EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
August 26, 2003,
among
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.,
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.,
as the Borrower,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
and Collateral Agent,
CIBC WORLD MARKETS CORP.,
as Syndication Agent,
and
CITICORP NORTH AMERICA, INC.,
as Documentation Agent
---------------------------
J.P. MORGAN SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms............................................................................ 1
SECTION 1.02. Classification of Loans and Borrowings................................................... 24
SECTION 1.03. Terms Generally.......................................................................... 24
SECTION 1.04. Accounting Terms; GAAP................................................................... 24
ARTICLE II
Credits
SECTION 2.01. Commitments.............................................................................. 25
SECTION 2.02. Loans and Borrowings..................................................................... 25
SECTION 2.03. Requests for Borrowings.................................................................. 26
SECTION 2.04. Swingline Loans.......................................................................... 27
SECTION 2.05. Letters of Credit........................................................................ 28
SECTION 2.06. Funding of Borrowings.................................................................... 32
SECTION 2.07. Interest Elections....................................................................... 33
SECTION 2.08. Termination and Reduction of Commitments................................................. 34
SECTION 2.09. Repayment of Loans; Evidence of Debt..................................................... 35
SECTION 2.10. Amortization of Term Loans............................................................... 36
SECTION 2.11. Prepayment of Loans...................................................................... 37
SECTION 2.12. Fees..................................................................................... 38
SECTION 2.13. Interest ................................................................................ 39
SECTION 2.14. Alternate Rate of Interest............................................................... 40
SECTION 2.15. Increased Costs.......................................................................... 40
SECTION 2.16. Break Funding Payments................................................................... 42
SECTION 2.17. Taxes ................................................................................... 42
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs............................... 44
SECTION 2.19. Mitigation Obligations; Replacement of Lenders........................................... 45
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers..................................................................... 46
SECTION 3.02. Authorization; Enforceability............................................................ 46
SECTION 3.03. Governmental Approvals; No Conflicts..................................................... 47
SECTION 3.04. Financial Condition; No Material Adverse Effect.......................................... 47
SECTION 3.05. Properties............................................................................... 48
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SECTION 3.06. Litigation and Environmental Matters..................................................... 48
SECTION 3.07. Compliance with Laws and Agreements...................................................... 49
SECTION 3.08. Investment and Holding Company Status.................................................... 49
SECTION 3.09. Taxes ................................................................................... 49
SECTION 3.10. ERISA ................................................................................... 49
SECTION 3.11. Disclosure............................................................................... 50
SECTION 3.12. Subsidiaries............................................................................. 50
SECTION 3.13. Insurance ............................................................................... 50
SECTION 3.14. Labor Matters............................................................................ 50
SECTION 3.15. Solvency ................................................................................ 50
SECTION 3.16. Senior Indebtedness...................................................................... 51
SECTION 3.17. Security Interests....................................................................... 51
SECTION 3.18. Regulatory Matters....................................................................... 52
ARTICLE IV
Conditions of Lending
SECTION 4.01. Each Credit Event........................................................................ 52
SECTION 4.02. Effective Date........................................................................... 53
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information............................................... 56
SECTION 5.02. Notices of Material Events............................................................... 58
SECTION 5.03. Information Regarding Collateral......................................................... 58
SECTION 5.04. Existence; Conduct of Business........................................................... 59
SECTION 5.05. Payment of Obligations................................................................... 59
SECTION 5.06. Maintenance of Properties................................................................ 59
SECTION 5.07. Insurance ............................................................................... 60
SECTION 5.08. Casualty and Condemnation................................................................ 60
SECTION 5.09. Books and Records; Inspection and Audit Rights........................................... 60
SECTION 5.10. Compliance with Laws..................................................................... 60
SECTION 5.11. Use of Proceeds and Letters of Credit.................................................... 60
SECTION 5.12. Additional Subsidiaries.................................................................. 61
SECTION 5.13. Further Assurances....................................................................... 61
SECTION 5.14. Operating Licenses....................................................................... 62
SECTION 5.15. After-Acquired Licenses.................................................................. 62
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities.................................................. 63
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SECTION 6.02. Liens ................................................................................... 64
SECTION 6.03. Fundamental Changes...................................................................... 65
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions................................ 67
SECTION 6.05. Asset Sales.............................................................................. 69
SECTION 6.06. Sale and Leaseback Transactions.......................................................... 70
SECTION 6.07. Hedging Agreements....................................................................... 70
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.................................... 70
SECTION 6.09. Transactions with Affiliates............................................................. 73
SECTION 6.10. Restrictive Agreements................................................................... 74
SECTION 6.11. Amendment of Material Documents.......................................................... 74
SECTION 6.12. Interest Coverage Ratio.................................................................. 75
SECTION 6.13. Adjusted Leverage Ratio.................................................................. 75
SECTION 6.14. Senior Secured Leverage Ratio............................................................ 75
SECTION 6.15. Capital Expenditures..................................................................... 75
SECTION 6.16. Fiscal Year.............................................................................. 76
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ................................................................................. 81
SECTION 9.02. Waivers; Amendments...................................................................... 82
SECTION 9.03. Expenses; Indemnity; Damage Waiver....................................................... 83
SECTION 9.04. Successors and Assigns................................................................... 85
SECTION 9.05. Survival ................................................................................ 88
SECTION 9.06. Counterparts; Integration; Effectiveness................................................. 89
SECTION 9.07. Severability............................................................................. 89
SECTION 9.08. Right of Setoff.......................................................................... 89
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process............................... 90
SECTION 9.10. WAIVER OF JURY TRIAL..................................................................... 90
SECTION 9.11. Headings ................................................................................ 91
SECTION 9.12. Confidentiality.......................................................................... 91
SECTION 9.13. Interest Rate Limitation................................................................. 92
SECTION 9.14. Notice of Lenders' Right to Sue.......................................................... 92
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SCHEDULES:
Schedule 1.01 -- Mortgaged Property
Schedule 2.01 -- Commitments
Schedule 3.05(b) -- Operating Licenses
Schedule 3.05(c) -- Owned and Leased Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.17(d) -- Mortgage Filing Offices
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Investments
Schedule 6.09(h) -- Stockholders Agreements
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Wachtell, Lipton, Rosen & Katz
Exhibit B-2 -- Form of Opinion of Leonard A. Steinberg, Esq.
Exhibit B-3 -- Form of Opinion of Latham & Watkins
Exhibit B-4 -- Form of Opinion of Birch, Horton, Bittner & Cherot
Exhibit B-5 -- Form of Opinion of Darby & Darby
Exhibit C -- Form of Perfection Certificate
Exhibit D -- Form of Parent Guarantee Agreement
Exhibit E -- Form of Subsidiary Guarantee Agreement
Exhibit F -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
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CREDIT AGREEMENT dated as of August 26, 2003
(this "Agreement"), among ALASKA COMMUNICATIONS
SYSTEMS GROUP, INC. ("Parent"), ALASKA COMMUNICATIONS
SYSTEMS HOLDINGS, INC. (the "Borrower"), the LENDERS
party hereto and JPMORGAN CHASE BANK, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquired EBITDA" shall mean, with respect to any Acquired
Entity or Business or any Sold Entity or Business for any period, the
Consolidated EBITDA of such Entity or Business for such period.
"Acquired Entity or Business" has the meaning assigned to such
term in the definition of the term "Adjusted Consolidated EBITDA".
"ACS Media Holdings" means ACS Media Holdings LLC, an Alaska
limited liability company and a wholly owned subsidiary of ACS InfoSource, Inc.,
an Alaska corporation and a Subsidiary.
"ACS Media Investment Agreement" means the investment
agreement dated as of April 28, 2003, by and among ACS Media Income Fund, ACS
Media Canada Inc., ("ACS Canada"), ACS InfoSource, Inc., the Borrower, ACS Media
Holdings and ACS Media LLC.
"ACS Media Disposition" means any disposition by ACS Media
Holdings of (a) any Equity Interests in ACS Media LLC that ACS Media Holdings
owned immediately following the sale to ACS Media Canada Inc. pursuant to clause
(f) of the definition of the term "ACS Media Transaction" (other than pursuant
to the exchange described in clause (h) of the definition of the term "ACS Media
Transaction") or (b) any trust units of ACS Media Income Fund acquired by ACS
Media Holdings pursuant to the exchange described in clause (h) of the
definition of the term "ACS Media Transaction", in each case to a Person other
than the Borrower or any Subsidiary Loan Party on terms
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and conditions reasonably satisfactory to the Administrative Agent and solely
for cash consideration that shall be payable on the date of such disposition.
"ACS Media Prospectus" means the preliminary prospectus of ACS
Media Income Fund dated March 6, 2003 as amended and restated and the prospectus
of ACS Media Income Fund dated April 29, 3003, as amended and restated.
"ACS Media Transaction" means, in each case upon the terms and
subject to the conditions set forth in the ACS Media Investment Agreement, (a)
the contribution by ACS InfoSource, Inc. ("ACS InfoSource") of substantially all
its assets and liabilities (the "ACS Media Business") to ACS Media Holdings
immediately prior to the consummation of the transaction referred to in clause
(f) of this definition and for consideration which consisted of (i) 100% of the
Equity Interests of ACS Media Holdings and (ii) the unsecured subordinated notes
(the "ACS Media Holdings Notes") issued by ACS Media Holdings pursuant to the
Note Indenture by and among ACS Media Holdings, ACS InfoSource, Inc. and ACS
Media LLC, dated as of May 8, 2003; (b) the contribution by ACS Media Holdings
of the ACS Media Business to ACS Media LLC immediately prior to the consummation
of the transaction referred to in clause (f) of this definition and for
consideration which consisted of 100% of the Equity Interests of ACS Media LLC;
(c) the guarantee by ACS Media LLC of the obligations of ACS Media Holdings
under the ACS Media Holdings Notes pursuant to the Guarantee Agreement dated as
of May 8, 2003, by ACS Media LLC in favor of ACS InfoSource, Inc., as Trustee;
(d) the borrowing by ACS Media LLC under a new senior secured credit facility
(the "New Facility") obtained by it substantially simultaneously with or
immediately prior to the consummation of the transaction referred to in clause
(e) of this definition; (e) the repurchase by ACS Media LLC of a portion of the
Equity Interests of ACS Media LLC from ACS Media Holdings using approximately
$33,000,000 of the proceeds of borrowings by ACS Media LLC under the New
Facility substantially simultaneously with or immediately prior to the
consummation of the transaction referred to in clause (f) of this definition;
(f) the purchase by ACS Canada of at least 60% of the outstanding Equity
Interests of ACS Media LLC (after giving effect to the repurchase described in
clause (e) of this definition) from ACS Media Holdings yielding Net Proceeds
that were after such purchase to prepay term loans under the Original Credit
Agreement; (g) at the Borrower's option, the continuation after the consummation
of the transaction referred to in clause (f) of this definition of the guarantee
by the Borrower of ACS InfoSource's obligations under the directory publishing
services agreement between the Borrower and L.M. Berry and Company dated August
10, 2000; and (h) after the consummation of the transaction referred to in
clause (f) of this definition, the exercise by ACS Media Holdings of its right,
if it decides in its sole discretion to do so, to exchange Equity Interests in
ACS Media LLC for trust units of ACS Media Income Fund pursuant to the exchange
agreement dated as of May 8, 2003, by and among ACS Media Income Fund, ACS
Canada, ACS InfoSource, ACS Media Holdings and ACS Media LLC.
"ACS Media Transaction Related Agreements" means the
agreements entered into by and between, among other parties, the Borrower or one
of the Subsidiaries, on the one hand, and ACS Media Income Fund, ACS Media LLC
or one of their respective subsidiaries, on the other hand (including a
publishing rights agreement,
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directory publication and distribution agreement, directory agreement, license
agreement, subscriber list information license agreement, billing and collection
agreement, non-competition agreement and negative pledge agreement).
