanding.
"Available Revolving Credit Commitments": at any time, an amount equal to
the excess, if any, of (a)~the amount of Revolving Credit Commitments then in
effect over (b the aggregate principal amount of all Revolving Credit Loans then
outstanding.
"BOA": Bank of America, N.A.
"FNB": Fleet National Bank.
"BOM": Bank of Montreal.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection~2.2 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close;
provided, that when such term is used to describe a day on which a borrowing,
payment or interest rate determination is to be made in respect of a Eurodollar
Loan, such day shall also be a day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England.
"Capital Expenditures": for any period, expenditures (including the
aggregate amount of Capital Lease Obligations (excluding Capitalized Lease
Obligations relating to the acquisition of satellite time or capacity in an
aggregate amount not to exceed $20,000,000) incurred during such period) made by
the Borrower or any of its Restricted Subsidiaries to acquire or construct fixed
assets, plant and equipment (including renewals, improvements and replacements,
but excluding repairs) during such period computed in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a)~securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof, (b~certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c)~repurchase obligations
of any Lender or of any commercial bank having capital and surplus in excess of
$500,000,000, having a term of not more than 30 days with respect to securities
issued or fully guaranteed or insured by the United States Government,
(d)~commercial paper of a domestic issuer rated at least A-2 by Standard and
Poor's Ratings Services ("S&P") or P-2 by Moody's Investors Service, Inc.
("Moody's"), (e)~debt securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority
of any such state, commonwealth or territory or by any Person which are rated at
least A by S&P or A by Moody's, (f) debt securities with maturities of one year
or less from the date of acquisition backed by standby letters of credit issued
by any Lender or any commercial bank satisfying the requirements of clause~(b)
of this definition, (g)~shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses~(a) through
(f) of this definition or (h) securities similar in nature and maturity to those
described in the foregoing clauses (a) through (g) denominated in foreign
currencies and owned by a Foreign Subsidiary.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set forth in
subsection~4.1 of the Existing Credit Agreement were satisfied.
"Co-Agents": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commitment Period": in respect of the Revolving Credit Commitments, the
period from and including the Closing Date to but not including the Termination
Date or such earlier date on which the Revolving Credit Commitments shall
terminate as provided herein and, in respect of the Additional Revolving Credit
Commitments, the period from and including the Second Restatement Effective Date
to but not including the Termination Date or such earlier date on which the
Additional Revolving Credit Commitments shall terminate as provided herein.
"Commitments": collectively, the Term Loan Commitments, the Revolving
Credit Commitments and the Additional Revolving Credit Commitments.
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group which includes the Borrower and which is treated as
a single employer under Section 414 of the Code.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Default": any of the events specified in Section~7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under the
laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Environmental Permits": any and all permits, licenses, registrations,
notifications, exemptions and any other authorization required under any
Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation~D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate (rounded upward to the nearest
1/100th of 1%) appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the Eurodollar Base Rate for such Interest
Period shall be the rate at which Dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is based
upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section~7, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year, the amount (if any) by which
(a)~the sum of (i)~Annualized Consolidated Operating Cash Flow for such fiscal
year plus (ii)~any interest income realized in cash of the Borrower and its
Restricted Subsidiaries during such fiscal year exceeds (b) the sum of (i) Total
Debt Service for such fiscal year plus (ii)~the aggregate amount of Capital
Expenditures made by the Borrower and its Restricted Subsidiaries during such
fiscal year (net of long-term Indebtedness, if any, incurred by the Borrower and
its Restricted Subsidiaries during such fiscal year) plus (iii)~the aggregate
amount of income taxes paid or payable by the Borrower (excluding any such taxes
attributable to the revenues of Unrestricted Subsidiaries for which the Borrower
has been or is entitled to be reimbursed, or has received or is entitled to
receive a credit, pursuant to the terms of any Tax Allocation Agreement) and its
Restricted Subsidiaries during such fiscal year.
"Existing Credit Agreement": as defined in the recitals hereto.
"Financing Lease": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"Foreign Subsidiary": any Subsidiary of the Borrower organized under the
laws of any jurisdiction outside the United States.
"GAAP": generally accepted accounting principles in the United States
consistent with those utilized in preparing the audited financial statements
referred to in subsection~4.1.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee": the guarantee to be executed and delivered by each Restricted
Subsidiary other than a Foreign Subsidiary, substantially in the form of
Exhibit~C, as the same may be amended, supplemented or otherwise modified from
time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a)~the guaranteeing person or (b)~another Person to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i)~to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii)~to advance or supply funds (1)~for the purchase
or payment of any such primary obligation or (2)~to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii)~to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv)~otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a)~an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b)~the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantor": any Person party to the Guarantee.
"Incentive Warrants": shall mean the Stock Incentive Option as defined in
the Management Agreement (comprising two warrants each for 1,000,000 shares of
the Borrower's common stock to be issued to INI pursuant to the Management
Agreement).
"Indebtedness": of any Person at any date, without duplication, (a)~all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
(b)~any other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c)~all obligations of such Person under
Financing Leases, (d)~all obligations of such Person contingent or otherwise in
respect of banker's acceptances or similar instruments issued or created for the
account of such Person, (e)~all obligations, contingent or otherwise, of such
Person as an account party under acceptance, letter of credit or similar
facilities and (f)~all liabilities of the type described in clauses (a)~through
(e)~above secured by any Lien on any property owned by such Person (not to
exceed the value of such property) even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Infinity": Infinity Broadcasting Corporation, a Delaware corporation.
"INI": (a)~Infinity Network Inc., a Delaware corporation that, on the date
hereof, is a wholly owned Subsidiary of Infinity, or (b)~any other wholly owned
Subsidiary of Infinity that owns Capital Stock or other ownership interests of
the Borrower; provided that Infinity shall have notified the Administrative
Agent of the name of such other Subsidiary and the amount of such ownership
interests owned by such Subsidiary.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section~4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Installment Date": as defined in subsection 2.7(a).
"Interest Payment Date": (a)~as to any ABR Loan, the last day of each
March, June, September and December, (b)~as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest Period,
and (c)~as to any Eurodollar Loan having an Interest Period longer than three
months, each day which is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower
in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Termination Date or beyond the date final payment is due on the Term Loans
shall end on the Termination Date or such date of final payment, as the
case may be;
(iii)any Interest Period pertaining to a Eurodollar Loan that begins
on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar
month; and
(iv) the Borrower shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest Period for
such Loan.
"Interest Rate Protection Agreement": for any Person, an interest rate
swap, cap or collar agreement or similar arrangement between such Person and a
financial institution providing for the transfer or mitigation of interest risks
either generally or under specific contingencies.
"Investment": as defined in subsection~6.8.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan": any loan or advance made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, any Notes, the Management Services
Subordination Agreement and the Guarantee.
"Loan Parties": the Borrower and each Subsidiary of the Borrower which is a
party to a Loan Document.
"Majority Additional Revolving Credit Lenders": at any time prior to the
expiration or termination of the Additional Revolving Credit Commitments,
Lenders having an aggregate Applicable Percentage of at least 51%; or, at any
time after the expiration or termination of the Additional Revolving Credit
Commitments, Lenders having total exposure of Additional Revolving Credit Loans
in an amount of at least 51% of the aggregate Additional Revolving Credit Loans
then outstanding.
"Majority Lenders": at any time prior to the satisfaction of the conditions
precedent set forth in subsection~4.1 on the Second Restatement Effective Date,
Lenders having at least 51% of the aggregate Commitments; and, at any time
thereafter, Lenders having total exposure consisting of Term Loans, Revolving
Credit Commitments and Additional Revolving Credit Commitments in an aggregate
amount of at least 51% of an amount equal to the sum of (a) the aggregate Term
Loans then outstanding plus (b) the aggregate Revolving Credit Commitments plus
(c) the aggregate Additional Revolving Credit Commitments or, at any time after
the termination or expiration of the Revolving Credit Commitments and Additional
Revolving Credit Commitments, Lenders having total exposure consisting of Term
Loans, Revolving Credit Loans and Additional Revolving Credit Loans in an
aggregate amount of at least 51% of an amount equal to the sum of (x) the
aggregate Term Loans then outstanding plus (y) the aggregate Revolving Credit
Loans then outstanding plus (z) the aggregate Additional Revolving Credit Loans
then outstanding.
"Majority Revolving Credit Lenders": at any time prior to the expiration or
termination of the Revolving Credit Commitments, Lenders having an aggregate
Applicable Percentage of at least 51%; or, at any time after the expiration or
termination of the Revolving Credit Commitments, Lenders having total exposure
of Revolving Credit Loans in an amount of at least 51% of the aggregate
Revolving Credit Loans then outstanding.
"Majority Term Lenders": at any time prior to the satisfaction of the
conditions precedent set forth in subsection~4.1 on the Second Restatement
Effective Date, Lenders having at least 51% of the aggregate Term Loan
Commitments; and at any time thereafter, Lenders holding at least 51% of the
aggregate Term Loans then outstanding.
"Management Agreement": shall mean a Management Agreement between the
Borrower and Infinity in substantially the form of Exhibit A to the Stock
Purchase Agreement, as the same shall be modified and supplemented and in effect
from time to time.
"Management Fees": shall mean, for any period, fees and cash incentive
bonuses payable to Infinity under the Management Agreement during such period
for administrative, management and other services performed for the Borrower and
its Subsidiaries.
"Management Services Subordination Agreement": the Second Amended and
Restated Management Services Subordination Agreement substantially in the form
of Exhibit B, as the same may be amended, supplemented or otherwise modified
from time to time.
"Mandatory Reduction Date": as defined in subsection 2.4(b).
"Material Adverse Effect": a material adverse effect on (a)~the business,
operations, property, assets, liabilities or condition (financial or otherwise)
of the Borrower and its Restricted Subsidiaries taken as a whole or (b) the
validity or enforceability of this or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Environmental Amount": an amount finally determined to be payable
by the Borrower and/or its Subsidiaries in excess of $1,000,000 for remedial
costs, compliance costs, compensatory damages, punitive damages, fines,
penalties or any combination thereof.
"Materials of Environmental Concern": any gasoline or petroleum (including,
without limitation, crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes defined or regulated as
such in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Multiemplover Plan": a Plan which is a multiemployer plan as defined in
Section~400 l(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 2.18(a).
"Notes": the collective reference to the Revolving Credit Notes, the
Additional Revolving Credit Notes and the Term Notes.
"Participant": as defined in subsection~9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle~A of Title IV of ERISA.