"Adjusted Consolidated EBITDA" shall mean, for any Person for
any period, Consolidated EBITDA of such Person for such period, calculated by
(a) including in the determination thereof the Acquired EBITDA of any Person,
property, business or asset acquired during such period pursuant to a
transaction permitted under Section 6.04 and not subsequently sold, transferred
or otherwise disposed of during such period to the extent acquired by the
Borrower or any Subsidiary during such period (each such Person, property,
business or asset acquired and not subsequently so disposed of, an "Acquired
Entity or Business"), based on the actual Acquired EBITDA of such Acquired
Entity or Business for such period (including the portion thereof occurring
prior to such acquisition), and (b) excluding in the determination thereof the
Acquired EBITDA of any Person, property, business or asset sold, transferred or
otherwise disposed of by the Borrower or any Subsidiary during such period (each
such Person, property, business or asset so sold or disposed of, a "Sold Entity
or Business") based on the actual Acquired EBITDA of such Sold Entity or
Business for such period (including the portion thereof occurring prior to such
sale, transfer or disposition).
"Adjusted Leverage Ratio" shall mean, on any date, the ratio
of (a) Total Debt as of such date to (b) Adjusted Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower most recently ended
as of such date, all determined on a consolidated basis in accordance with GAAP.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Adjusted Senior Secured Leverage Ratio" shall mean, on any
date, the ratio of (a) the portion of Total Debt accounted for by Senior Secured
Debt as of such date to (b) Adjusted Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower most recently ended as of such date,
all determined on a consolidated basis in accordance with GAAP.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent, the Syndication
Agent, the Collateral Agent and the Documentation Agent.
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"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, (a) with respect to any
Term Loan, the applicable Term Loan Rate and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, or with respect to the commitment fees
payable hereunder, as applicable, the applicable rate per annum set forth below
in each case under the caption "ABR Spread", "Eurodollar Spread" or "Commitment
Fee Rate", as applicable, based upon the Adjusted Leverage Ratio as of the most
recent determination date, provided that until the delivery to the
Administrative Agent pursuant to Section 5.01(b) of the Borrower's consolidated
financial statement for the fiscal quarter in which the Effective Date occurs,
the "Applicable Rate" for purposes of clause (b) above shall be the applicable
rate per annum set forth below in Category 2:
ABR Eurodollar Commitment Fee
Adjusted Leverage Ratio: Spread Spread Rate
------------------------ ------ ---------- --------------
Category 1 2.00% 3.00% 0.75%
Greater than or equal to 5.50 to 1.00
Category 2 1.75% 2.75% 0.75%
Less than 5.50 to 1.00 but greater than
or equal to 5.00 to 1.00
Category 3 1.50% 2.50% 0.50%
Less than 5.00 to 1.00 but greater than
or equal to 4.50 to 1.00
Category 4 1.25% 2.25% 0.50%
Less than 4.50 to 1.00
For purposes of the foregoing, (i) the Adjusted Leverage Ratio
shall be determined as of the end of each fiscal quarter of the Borrower's
fiscal year based upon the Borrower's consolidated financial statements
delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the
Applicable Rate resulting from a change in the Adjusted Leverage Ratio shall be
effective during the period commencing on and including the date of delivery to
the Administrative Agent of such consolidated financial statements indicating
such change and ending on the date immediately preceding the effective date of
the next such change, PROVIDED that the Adjusted Leverage Ratio shall be deemed
to be in Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Administrative Agent or at the request of
the Required Lenders if the Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered.
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Authorizations" means all applications, filings, reports,
documents, recordings and registrations with, and all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from, any Governmental Authority.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Alaska Communications Systems Holdings, Inc.
(formerly ALEC Acquisition Corporation), a Delaware corporation.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City or Alaska are authorized or
required by law to remain closed, PROVIDED that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its consolidated Subsidiaries that are
(or would be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations incurred by the Borrower and its consolidated Subsidiaries during
such period.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means, on any date, Permitted Investments
that would be reflected as cash or short-term investments on a consolidated
balance sheet of the Borrower in accordance with GAAP, held by the Borrower and
its consolidated Subsidiaries at the close of business on such date.
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"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person other than
Parent of any Equity Interest in the Borrower; (b) the failure by the Sponsor to
own, directly or indirectly, beneficially and of record, Equity Interests in
Parent representing at least 35% of each of the aggregate ordinary voting power
and the aggregate equity value represented by the issued and outstanding Equity
Interests in Parent; (c) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) other than the Sponsor,
of Equity Interests representing more than 35% of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and
outstanding Equity Interests in Parent; (d) occupation of a majority of the
seats (other than vacant seats) on the board of directors of Parent by Persons
who were neither (i) nominated by the board of directors of Parent, (ii)
appointed by directors so nominated nor (iii) designated or nominated by the
Sponsor; (e) the acquisition of direct or indirect Control of Parent by any
Person or group other than the Sponsor; or (f) the occurrence of a "Change of
Control", as defined in the Subordinated Debt Documents, the Parent Discount
Indenture or the New Senior Debt Documents.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment or
Term Loan Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" shall have the meaning given such term in
the Security Agreement.
"Commitment" means a Revolving Commitment or Term Loan
Commitment, or any combination thereof (as the context requires).
"Communication Liability" means any liability, contingent or
otherwise (including any liability for damages, costs, fines, penalties or
indemnities), of Parent, the
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Borrower or any Subsidiary directly or indirectly resulting from or based upon
(a) the violation of any Communications Law, (b) the generation or use of
communications, (c) exposure to communications or radio frequency emissions or
(d) any contract, agreement or other consensual agreement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"Communications Law" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority
(including but not limited to the FCC and the RCA), relating in any way to the
offering or provision of communications.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense less the sum for such period of (a) non-cash
expenses for interest payable in kind, (b) to the extent included in
Consolidated Interest Expense, the amortization of fees paid by Parent, the
Borrower or their Subsidiaries prior to or substantially contemporaneously with
the Effective Date in connection with the Transactions, this Agreement and the
other Loan Documents, the Parent Discount Debentures and the Senior
Subordinated Notes and (c) the amortization of debt discounts, if any, or fees
in respect of Hedging Agreements, PROVIDED that there shall be included or
excluded, as applicable, in determining Consolidated Cash Interest Expense for
any period the cash interest expense (calculated in the same manner as
Consolidated Cash Interest Expense is calculated) for such period (including
the portion thereof accruing prior to the applicable acquisition or sale) of
any Acquired Entity or Business or Sold Entity or Business acquired or sold, as
applicable, during such period assuming any Indebtedness incurred or repaid in
connection with the acquisition or sale had been incurred or repaid on the
first day of such period.
"Consolidated EBIT" means, for any Person for any period,
Consolidated Net Income of such Person, before total interest expense (whether
cash or non-cash) and provisions for taxes based on income, and determined
without giving effect to any extraordinary gains included in determining
Consolidated Net Income for such Person for such period.
"Consolidated EBITDA" means, for any Person for any period,
Consolidated EBIT of such Person, adjusted by adding thereto, without
duplication, the amount of all depreciation expense, amortization expense and
other non-cash charges that were deducted in determining Consolidated EBIT for
such Person for such period.
"Consolidated Interest Expense" means, for any period, total
interest expense (including that attributable to Capital Lease Obligations in
accordance with GAAP), whether cash or non-cash, of Parent, the Borrower and the
Subsidiaries determined on a consolidated basis with respect to all outstanding
Indebtedness of Parent, the Borrower and the Subsidiaries, including, without
limitation, (a) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, (b) amortization
of the net costs or benefits under Hedging Agreements, PROVIDED that if (x) the
Borrower terminates the Hedging Agreement dated as of June 22, 1999, between the
Borrower and JPMorgan Chase Bank within 90 days of
8
the Effective Date, and (y) the Borrower pays all costs and interest expense
resulting from such termination with cash and Cash Equivalents on the balance
sheet of the Borrower, up to $8,500,000 of the interest expense resulting from
such termination shall be excluded and (c) amortization of the
interest-equivalent costs that are associated with any payments made to obtain
any Hedging Agreement, deferred financing costs and any interest expense on
deferred compensation arrangements and any other non-cash interest to the extent
included in total interest expense (but excluding any non-cash costs associated
with any Hedging Agreement to the extent that such costs result from the
requirement that such Hedging Agreement be "marked to market" pursuant to
Statement of Financial Accounting Standards No. 133, PROVIDED that such costs
shall only be excluded during the periods in which such costs are non-cash).
"Consolidated Net Income" means, for any Person for any
period, the net income (or loss) after provision for taxes and before any
pay-in-kind or non-cash accumulating dividend on preferred stock of such Person
and its subsidiaries on a consolidated basis for such period taken as a single
accounting period, PROVIDED that there shall be excluded from such net income
(or loss) the income of any Person in which any other Person or Persons (other
than the Borrower or any Subsidiary or any director holding qualifying shares in
compliance with applicable law) owns or own aggregate Equity Interests
representing more than 50% of the outstanding Equity Interests in such Person
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or any of the Subsidiaries by such Person during such
period.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling" and "Controlled" have meanings correlative
thereto.
"Default" means any event or condition that constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Disqualified Stock" means, with respect to any Person, any
Equity Interest that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event: (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise; (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock; or (c) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the Term Loan Maturity Date; PROVIDED, HOWEVER, that any Equity
Interests that would not constitute Disqualified Stock but for the provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Equity Interests upon the occurrence of an "asset sale" or "Change
of Control" occurring prior to the first anniversary of the Term Loan Maturity
Date shall not constitute Disqualified Stock if the "asset sale" or "Change of
Control" provisions applicable to such Equity
9
Interests are not more favorable to the holders of such Equity Interests than
the "asset sale" provisions and the "Change of Control" provisions,
respectively, contained in the Subordinated Debt Documents.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.02 are satisfied (or waived in accordance with Section
9.02(b)).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the presence, management, Release or threatened Release of
any Hazardous Material or to public health and safety matters.
"Environmental Liability" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to: (a) any actual or alleged violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) any actual or alleged
exposure to any Hazardous Materials, (d) the Release or threatened Release of
any Hazardous Materials or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person and any
options, warrants or other rights to acquire such Equity Interests, but
excluding any debt securities convertible into such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with
10
respect to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Cash Flow" means, for any fiscal year, the sum
(without duplication) of:
(a) the consolidated net income (or loss) of Parent, the
Borrower and its consolidated Subsidiaries for such fiscal year, after
provision for taxes, adjusted to exclude any gains or losses
attributable to Prepayment Events; PLUS
(b) depreciation, amortization and other non-cash charges
or losses deducted in determining such consolidated net income (or
loss) for such fiscal year; PLUS
(c) the sum of (i) the amount, if any, by which Net
Working Capital decreased during such period plus (ii) the net amount,
if any, by which the consolidated deferred revenues of Parent, the
Borrower and its consolidated Subsidiaries increased during such period
plus (iii) the aggregate principal amount of Capital Lease Obligations
and other Indebtedness incurred during such period to finance Capital
Expenditures, to the extent that mandatory principal payments in
respect of such Indebtedness would, pursuant to clause (f) below, be
deducted in determining Excess Cash Flow when made; MINUS
(d) the sum of (i) any non-cash gains included in
determining such consolidated net income (or loss) for such fiscal year
plus (ii) the amount, if any, by which Net Working Capital increased
during such fiscal year plus (iii) the amount, if any, by which the
consolidated deferred revenues of Parent, the Borrower and its
consolidated Subsidiaries decreased during such fiscal year; MINUS
(e) Capital Expenditures for such period, except to the
extent such Capital Expenditures are financed with the proceeds of
asset dispositions (including casualty and condemnation events); MINUS
11
(f) the aggregate principal amount of Indebtedness repaid
or prepaid by Parent, the Borrower and its consolidated Subsidiaries
during such period, excluding (i) Indebtedness in respect of Revolving
Loans, Swingline Loans and Letters of Credit (unless accompanied by a
permanent reduction of the Revolving Commitments), (ii) Term Loans
prepaid pursuant to Section 2.11(c), (iii) repayments or prepayments of
Indebtedness financed by incurring other Indebtedness, to the extent
that mandatory principal payments in respect of such other Indebtedness
would, pursuant to this clause (f), be deducted in determining Excess
Cash Flow when made and (iv) Indebtedness referred to in clauses (iv)
and (v) of Section 6.01(a).