"Permitted Additional Indebtedness": Indebtedness incurred by the Borrower
which is (i~unsecured, (ii)~no portion of the principal of which is required to
be repaid, repurchased or retired prior to October 31, 2004 (other than upon a
change of control of the Borrower) and (iii)~has other terms and conditions
(other than those relating to interest rate, fees and premiums) which, taken as
a whole, are no more restrictive on the Borrower (as determined in good faith by
the Board of Directors of the Borrower in the exercise of its reasonable
discretion) than the terms and conditions of this Agreement, as in effect on the
date of incurrence of such Indebtedness, provided, that the Total Debt Ratio,
both prior to and after giving effect to the incurrence of such Indebtedness, is
less than 4.00:1.00.
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Properties": the facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries.
"Register" as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section~4043(b)~of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
2615.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the Chairman of the Board, the Co-Chairman of the
Board, the chief executive officer, the president, the chief financial officer
or the senior vice president of financial operations of the Borrower.
"Restricted Subsidiary": each Subsidiary of the Borrower other than an
Unrestricted Subsidiary.
"Revolving Credit Commitment": as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the Borrower hereunder in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I under the heading "Revolving Credit
Commitment", as such amount may be changed from time to time in accordance with
the provisions of this Agreement
"Revolving Credit Loans": all loans made or deemed made pursuant to
subsection~2.1(a).
"Revolving Credit Note": as defined in subsection~2.7(e)
"Second Restatement Effective Date": the date upon which the conditions
precedent set forth in subsection 4.1 shall be satisfied.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Stock Purchase Agreement": the Stock Purchase Agreement dated as of
November 4, 1993 among Unistar Communications Group, Inc., Unistar Radio
Networks, Inc., Infinity and the Borrower, as the same shall be modified and
supplemented and in effect from time to time.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Tax Allocation Agreements": each Tax Allocation Agreement substantially in
the form of Exhibit G hereto, each between the Borrower and an Unrestricted
Subsidiary, as the same may be amended, supplemented or otherwise modified from
time to time.
"Term Loans": all loans made pursuant to subsection~2.5.
"Term Loan Commitments": as to any Lender, the obligation of such Lender to
make Term Loans to the Borrower hereunder in aggregate principal amount not to
exceed the amount set forth opposite such Lender's name on Schedule I under the
heading "Total Term Loan Commitment".
"Term Note": as defined in subsection~2.7(e).
"Termination Date": September~30, 2004.
"Total Debt": the sum of, without duplication, (a)~all Indebtedness (other
than Indebtedness in respect of the undrawn amount of any letters of credit) of
the Borrower and its Restricted Subsidiaries, determined on a consolidated basis
and (b)~all Indebtedness (other than Indebtedness in respect of the undrawn
amount of any letters of credit) of others for which a Guarantee Obligation has
been given by the Borrower or any Restricted Subsidiary.
"Total Debt Ratio": as of any date of determination thereof, the ratio of
(a)~Total Debt outstanding as of such date to (b)~Annualized Consolidated
Operating Cash Flow for the period of the four fiscal quarters of the Borrower
ended on, or most recently ended prior to, such date for which financial
statements have been, or are required to have been, provided to the Lenders
pursuant to subsection~5.1.
"Total Debt Service": as at the last day of any fiscal year of the
Borrower, the sum (calculated without duplication) of all payments of principal
of and interest on Indebtedness of the Borrower and its Restricted Subsidiaries
made or scheduled to be made during such fiscal year (other than payments of
principal which may be reborrowed), provided that, for any fiscal year ending on
or prior to the Termination Date, "Total Debt Service" shall include all
mandatory reductions of the Revolving Credit Commitments and Additional
Revolving Credit Commitments pursuant to subsection~2.4(b) or 2.4(c),
respectively, effected during such fiscal year.
"Total Fixed Charge Coverage Ratio": as of any date of determination
thereof, the ratio of (a)~Annualized Consolidated Operating Cash Flow for the
period of four fiscal quarters of the Borrower ended on, or most recently ended
prior to, such date to (b)~Total Fixed Charges for such period.
"Total Fixed Charges": for any period, the sum of (a)~Total Interest for
such period plus (b)~all payments of principal of Indebtedness of the Borrower
and its Restricted Subsidiaries made or scheduled to be made during such period
(other than payments of principal which may be reborrowed), including all
mandatory reductions of the Revolving Credit Commitments and Additional
Revolving Credit Commitments pursuant to subsection~2.4(b) or 2.4(c),
respectively, effected during such period plus (c)~Capital Expenditures made
during such period plus (d)~the aggregate amount of income taxes paid or payable
by the Borrower (excluding any such taxes attributable to the revenues of
Unrestricted Subsidiaries for which the Borrower has been or is entitled to be
reimbursed, or has received or is entitled to receive a credit, pursuant to the
terms of any Tax Allocation Agreement) and its Restricted Subsidiaries during
such fiscal year.
"Total Interest": for any period, all interest, whether paid in cash or
accrued as a liability, on all Indebtedness (including imputed interest on
Financing Leases) of the Borrower and its Restricted Subsidiaries, determined on
a consolidated basis, during such period.
"Total Interest Coverage Ratio": as of any date of determination thereof,
the ratio of (a)~Annualized Consolidated Operating Cash Flow for the period of
four fiscal quarters of the Borrower ended on, or most recently ended prior to,
such date to (b)~Total Interest for such period.
"Tranche": the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on
the same later date (whether or not such Loans shall originally have been made
on the same day).
"Transferee": as defined in subsection~9.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar Loan
"United States": the United States of America.
"Unrestricted Investment Basket": at any time, an amount equal to the sum
of the following:
(a) any Excess Cash Flow of the Borrower and its Restricted
Subsidiaries for any fiscal year commencing with the fiscal year ending on
December~31, 1999 plus
(b) the aggregate net cash proceeds received by the Borrower
subsequent to the Second Restatement Effective Date from the issuance of
shares of its Capital Stock.
"Unrestricted Subsidiary": any Subsidiary of the Borrower which has been
organized or acquired after the date hereof and designated by the Board of
Directors of the Borrower as an "Unrestricted Subsidiary", provided, in each
case, that at the time any such other Subsidiary is so organized or acquired and
at all times thereafter:
(a) none of the issued and outstanding capital stock of such
Subsidiary (or any Subsidiary of such Subsidiary) is owned by any
Restricted Subsidiary;
(b) except as permitted by subsection~6.8(g), no proceeds of any Loan
hereunder are used to finance or pay any cost or expense related to the
organization of, or acquisition of the assets or properties of, such
Subsidiary (or any Subsidiary of such Subsidiary);
(c) except as permitted by subsection~6.8(g), neither the Borrower nor
any Restricted Subsidiary is at the time such Subsidiary (or any Subsidiary
of such Subsidiary) is organized or acquired or at any time thereafter (x)
directly or indirectly liable (contingently or otherwise), or provides or
is obligated to provide any credit support, for any Indebtedness
(including, without limitation, any undertaking, agreement or instrument
evidencing such Indebtedness) or other obligation of such Subsidiary (or
any Subsidiary of such Subsidiary), (y)~obligated to contribute any funds
or other property to such Subsidiary (or any Subsidiary of such Subsidiary)
or (z) otherwise directly or indirectly obligated to any other Person on
account of the Indebtedness, other obligations or financial condition of
such Subsidiary (or any Subsidiary of such Subsidiary) except to the extent
of a pledge or security interest in the Capital Stock owned by the Borrower
of such Subsidiary as collateral security for obligations of such
Subsidiary (or any Subsidiary of such Subsidiary);
(d) no agreements, instruments or other documents governing or
evidencing any Indebtedness of such Subsidiary (or any Subsidiary of such
Subsidiary) contains a cross-default or cross-acceleration clause or other
"event of default" or similar event the occurrence of which (with or
without notice or lapse of time or both) causes or would permit the
holder(s) thereof to cause such Indebtedness to become due or to be
required to be purchased or redeemed by such Subsidiary or any of its
Affiliates prior to its stated maturity or to take enforcement action
against such Subsidiary (or any Subsidiary of such Subsidiary) solely by
reason of (x) the occurrence of a Default or Event of Default hereunder,
(y) the occurrence of any default or other event or condition in respect of
any other Indebtedness of the Borrower or any of its Restricted
Subsidiaries (including, without limitation, subordinated debt) or (z) the
occurrence of any event or condition with respect to the Borrower or any of
its Restricted Subsidiaries other than any event or condition described in
Section~7(f) with respect to the Borrower;
(e) the Borrower and such Subsidiary (or another Unrestricted
Subsidiary of which such Subsidiary is a Subsidiary), acting on its own
behalf and on behalf of its Subsidiaries, have entered into a Tax
Allocation Agreement, which Agreement shall be in full force and effect at
the time such Subsidiary is organized or acquired and at all times
thereafter, and
(f) the Borrower has notified the Lenders as to the organization or
acquisition of such Subsidiary as required by subsection~5.9 and the
Borrower is in compliance with its other obligations set forth in
subsection~5.9.
1.2......Other Definitional Provisions.
(a) Definitions Apply to Notes, Etc. Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
any Notes or any certificate or other document made or delivered pursuant
hereto.
(b) Accounting Terms. As used herein and in any Notes, and any certificate
or other document made or delivered pursuant hereto, accounting terms relating
to the Borrower and its Subsidiaries not defined in subsection~1.1 and
accounting terms partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) Certain General References. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(d) Singular and Plural. The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1......Revolving Credit Commitments and Additional Revolving Credit
Commitments.
(a) Revolving Credit Loans. Subject to the terms and conditions hereof,
each Lender severally agrees to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time during the Commitment Period for the
Revolving Credit Commitments in an aggregate principal amount at any one time
outstanding which does not exceed the amount of such Lender's Revolving Credit
Commitment, provided that at no time shall the aggregate principal amount of
Revolving Credit Loans exceed the aggregate amount of the Revolving Credit
Commitments as then in effect. During such Commitment Period the Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. Revolving Credit Loans outstanding under the
Existing Credit Agreement on the Second Restatement Effective Date shall be
automatically continued as Revolving Credit Loans hereunder on the Second
Restatement Effective Date.
(b) Additional Revolving Credit Loans. Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans ("Additional
Revolving Credit Loans") to the Borrower from time to time during the Commitment
Period for the Additional Revolving Credit Commitments in an aggregate principal
amount at any one time outstanding which does not exceed the amount of such
Lender's Additional Revolving Credit Commitment, provided that at no time shall
the aggregate principal amount of Additional Revolving Credit Loans exceed the
aggregate amount of the Additional Revolving Credit Commitments as then in
effect. During such Commitment Period the Borrower may use the Additional
Revolving Credit Commitments by borrowing, prepaying the Additional Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
(c) Types of Loans. The Revolving Credit Loans and Additional Revolving
Credit Loans may from time to time be (i)~Eurodollar Loans, (ii)~ABR Loans or
(iii) a combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections~2.2 and 2.10, provided that
no Revolving Credit Loan or Additional Revolving Credit Loans shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2......Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments and Additional Revolving Credit
Commitments during the applicable Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to
11:30~a.m., New York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Revolving Credit Loans or
Additional Revolving Credit Loans are to be initially Eurodollar Loans, or
(b)~one Business Day prior to the requested Borrowing Date, otherwise,
specifying (i)~the amount to be borrowed, (ii)~the requested Borrowing Date,
(iii)~whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof and (iv)~if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial interest Periods therefore. Each borrowing by
the Borrower under the Revolving Credit Commitments or Additional Revolving
Credit Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$500,000 or a whole multiple of $100,000 in excess thereof (or, if the then
Available Revolving Credit Commitments or Available Additional Revolving Credit
Commitments are less than $500,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $3,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the office of the Administrative Agent
specified in subsection 9.2 prior to 11:00 a.m., New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.3......Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee for the period from and
including the first day of the Commitment Period for Revolving Credit Loans to
the Termination Date, computed at the rate of 1/4 of 1% per annum on an amount
equal to the sum of (i) such Lender's Applicable Percentage of the average daily
amount of the Available Revolving Credit Commitments and (ii) such Lender's
Applicable Percentage of the average daily amount of the Available Additional
Revolving Credit Commitments and (iii) such Lender's ratable share of the then
undrawn and available Term Loan Commitments, during the period for which payment
is made. Such commitment fee shall be payable quarterly in arrears on the last
day of each March, June, September and December and on the Termination Date or
such earlier date as the Revolving Credit Commitments or Additional Revolving
Credit Commitments, as applicable, shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
2.4......Termination or Reduction of Revolving Credit Commitments or
Additional Revolving Credit Commitments.
(a) Voluntary Termination or Reduction. The Borrower shall have the right,
upon not less than one Business Day's notice to the Administrative Agent, to
terminate the Revolving Credit Commitments or Additional Revolving Credit
Commitments, or from time to time to reduce the amount of the Revolving Credit
Commitments or Additional Revolving Credit Commitments to an amount not less
than the aggregate principal amount of Revolving Credit Loans or Additional
Revolving Credit Loans, as applicable, outstanding after giving effect to any
prepayments of the Revolving Credit Loans or Additional Revolving Credit Loans
being made on the date of such reduction. Any such reduction shall be in an
amount equal to $500,000 or a whole multiple of $100,000 in excess thereof and
shall reduce permanently the Revolving Credit Commitments or Additional
Revolving Credit Commitments, as applicable, then in effect. Any such reduction
of Revolving Credit Commitments shall also reduce pro rata the amounts of the
then remaining mandatory reductions specified in subsection 2.4(b).
(b) Mandatory Termination or Reduction of Revolving Credit Commitments. The
Revolving Credit Commitments in effect on the date hereof (i.e. $105,000,000)
shall be automatically reduced on each of the dates specified below (each, a
"Mandatory Reduction Date"), commencing on December 31, 2000, by an aggregate
amount equal to the amount set forth opposite such date:
Commitment
Mandatory Reduction
Reduction Date Amount
December 31, 2000 $3,000,000
March 31, 2001 $4,500,000
June 30, 2001 $4,500,000
September 30, 2001 $4,500,000
March 31, 2002 $6,000,000
June 30, 2002 $6,000,000
September 30, 2002 $6,000,000
December 31, 2002 $6,000,000
March 31, 2003 $7,500,000
June 30, 2003 $7,500,000
September 30, 2003 $7,500,000
December 31, 2003 $7,500,000
March 31, 2004 $9,996,000
June 30, 2004 $9,996,000
September 30, 2004 $10,008,000
(c) Mandatory Reduction of Additional Revolving Credit Commitments. The
Additional Revolving Credit Commitments shall be automatically reduced to zero
on the Termination Date.
(d) Outstandings Exceeding Commitments. If the aggregate then outstanding
principal amounts of Revolving Credit Loans or Additional Revolving Credit Loans
shall exceed the aggregate amount of the Revolving Credit Commitments or
Additional Revolving Credit Commitments, as applicable, as reduced at any time
pursuant to subsection 2.4(b) or 2.9(d), the Borrower shall prepay Revolving
Credit Loans or Additional Revolving Credit Loans, as applicable, to the extent
outstanding in an amount equal to such excess. Each such prepayment shall be
accompanied by payment of accrued interest on the amount prepaid plus any
amounts payable pursuant to subsection 2.19.
2.5 Term Loans. Set forth opposite each Lender's name in Schedule I is the
aggregate amount of term loans (each, a "Term Loan") made by such Lender under
the Existing Credit Agreement and outstanding on the date hereof. The Term Loans
may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.6 and 2.10. Term Loans
outstanding under the Existing Credit Agreement on the Second Restatement
Effective Date shall be automatically continued as Term Loans hereunder on the
Second Restatement Effective Date.
2.6 Intentionally Left Blank. This subsection 2.6 has been intentionally
left blank.
2.7 Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender (i) the then unpaid
principal amount of each Revolving Credit Loan and Additional Revolving Credit
Loan of such Lender on the Termination Date (or such earlier date on which the
Revolving Credit Loans or Additional Revolving Credit Loans, as applicable,
become due and payable pursuant to Section 7) and (ii) the aggregate principal
amount of the Term Loans of such Lender, in 16 consecutive quarterly
installments, payable on each of the dates specified below (each, an
"Installment Date") in an amount equal to such Lender's ratable share (based on
the then outstanding principal amount of the Term Loans then held by the
Lenders) of the amount set forth opposite such date:
Installment Date Amount
December 31, 2000 $2,500,000
March 31, 2001 $2,500,000
June 30, 2001 $2,500,000
September 30, 2001 $2,500,000
December 31, 2001 $2,500,000
March 31, 2002 $3,750,000
June 30, 2002 $3,750,000
September 30, 2002 $3,750,000
December 31, 2002 $3,750,000
March 31, 2003 $5,000,000
June 30, 2003 $5,000,000
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
March 31, 2004 $6,666,666
June 30, 2004 $6,666,666
September 30, 1994 $6,666,668
(or the then unpaid principal amount of such Term Loans, on the date that the
Term Loans become due and payable pursuant to Section 7). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Loans from
time to time outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection 2.12.
(b) Maintenance of Accounts. Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) Register. The Administrative Agent shall maintain the Register pursuant
to subsection 9.6(d), and a subaccount therein for each Lender, in which shall
be recorded (i) the amount of each Revolving Credit Loan, Additional Revolving
Credit Loan and Term Loan made hereunder, the Type thereof, each 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) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(d) Treatment of Account and Register Entries. The entries made in the
Register and the accounts of each Lender maintained pursuant to
subsection 2.7(b) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay
(with applicable interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
(e) Notes. The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender (i) a
promissory note of the Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A-1 with appropriate insertions as
to date and principal amount (a "Revolving Credit Note"), and/or (ii) a
promissory note of the Borrower evidencing the Additional Revolving Credit Loans
of such Lender, substantially in the form of Exhibit A-1 with appropriate
insertions as to date and principal amount (an "Additional Revolving Credit
Note"), and/or (iii) a promissory note of the Borrower evidencing the Term Loan
of such Lender, substantially in the form of Exhibit A-2 with appropriate
insertions as to date and principal amount (a "Term Note").
2.8 Optional Prepayments. The Borrower may, on the last day of any Interest
Period with respect thereto, in the case of Eurodollar Loans, or at any time and
from time to time, in the case of ABR Loans, prepay the Loans, in whole or in
part, without premium or penalty, upon at least (i) three Business Days'
irrevocable notice to the Administrative Agent, in the case of Eurodollar Loans
or (ii) one Business Day's irrevocable notice to the Administrative Agent, in
the case of ABR Loans, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and,
if of a combination thereof, the amount allocable to each and specifying the
type of Loans to be prepaid. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. In the case of prepayments of
the Term Loans only, such prepayments shall be accompanied by payment of accrued
interest to such date on the amount prepaid. Partial prepayments of the Term
Loans shall be applied to the installments of principal thereof in the inverse
order of their scheduled maturities, provided that if the Borrower so elects by
notice to the Administrative Agent, all or any portion of an optional prepayment
of any amount otherwise required to be applied to the installments of the Term
Loans in the inverse order of their maturities shall instead be applied to the
installments of the Term Loans, first in the direct order of their maturities,
so long as the installments to which such application is to be made are
scheduled to be paid within 270 days of such optional prepayment and second in
inverse order of their maturities. Amounts prepaid on account of the Term Loans
may not be reborrowed. Each partial prepayment shall be in an amount equal to
(i) in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof and (ii) in the case of Eurodollar Loans, $1,000,000 or a whole multiple
of $1,000,000 in excess thereof.
2.9 Mandatory Prepayments and Commitment Reductions.
(a) Intentionally Left Blank. This subsection 2.9(a) has been intentionally
left blank.
(b) Dispositions. If the Borrower or any of its Restricted Subsidiaries
shall receive any net cash proceeds from the sale or other disposition of
property, businesses or assets (except for (i) sales or other dispositions of
obsolete or worn out property and (ii) sales of inventory or other property in
the ordinary course of business) and such proceeds are not used to purchase
other assets within 12 months of receipt thereof, the Borrower shall apply an
amount equal to 100% of the portion of such net cash proceeds not so used to the
prepayment of the Loans and to the permanent reduction of the Revolving Credit
Commitments and Additional Revolving Credit Commitments in accordance with
subsection 2.9(d).
(c) Casualty Events. If the Borrower or any of its Restricted Subsidiaries
shall receive any proceeds from any insurance on the property of the Borrower or
its Restricted Subsidiaries (other than business interruption insurance), then
the Borrower shall apply 100% of such proceeds, to the extent they are not
reasonably promptly applied to the repair or replacement of the affected
property to which such proceeds relate (or to the payment of taxes or other
expenses related to such property or the repayment of any Indebtedness secured
thereby), to the prepayment of the Loans and to the permanent reduction of the
Revolving Credit Commitments and Additional Revolving Credit Commitments in
accordance with subsection 2.9(d).