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.17.
"FCC" means the United States Federal Communications
Commission or any successor agency thereof.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
12
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, PROVIDED that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreements" means the Parent Guarantee Agreement
and the Subsidiary Guarantee Agreement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes, and all chemicals, materials, pollutants, contaminants,
substances or wastes of any nature prohibited, limited or regulated by or
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are
13
customarily paid (excluding current accounts payable and accrued expenses
incurred in the ordinary course of business), (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable and accrued expenses incurred in the ordinary course of business), (f)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes and
Other Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit F, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"Information Memorandum" means the Confidential Information
Memorandum dated August 2003, relating to the Borrower and the Transactions.
"Interest Coverage Ratio" shall have the meaning set forth in
Section 6.12.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or nine or twelve months if consented to by all the Lenders)
thereafter, as the Borrower may elect,
14
PROVIDED that (a) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (b) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"IPO" means an underwritten public offering by Holdings of
Equity Interests of Holdings pursuant to a registration statement filed with the
Securities and Exchange Commission in accordance with the Securities Act of
1933, as amended.
"Issuing Bank" means JPMorgan Chase Bank, in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Jones Market
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
15
prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered 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.
"License Subsidiary" means a Subsidiary of the Borrower, the
sole purpose of which shall be to hold the Operating Licenses of one operating
Subsidiary and to perform functions incidental thereto.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement and the Security
Documents.
"Loan Parties" means Parent, the Borrower and the Subsidiary
Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise, of
Parent, the Borrower and the Subsidiaries taken as a whole, (b) the ability of
any Loan Party to perform any of its obligations under any Loan Document or (c)
the rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Parent, the Borrower and the Subsidiaries in
an aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of Parent, the
Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
Parent, the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged
16
Property to secure the Obligations. Each Mortgage shall be satisfactory in form
and substance to the Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real
property and the improvements thereto owned by a Loan Party and identified on
Schedule 1.01, and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or
5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event, including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by Parent, the
Borrower and the Subsidiaries to third parties in connection with such event,
(ii) in the case of a sale, transfer or other disposition of an asset (including
pursuant to a sale and leaseback transaction or a casualty or a condemnation or
similar proceeding), the amount of all payments required to be made by Holdings,
the Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event, and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) by Parent, the Borrower and
the Subsidiaries, and the amount of any reserves established by Parent, the
Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event occurred
or the next succeeding year and that are directly attributable to such event (as
determined reasonably and in good faith by the chief financial officer of the
Borrower).
"Net Working Capital" means, at any date, (a) the consolidated
current assets of Parent, the Borrower and its consolidated Subsidiaries as of
such date (excluding cash and Permitted Investments) minus (b) the consolidated
current liabilities of Parent, the Borrower and its consolidated Subsidiaries as
of such date (excluding current liabilities in respect of Indebtedness). Net
Working Capital at any date may be a positive or negative number. Net Working
Capital increases when it becomes more positive or less negative and decreases
when it becomes less positive or more negative.
"New Senior Debt Documents" means the indenture to be entered
into by the Borrower in connection with the issuance of the New Senior Notes,
together with all instruments and other agreements entered into by the Borrower
in connection therewith.
"New Senior Notes" means the senior notes issued by the
Borrower pursuant to the New Senior Debt Documents for gross cash proceeds of
not less than $174,000,000 in accordance with Section 4.02(n).
"Obligations" has the meaning assigned to such term in (a) the
Security Agreement, (b) the Pledge Agreement and (c) the Guarantee Agreements.
17
"Operating Licenses" means all material licenses, permits and
other approvals issued by the FCC or RCA to Parent, the Borrower or any
Subsidiary, including any paging, mobile telephone, specialized mobile radio,
microwave or other license.
"Original Credit Agreement" means the Credit Agreement dated
as of May 14, 1999, as amended and restated from time to time, among the
Borrower, Parent, the Lenders party thereto and JPMorgan Chase Bank, as
Administrative Agent.
"Other Taxes" means any and all current or future recording
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Parent" means Alaska Communications Systems Group, Inc., a
Delaware corporation.
"Parent Discount Debentures" means the 13% senior discount
debentures due 2011 issued by Parent.
"Parent Discount Indenture" means the indenture entered into
by Parent dated May 14, 1999, in connection with the issuance of the Parent
Discount Debentures, together with all instruments and other agreements entered
into by Parent in connection therewith.
"Parent Guarantee Agreement" means the Parent Guarantee
Agreement, substantially in the form of Exhibit D, made by Parent in favor of
the Administrative Agent for the benefit of the Secured Parties.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of
Exhibit C or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition, to the extent
such acquisition occurs after the Effective Date, of all or substantially all
the assets of, or shares or other Equity Interests in, a Person or division or
line of business of a Person that is engaged in a reasonably related (ancillary
or complementary) line of business or lines of business, as reasonably
determined by the Board of Directors of the Borrower (or any subsequent
investment made in a previously acquired Permitted Acquisition), that was not
preceded by an unsolicited tender offer for such Person, if immediately after
giving effect thereto (a) no Default or Event of Default shall have occurred and
be continuing or would result therefrom, (b) all transactions related thereto
shall be consummated in accordance with applicable law, (c) 100% of the Equity
Interest of any acquired or newly formed corporation, partnership, association
or other business entity are owned directly by the Borrower or a domestic Wholly
Owned Subsidiary and all actions required to be taken, if any, with respect to
such acquired or newly formed subsidiary under
18
Section 5.12 shall have been taken, and (d)(i) Parent, the Borrower and the
Subsidiaries shall be in compliance, on a pro forma basis after giving effect to
such acquisition or formation, with the covenants contained in Sections 6.12 ,
6.13 and 6.14 recomputed as at the last day of the most recently ended fiscal
quarter of Parent, the Borrower and the Subsidiaries as if such acquisition had
occurred on the first day of each relevant period for testing such compliance,
and the Borrower shall have delivered to the Administrative Agent an officers'
certificate to such effect, together with all relevant financial information for
such subsidiary or assets, and (ii) any acquired or newly formed subsidiary
shall not be liable for any Indebtedness (except for Indebtedness permitted by
6.01).
"Permitted Distribution Amount" means an amount equal to the
sum of (a) an amount equal to the lesser of (i) the amount of cash and Cash
Equivalents on the balance sheet of the Borrower on the Effective Date (as
certified by a Financial Officer in a certificate provided by the Borrower to
the Administrative Agent on the Effective Date) and (ii) $83,500,000 and (b) the
Net Proceeds received by the Borrower after August 5, 2003, from the sale of
Equity Interests of ACS Media LLC, PROVIDED that in no event shall the Permitted
Distribution Amount exceed $100,000,000.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due
or are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of Parent, the
Borrower or any Subsidiary,
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
19
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date
of acquisition thereof;
(b) investments in commercial paper maturing within 270
days from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $250,000,000 or a foreign bank
that has a combined capital and surplus and undivided profits of not
less than $125,000,000; and
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (a)
above and entered into with a financial institution satisfying the
criteria described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such Plan were terminated, would under Section
4069 of ERISA be determined to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means the Pledge Agreement, substantially
in the form of Exhibit G, among Parent, the Borrower, the other Subsidiaries
party thereto and the Collateral Agent for the benefit of the Secured Parties.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction) of any property or asset
of Parent, the Borrower or any Subsidiary, other than dispositions
described in clauses (a), (b), (c) (including the two PROVISOS in
clause (c)), (d) and (e) of Section 6.05; or
(b) any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or similar
proceeding of, any property or
20
asset of Parent, the Borrower or any Subsidiary in an aggregate
principal amount in excess of $1,000,000 in any fiscal year of the
Borrower, but only to the extent that the Net Proceeds therefrom have
not been applied to repair, restore or replace such property or asset
within one year after such event; or
(c) the incurrence by Parent, the Borrower or any
Subsidiary of any Indebtedness, other than Indebtedness permitted
pursuant to Section 6.01.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"RCA" means the Regulatory Commission of Alaska or any other
agency, commission or similar body succeeding to the functions of the Regulatory
Commission of Alaska.
"Register" has the meaning set forth in Section 9.04(c).
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into or through the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" means, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Parent, the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Equity Interests in Parent, the Borrower or
any Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in Holdings, the Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an
21
amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $50,000,000.
"Revolving Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
"Revolving Maturity Date" means the date that is five years
after the Effective Date or the first Business Day thereafter, if such date is
not a Business Day.
"S&P" means Standard & Poor's Ratings Service.
"Secured Parties" shall have the meaning given such term in
the Security Agreement.
"Security Agreement" means the Security Agreement,
substantially in the form of Exhibit H, among the Borrower, Parent, the
Subsidiary Loan Parties and the Collateral Agent for the benefit of the Secured
Parties.
"Security Documents" means the Security Agreement, the
Guarantee Agreements, the Pledge Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Mortgages and each other security agreement or other
instrument or document executed and delivered pursuant to Section 5.12 or 5.13
to secure any of the Obligations.
"Senior Secured Debt" means, with respect to Parent, the
Borrower and the Subsidiaries on a consolidated basis at any time (without
duplication), all Indebtedness of Holdings, the Borrower or any Subsidiary that
is secured by a Lien on any assets of a Loan Party, other than any Indebtedness
that by its terms is expressly subordinated to the Obligations.
"Senior Subordinated Notes" means the $150,000,000 in
aggregate principal amount of 93% senior subordinated notes issued by the
Borrower pursuant to the Subordinated Debt Documents on May 14, 1999.
22
"Sold Entity or Business" has the meaning assigned to such
term in the definition of the term Adjusted Consolidated EBITDA.
"Sponsor" means Fox Paine Capital Fund L.P. and its Affiliates
(other than Affiliates that are operating companies or Controlled by operating
companies).
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debt Documents" means the indenture or other
agreement under which the Senior Subordinated Notes are issued and all other
instruments, agreements and other documents evidencing or governing the Senior
Subordinated Notes or providing for any Guarantee or other right in respect
thereof.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" means the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit E, made by the
Subsidiary Loan Parties in favor of the Administrative Agent for the benefit of
the Secured Parties.
"Subsidiary Loan Party" means any Subsidiary other than (a) a
Foreign Subsidiary and (b) ACS Media Holdings to the extent, and only to the
extent, that it complies with the limitations on its business, activities,
assets and liabilities set forth in Section 6.03(f).
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"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" means a Loan made pursuant to clause (a) of
Section 2.01.
"Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Term Loans hereunder on the Effective
Date expressed as an amount representing the maximum aggregate principal amount
of the Term Loans to be made by such Lender hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan Commitments
is $200,000,000.
"Term Loan Lender" means a Lender with a Term Loan Commitment
or an outstanding Term Loan.
"Term Loan Maturity Date" means the date that is the earlier
of (a) seven years after the Effective Date and (b) February 14, 2009 (unless
the Senior Subordinated Notes are refinanced, replaced or redeemed in full prior
to such date), or the first Business Day thereafter, if such date is not a
Business Day.
"Term Loan Rate" means, with respect to any Term Loan, (a)
2.25% per annum, in the case of an ABR Loan, or (b) 3.25% per annum, in the case
of a Eurodollar Loan.
"Total Debt" means, with respect to Parent, the Borrower and
the Subsidiaries on a consolidated basis at any time (without duplication), all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed
money and Indebtedness in respect of the deferred purchase price of property or
services of Parent, the Borrower and the Subsidiaries on a consolidated basis at
such time.