(d) Application. Each prepayment of the Loans and permanent reduction of
the Revolving Credit Commitments and Additional Revolving Credit Commitments
pursuant to this subsection shall be applied first, to the permanent repayment
of the Term Loans (ratably among them in accordance with the respective
aggregate then outstanding principal amounts thereof) in the inverse order of
their scheduled maturities (except that any prepayment pursuant to
subsection 2.9(b) shall be applied ratably to such remaining scheduled
installments) and second, to the permanent reduction of the Revolving Credit
Commitments and Additional Revolving Credit Commitments (ratably among them in
accordance with the then respective aggregate outstanding principal amounts
thereof) and, to the extent required by subsection 2.4(c), to the prepayment of
Revolving Credit Loans and Additional Revolving Credit Loans. Each such
reduction of the Revolving Credit Commitments shall reduce, in inverse order,
the mandatory reductions required on each Mandatory Reduction Date except that
any such reduction of Revolving Credit Commitments pursuant to subsection 2.9(b)
shall reduce pro rata the mandatory reductions then required on each remaining
Mandatory Reduction Date. Each such prepayment shall be accompanied by payment
of accrued interest on the amount prepaid plus any amounts payable pursuant to
subsection 2.19.
(e) Certain Deferrals of Prepayments. Notwithstanding anything in this
subsection to the contrary: (i) no prepayment of Loans or reduction of Revolving
Credit Commitments or Additional Revolving Credit Commitments pursuant to either
paragraph (b) or (c) above shall be required to be made until the last Business
Day of December of the then current fiscal year of the Borrower or, if earlier,
the date on which the aggregate of the amounts to be applied to such prepayment
and/or reduction in such fiscal year as provided in such paragraphs (b) and (c)
equals or exceeds $1,000,000, after which date all such amounts received during
such fiscal year shall be applied to such prepayment and/or reduction as therein
provided; and (ii) if the Borrower so elects by notice to the Administrative
Agent no later than 15 Business Days prior to any date that a prepayment of
Eurodollar Loans would be required to be made but for this clause (ii), no
prepayment of Eurodollar Loans pursuant to this subsection shall be required to
be made except on the last day(s) of the respective Interest Period(s) therefor
in effect at the time such prepayments would otherwise be required to be made
provided, that on any date that a prepayment of Eurodollar Loans would be
required to be made but for this subsection the Borrower shall
cash-collateralize such payment in a manner reasonably satisfactory to the
Administrative Agent.
2.10 Conversion and Continuation Options.
(a) Conversion of Loans. The Borrower may elect from time to time to
convert Eurodollar Loans to ABR Loans, by giving the Administrative Agent at
least one Business Day's prior irrevocable notice of such election, provided
that any such conversion of Eurodollar Loans may only be made on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to
time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent
at least three Business Days' prior irrevocable notice of such election. Any
such notice of conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Lenders have determined that such a
conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Termination Date
(in the case of Revolving Credit Loans or Additional Revolving Credit Loans) or
the date of the final installment of principal of the Term Loans (in the case of
Term Loans).
(b) Continuation of Loans. Any Eurodollar Loan may be continued as such
upon the expiration of the then current Interest Period with respect thereto by
the Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date (in the case
of Revolving Credit Loans or Additional Revolving Credit Loans) or the date of
the final installment of principal of the Term Loans (in the case of Term Loans)
and provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
2.11 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Tranche shall be equal to $3,000,000 or a whole
multiple of $1,000,000 in excess thereof. In no event shall there be more than
ten Tranches outstanding at any time.
2.12 Interest Rates and Payment Dates.
(a) Eurodollar Loans. Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) ABR Loans. Each ABR Loan shall bear interest at a rate per annum equal
to the ABR plus the Applicable Margin.
(c) Default Interest. If all or a portion of (i) any principal of any Loan,
(ii) any interest payable thereon, (iii) any commitment fee or (iv) any other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), the principal of the Loans and any such
overdue interest, commitment fee or other amount shall, to the extent permitted
by applicable law, bear interest at a rate per annum which is (x) in the case of
principal, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the case of any such
overdue interest, commitment fee or other amount, the rate described in
paragraph (b) of this subsection plus 2%, in each case from the date of such
non-payment until such overdue principal, interest, commitment fee or other
amount is paid in full (as well after as before judgment).
(d) Interest Payment Dates. Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant to paragraph (c)
of this subsection shall be payable from time to time on demand. Interest on
Revolving Credit Loans and Term Loans accrued under the Existing Credit
Agreement prior to the Second Restatement Effective Date shall be payable on the
respective Interest Payment Dates for such Loans occurring after the Second
Restatement Effective Date.
2.13 Computation of Interest and Fees.
(a) Computation. Whenever it is calculated on the basis of the Prime Rate,
interest shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed, and, otherwise, interest and
commitment fees shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of each determination of a Eurodollar Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Determinations of Interest Conclusive. Each determination of an
interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to
subsection 2.12(a) or (c).
2.14 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments.
(a) Pro Rata Treatment. Each borrowing by the Borrower from the Lenders
hereunder and any reduction of the Revolving Credit Commitments or Additional
Revolving Credit Commitments shall be made pro rata according to the respective
Applicable Percentages of the Lenders. Except as provided in subsection 2.20(b),
each payment (including each prepayment) by the Borrower on account of principal
of and interest on (i) the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans then held by the Lenders, (ii) the Additional Revolving Credit
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Additional Revolving Credit Loans then held by the Lenders and
(iii) the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Lenders. All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without set
off or counterclaim and shall be made prior to 12:00 noon, New York City time,
on the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Administrative Agent's office specified in subsection 9.2, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
(b) Presumption by Administrative Agent. Unless the Administrative Agent
shall have been notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its Applicable Percentage
of such borrowing available to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's Applicable Percentage of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans
hereunder, on demand, from the Borrower.
2.16 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.19.
2.17 Requirements of Law.
(a) Increases in Costs. If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or compliance by any
Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 2.18 and changes in
taxes on or measured by the overall net income of such Lender or its
lending office for such Loan);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) Capital Requirements. If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Notification to Borrower. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled. Each Lender will furnish the Borrower with a
certificate (with a copy to the Administrative Agent) setting forth the basis of
the claim and the additional amounts due, and such certificate shall be
conclusive, provided that the determination of such amounts as set forth on such
certificate is made on a reasonable basis. No Lender shall be entitled to
compensation under this subsection for any costs incurred more than six months
prior to the date such Lender delivers such certificate to the Borrower
requesting compensation. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Taxes.
(a) Payments To Be Made Free and Clear. All payments made by the Borrower
under this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States or a state thereof if such Lender fails to comply with
the requirements of paragraph (b) of this subsection. Whenever any Non-Excluded
Taxes are payable by the Borrower, the Borrower shall pay to or deposit with the
appropriate taxing authority in a timely manner the full amount of any such
Non-Excluded Taxes payable and as promptly as possible thereafter the Borrower
shall send to the Administrative Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof (or other documentation
reasonably acceptable to the Administrative Agent or Lender). If the Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Non-U.S. Lenders. Each Lender that is not incorporated under the laws
of the United States or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent, on or before
the date of any payment by the Borrower hereunder or under any Notes to
such Lender with respect to which such Lender requests increased payments
pursuant to subsection 2.18(a), (A) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or successor applicable
form, as the case may be, and (B) an Internal Revenue Service Form W-BEN or
W-ECI, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii)obtain such extensions of time for filing and complete such forms
or certifications as may reasonably be requested by the Borrower or the
Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 9.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
(c) Additional Forms by Non-U.S. Lenders. Each Lender that is not
incorporated under the laws of the United States or a State thereof shall
deliver to the Borrower and the Administrative Agent additional forms or
certifications relating to the matters provided for in this subsection as may be
reasonably requested by the Borrower.
2.19 Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of a Eurodollar
Loan after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Bank on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank eurodollar market.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.20 Change of Lending Office; Replacement or Prepayment of Lenders.
(a) Change of Lending Office. Each Lender agrees that if it makes any
demand for payment under subsection 2.17 or 2.18(a), or if any adoption or
change of the type described in subsection 2.16 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under subsection 2.17 or
2.18(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 2.16.
(b) Replacement or Prepayment of Lenders. If the Borrower shall be required
to pay any additional amounts or other payments in accordance with
subsection 2.17 or 2.18(a) or if any Lender shall, in accordance with
subsection 2.16, no longer be obligated to make or maintain Eurodollar Loans
hereunder, the Borrower may, at its own expense and in its sole discretion,
(i) require such Lender to transfer or assign, in whole or in part, without
recourse (in accordance with subsection 9.6), all or part of its interests,
rights and obligations under this Agreement to another Person (provided that the
Borrower, with the full cooperation of such Lender, can identify a Person which
is ready, willing and able to be an Assignee with respect thereto) which shall
assume such assigned obligations (which Assignee may be another Lender, if such
Assignee Lender accepts such assignment) or (ii) so long as no Default or Event
of Default shall have occurred and be continuing, terminate the Revolving Credit
Commitment of such Lender and prepay all outstanding Loans of such Lender;
provided that (A) the Assignee or the Borrower, as the case may be, shall have
paid to such Lender in immediately available funds the principal of and interest
accrued to the date of such payment on the Loans made by it hereunder and all
other amounts owed to it hereunder, including, without limitation, any amounts
owing pursuant to subsection 2.19 and, in the case of any such assignment, any
amounts that would be owing under said subsection if such Loans were prepaid on
the date of such assignment, and (B) such assignment or termination of the
Revolving Credit Commitment, if any, of such Lender and prepayment of Loans does
not conflict with any law, rule or regulation or order of any Governmental
Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:
3.1 Financial Condition. The consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at December 31, 1999 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by PricewaterhouseCoopers LLP, copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at June 30, 2000 and the related unaudited consolidated
statements of income and of cash flows for the six-month period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, present fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the six-month period then ended (subject
to normal year-end audit adjustments and footnote disclosure). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). Neither the Borrower nor any of
its consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto. Except as set forth on Schedule 3.1, during the period
from June 30, 2000 to and including the date hereof there has been no sale,
transfer or other disposition by the Borrower or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its consolidated Subsidiaries at June 30, 2000.
3.2 No Change. Since December 31, 1999 there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect.
3.3 Corporate Existence; Compliance with Law. Each of the Borrower and its
Restricted Subsidiaries (a) is duly organized and validly existing under the
laws of the jurisdiction of its organization, (b) has the requisite corporate or
other power and authority and the legal right to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign corporation under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification and (d) is
in compliance with all Requirements of Law, except to the extent that the
inaccuracy of any of the statements set forth in this subsection could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Borrower
has the corporate power and authority and the legal right to make, deliver and
perform the Loan Documents to which it is a party and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement, any Notes and to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by or
in respect of, any Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Borrower is a party, except
for filings of appropriate counterparts of this Agreement and other information
with the Securities and Exchange Commission as required by applicable law. This
Agreement has been, and each other Loan Document to which it is a party will be,
duly executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document to which it is a party when executed
and delivered will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
3.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents to which the Borrower is a party, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Borrower or of any of its Restricted Subsidiaries, except for
any such violation that could not reasonably be expected to have a Material
Adverse Effect, and will not result in, or require, the creation or imposition
of any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Restricted Subsidiaries or against any of its or their respective properties or
revenues (a) which is so pending or threatened prior to the Second Restatement
Effective Date with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
3.7 No Default. Neither the Borrower nor any of its Restricted Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and its Restricted
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by subsection 6.3.
3.9 Intellectual Property. The Borrower and each of its Restricted
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property which could
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrower, the use of such Intellectual Property by the Borrower and its
Restricted Subsidiaries does not infringe on the rights of any Person, except
for such claims and infringements that, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
3.10 Taxes. Each of the Borrower and its Restricted Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any taxes, fees or other charges the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrower or its Restricted
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
3.11 Federal Regulations. No part of the proceeds of any Loans will be used
for any purpose that would result in a violation of Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect.
3.12 ERISA. (i) During the five-year period prior to the date on which
this representation is made or deemed made, neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred with respect to any Single Employer Plan,
(ii) each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code (except that, with respect to any Multiemployer
Plan, such representation is only made to the Borrower's knowledge), (iii) no
termination of a Single Employer Plan has occurred, (iv) no Lien on the assets
of the Borrower or any Commonly Controlled Entity in favor of the PBGC or a Plan
has arisen, (v) neither the Borrower nor any Commonly Controlled Entity has had
nor, to the Borrower's knowledge, expects to have a complete or partial
withdrawal from any Multiemployer Plan, and (vi) no such Multiemployer Plan is
in Reorganization or Insolvent, except for the occurrence of any such event or,
in the case of clause (ii), any failure so to comply, that could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by an amount which
could be reasonably expected to result in a Material Adverse Effect.
3.13 Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
3.14 Subsidiaries. All of the Restricted Subsidiaries of the Borrower in
existence on the date hereof are listed on Part I of Schedule 3.14, and all of
the Unrestricted Subsidiaries of the Borrower in existence on the date hereof
are listed on Part H of Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Term Loans were used by the
Borrower to refinance Indebtedness under the Existing Credit Agreement. The
proceeds of the initial Revolving Credit Loans were used by the Borrower to
refinance Indebtedness under the Existing Credit Agreement and the proceeds of
the initial Revolving Credit Loans, as well as other Revolving Credit Loans and
Additional Revolving Credit Loans, shall be used by the Borrower (i) to make
acquisitions and (ii) for general corporate purposes, including the repurchase
of shares of Capital Stock and/or evidences of Indebtedness, working capital and
capital expenditures.
3.16 Environmental Matters. Other than exceptions to any of the following
that could not, individually or in any aggregation, reasonably be expected to
give rise to a Material Adverse Effect: the Borrower and its Restricted
Subsidiaries comply and have complied with all applicable Environmental Laws,
and possess and comply with and have possessed and complied with all
Environmental Permits required under such laws; there are no past, present or
anticipated future events, conditions, circumstances, practices, plans or legal
requirements that, to its knowledge, could prevent or materially increase the
burden on the Borrower and its Restricted Subsidiaries of compliance with
applicable Environmental Laws or of obtaining, renewing or complying with all
Environmental Permits required under such laws; the Borrower and its Restricted
Subsidiaries have received no notice of any violation of, or potential liability
under, any Environmental Law; and there are and have been no Materials of
Environmental Concern or other conditions at any property owned, operated, or
otherwise used by the Borrower or any of its Restricted Subsidiaries now or, to
its knowledge, in the past, or at any other location, that could give rise to
liability of the Borrower or any of its Restricted Subsidiaries under any
Environmental Law.
3.17 Certain Documents. The Borrower has delivered to each Lender a
complete, correct and current copy of the Management Agreement and any other
document the Administrative Agent shall reasonably request.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of this Agreement and
the agreement of each Lender to make the extensions of credit requested to be
made by it are subject to the satisfaction, immediately prior to or concurrently
with the foregoing on the Second Restatement Effective Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of
the Borrower, with a counterpart for each Lender, by Lenders constituting
the Majority Revolving Credit Lenders, by Lenders constituting the Majority
Term Lenders and by each Lender with an Additional Revolving Credit
Commitment, and (ii) the other Loan Documents, each executed and delivered
by a duly authorized officer of the parties thereto, with a counterpart or
a conformed copy for each Lender.
(b) Other Documents. The Administrative Agent shall have received,
with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of such documents or instruments as may be
reasonably requested by the Administrative Agent, including, without
limitation, any debt instrument, security agreement or other material
contract to which the Borrower or its Subsidiaries may be a party.
(c) Borrowing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Borrower, dated
the Second Restatement Effective Date, substantially in the form of Exhibit
F, with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(d) Corporate Proceedings of the Borrower. The Administrative Agent
shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Borrower authorizing (i) the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and (ii) the borrowings contemplated
hereunder certified by the Secretary or an Assistant Secretary of the
Borrower as of the Second Restatement Effective Date, which certificate
shall be in form and substance satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(e) Borrower Incumbency Certificate. The Administrative Agent shall
have received, with a copy for each Lender, a Certificate of the Borrower,
dated the Second Restatement Effective Date, as to the incumbency and
signature of the officers of the Borrower executing any Loan Document
satisfactory in form and substance to the Administrative Agent, executed by
the President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(f) Corporate Proceedings of Subsidiaries. The Administrative Agent
shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each Subsidiary of the Borrower which
is a party to a Loan Document authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certified by
the Secretary or an Assistant Secretary of each such Subsidiary as of the
Second Restatement Effective Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(g) Subsidiary Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of each
Subsidiary of the Borrower which is a Loan Party, dated the Second
Restatement Effective Date, as to the incumbency and signature of the
officers of such Subsidiaries executing any Loan Document, satisfactory in
form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of each such Subsidiary.
(h) Corporate Documents. The Administrative Agent shall have received,
with a copy for each Lender, true and complete copies of the certificate of
incorporation and by-laws of the Borrower, certified as of the Second
Restatement Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Borrower.
(i) Legal Opinion. The Administrative Agent shall have received, with
a counterpart for each Lender, the executed legal opinion of Weil, Gotshal
& Manges LLP, counsel to the Borrower and its Restricted Subsidiaries,
substantially in the form of Exhibit D. Such legal opinion shall cover such
other matters incident to the transactions contemplated by this Agreement
as the Administrative Agent may reasonably require.
(j) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
In addition, the effectiveness of this Agreement shall be subject to the
payment by the Borrower of such fees as the Borrower shall have agreed to pay to
any Lender or the Administrative Agent in connection herewith, including,
without limitation, the reasonable fees and expenses of Milbank, Tweed, Hadley &
McCloy, special New York counsel to Chase, in connection with the negotiation,
preparation, execution and delivery of this Agreement and the other Loan
Documents and the extensions of credit hereunder (to the extent that statements
for such fees and expenses have been delivered to the Borrower).
4.2 Conditions to Each Loan. The agreement of each Lender to make any
extension of credit requested to be made by it on any date (including, without
limitation, its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower or any other Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects on
and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extension of
credit requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 5. AFFiRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments or Additional Revolving Credit Commitments remain in effect or any
amount is owing to any Lender or the Administrative Agent hereunder or under any
other Loan Document, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its Restricted
Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its Restricted Subsidiaries as at the end of such
year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by PricewaterhouseCoopers LLP or
other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 60 days
after the end of each of the quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of
cash flows of the Borrower and its Restricted Subsidiaries for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments and the absence of
footnote disclosure);
all such financial statements shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, during such
period no Default or Event of Default has occurred and is continuing except
as specified in such certificate and demonstrating compliance with the
financial covenants in a manner reasonably satisfactory to the
Administrative Agent;
(c) not later than fifteen days prior to the end of each fiscal year
of the Borrower, a copy of the operating budget and cash flow budget of the
Borrower and its Restricted Subsidiaries for the succeeding fiscal year;
(d) promptly after the same are sent, copies of all financial
statements, reports and proxy statements which the Borrower sends to its
stockholders, and promptly after the same are filed, copies of all
financial statements, registration statements and publicly available
reports which the Borrower has filed with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be, or except where the
failure to pay, discharge or otherwise satisfy such obligations could not be
reasonably expected to have a Material Adverse Effect.
5.4 Conduct of Business and Maintenance of Existence. Continue to engage in
business of the same general type as now conducted by the Borrower and its
Restricted Subsidiaries and preserve, renew and keep in full force and effect
its corporate existence and take all reasonable action to maintain all material
rights, privileges and franchises necessary or desirable in the normal conduct
of its business except as otherwise permitted pursuant to subsection 6.5; comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition (ordinary wear and
tear expected); maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each Lender,
upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and upon reasonable advance notice and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries.
5.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries of which the Borrower
or such Subsidiary has knowledge or (ii) litigation, investigation or
proceeding which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority, which in either case, if not
cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Single Employer
Plan, a failure to make any required contribution to a Plan, the creation
of any Lien on the assets of the Borrower or any Commonly Controlled Entity
in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan if, as a result of
any such event, the Borrower would be reasonably expected to incur a
liability in excess of $1,000,000 or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the terminating, Reorganization or Insolvency of, any Plan if, as
a result of any such event, the Borrower would be reasonably expected to
incur a liability in excess of $1,000,000; and
(e) any Person becoming a Restricted Subsidiary; and
(f) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
5.8 Additional Guarantors. With respect to any Person that, subsequent to
the Second Restatement Effective Date, becomes a Restricted Subsidiary, cause
such new Restricted Subsidiary which is a Domestic Subsidiary to become a party
to the Guarantee pursuant to documentation which is in form and substance
satisfactory to the Administrative Agent and, if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to such
documentation, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
5.9 Unrestricted Subsidiaries; Maintenance of Separate Corporate Identity.
(a) Acquisition or Formation of Unrestricted Subsidiaries. The Borrower
will deliver to the Administrative Agent (with sufficient copies for each of the
Lenders) a notice as to the organization or acquisition of each Unrestricted
Subsidiary promptly following such organization or acquisition together with a
certificate of a Responsible Officer of the Borrower certifying that attached
thereto are true copies of (i) the resolutions duly adopted by the Board of
Directors of the Borrower designating such Subsidiary as an Unrestricted
Subsidiary and (ii) all agreements, instruments and other documents relating to
the organization or acquisition of such Unrestricted Subsidiary.