"Transaction Costs" means the fees and expenses in an
aggregate amount not to exceed $14,000,000 incurred by Parent, the Borrower or
any Subsidiary in connection with (a) the Transactions and (b) the execution and
delivery of this Agreement and the other Loan Documents.
24
"Transactions" means (a) the issuance of the New Senior Notes
and (b) the repayment of all obligations under the Original Credit Agreement
(and the termination of the commitments and security interests created
thereunder).
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Wholly Owned Subsidiary" means a Subsidiary all the Equity
Interest of which (other than directors' qualifying shares) is owned by the
Borrower or another Wholly Owned Subsidiary.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(E.G., a "Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class
and Type (E.G., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "Revolving Borrowing") or by Type
(E.G., a "Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time, PROVIDED
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof
25
in GAAP or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
ARTICLE II
CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees (a) to make a Term Loan to the Borrower on
the Effective Date in a principal amount not exceeding its Term Loan Commitment
and (b) to make Revolving Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment.
Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than
a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of
the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder, provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, PROVIDED that all Borrowings made
on the Effective Date must be made as ABR Borrowings. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan, PROVIDED that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000,
PROVIDED that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of
26
the total Revolving Commitments or that is required to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan
shall be in an amount that is an integral multiple of $500,000 and not less than
$500,000. Borrowings of more than one Type and Class may be outstanding at the
same time, PROVIDED that there shall not at any time be more than a total of
fifteen Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or the Term Loan Maturity Date, as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing, PROVIDED that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a
27
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans, PROVIDED that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Swingline Loans.
Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender's Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the
28
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $25,000,000
and (ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.
29
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 3:00 p.m., New York City time, on (i) the Business Day that
the Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to 10:00 a.m., New York City time on the day of
receipt, provided that, if such LC Disbursement is not less than $5,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.04 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan. If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Revolving Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable Percentage
of the payment then due from the Borrower, in the same manner as provided in
Section 2.06
30
with respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank, PROVIDED that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation,
31
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder, PROVIDED that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement (other than with respect to the timing of such reimbursement
obligation as set forth in Section 2.05(e)).
(h) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans,
PROVIDED that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph,
32
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon, PROVIDED that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article VII. The Borrower also shall deposit cash collateral pursuant to
this paragraph as and to the extent required by Section 2.11(b). Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be Permitted
Investments, made at the option and sole discretion of the Administrative Agent
and at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account and shall be the Borrower's property held by the Collateral Agent as
collateral for the payment and performance of the Obligations in accordance with
the Security Agreement. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount plus any accrued interest or
realized profits on account of such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 2.11(b), such
amount plus any accrued interest or realized profits on account of such amount
(to the extent not applied as aforesaid) shall be returned to the Borrower as
and to the extent that, after giving effect to such return, the Borrower would
remain in compliance with Section 2.11(b) and no Default shall have occurred and
be continuing.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders, PROVIDED that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request, PROVIDED that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
33
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in its sole discretion and in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
(c) Nothing in this Section 2.06 shall be deemed to relieve
any Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that the Borrower may have against any Lender as a result
of any default by any such Lender hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to fulfill
its Commitments hereunder).
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
34
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or
continued as a Eurodollar Borrowing if after giving effect thereto (i) the
Interest Period therefor would commence before and end after a date on which any
principal of the Loans of such Class is scheduled to be repaid and (ii) the sum
of the aggregate principal amount of outstanding Eurodollar Borrowings of such
Class with Interest Periods ending on or prior to such scheduled repayment date
plus the aggregate principal amount of outstanding ABR Borrowings of such Class
would be less than the aggregate principal amount of Loans of such Class
required to be repaid on such scheduled repayment date.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, (i) the Term Loan Commitments shall terminate
at 5:00 p.m., New York City time on the Effective Date and (ii) the Revolving
Commitments shall terminate on the Revolving Maturity Date.
35
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class, PROVIDED that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable, PROVIDED that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10 and (iii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Revolving Maturity Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month and is
at least two Business Days after such Swingline Loan is made, PROVIDED that on
each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
36
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein, PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
- ----------------------------------
Date Amount
- ----------------------------------
3/31/2004 $ 500,000
- ----------------------------------
6/30/2004 $ 500,000
- ----------------------------------
9/30/2004 $ 500,000
- ----------------------------------
12/31/2004 $ 500,000
- ----------------------------------
3/31/2005 $ 500,000
- ----------------------------------
6/30/2005 $ 500,000
- ----------------------------------
9/30/2005 $ 500,000
- ----------------------------------
12/31/2005 $ 500,000
- ----------------------------------
3/31/2006 $ 500,000
- ----------------------------------
6/30/2006 $ 500,000
- ----------------------------------
9/30/2006 $ 500,000
- ----------------------------------
12/31/2006 $ 500,000
- ----------------------------------
3/31/2007 $ 500,000
- ----------------------------------
6/30/2007 $ 500,000
- ----------------------------------
9/30/2007 $ 500,000
- ----------------------------------
12/31/2007 $ 500,000
- ----------------------------------
3/31/2008 $ 500,000
- ----------------------------------
6/30/2008 $ 500,000
- ----------------------------------
9/30/2008 $ 500,000
- ----------------------------------
12/31/2008 $ 500,000
- ----------------------------------
3/31/2009 $ 500,000
- ----------------------------------
6/30/2009 $ 500,000
- ----------------------------------
37
- ----------------------------------
Date Amount
- ----------------------------------
9/30/2009 $ 500,000
- ----------------------------------
12/31/2009 $ 500,000
- ----------------------------------
3/31/2010 $ 500,000
- ----------------------------------
6/30/2010 $ 500,000
- ----------------------------------
Term Loan All then-remaining
Maturity Date Term Loans
- ----------------------------------
(b) To the extent not previously paid, all Term Loans shall be
due and payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Loan shall be applied to reduce
the subsequent scheduled repayments of the Term Loans to be made pursuant to
this Section ratably.
(d) Prior to any repayment of any Term Borrowings hereunder,
the Borrower shall select the Borrowing or Borrowings to be repaid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three Business Days
before the scheduled date of such repayment. Each repayment of a Borrowing shall
be applied ratably to the Loans included in the repaid Borrowing. Repayments of
Term Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section.
(b) In the event that and on each occasion on which the sum of
the Revolving Exposures exceeds the total Revolving Commitments, the Borrower
shall prepay Revolving Borrowings or Swingline Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal
to such excess.
(c) In the event that and on each occasion on which any Net
Proceeds are received by or on behalf of Parent, the Borrower or any Subsidiary
in respect of any Prepayment Event, the Borrower shall, within three Business
Days after such Net Proceeds are received, prepay Term Borrowings in an
aggregate amount equal to such Net Proceeds, PROVIDED that, in the case of any
event described in clause (a) of the definition of the term "Prepayment Event",
if the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer to the effect that the Borrower and the Subsidiaries intend to
apply the Net Proceeds from such event, within 360 days after receipt of such
Net Proceeds, to acquire real property, equipment or other tangible assets to be
used in the business of the Borrower and the Subsidiaries or all of the
outstanding capital stock of an entity owning such assets, and certifying that
no Default has occurred and is continuing, then no prepayment shall be required
pursuant to this paragraph in respect of such event except to the extent of any
Net Proceeds therefrom
38
that have not been so applied by the end of such 360-day period, at which time a
prepayment shall be required in an amount equal to the Net Proceeds that have
not been so applied.
(d) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment, PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
SECTION 2.12. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of each
Commitment of such Lender during the period from and including the Effective
Date to but excluding the date on which such Commitment terminates. Accrued
commitment fees in respect of the Revolving Commitments shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Revolving Commitments terminate, commencing on the
first such date to occur after the date hereof, or any earlier date on which
such Commitments terminate. All commitment fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure
39
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Revolving Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate of 0.25% per annum
on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date, PROVIDED
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section.
40
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments, PROVIDED that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest Period or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period,
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank or
41
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case by an amount deemed material by such Lender, then in accordance with clause
(c) below, the Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), in each case by an amount deemed material by
such Lender, then in accordance with clause (c) below, the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation,
PROVIDED that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor, and PROVIDED, FURTHER that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
42
then the 270-day period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes, PROVIDED that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such
43
Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder or under
any other Loan Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
(f) If the Administrative Agent or a Lender (or Transferee)
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.17 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or Transferee) and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); PROVIDED,
HOWEVER, that the Borrower, upon the request of the Administrative Agent or such
Lender (or Transferee), agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender (or
Transferee) in the event the Administrative Agent or such Lender (or Transferee)
is required to repay such refund to such Governmental Authority. Nothing
contained in this Section 2.17(f) shall require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower or any other Person.
44
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SETOFFS. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) on or before the time expressly required hereunder
or under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans, provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the
45
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in its sole discretion and in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Prior to any Lender requesting compensation under Section 2.15, or the
Borrower paying any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, such Lender
shall use reasonable efforts to designate a different lending office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
46
(b) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), PROVIDED that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank and Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Parent and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of Parent, the
Borrower and the Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and as
proposed to be conducted and, except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, is qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required, except where the
failure to be so qualified could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
to be entered into by each Loan Party are within such Loan Party's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by each of Parent and the Borrower and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Parent, the Borrower or such Loan Party (as the case may be),
47
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by or before, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Loan Documents, (b)
will not violate any applicable law or regulation or the terms of the charter,
by-laws or other organizational documents of Parent, the Borrower or any of the
Subsidiaries, or the terms of any of the Authorizations, or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon Parent, the Borrower or
any of the Subsidiaries or any of their assets, or give rise to a right
thereunder to require any payment to be made by Parent, the Borrower or any of
the Subsidiaries, except where the aggregate amount of all such required
payments is less than $5,000,000 and where such default could not reasonably be
expected to result in a Material Adverse Effect, and (d) will not result in the
creation or imposition of any Lien on any asset of Parent, the Borrower or any
of the Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECT.
(a) The Borrower has heretofore furnished to the Lenders (i) the audited
consolidated and consolidating balance sheets and related statements of income,
stockholder's equity and cash flows of Parent for the 2002 fiscal year, in each
case prepared by a nationally recognized accounting firm reasonably acceptable
to the Administrative Agent, and (ii) the unaudited consolidated and
consolidating balance sheets and related statements of income, stockholder's
equity and cash flows of Parent for each subsequent fiscal quarter ended at
least 45 days before the Effective Date. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of Parent and its consolidated subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lenders the
pro forma consolidated balance sheet of Parent as of the Effective Date, after
giving effect to the Transactions. Such pro forma consolidated balance sheet (i)
has been prepared in good faith based on the same assumptions used to prepare
the pro forma financial statements included in the Information Memorandum (which
assumptions are believed by Parent and the Borrower to be reasonable), (ii) is
based on the best information available to Parent and the Borrower after due
inquiry, (iii) accurately reflects all adjustments necessary to give effect to
the Transactions and (iv) presents fairly, in all material respects, the pro
forma financial position of Parent and its consolidated subsidiaries as of such
date.
(c) Except as disclosed in the financial statements referred
to above or the notes thereto or in the Information Memorandum and except for
the Disclosed Matters, after giving effect to the Transactions, none of Parent,
the Borrower or the Subsidiaries
48
has, as of the Effective Date, any material contingent liabilities, unusual
long-term commitments or unrealized losses.
(d) Since December 31, 2002, there has been no material
adverse effect on the business, assets, results of operations, properties or
financial condition of Parent and its subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of Parent, the Borrower and
the Subsidiaries has good title to, or valid leasehold interests in, all its
real and personal property material to its business (including its Mortgaged
Properties), except for such defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of Parent, the Borrower and the Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by Parent,
the Borrower and the Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Schedule 3.05(b) accurately and completely lists as of the Effective
Date all Operating Licenses granted or assigned to the Borrower or any of the
Subsidiaries, or under which the Borrower and the Subsidiaries will have the
right to operate their respective businesses.
(c) Schedule 3.05(c) sets forth the address of each real
property with a fair market value in excess of $25,000 that is owned or leased
by Parent, the Borrower or any of the Subsidiaries as of the Effective Date.
(d) As of the Effective Date, neither Parent, the Borrower nor
any of the Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There
are no actions, suits, investigations or proceedings by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of Parent or the
Borrower, threatened against or affecting Parent, the Borrower or any of the
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents or
the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither Parent,
the Borrower nor any of the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply
49
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of
Parent, the Borrower and the Subsidiaries is in compliance with all laws,
regulations and orders (including any Environmental Law or Communication Law,
margin regulations, FCC and RCA regulations and ERISA) of any Governmental
Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither
Parent, the Borrower nor any of the Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940, as amended or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.09. TAXES. Each of Parent, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) any Taxes that are being contested in good
faith by appropriate proceedings and for which Parent, the Borrower or such
Subsidiary, as applicable, has set aside on its books reserves in accordance
with GAAP or (b) failures to file or cause to be filed or pay or cause to be
paid that would not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $10,000,000
the fair market value of the assets of all such underfunded Plans.
50
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
Parent, the Borrower or any of the Subsidiaries is subject, and all other
matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, PROVIDED that, with respect to projected financial
information, Parent and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time such projections were prepared and delivered to the Administrative Agent.
SECTION 3.12. SUBSIDIARIES. Parent does not have any
subsidiaries other than the Borrower and the Subsidiaries. Schedule 3.12 sets
forth the name of, and the ownership interest of the Borrower in, each
Subsidiary and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of the Borrower and the
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums in
respect of such insurance have been paid. Parent and the Borrower believe that
the insurance maintained by or on behalf of the Borrower and the Subsidiaries is
adequate with respect to the Borrower's and the Subsidiaries' businesses.
SECTION 3.14. LABOR MATTERS. As of the Effective Date, there
are no strikes, lockouts or slowdowns against Parent, the Borrower or any
Subsidiary pending or, to the knowledge of Parent or the Borrower, threatened.
The hours worked by and payments made to employees of Parent, the Borrower and
the Subsidiaries have not been in material violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with
such matters. All payments due from Parent, the Borrower or any Subsidiary, or
for which any claim may be made against Parent, the Borrower or any Subsidiary,
on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of Parent, the
Borrower or such Subsidiary. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which Parent, the Borrower or
any Subsidiary is bound.
SECTION 3.15. SOLVENCY. Immediately after the consummation of
the Transactions to occur on the Effective Date, and immediately following the
making of each Loan made on the Effective Date, and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise;
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(b) the present fair saleable value of the property of each Loan Party will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Effective Date.
SECTION 3.16. SENIOR INDEBTEDNESS. The Obligations constitute
"Senior Indebtedness" under and as defined in the Subordinated Debt Documents
and the New Senior Debt Documents.
SECTION 3.17. SECURITY INTERESTS. (a) When executed and
delivered, the Pledge Agreement will be effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Pledge
Agreement) and, when the portion of the Collateral constituting certificated
securities (as defined in the Uniform Commercial Code) is delivered to the
Administrative Agent, such security interest shall constitute a fully perfected
first priority Lien on, and security interest in, all right, title and interest
of the pledgor thereunder in such Collateral, in each case prior and superior in
right to any other Person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, the
Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral to the extent perfection can be obtained by filing Uniform Commercial
Code financing statements, other than the Intellectual Property (as defined in
the Security Agreement), in which a security interest may be perfected by
filing, recording or registering a security agreement, financing statement or
analogous document in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, in each case prior and superior
in right to any other Person to the extent perfection can be obtained by filing
Uniform Commercial Code financing statements, other than with respect to the
rights of Persons pursuant to Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the security
interest created thereunder shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in the Security Agreement) in which a security
interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, in
each case prior and superior in right to any other Person, other than with
52
respect to the rights of Persons pursuant to Liens expressly permitted by
Section 6.02 (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the date hereof).
(d) The Mortgages are effective to create, subject to the
exceptions listed in each title insurance policy covering such Mortgage, in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable Lien on all of the Loan Parties' right, title and
interest in and to the Mortgaged Properties thereunder and the proceeds thereof,
and when the Mortgages are filed in the offices specified on Schedule 3.17(d),
the Mortgages shall constitute a Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 6.02.
SECTION 3.18. REGULATORY MATTERS. Except for the Disclosed
Matters and except with respect to any other matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither Parent, the Borrower, nor any of the Subsidiaries (a) has failed
to comply with any Communications Law or to obtain, maintain or comply with any
permit, license or other approval required under any Communications Law, (b) has
become subject to any Communication Liability, (c) has received notice of any
claim with respect to any Communication Liability or (d) knows of any basis for
any Communication Liability.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
SECTION 4.01. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Parent and
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
SECTION 4.02. EFFECTIVE DATE. On the Effective Date:
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of each of (i) Wachtell, Lipton, Rosen &
Katz, counsel for Parent and the Borrower, substantially in the form of
Exhibit B-1, (ii) Leonard A. Steinberg, Esq., counsel to Parent and the
Borrower, substantially in the form of Exhibit B-2, (iii) Latham &
Watkins, FCC counsel for Parent and the Borrower, substantially in the
form of Exhibit B-3, (iv) Birch, Horton, Bittner & Cherot, Alaskan
regulatory counsel for Parent and the Borrower, substantially in the
form of Exhibit B-4 and (v) Darby & Darby, intellectual property
counsel for Parent and the Borrower, substantially in the form of
Exhibit B-5, and in the case of each such opinion required by this
paragraph, covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions to
occur on the Effective Date and any other legal matters relating to the
Loan Parties, the Loan Documents or such Transactions all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.01.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of
counsel) required to be reimbursed or paid by any Loan Party hereunder
or under any other Loan Document.
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(f) The Administrative Agent shall have received counterparts
of the Security Agreement, the Pledge Agreement and the Indemnity,
Subrogation and Contribution Agreement, each signed on behalf of the
Borrower, Parent and each Subsidiary Loan Party, together with the
following:
(i) stock certificates representing all the
outstanding shares of capital stock of the Borrower and each
Subsidiary owned by or on behalf of any Loan Party as of the
Effective Date (except that stock certificates representing
shares of common stock of a Foreign Subsidiary may be limited
to 65% of the outstanding shares of common stock of such
Foreign Subsidiary), promissory notes evidencing all
intercompany Indebtedness owed to any Loan Party by Parent,
the Borrower or any Subsidiary as of the Effective Date
(subject to the limitation set forth in Section 2(c) of the
Pledge Agreement), and stock powers and instruments of
transfer, endorsed in blank, with respect to such stock
certificates and promissory notes;
(ii) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded to create or perfect the Liens on the
Collateral owned or to be acquired on or before the Effective
Date and intended to be created under the Security Agreement;
and
(iii) a completed Perfection Certificate dated the
Effective Date and signed by an executive officer or Financial
Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with
respect to the Loan Parties, in the jurisdictions contemplated
by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 or have been
released.
(g) The Administrative Agent shall have received (i)
counterparts of a Mortgage with respect to each Mortgaged Property
owned by the Borrower or any Subsidiary on the Effective Date, signed
on behalf of the record owner of such Mortgaged Property and (ii) a
policy or policies of title insurance issued by a nationally recognized
title insurance company, insuring the Lien of each such Mortgage as a
valid first Lien on the Mortgaged Property described therein, free of
any other Liens except as permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent or
the Required Lenders may reasonably request.
(h) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in
effect.
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(i) All consents and approvals required to be obtained from
any Governmental Authority or other Person in connection with the
Transactions shall have been obtained, and all applicable waiting
periods and appeal periods shall have expired, in each case without the
imposition of any conditions reasonably expected to have a Material
Adverse Effect or to affect the rights or security of the Lenders
hereunder.
(j) The Lenders shall have received a pro forma consolidated
balance sheet of Parent as of the Effective Date, reflecting all pro
forma adjustments after giving effect to the Transactions and the other
Transactions contemplated hereby and such pro forma consolidated
balance sheet shall be consistent in all material respects with the
forecasts and other information previously provided to the Lenders.
(k) (i) The principal of and interest on all loans outstanding
under, and all other amounts due with respect to, the Original Credit
Agreement shall have been repaid in full, (ii) all commitments to lend
under the Original Credit Agreement shall have been terminated, (iii)
all obligations under or relating to the Original Credit Agreement and
all Liens and security interests relating to all of the foregoing shall
have been discharged and (iv) the Administrative Agent shall have
received satisfactory evidence of such repayment, termination and
discharge.
(l) Each of the Guarantee Agreements of the Loan Parties
(other than the Borrower) shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full
force and effect.
(m) After giving effect to the Transactions and the other
transactions contemplated hereby, Parent and its subsidiaries shall
have outstanding no Indebtedness or preferred stock other than (a) the
loans and other extensions of credit hereunder, (b) the Senior
Subordinated Notes, (c) the Parent Discount Debentures, (d) the New
Senior Notes, and (e) other Indebtedness permitted under Sections
6.01(a)(i) through (v).
(n) The Borrower shall have received not less than
$174,000,000 in gross cash proceeds from the issuance of the New Senior
Notes in a public offering or Rule 144A offering or other private
placement to one or more holders satisfactory to the Administrative
Agent. The terms and conditions of the New Senior Notes (including but
not limited to the maturity date, which shall be at least 180 days
after August 26, 2010,) and the New Senior Debt Documents shall be
reasonably satisfactory to the Administrative Agent. The Administrative
Agent shall be reasonably satisfied that the Transaction Costs shall
not exceed $14,000,000.
(o) The Lenders shall have received (i) audited consolidated
and consolidating balance sheets and related statements of income,
stockholder's equity and cash flows of Parent for the 2002 fiscal year,
in each case prepared by a nationally recognized accounting firm
reasonably acceptable to the Administrative Agent, and (ii) unaudited
consolidated and consolidating balance
56
sheets and related statements of income, stockholder's equity and cash
flows of Parent for each subsequent fiscal quarter ended at least 45
days before the Effective Date.
(p) The Administrative Agent shall have received the
certificate of a Financial Officer of the Borrower described in clause
(a)(i) of the definition of the term "Permitted Distribution Amount".
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on October 15, 2003 (and, in the
event such conditions are not so satisfied or waived at or prior to such time,
the Commitments shall terminate at such time).