(b) Indebtedness of Unrestricted Subsidiaries. The Borrower will, promptly
upon receipt thereof by the Borrower or any of its Subsidiaries, deliver to the
Administrative Agent (with sufficient copies for each of the Lenders) a true and
complete copy of each agreement, instrument or other document evidencing
Indebtedness or other material obligations of each Unrestricted Subsidiary and
each other material agreement, instrument or other document (including, without
limitation, agreements, instruments and other documents in respect of
acquisitions) entered into by each Unrestricted Subsidiary.
(c) Transactions with Unrestricted Subsidiaries. The Borrower will cause
the management, business and affairs of each of the Borrower and its
Subsidiaries to be conducted in such a manner so that each of the Borrower and
its Subsidiaries will be perceived and treated as a legal entity separate and
distinct from each other. Without in any way limiting the other provisions of
this subsection, the Borrower will not permit any Restricted Subsidiary to,
directly or indirectly: (i) make any Investment in an Unrestricted Subsidiary,
(ii) dispose of any of its Properties to an Unrestricted Subsidiary, (iii) merge
into or consolidate with or purchase or acquire any Properties from an
Unrestricted Subsidiary or (iv) enter into any other transaction directly or
indirectly with or for the benefit of an Unrestricted Subsidiary
(including, without limitation,guarantees and assumptions of obligations of an
Unrestricted Subsidiary); provided that it is understood that the Borrower as he
"common parent" of its Restricted Subsidiaries and Unrestricted Subsidiaries may
file a consolidated tax return on behalf of itself and its Subsidiaries and such
filing shall not be deemed to violate the provisions of this subsection.
(d) Treatment of Certain Overhead Expenses, Etc. The Borrower will allocate
corporate general and administrative expenses between it, the Restricted
Subsidiaries and the Unrestricted Subsidiaries in accordance with customary and
reasonable business practices and GAAP consistently applied. Without in any way
limiting the other provisions of this subsection, the Borrower will not permit
any Restricted Subsidiary to, directly or indirectly, pay or incur any corporate
general and administrative expenses on behalf of any Unrestricted Subsidiary.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments or Additional Revolving Credit Commitments remain in effect or any
amount is owing to any Lender or the Administrative Agent hereunder or under any
other Loan Document, the Borrower shall not, and (except with respect to
subsection 6.1) shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:
6.1 Financial Condition Covenants.
(a) Maintenance of Total Debt Ratio. Permit the Total Debt Ratio at any
time to be greater than 4.00:1.
(b) Maintenance of Total Interest Coverage Ratio. Permit the Total Interest
Coverage Ratio at any time to be less than 2.00:1.
(c) Maintenance of Total Fixed Charge Coverage Ratio. Permit the Total
Fixed Charge Coverage Ratio at any time to be less than 1.10:1.
6.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower to any Restricted Subsidiary and of
any Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary;
(c) Indebtedness of the Borrower and any of its Restricted
Subsidiaries incurred to finance the acquisition of fixed or capital assets
(whether pursuant to a loan, a Financing Lease or otherwise) not exceeding
$15,000,000 in aggregate principal amount at any one time outstanding and
any refinancings, refundings, renewals or extensions thereof (provided that
the principal amount of such Indebtedness shall at no time exceed 100% of
the original acquisition cost of such assets plus any costs associated with
the financing or refinancing thereof);
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 6.2 and any refinancings, refundings, renewals or extensions
thereof (provided that the principal amount of such Indebtedness is not
increased by an amount greater than costs associated with any such
refinancing, refundings, renewals or extensions);
(e) Indebtedness of a Person which becomes a Restricted Subsidiary
after the date hereof and any refinancings, refundings, renewals or
extensions thereof, provided that (i) such Indebtedness existed at the time
such Person became a Restricted Subsidiary (or, if later, at the time it
acquired the assets of a business pursuant to subsection 6.8(c)) and was
not created in anticipation thereof and (ii) immediately after giving
effect to the acquisition of such Person by the Borrower no Default or
Event of Default shall have occurred and be continuing;
(f) Permitted Additional Indebtedness; and
(g) additional Indebtedness not exceeding $25,000,000 in aggregate
principal amount at any one time outstanding.
6.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet subject to penalties for non-payment or
which are being contested in good faith by appropriate proceedings,
provided that, if contested, adequate reserves with respect thereto are
maintained on the books of the Borrower or its Restricted Subsidiaries, as
the case may be, in conformity with GAAP (or, in the case of Foreign
Subsidiaries, generally accepted accounting principles in effect from time
to time in their respective jurisdictions of incorporation);
(b) Liens imposed by law, such as landlords', carriers',
warehousemen's, materialmen's and mechanics' liens, or Liens arising out of
judgments or awards against the Borrower or any of its Restricted
Subsidiaries with respect to which the Borrower or such Restricted
Subsidiary at the time shall currently be prosecuting an appeal or
proceedings for review in good faith and by proper proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business taken as a
whole of the Borrower or such Restricted Subsidiary;
(f) Liens securing Indebtedness of the Borrower and its Restricted
Subsidiaries permitted by subsection 6.2(c) incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed 100% of
the original purchase price of such property at the time it was acquired
plus any financing or refinancing costs;
(g) Liens in existence on the date hereof listed on Schedule 6.3,
securing Indebtedness permitted by subsection 6.2(d), provided that no such
Lien is spread to cover any additional property after the Second
Restatement Effective Date and that the amount of Indebtedness secured
thereby is not increased except as permitted by subsection 6.2(d);
(h) Liens on assets acquired by a Restricted Subsidiary after the date
hereof or on the property or assets of a Person which becomes a Restricted
Subsidiary after the date hereof securing Indebtedness permitted by
subsection 6.2(c) or 6.2(e), respectively, provided that (i) such Liens
exist at the time such assets are acquired or at the time such Person
becomes a Restricted Subsidiary, as the case may be, and are not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such Person after the time such Person becomes a
Restricted Subsidiary or such assets are acquired, and (iii) the amount of
Indebtedness secured thereby is not increased;
(i) Liens on the Capital Stock of Unrestricted Subsidiaries securing
obligations of Unrestricted Subsidiaries; and
(j) Liens (not otherwise permitted hereunder) so long as the greater
of (i) the aggregate outstanding principal amount of the obligations
secured thereby and (ii) the aggregate fair market value of the assets
subject thereto does not exceed $5,000,000 at any one time.
6.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer to
exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 6.4;
(b) Guarantee Obligations of a Person which becomes a Restricted
Subsidiary after the date hereof, provided that such Guarantee Obligations
exist at the time such Person becomes a Restricted Subsidiary (or, if
later, at the time it acquired the assets of a business pursuant to
subsection 6.8(c)) and are not created in anticipation thereof,
(c) Guarantee Obligations entered into in the ordinary course of its
business by the Borrower or any Restricted Subsidiary of obligations of any
of the Borrower or its Restricted Subsidiaries, which obligations are not
prohibited by this Agreement;
(d) the Guarantee; and
(e) additional Guarantee Obligations in respect of obligations not
exceeding $10,000,000 in aggregate principal amount at any one time
outstanding.
6.5 Limitation on Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Restricted Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be
the continuing or surviving corporation) or with or into any one or more
wholly owned Restricted Subsidiaries of the Borrower (provided that the
wholly owned Restricted Subsidiary or Restricted Subsidiaries shall be the
continuing or surviving Person);
(b) any Restricted Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any wholly owned Restricted Subsidiary of the
Borrower;
c) the Borrower or any of its Restricted Subsidiaries may enter into a
merger with any Person engaged in the commercial radio business (which
shall be
deemed to include, without limitation,programming, production and
distribution) or any other business related to the foregoing, provided that
the Borrower or a Restricted Subsidiary, as the case may be, shall be the
surviving corporation and that both prior to and after giving effect to
such merger there shall exist no Default or Event of Default hereunder and
the Borrower shall have delivered a certificate (with such supporting
detail and calculations as may be reasonably requested by the
Administrative Agent) from a Responsible Officer so stating to the
Administrative Agent; and
(d) as permitted by subsection 6.6.
6.6 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares
of such Restricted Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Restricted Subsidiary, except:
(a) the sale or other disposition of any property in the ordinary
course of business;
(b) any sale, assignment, transfer or other disposition of Capital
Stock of any Unrestricted Subsidiary;
(c) the sale or other disposition of any other property, business or
asset with an aggregate fair market value not to exceed $5,000,000 so long
as (i) the consideration received shall be an amount at least equal to the
fair market value thereof; (ii) at least 90% of the consideration received
shall be cash; (iii) the proceeds of such sale or other disposition are
applied as required by subsection 2.9(b); and (iv) no Default or Event of
Default shall have occurred and be continuing or would result therefrom;
and
(d) as permitted by subsection 6.5(b).
6.7 Limitation on Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in Capital Stock of the Borrower) on, or make any
payment or prepayment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
Restricted Subsidiary or any warrants or options to purchase any such Capital
Stock, or make any payment of management or similar fees (including, without
limitation, Management Fees, but excluding all expenses payable to Infinity, in
its capacity as "Manager", under Section 1.6 of the Management Agreement) to
Infinity or any other Affiliate of the Borrower (other than to any employee,
officer or director of the Borrower or its Subsidiaries in connection with the
performance of such employee's, officer's or director's duties in such
capacity), whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of the Borrower or any Restricted Subsidiary (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "Restricted
Payments"), except that:
(a) any Restricted Subsidiary may make Restricted Payments to the
Borrower,
(b) the Borrower may make Restricted Payments for the purpose of
cashing out any fractional shares of Capital Stock following the payment of
a dividend payable in Capital Stock of the Borrower,
(c) (i) the Borrower may issue and deliver to INI Incentive Warrants
pursuant to Section 2.3 of the Management Agreement and (ii) subject in
each case to the terms of the Management Services Subordination Agreement
and provided that, both prior to and after giving effect to each such
payment, no Event of Default pursuant to Sections 7(a), (c) (solely in the
case of an Event of Default pursuant to subsection 6.1, and, in such case,
only if the Majority Lenders following such an Event of Default shall
determine in their sole discretion to prohibit any payment provided for in
clause (x) or (y) below) or (f) shall have occurred and be continuing, the
Borrower may (x) make cash payments of Management Fees to Infinity at the
times and in the amounts provided for by Section 2.1 of the Management
Agreement in respect of each fiscal year and (y) make a cash payment of
Management Fees to Infinity at the times and in the amounts provided for by
Section 2.2 of the Management Agreement and
(d) the Borrower and its Restricted Subsidiaries may make Restricted
Payments in addition to those permitted in the foregoing clauses (a), (b)
and (c); provided that, prior to and after giving effect to each such
Restricted Payment, there shall exist no Default or Event of Default
hereunder.