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Parent and the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, Parent's audited consolidated and unaudited consolidating
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year, setting forth
in each case in comparative form the figures for the previous fiscal
year, all reported on by Deloitte & Touche LLP or other independent
public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
Parent and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, PROVIDED that if Parent
is required to deliver the financial statements and other information
set forth in this paragraph to the Securities and Exchange Commission
on an earlier date, Parent shall deliver such information to the
Administrative Agent and each Lender on such earlier date;
57
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, Parent's
consolidated and consolidating balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of Parent and its
consolidated subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes, PROVIDED that if Parent is required to
deliver the financial statements and other information set forth in
this paragraph to the Securities and Exchange Commission on an earlier
date, Parent shall deliver such information to the Administrative Agent
and each Lender on such earlier date;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating (A) compliance
with Sections 6.12, 6.13 and 6.14 and (B) the amount, if any, available
to Parent and the Borrower for distribution or payment pursuant to
clauses (vii) and (viii) of Section 6.08(a) and clauses (viii) and (ix)
of Section 6.08(b) as of the date of such financial statements and
(iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the Borrower's audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) within 60 days after the commencement of each fiscal year
of the Borrower, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and
for such fiscal year and setting forth the assumptions used for
purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Parent, the Borrower or any Subsidiary with the Securities and
Exchange Commission, the FCC or the RCA, or any Governmental Authority
succeeding to any or all of
58
the functions of said Commission, the FCC or the RCA, as applicable, or
with any national securities exchange, or distributed by Parent to its
shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Parent, the Borrower or any Subsidiary, or compliance with
the terms of any Loan Document, as the Administrative Agent or any
Lender may reasonably request in connection with the Loan Documents.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. Parent and the
Borrower will furnish to the Administrative Agent and each Lender prompt written
notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting Parent, the Borrower or any Affiliate thereof
that, if adversely determined, could reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Parent, the Borrower and the
Subsidiaries in an aggregate amount exceeding $3,000,000;
(d) the commencement of any proceeding by or before any
Governmental Authority seeking the cancelation, termination (including
by means of non-renewal), limitation, adverse modification or adverse
conditioning of any Authorization or Operating License; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. (a) The
Borrower will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's corporate name, (ii) in the location of any Loan
Party's jurisdiction of organization, any office in which it maintains books or
records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in any Loan Party's identity or corporate structure
or (iv) in any Loan Party's Federal Taxpayer Identification Number or other
organizational number. Parent and the Borrower agree not to effect or permit any
change referred to in the preceding sentence unless all filings have been made
under the
59
Uniform Commercial Code or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral. Parent and
the Borrower also agree promptly to notify the Administrative Agent if any
material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Borrower
(i) setting forth the information required pursuant to the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Effective Date, if
any, or the date of the most recent certificate delivered pursuant to this
Section and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interests under the Collateral Agreement for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Each of Parent
and the Borrower will, and will cause each of the Subsidiaries to, do or cause
to be done all things necessary to preserve, renew or replace and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business, including the renewal and maintenance of all
Authorizations, except for those the failure to maintain, preserve or keep in
full force and effect would not reasonably be expected to have a Material
Adverse Effect, and Operating Licenses, PROVIDED that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.05. PAYMENT OF OBLIGATIONS. Each of Parent and the
Borrower will, and will cause each of the Subsidiaries to, pay its Indebtedness
and other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) Parent, the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. Each of Parent and
the Borrower will, and will cause each of the Subsidiaries to, keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and are and will be in compliance
with all terms and conditions of the Operating Licenses and Authorizations and
all Communications Laws, including
60
all standards or rules imposed by the FCC and RCA or as imposed under any
agreements with telephone companies and customers, except where the failure to
do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.07. INSURANCE. Each of Parent and the Borrower will,
and will cause each of the Subsidiaries to, maintain, with financially sound and
reputable insurance companies or associations (a) insurance in such amounts
(with no greater risk retention) and against such risks as are customarily
maintained by companies of established repute engaged in the same or similar
businesses operating in the same or similar locations and (b) all insurance
required to be maintained pursuant to the Security Documents. The Borrower will
furnish to the Lenders, upon request of the Administrative Agent, information in
reasonable detail as to the insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of the Security Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS.
Each of Parent and the Borrower will, and will cause each of the Subsidiaries
to, keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its business
and activities. Each of Parent and the Borrower will, and will cause each of the
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.10. COMPLIANCE WITH LAWS. Each of Parent and the
Borrower will, and will cause each of the Subsidiaries to, comply with all laws,
rules, regulations and orders, including Environmental Laws, of any Governmental
Authority applicable to it or its property, including the payment of any
regulatory fees required by the FCC and RCA, any fees associated with the
Operating Licenses or Authorizations, and all regulatory reporting and
accounting requirements, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. (a) The
proceeds of the Term Loans will be used by the Borrower, together with a portion
of the net proceeds from the issuance of the New Senior Notes, to pay all
amounts outstanding under the Original Credit Agreement.
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(b) The proceeds of Revolving Loans will be used by the
Borrower for general corporate purposes, including Permitted Acquisitions.
(c) Letters of Credit will be used by the Borrower for general
corporate purposes.
(d) No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional
Subsidiary is formed or acquired after the Effective Date, the Borrower will
notify the Administrative Agent thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Subsidiary Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement and each other applicable Security Document within ten
Business Days after such Subsidiary is formed or acquired, and, within fifteen
Business Days after such Subsidiary is formed or acquired, take such actions to
create and perfect Liens on such Subsidiary's assets to secure the Obligations
as the Administrative Agent or the Required Lenders shall reasonably request and
(b) if any Equity Interest in or Indebtedness of such Subsidiary are owned by or
on behalf of any Loan Party, the Borrower will cause such Equity Interests and
promissory notes evidencing such Indebtedness to be pledged pursuant to the
Pledge Agreement within ten Business Days after such Subsidiary is formed or
acquired (except that, if (x) such Subsidiary is a Foreign Subsidiary and (y) in
the reasonable opinion of the Borrower, the pledge of more than 65% of the
outstanding capital stock of such Foreign Subsidiary would cause adverse tax
consequences to the Borrower, the shares of common stock of such Foreign
Subsidiary to be pledged pursuant to the Pledge Agreement may be limited to 65%
of the outstanding shares of common stock of such Subsidiary).
SECTION 5.13. FURTHER ASSURANCES. (a) Each of Parent and the
Borrower will, and will cause each Subsidiary Loan Party to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to effectuate the
transactions contemplated by the Loan Documents or to grant, preserve, protect
or perfect the Liens created or intended to be created by the Security Documents
or the validity or priority of any such Lien, all at the expense of the Loan
Parties. Parent and the Borrower also agree to provide to the Administrative
Agent, from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Security under the Security Agreement that become subject to the
Lien of the Security Agreement upon acquisition
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thereof), the Borrower will notify the Administrative Agent and the Lenders
thereof, and, if requested by the Administrative Agent or the Required Lenders,
the Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties.
(c) Upon the request of the Administrative Agent, to the
extent permitted by applicable law at the time of such request, the Borrower
will grant or cause the applicable Subsidiaries to grant, to the Administrative
Agent, a direct security interest in the Operating Licenses within 30 days after
receipt of such request, PROVIDED that to the extent FCC or RCA consent shall be
required in connection with granting such security interest, such consent shall
be requested within 30 days after receipt of such request and upon receipt of
such FCC or RCA consent, such security interest shall be granted within 10
Business Days thereof.
SECTION 5.14. OPERATING LICENSES. Except to the extent
prohibited by any applicable rule or regulation of the RCA or FCC as in effect
as of the date hereof, or unless the Borrower and the Administrative Agent shall
otherwise agree, Parent and the Borrower agree to take all actions necessary or
desirable to cause all Title III authorizations issued by the FCC and all
Operating Licenses to continue to be held by the applicable License
Subsidiaries.
SECTION 5.15. AFTER-ACQUIRED LICENSES. Except to the extent
prohibited by any applicable rule or regulation of the RCA or FCC as in effect
as of the date hereof, or unless the Borrower and the Administrative Agent shall
otherwise agree, Parent and the Borrower agree to take all actions necessary or
desirable to cause each after-acquired Operating License to be held in the
applicable License Subsidiary, provided that to the extent the Borrower or the
applicable Subsidiary shall not have received FCC or RCA approval with respect
to the foregoing at the scheduled closing of the acquisition of such Operating
License, the Borrower shall comply with the foregoing requirement as soon as
practicable following such acquisition (but in any event within 120 days after
such acquisition (or such longer period as may be agreed by the Administrative
Agent, such agreement not to be unreasonably withheld)).
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, each of Parent and the Borrower covenants and agrees with
the Lenders that:
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SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a)
Parent and the Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (A) the Senior Subordinated Notes in an aggregate
principal amount not to exceed $150,000,000, (B) the Parent Discount
Debentures in an aggregate principal amount at maturity not to exceed
$49,000,000 and (C) the New Senior Notes in an aggregate principal
amount not to exceed $182,000,000;
(iii) Indebtedness existing on the date hereof and set forth
in Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof;
(iv) Indebtedness of the Borrower to any Wholly-Owned
Subsidiary and of any Wholly-Owned Subsidiary (other than a License
Subsidiary) to the Borrower or any other Wholly-Owned Subsidiary,
PROVIDED that Indebtedness of any Wholly-Owned Subsidiary that is not a
Loan Party to the Borrower or any Wholly-Owned Subsidiary Loan Party
shall be subject to Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary, PROVIDED that Guarantees by the Borrower or any
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a
Loan Party shall be subject to Section 6.04;
(vi) Indebtedness of the Borrower or any Subsidiary (other
than a License Subsidiary) incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, PROVIDED that such
Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, and
extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof provided that the
aggregate principal amount of Indebtedness permitted by this clause
(vi) shall not exceed $20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary
after the date hereof, PROVIDED that (A) such Indebtedness exists at
the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary and (B) the aggregate principal amount of Indebtedness
permitted by this clause (vii) shall not exceed $25,000,000 at any time
outstanding;
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(viii) other unsecured Indebtedness of the Borrower or any
Subsidiary (other than a License Subsidiary) in an aggregate principal
amount not exceeding $5,000,000 at any time outstanding;
(ix) Indebtedness in respect of Hedging Agreements permitted
by Section 6.07;
(x) Indebtedness incurred by the Borrower or any Subsidiary
constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business, including letters of
credit in respect of workers' compensation claims or self-insurance;
and
(xi) the ACS Media Holdings Notes, PROVIDED that such ACS
Media Holdings Notes are issued as described in clause (a) of the
definition of the term "ACS Media Transaction".
(b) Parent will not create, incur, assume or permit to exist
any Indebtedness except (i) the Parent Discount Debentures, (ii) the Guarantees
of the Senior Subordinated Notes, (iii) Indebtedness created under the Loan
Documents and (iv) the Guarantees of the New Senior Notes.
(c) Neither Parent nor the Borrower will, nor will they permit
any Subsidiary to, issue any preferred stock or other preferred Equity Interests
except that Parent may issue preferred stock (i) that is not subject to
redemption prior to the date that is 91 days after August 26, 2010, (ii) that
is, upon any such redemption, subject to subordination provisions that, in the
reasonable judgment of the Administrative Agent, are no less favorable to the
Borrower or the Lenders than the subordination provisions of the Senior
Subordinated Notes, (iii) that contains no covenants (other than non-financial
covenants (x) not adverse to the Borrower or the Lenders and (y) approved by the
Administrative Agent) and (iv) that does not require mandatory cash dividends
prior to the date that is 91 days after August 26, 2010 (PROVIDED that such
preferred stock may permit the payment of cash dividends to the extent permitted
by this Agreement).
SECTION 6.02. LIENS. (a) Parent and the Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02,
PROVIDED that (i) such Lien shall not apply to any other property or
asset of Parent, the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations that it secures on the date hereof
and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
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(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary (other
than a License Subsidiary) after the date hereof prior to the time such
Person becomes a Subsidiary, provided that (A) such Lien is not created
in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (B) such Lien shall
not apply to any other property or assets of the Borrower or any
Subsidiary and (C) such Lien shall secure only those obligations that
it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal
amount thereof; and
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, (other than a License
Subsidiary), PROVIDED that (A) such security interests secure
Indebtedness permitted by clause (vi) of Section 6.01(a), (B) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (C) the Indebtedness secured thereby
does not exceed 100% of the cost of acquiring, constructing or
improving such fixed or capital assets and (D) such security interests
shall not apply to any other property or assets of the Borrower or any
Subsidiary.
(b) Parent will not create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect thereof, except Liens created under the Pledge Agreement and
Permitted Encumbrances.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) Neither Parent nor the
Borrower will, nor will they permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Subsidiary (other than a License Subsidiary) may merge into
the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Person (other than a License Subsidiary) may merge with or
into or consolidate with any Subsidiary (other than a License Subsidiary) in a
transaction in which the surviving entity is a Subsidiary and (if any party to
such merger is a Subsidiary Loan Party) the surviving entity is a Subsidiary
Loan Party, (iii) any Subsidiary may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it in any
sale or other disposition permitted under Section 6.05, (iv) any Subsidiary
(other than a License Subsidiary or other Subsidiary Loan Party) may liquidate
or dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, (v) ACS Television, L.L.C. and ACS Television
License Sub, Inc. may liquidate or dissolve within 180 days of the Effective
Date, provided that (x) at the time of such liquidation or dissolution, ACS
Television, L.L.C. or ACS Television License Sub, Inc., as applicable, has no
assets other than the assets held by it on the Effective Date and (y) the
Borrower determines in good faith that
66
such liquidation or dissolution is in the best interests of the Borrower and is
not materially disadvantageous to the Lenders and (vi) the Borrower may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Borrower in another jurisdiction, PROVIDED that Parent pledges the stock of the
surviving entity to the Collateral Agent as security for the Obligations and, in
connection with such merger, Parent and its subsidiaries execute such other
documents as are reasonably requested by the Administrative Agent to effect the
purposes of this Agreement and the other Loan Documents, and PROVIDED FURTHER
that any such merger or consolidation involving a Person that is not a Wholly
Owned Subsidiary immediately prior to such merger or consolidation shall not be
permitted unless also permitted by Sections 6.04 and 6.08.
(b) The Borrower will not, and will not permit any of the
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
(c) Parent will not engage in any business or activity other
than the ownership of all the outstanding shares of capital stock of the
Borrower, the issuance of the Parent Discount Debentures and activities
incidental thereto, including rental payments, computer services, professional
and consultant services, investment services, printing, travel and other
miscellaneous services. Parent will not own or acquire any assets (other than
shares of capital stock of the Borrower, cash and Permitted Investments) or
incur any liabilities (other than liabilities under the Loan Documents,
liabilities imposed by law, including tax liabilities, liabilities under the
Parent Discount Debentures and other liabilities incidental to its existence and
permitted business and activities).
(d) No License Subsidiary will engage in any business or
activity other than holding the applicable Operating License and activities
incidental thereto.
(e) No License Subsidiary will sell, transfer, lease or
otherwise dispose of any Operating License or any Authorization.
(f) ACS Media Holdings will not engage in any business or
activity other than (i) the ownership and disposition of Equity Interests in ACS
Media LLC, (ii) the exercise by ACS Media Holdings of its right, if it decides
in its sole discretion to do so, to exchange Equity Interests in ACS Media LLC
for trust units of ACS Media Income Fund pursuant to clause (h) of the
definition of the term ACS Media Transaction and the subsequent ownership and
disposition of such units, (iii) the issuance of and payment with respect to the
ACS Media Holdings Notes and the issuance of Equity Interests in ACS Media
Holdings to ACS InfoSource, Inc., in each case as described in clause (a) of the
definition of the term "ACS Media Transaction", and the distribution by ACS
Media Holdings to ACS InfoSource, Inc., of assets with respect to Equity
Interests in ACS Media Holdings held by ACS InfoSource, Inc., (iv) the receipt
of the ACS Media Business and the contribution of the ACS Media Business to ACS
Media LLC, in each case as described in clauses (a) and (b) of the definition of
the term "ACS Media Transaction", (v) the entry into the ACS Media Transaction
Related Agreements and (vi)
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activities incidental to the foregoing. ACS Media Holdings will not own or
acquire any assets (other than the ACS Media Business, as described in clause
(a) of the definition of the term "ACS Media Transaction", Equity Interests in
ACS Media LLC, any distributions with respect to Equity Interests in ACS Media
LLC or the units referred to in the immediately preceding sentence, such units
and cash or other consideration obtained pursuant to clause (e) or (f) of the
definition of the term "ACS Media Transaction" and any ACS Media Disposition) or
incur any liabilities (other than liabilities under the Loan Documents,
liabilities imposed by law, including tax liabilities, and other liabilities
incidental to its existence and permitted business and activities), PROVIDED
that ACS Media Holdings shall promptly distribute to the Borrower or any
Subsidiary Loan Party any assets obtained pursuant to clauses (e) and (f) of the
definition of the term "ACS Media Transaction", any ACS Media Disposition and
any distribution with respect to Equity Interests in ACS Media LLC or trust
units of ACS Media Income Fund.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Borrower will not, and will not permit any of the Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a Wholly Owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Investments permitted pursuant to Section 2.11(c);
(c) investments existing on the date hereof and set forth on
Schedule 6.04;
(d) investments by the Borrower and the Subsidiaries in Equity
Interests in their respective Subsidiaries, PROVIDED that (i) any such
Equity Interests held by a Loan Party shall be pledged pursuant to the
Pledge Agreement (subject to the limitations applicable to common stock
of a Foreign Subsidiary referred to in Section 5.12) and (ii) the
aggregate amount of investments by Loan Parties in, and loans and
advances by Loan Parties to, and Guarantees by Loan Parties of
Indebtedness of, Subsidiaries that are not Loan Parties (including all
such investments, loans, advances and Guarantees existing on the
Effective Date) shall not exceed $25,000,000 (based on cost and net of
any cash distributed by such Subsidiaries that are not Loan Parties to
Loan Parties that represent a return of paid-in capital or repayment of
principal) at any time outstanding;
(e) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary,
PROVIDED that (i) any such loans and advances made by a Loan Party
shall be evidenced by a promissory note pledged pursuant to the Pledge
Agreement and (ii) the amount of
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such loans and advances made by Loan Parties to Subsidiaries that are
not Loan Parties shall be subject to the limitation set forth in clause
(c) above;
(f) Guarantees constituting Indebtedness permitted by Section
6.01, PROVIDED that (i) neither Parent nor any Subsidiary shall
Guarantee the New Senior Notes unless (A) Parent or such Subsidiary, as
applicable, also has Guaranteed the Obligations pursuant to a Guarantee
Agreement and (B) such Guarantee of the New Senior Notes provides for
the release and termination thereof, without action by any party, upon
any release and termination of such Guarantee of the Obligations and
(ii) the aggregate principal amount of Indebtedness of Subsidiaries
that are not Loan Parties that is Guaranteed by any Loan Party shall be
subject to the limitation set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(h) investments constituting Permitted Acquisitions not to
exceed $200,000,000 (based on cost and net of any cash distributed by
such Subsidiaries that are not Loan Parties to Loan Parties that
represent a return of paid-in capital or repayment of principal) in the
aggregate (which amount will be deemed (i) to include the amount of any
Indebtedness acquired or assumed in connection with Permitted
Acquisitions and (ii) not to include (A) the amount of (1) Net Proceeds
of the issuance of Equity Interests of Parent (other than Disqualified
Stock) and (2) common equity contributions made by Sponsor to Parent,
in the case of clauses (1) and (2) that are contributed by Parent to
the Borrower as common equity and expended to effect a Permitted
Acquisition and (B) Permitted Acquisitions paid for (in whole or in
part and, if in part, to the extent so paid for) with the issuance of
Equity Interests of Parent (other than Disqualified Stock));
(i) Loans and advances to employees, directors or consultants
in the ordinary course of business of the Borrower and the Subsidiaries
as presently conducted in an aggregate principal amount not to exceed
$5,000,000;
(j) Investments by the Borrower in Hedging Agreements
permitted under Section 6.07;
(k) receivables owing to the Borrower or any Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED,
HOWEVER, that such trade terms may include such concessionary trade
terms as the Borrower or any such Subsidiary deems reasonable under the
circumstances;
(l) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business; and
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(m) Investments that are made exclusively with Equity
Interests of Parent (other than Disqualified Stock);
(n) other investments in an aggregate amount not to exceed
$15,000,000;
(o) any investment described in the definition of the term
"ACS Media Transaction"; and
(p) any Restricted Payments permitted pursuant to clause (vii)
or (viii) of Section 6.08(a) or any transaction permitted pursuant to
clause (viii) or (ix) of Section 6.08(b).
SECTION 6.05. ASSET SALES. The Borrower will not, and will not
permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose of
any asset, including any Equity Interest owned by it, nor will the Borrower
permit any of the Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Wholly-Owned Subsidiary, PROVIDED that any such sales, transfers or
dispositions involving a Subsidiary that is not a Loan Party shall be
made in compliance with Section 6.09;
(c) sales, transfers and other dispositions of assets (other
than Equity Interests in a Subsidiary) that are not permitted by any
other clause of this Section, PROVIDED that the aggregate fair market
value of all assets sold, transferred or otherwise disposed of in
reliance upon this clause (c) shall not exceed $15,000,000 during any
fiscal year of the Borrower or $50,000,000 in the aggregate during the
term of this Agreement; PROVIDED, HOWEVER, that assets with an
aggregate book value of less than $100,000 sold, transferred or
otherwise disposed of in a single transaction or a series of related
transactions shall not be included in the determination of the
aggregate fair market value of assets sold, transferred or otherwise
disposed of in reliance upon this clause (c);
(d) any disposition described in clause (h) of the definition
of the term "ACS Media Transaction"; and
(e) any ACS Media Disposition,
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) above) shall be made for fair
value and (other than those permitted by clause (b) above and the exchange by
ACS Media Holdings of Equity Interests in ACS Media LLC for trust units of ACS
Media Income Fund as described in clause (h) of the definition of the term "ACS
Media Transaction" and other than as permitted by clause (d) above) shall be
made for at least 50% cash consideration.
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SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Borrower
will not, and will not permit any of the Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred, except for (a) any such sale of any fixed
or capital assets that is made for cash consideration in an amount not less than
the cost of such fixed or capital asset and is consummated within 90 days after
the Borrower or such Subsidiary acquires or completes the construction of such
fixed or capital asset or (b) any such sale of any fixed or capital assets to
the extent that (i) all Indebtedness incurred in connection with such sale is
otherwise permitted by Section 6.01 and (ii) any Liens created on such assets
are otherwise permitted by Section 6.02.
SECTION 6.07. HEDGING AGREEMENTS. The Borrower will not, and
will not permit any Subsidiary to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF
INDEBTEDNESS. (a) Neither Parent nor the Borrower will, nor will they permit any
Subsidiary to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except:
(i) Parent may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock;
(ii) Subsidiaries may declare and pay dividends ratably with
respect to their capital stock;
(iii) the Borrower may pay dividends to Parent at such times
and in such amounts equal to the amounts required for Parent to pay
taxes, franchise fees and other fees required to maintain its corporate
existence and provide for other operating costs of up to $7,500,000
during any fiscal year (other than liabilities in respect of the Parent
Discount Debentures);
(iv) the Borrower may pay dividends to Parent in amounts equal
to amounts necessary for Parent to make loans or advances to employees
in the ordinary course of business in accordance with past practices of
the Borrower, but in any event not to exceed, when aggregated with
amounts loaned or advanced under Section 6.04(i), $5,000,000 in the
aggregate outstanding at any one time;
(v) any purchase, repurchase, retirement, defeasance or other
acquisition or retirement for value of Equity Interests of Parent made
by exchange for, or out of the proceeds of the substantially concurrent
sale of, Equity Interests of Parent (other than Disqualified Stock and
other than Equity Interests issued or sold to the
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Borrower or a Subsidiary or an employee stock ownership plan or other
trust established by the Borrower or any of the Subsidiaries);
(vi) the Borrower may during any fiscal year, provided that no
Default or Event of Default has occurred and is continuing or will
occur as a result of such payment and to the extent permitted by the
Subordinated Debt Documents and the New Senior Debt Documents as in
effect on the date hereof, pay dividends to Parent when and to the
extent necessary (or to the extent (A) Parent is permitted by the terms
of this Agreement and the Parent Discount Indenture to make a cash
interest payment in respect of the Parent Discount Debentures and (B)
Parent uses such dividends (net of any Taxes payable by Parent in
respect of such dividends) to make such cash interest payment) to fund
payments of interest accrued during such year on the Parent Discount
Debentures;
(vii) the Borrower may make to Parent, and Parent may make to
its shareholders, Restricted Payments in an aggregate amount (without
duplication) not to exceed the Permitted Distribution Amount, PROVIDED
that (A) any Restricted Payment made by Parent and the Borrower
pursuant to this clause (vii) shall reduce, on a dollar-for-dollar
basis, the amount of the Permitted Distribution Amount available for
payments pursuant to clause (viii) of Section 6.08(b), (B) prior to any
Restricted Payment pursuant to this clause (vii), the Borrower shall
deliver to the Administrative Agent a certificate of a Financial
Officer of the Borrower certifying that (1) no Default has occurred and
is continuing or would result from such Restricted Payment and (2) such
Restricted Payment will be made with cash and Cash Equivalents on the
balance sheet of the Borrower without giving effect to any Revolving
Borrowings and (C) any dividend made by Parent to its shareholders
pursuant to this clause (vii) must be made to its shareholders ratably
in accordance with their equity ownership; and
(viii) the Borrower may make to Parent, and Parent may make to
its shareholders, Restricted Payments in an aggregate amount (without
duplication) not to exceed 50% of the Excess Cash Flow of the Borrower
during the period (treated as one account period) commencing at the end
of the fiscal quarter in which the Effective Date occurs and ending at
the end of the most recent fiscal period for which financial statements
have been provided to the Lenders pursuant to Section 5.01(a) or (b) of
this Agreement, PROVIDED that (A) any Restricted Payment made pursuant
to this clause (x) shall reduce, on a dollar-for-dollar basis, the
amount available for payments pursuant to clause (ix) of Section
6.08(b), (B) prior to any Restricted Payment pursuant to this clause
(x), the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer of the Borrower certifying as to the
matters set forth in clauses (B)(1) and (2) of the PROVISO in clause
(vii) of this Section 6.08(a) and (C) any dividend made by Parent to
its shareholders pursuant to this clause (viii) must be made to such
shareholders ratably in accordance with their equity ownership.