6.8 Limitation on Investments, Loans and Advances. Make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of, or make any other investment in (each, an "Investment") any Person,
except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) purchases of shares of the Capital Stock of any Person engaged in
the commercial radio business (which shall be deemed to include, without
limitation, programming, production and distribution) or any other business
related to the foregoing or purchases of the assets constituting all or any
portion of any such
business owned by any other Person, provided that, prior to and after
giving effect to such purchase, there shall exist no Default or Event of
Default and the Borrower shall have delivered a certificate (with such
supporting detail and calculations as may be reasonably requested by the
Administrative Agent) from a Responsible Officer so stating and provided
further, that any such Person which shall constitute a Subsidiary following
such Investment shall be a Restricted Subsidiary or, as the case may be,
the assets so purchased shall be owned by a Restricted Subsidiary;
(d) loans and advances to officers and employees of the Borrower or
its Restricted Subsidiaries for travel, entertainment and relocation
expenses and other purposes in the ordinary course of business;
(e) Investments by the Borrower in its Restricted Subsidiaries and
Investments by such Restricted Subsidiaries in the Borrower and in other
Restricted Subsidiaries;
(f) Investments set forth on Schedule 6.8; and
(g) (i) Investments in Unrestricted Subsidiaries as of the Second
Restatement Effective Date, (ii) Investments in Unrestricted Subsidiaries
the consideration for which shall consist solely of shares of the Capital
Stock of the Borrower and (iii) additional Investments in Unrestricted
Subsidiaries during the period from and including September 30, 1999 to and
including the Termination Date in an aggregate amount which is not in
excess of the Unrestricted Investment Basket.
6.9 Limitation on Modifications of the Management Agreement. Amend, modify
or change, or consent or agree to any amendment, modification or change to any
of the terms of the Management Agreement (in any manner that could have a
material adverse effect on the Lenders, provided that the Borrower shall inform
the Lenders of any material amendment, modification or change to the Management
Agreement within 30 days after the Borrower agrees to such amendment,
modification or change).
6.10 Limitation on Capital Expenditures. Permit the aggregate amount of
Capital Expenditures in any fiscal year to exceed the sum of (a) $12,000,000
plus (b) for each fiscal year commencing on and after January 1, 2000, the
excess, if any, of the aggregate amount of Capital Expenditures permitted in the
immediately preceding fiscal year over the actual amount of Capital Expenditures
made by the Borrower and its Restricted Subsidiaries in such immediately
preceding fiscal year (provided that the amount of such excess for such
immediately preceding fiscal year shall not exceed $6,000,000).
6.11 Limitation on Sale or Discount of Receivables. The Borrower shall not
and shall not permit any of its Restricted Subsidiaries to, discount or sell
with recourse, or sell for less than the greater of the face value or market
value thereof, any of its notes receivable or accounts receivable.
6.12 Limitation on Transactions with Affiliates. Except as set forth on
Schedule 6.12, enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate unless such transaction is (a) otherwise permitted or not
prohibited under this Agreement and (b) upon fair and reasonable terms no less
favorable to the Borrower or such Restricted Subsidiary, as the case may be,
than it would obtain in a comparable arm's-length transaction with a Person
which is not an Affiliate.
6.13 Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Borrower to end on a day other than December 31.
6.14 Limitation on Negative Pledge Clauses. Enter into with any Person any
agreement, other than (a) this Agreement and (b) any industrial revenue bonds,
purchase money mortgages or Financing Leases permitted by this Agreement (in
which cases, any prohibition or limitation shall only be effective against the
assets financed thereby), which prohibits or limits the ability of the Borrower
or any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired unless the prohibitions or limitations contained in such
agreement would only restrict such Liens if they were not also made to secure
the obligations of the Borrower or a Restricted Subsidiary under such agreement
or a related agreement equally and ratably with the obligations which such Liens
were created to secure.
6.15 Limitation on Lines of Business. Enter into any business, either
directly or through any Restricted Subsidiary, except for the commercial radio
business (which shall be deemed to include, without limitation, programming,
production and distribution) and businesses related thereto.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within five
days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) Any representation or warranty made or deemed made by the Borrower
or any other Loan Party herein or in any other Loan Document or which is
contained in any certificate furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) The Borrower shall default in the observance or performance of any
agreement contained in Section 6 (except that defaults under subsections
6.3 and 6.10 shall not become Events of Default unless they have been
unremedied for a period of 15 days); or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after the Borrower or such Loan Party,
as the case may be, obtains actual knowledge thereof or after notice
thereof to the Borrower by the Administrative Agent or any Lender (through
the Administrative Agent); or
(e) The Borrower or any of its Restricted Subsidiaries shall
(i) default in any payment of principal of or interest on any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation,
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or the obligations that are the subject of
such Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
of Default shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any default
or other event or condition referred to in this paragraph shall have
occurred shall be equal to at least $1,000,000; or
(f) (i) The Borrower or any of its Restricted Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or
any of its Restricted Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against
the Borrower or any of its Restricted Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Borrower or any of its
Restricted Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Restricted
Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii) or (iii) above; or (v) the Borrower or any of its
Restricted Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Single
Employer Plan or any Lien in favor of the PBGC or a Plan shall arise on the
assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Majority Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Restricted Subsidiaries involving in the aggregate a
liability (to the extent not paid or covered by insurance) of $1,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) The Guarantee shall cease, for any reason, to be in full force and
effect with respect to any Guarantor or any Guarantor shall so assert; or
(j) The Management Agreement shall be terminated or otherwise cease to
be in full force and effect, or the Borrower is or becomes entitled to
terminate the Management Agreement under Section 3.2(b)(ii) thereof; or
(k) (i) fewer than three members of the Board of Directors of the
Borrower shall be persons designated by INI or by the Nominating Committee
of the Board of Directors of the Borrower (the "Nominating Committee"), so
long as, in the case of a person designated by the Nominating Committee,
such person shall have been selected by a majority of the Nominating
Committee of which at least one member of such majority shall be a board
member designated by INI (and if there is more than one board member on the
Nominating Committee designated by INI, then each such board member must
have voted in favor of such person); or (ii) any member of the Board of
Directors of the Borrower designated after the date hereof shall not have
been selected by a majority of the Nominating Committee of which at least
one member of such majority shall be a board member designated by INI (and
if there is more than one board member on the Nominating Committee
designated by INI, then each such board member must have voted in favor of
such member); or
(l) A Default of the type described in paragraph (e) above shall have
occurred and be continuing with respect to the Indebtedness of an
Unrestricted Subsidiary and as a result thereof the Borrower or any of its
Restricted Subsidiaries shall become liable for such Indebtedness, in each
case, whether by operation of law, pursuant to contract or otherwise, or
any holder or holders of such Indebtedness shall so assert in writing in
any proceeding before a court or other adjudicatory body of competent
jurisdiction and the Majority Lenders shall determine, in the exercise of
their reasonable judgment, that the Borrower and/or any of its Restricted
Subsidiaries is reasonably likely to incur a liability as a result thereof
which would constitute a Material Adverse Effect; or
(m) The Borrower or any of its Restricted Subsidiaries shall incur any
liability (not paid or fully covered by insurance) under any Environmental
Law in an amount which constitutes a Material Environmental Amount;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, to the extent permitted
by applicable law, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the administrative agent and BOA, FNB and BOM as the
Co-Agents of such Lender under this Agreement and the other Loan Documents, and
each such Lender irrevocably authorizes the Administrative Agent and BOA, FNB
and BOM as the Co-Agents to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent and
the Co-Agents, as the case may be, by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. The Co-Agents, in their capacity as such, shall not have
any duties or responsibilities hereunder nor any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Co-Agents in their capacity as such.
8.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
or counsel selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders; Lender
Representations. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates. Each Lender
represents to each other party hereto that it is a bank, savings and loan
association or other similar savings institution, insurance company, investment
fund or company or other financial institution which makes or acquires
commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for such commercial purposes, and that it
has the knowledge and experience to be and is capable of evaluating the merits
and risks of being a Lender hereunder. Each Lender acknowledges and agrees to
comply with the provision of subsection 9.6 applicable to the Lenders hereunder.
8.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Applicable Percentages in effect on the date on which
indemnification is sought, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing, provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. In the event any
such amounts are subsequently paid by or on behalf of the Borrower, the
Administrative Agent shall promptly forward such amounts to the indemnifying
Lenders. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Agents. The Administrative Agent and each of the Co-Agents
may resign as Administrative Agent and as Co-Agent, as the case may be, upon 10
days' notice to the Lenders. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the
Majority Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent (provided that it shall have been approved by the
Borrower), shall succeed to the rights, powers and duties of the Administrative
Agent hereunder. Effective upon such appointment and approval, the term
"Administrative Agent" shall mean such successor agent, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's or Co-Agent's
resignation as Administrative Agent or Co-Agent, as the ease may be, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent or Co-Agent, as
the case may be, under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Majority Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however that no such waiver and no such amendment, supplement or
modification shall
(i) reduce the amount or extend the scheduled date of maturity of any
Loan or of any installment thereof or of any reduction of the Revolving
Credit Commitments required pursuant to subsection 2.4(b) to be made on any
Mandatory Reduction Date, or reduce the rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase
the amount or extend the expiration date of any Lender's Commitments, in
each case without the prior written consent of each Lender affected
thereby,
(ii) amend, modify or waive any provision of this subsection or reduce
any of the percentages specified in the definition of Majority Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement and the other Loan Documents, in each
case without the prior written consent of all the Lenders,
(iii) amend, modify or waive any provision of subsections 2.1
through 2.4, and subsections 2.8 and 2.9 (to the extent such subsections
relate to the Revolving Credit Commitments or Additional Revolving Credit
Commitment) or reduce any of the percentages specified in the definition of
Majority Revolving Credit Lenders or Majority Additional Revolving Credit
Lenders without the prior written consent of the Majority Revolving Credit
Lenders and Majority Additional Revolving Credit Lenders, as applicable,
(iv) amend, modify or waive any provision of subsections 2.5 through
2.9 (to the extent such subsections relate to the Term Loans) or reduce any
of the percentages specified in the definition of Majority Term Lenders
without the written consent of the Majority Term Lenders, or
(v) amend, modify or waive any provision of Section 8 without the
written consent of the then Administrative Agent or the Co-Agents, as
applicable.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as specified
under the caption "Address for Notices" below its name on the signature pages
hereof or to such other address as may be hereafter notified by the respective
parties hereto; provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.8 or
2.10 shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to each Lender and of counsel to the Administrative Agent, (c) to
pay, indemnify, and hold each Lender and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the actual or proposed use of the Loans, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Borrower, any of its Subsidiaries or any of the Properties (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided that the Borrower shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of the
Administrative Agent or any such Lender or (ii) legal proceedings commenced
against the Administrative Agent or any such Lender by any security holder or
creditor thereof arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such. The agreements in this
subsection shall survive repayment of the Loans and all other amounts payable
hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) Successors Generally. This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Administrative Agent and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Participations. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, such Lender shall be solely responsible for any withholding taxes or
any filing or reporting requirements relating to such Participant and shall
indemnify and hold harmless the Borrower and the Administrative Agent and their
respective successors, permitted assigns, officers, directors, employees, agents
and representatives for and against any Non-Excluded Taxes (including interest
and penalties thereon and additions thereto), losses, costs and expenses
incurred in connection with such withholding taxes or filing or reporting
requirement, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents.
No Lender shall be entitled to create in favor of any Participant, in the
participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to the second
sentence of subsection 9.1. The Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 9.7(a) as fully as if it were a
Lender hereunder.
All amounts payable by the Borrower to any Lender under subsections 2.17,
2.18 and 2.19 in respect of the Loans held by it, and its Commitments, shall be
determined as if such Lender had not sold or agreed to sell any participations
in such Loans and Commitments, and as if such Lender were funding and
maintaining each of such Loans and Commitments in the same way that it is
funding and maintaining the portion of such Loan and Commitment in which no
participations have been sold.
(c) Assignments. Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any affiliate thereof or, with the consent
of the Administrative Agent and, if no Default or Event of Default shall have
occurred and be continuing, the consent of the Borrower (which in each case
shall not be unreasonably withheld), to an additional bank or financial
institution (an "Assignee") all or any part of its rights and obligations under"
this Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit E, executed by such Assignee,
such assigning Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Borrower and the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register, provided that, in the case of any such assignment by a Lender which is
not assigning all of its Loans and Commitments, the sum of the aggregate
principal amount of the Loans and the aggregate amount of the Term Loan
Commitment, Available Revolving Credit Commitments and Available Additional
Revolving Credit Commitments being assigned is not less than $5,000,000 (or such
lesser amount as may be agreed to by the Borrower and the Administrative Agent).
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding any provision of this paragraph (c) and
paragraph (e) of this subsection, the consent of the Borrower shall not be
required, and, unless requested by the Assignee and/or the assigning Lender, new
Notes shall not be required to be executed and delivered by the Borrower, for
any assignment which occurs at any time when any of the events described in
Section 7(f) shall have occurred and be continuing.
(d) Register. The Administrative Agent, on behalf of the Borrower, shall
maintain at the Administrative Agent's Address for Notices referred to in
subsection 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Effectiveness of Assignments. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Assignee (and, in the case of
an Assignee that is not then a Lender or an affiliate thereof, by the Borrower
and the Administrative Agent) together with payment by the Assignee or the
Lenders to the Administrative Agent of a registration and processing fee of
$5,000, the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) Certain Disclosures of Information. The Borrower authorizes each Lender
to disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee, subject to the provisions of subsection 9.15, any and
all financial information in such Lender's possession concerning the Borrower
and its Affiliates which has been delivered to such Lender by or on behalf of
the Borrower pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement. No assignment or participation made or purported to be made to any
Transferee shall be effective without the prior written consent of the Borrower
if it would require the Borrower to make any filing with any Governmental
Authority or qualify any Loan or Note under the laws of any jurisdiction, and
the Borrower shall be entitled to request and receive such information and
assurances as it may reasonably request from any Lender or any Transferee to
determine whether any such filing or participation is otherwise in accordance
with the Requirements of Law.
(g) Assignments by Way of Security. For avoidance of doubt, the parties to
this Agreement acknowledge that the provisions of this subsection concerning
assignments of Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, any pledge or assignment by a Lender of any Loan or Note to
any Federal Reserve Bank in accordance with applicable law; provided that any
transfer to an assignee upon the enforcement of any such security interest shall
be subject to the consent of the Borrower as provided herein.
9.7 Adjustments; Set-off.
(a) Sharing of Set-Offs, Etc. If any Lender (a "benefited Lender") shall at
any time receive any payment of all or part of its Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans owing to it, or interest thereon, such
benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan owing to it, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) Right of Off-Set. In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents represent the
agreement of the Borrower, the Administrative Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Borrower, the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission to Jurisdiction; Waivers. To the extent permitted by
applicable law, the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any punitive damages.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower and the Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
9.15 Treatment of Certain Information; Confidentiality.
(a) Delivery of Information to Certain Lender Affiliates. The Borrower
acknowledges that (i) services may be offered or provided to it (in connection
with this Agreement or otherwise) by each Lender or by one or more subsidiaries
or affiliates of such Lender and (ii) information delivered to each Lender by
the Borrower and its Subsidiaries may be provided to each such subsidiary and
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of clause (b) below as if it
were a Lender hereunder.
(b) Confidentiality Generally. Each Lender and the Administrative Agent
agrees (on behalf of itself and each of its affiliates, directors, officers,
employees and representatives) to use reasonable precautions to keep
confidential, in accordance with its customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, any non-public information supplied to it by the Borrower
pursuant to this Agreement which is identified by the Borrower as being
confidential at the time the same is delivered to the Lenders or the
Administrative Agent and which is not already in such Lender's possession on a
nonconfidential basis and is not subsequently delivered to such Lender on a
nonconfidential basis by a Person who in so doing has not violated a duty of
confidentiality owing to the Borrower, provided that nothing herein shall limit
the disclosure of any such information (i) to the extent required by statute,
rule, regulation or judicial process, (ii) to counsel for any of the Lenders or
of the Administrative Agent, (iii) at their request, to bank examiners or other
regulators having analogous responsibilities, (iv) to auditors or accountants,
(v) to the Administrative Agent or any other Lender (or to Chase Securities
Inc.), (vi) in connection with any litigation arising under or in connection
with the transactions contemplated by this Agreement or any of the other Loan
Documents, (vii) to a subsidiary or affiliate of such Lender as provided in
clause (a) above or (viii) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) agrees to be bound by the provisions of this
subsection. In no event shall any Lender or the Administrative Agent be
obligated or required to return any materials furnished by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
WESTWOOD ONE, INC.
By: ____________________________________
Title:
Address for Notices:
Westwood One, Inc.
c/o Infinity Broadcasting Corporation
40 West 57th Street, 14th Floor
New York, New York 10019
Attention: Farid Suleman
Telecopier: (212) 314-9336
Telephone: (212) 314-9215
THE CHASE MANHATTAN BANK,
as Administrative Agent
and as a Lender
By: ___________________________________
Title:
Address for Notices:
The Chase Manhattan Bank
1 Chase Manhattan Plaza, 8th Floor
Loan and Agency Services Group
New York, New York 10005
Attention: Steve McArdle
Telecopier: (212) 552-5700
Telephone: (212) 552-7483 with a
copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Bruce Langenkamp
Telecopier: (212) 270-7340
Telephone: (212) 270-9029
BANK OF MONTREAL,
as a Co-Agent and as a Lender
By: ________________________________
Title:
Address for Notices:
Bank of Montreal
430 Park Avenue
New York, New York 10022
Attention: Karen Klapper
Telecopier: (212) 605-1559
Telephone: (212) 605-1648
THE BANK OF NEW YORK
By: ___________________________________
Title: Vice President
Address for Notices:
The Bank of New York
One Wall Street
16th Floor
New York, New York 10286
Attention: John Ciulla
Telecopier: (212) 635-8595
Telephone: (212) 635-8609
FLEET NATIONAL BANK,
as a Co-Agent and as a Lender
By: __________________________________
Title:
Address for Notices:
Fleet National Bank
100 Federal Street
MA/DE130009d
Boston, MA 02110
Attention: Lisa Pellow
Telecopier: (617) 434-8426
Telephone: (617) 434-6193
KEYBANK CORPORATE CAPITAL INC.
By: _____________________________________
Title:
Address for Notices:
127 Public Square
Mail Code: OH 127-0602
Cleveland, OH 44114
Attention: Amy Ciano
Telecopier: (216) 689-4666
Telephone: (216) 689-4457
BANK OF AMERICA, N.A.,
as a Co-Agent and as a Lender
By: _____________________________________
Title:
Address for Notices:
Bank of America, N.A.
Credit Services
1850 Gateway Blvd.
Concord, CA 94520-3282
Attention: Curtis A. Laney
Telecopier: (925) 969-2851
Telephone: (925) 675-8398
With a copy to:
Bank of America, N.A.
335 Madison Avenue
New York, NY 10017
Attention: Thomas J. Kane
Telecopier: (212) 503-7173
Telephone: (212) 503-7980
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: ______________________________________
Title:
Address for Notices:
1251 Avenue of the Americas
New York, New York 10020
Attention: Michael Wiskind
Telecopier: (212) 782-4935
Telephone: (212) 782-4310
BARCLAYS BANK PLC
By: ______________________________________
Title:
Address for Notices:
388 Market Street, Suite 1700
San Francisco, CA 94111
Attention: Tim Harrington
Telecopier: (415) 765-4760
Telephone: (415) 765-4714
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By: _____________________________________
Title:
By: _____________________________________
Title:
Address for Notices:
31 West 52nd Street
New York, New York 10019
Attention: Irene Egues
Telecopier: (212) 469-7070
Telephone: (212) 469-7219
INDUSTRIAL BANK OF JAPAN, LIMITED
By: ______________________________________
Title:
Address for Notices:
1251 Avenue of the Americas
New York, New York 10020
Attention: R. William Kennedy
Telecopier: (212) 282-4486
Telephone: (212) 282-3516
NATIONAL AUSTRALIA BANK LIMITED
ACN004044937
By: _____________________________________
Title:
Address for Notices:
200 Park Avenue, 34th Floor
New York, New York 10166
Attention: Eduardo Salazar
Telecopier: (212) 983-1969
Telephone: (212) 916-9515