(b) Neither Parent nor the Borrower will, nor will they permit
any Subsidiary to, make or agree to pay or make, directly or indirectly, any
payment or other
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distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of (A) regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of the Senior Subordinated Notes prohibited by the
subordination provisions thereof and (B) in any fiscal year, interest
accrued during such fiscal year in respect of the Parent Discount
Debentures;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(v) payment of Indebtedness of the Borrower and the
Subsidiaries existing on the Effective Date and set forth in Schedule
6.01;
(vi) payment to any Person of Indebtedness of the Borrower or
any Subsidiary (other than a License Subsidiary) that is incurred to
finance the purchase of equipment or other fixed assets and is secured
by such equipment or other fixed assets, PROVIDED that (A) the
aggregate amount of all payments made pursuant to this clause (vi) does
not exceed (1) $2,500,000 during any fiscal year of the Borrower and
(2) $5,000,000 during the term of this Agreement and (B) all such
payments shall be made using existing cash of the Borrower or any
Subsidiary (other than a License Subsidiary);
(vii) payment of the ACS Media Holdings Notes described in
clause (a) of the definition of the term "ACS Media Transaction";
(viii) payment for the repurchase, redemption, retirement or
cancelation of (x) Parent Discount Debentures, (y) Senior Subordinated
Notes or (z) New Senior Notes in an aggregate amount not to exceed the
Permitted Distribution Amount, PROVIDED that (A) any payment made by
Parent or the Borrower pursuant to this clause (viii) shall reduce, on
a dollar-for-dollar basis, the amount of the Permitted Distribution
Amount available for payments pursuant to clause (vii) of Section
6.08(a) and (B) prior to any payment pursuant to this clause (viii),
the Borrower shall deliver to the Administrative Agent a certificate of
a Financial Officer of the Borrower certifying as to the matters set
forth in clauses (B)(1) and (2) of the PROVISO in clause (vii) of
Section 6.08(a);
(ix) payment for the repurchase, redemption, retirement or
cancelation of (x) Parent Discount Debentures, (y) Senior Subordinated
Notes or (z) New Senior Notes in an aggregate amount not to exceed 50%
of the Excess Cash Flow of the
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Borrower during the period (treated as one accounting period)
commencing at the end of the fiscal quarter in which the Effective Date
occurs and ending at the end of the most recent fiscal period for which
financial statements have been provided to the Lenders pursuant to
Section 5.01(a) or (b) of this Agreement, PROVIDED that (A) any payment
made by Parent or the Borrower pursuant to this clause (ix) shall
reduce, on a dollar-for-dollar basis, the amount available for payments
pursuant to clause (viii) of Section 6.08(a) and (B) prior to any
payment pursuant to this clause (x), the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the
Borrower certifying as to the matters set forth in clauses (B)(1) and
(2) of the PROVISO in clause (vii) of Section 6.08(a); and
(x) payment for the repurchase, redemption, retirement or
cancelation of (x) Senior Subordinated Notes or (y) New Senior Notes in
an aggregate amount not to exceed $10,000,000, provided that (A) such
payment shall be made with cash and Cash Equivalents on the balance
sheet of the Borrower, (B) immediately prior and after giving effect to
any such payment, there shall be no Revolving Borrowings outstanding
and (C) prior to any payment made in reliance on this clause (x), the
Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer of the Borrower certifying as to the matters set
forth in clauses (A) and (B) above.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. Neither Parent nor
the Borrower will, nor will they permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that do not involve Parent and are at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and the Subsidiary Loan Parties not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
6.08, (d) any issuance by Parent of Securities or by the Borrower of debt
securities, or other payments, awards or grants in cash, securities (other than,
in respect of the Borrower, Equity Interests) or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of the Borrower, (e) the grant of stock
options or similar rights in respect of Equity Interests in Parent to employees
and directors of the Borrower pursuant to plans approved by the Board of
Directors of the Borrower, (g) customary indemnification and insurance
arrangements in favor of officers, directors, employees and consultants of
Parent, the Borrower or any Subsidiary, (h) the payment of management fees by
the Borrower or any Subsidiary of up to an aggregate amount per annum equal to
1% of the Consolidated EBITDA of Parent for the fiscal year most recently ended,
PROVIDED that no Default or Event of Default has occurred and is continuing, (i)
the existence of, or the performance by Parent, the Borrower or any Subsidiary
of the obligations under the terms of, any stockholders agreements (including
any registration rights agreement or purchase agreement related thereto) to
which it is a party as of the Effective Date, which agreements are listed on
Schedule 6.09(h), as such agreement may be amended on terms reasonably
satisfactory to the Administrative Agent from time to time pursuant to the
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terms thereof; PROVIDED, HOWEVER, that the terms of any such amendment are no
less favorable to the Lenders than the terms of any such agreements in effect as
of the Effective Date, (j) the issuance of Equity Interests (other than
Disqualified Stock) of Parent for cash to Sponsor or senior management of the
Borrower and (k) the payment to Sponsor of a transaction advisory fee in an
amount not to exceed 1% of the sum of (i) the gross proceeds of the issuance of
the New Senior Notes and (ii) the aggregate principal amount of the Term Loans
outstanding on the Effective Date upon, and subject to, the Effective Date.
SECTION 6.10. RESTRICTIVE AGREEMENTS. Neither Parent nor the
Borrower will, nor will they permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of Parent,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary, provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document, Subordinated Debt Document or New Senior Debt Document,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof, (vi) clause (a) of the foregoing shall not apply to
restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business on the parties to such
contracts, (vii) clause (a) of the foregoing shall not apply to any encumbrance
or restriction on the assets of any joint venture that is (A) contained in any
joint venture agreement or other similar agreement with respect to such joint
venture that was entered into in the ordinary course of business and (B)
customary for such types of agreements and (viii) the foregoing shall not apply
to restrictions and conditions on ACS Media Holdings contained in any ACS Media
Transaction Related Agreement.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. Neither Parent
nor the Borrower will, nor will they permit any Subsidiary to, amend, modify or
waive any of its rights under (a) any Subordinated Debt Document, (b) its
certificate of incorporation, by-laws or other organizational documents, (c) the
Parent Discount Indenture, except to the extent such indenture is amended solely
to permit (but not require) the cash payment of interest on the Parent Discount
Debentures prior to May 14, 2004, (d) any New Senior Debt Document or (e) any
other material document or agreement in each case in any manner that would
impair in any material respect the value of the interests or rights of the
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Borrower thereunder or that would impair in any material respect the rights or
interests of any Agent or any Lender.
SECTION 6.12. INTEREST COVERAGE RATIO. The Borrower will not
permit the ratio (the "Interest Coverage Ratio") of Adjusted Consolidated EBITDA
to Consolidated Cash Interest Expense for any period of four fiscal quarters
included in any period set forth below to be less than the ratio set forth below
opposite such period:
Period: Ratio:
------ -----
September 30, 2003 to December 31, 2003 1.60:1.00
January 1, 2004 to December 31, 2004 1.65:1.00
January 1, 2005 to June 30, 2006 1.85:1.00
July 1, 2006 to December 31, 2007 2.00:1.00
January 1, 2008 to September 30, 2010 2.10:1.00
SECTION 6.13. ADJUSTED LEVERAGE RATIO. The Borrower will not
permit the Adjusted Leverage Ratio as of the last day of any fiscal quarter
included in any period set forth below to exceed the ratio set forth below
opposite such period:
Period: Ratio:
------ -----
September 30, 2003 to June 30, 2004 6.00:1.00
July 1, 2004 to June 30, 2005 5.90:1.00
July 1, 2005 to December 31, 2005 5.75:1.00
January 1, 2006 to December 31, 2007 5.50:1.00
January 1, 2008 to March 31, 2009 5.25:1.00
April 1, 2009 to September 30, 2010 5.00:1.00
SECTION 6.14. SENIOR SECURED LEVERAGE RATIO. The Borrower will
not permit the Adjusted Senior Secured Leverage Ratio as of the last day of any
fiscal quarter included in any period set forth below to exceed the ratio set
forth below opposite such period:
Period: Ratio:
------ -----
September 30, 2003 to September 30, 2004 2.50:1.00
October 1, 2004 to June 30, 2005 2.40:1.00
July 1, 2005 to March 31, 2007 2.25:1.00
April 1, 2007 to September 30, 2010 2.00:1.00
SECTION 6.15. CAPITAL EXPENDITURES. (a) Parent and the
Borrower will not, and will not permit any of the Subsidiaries to, make any
Capital Expenditures that
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would cause the aggregate amount of such Capital Expenditures made by the
Borrower and the Subsidiaries in any fiscal year of the Borrower to exceed
$85,000,000, PROVIDED that (i) expenditures made in connection with the
replacement, substitution or restoration of assets (x) to the extent financed
from insurance proceeds paid on account of the loss of or damage to the assets
being replaced or restored or (y) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced, (ii) the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment to the extent that the gross amount of such purchase price
is reduced by the credit granted by the seller of such equipment for the
equipment being traded in at such time and (iii) the purchase price of plant,
property or equipment made within one year of the sale of any asset to the
extent purchased for an aggregate amount not in excess of the amount of the net
cash proceeds of such sale shall not be included in the calculation of Capital
Expenditures pursuant to this Section 6.15.
(b) Notwithstanding the foregoing, the Borrower may in any
fiscal year, upon written notice to the Administrative Agent, increase the
amount of Capital Expenditures permitted to be made during such fiscal year
pursuant to this Section 6.15 by an amount equal to the lesser of (i) the total
unused amount of Capital Expenditures permitted to be made pursuant to this
Section 6.15 for the immediately preceding fiscal year (minus the amount of any
unused Capital Expenditures permitted to be made pursuant to this Section 6.15
that were carried forward to such preceding fiscal year pursuant to this
paragraph (b)) and (ii) 50% of the amount of Capital Expenditures permitted to
be made pursuant to this Section 6.15 for the immediately preceding fiscal year
(minus the amount of any unused Capital Expenditures permitted to be made
pursuant to this Section 6.15 that were carried forward to such preceding fiscal
year pursuant to this paragraph (b)).
SECTION 6.16. FISCAL YEAR. Parent and the Borrower will not,
and will not permit the Subsidiaries to, change the financial reporting
convention by which Parent, the Borrower and the Subsidiaries determine the
dates on which their fiscal years and fiscal quarters will end.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the
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same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of Parent, the Borrower or any Subsidiary in or in connection
with any Loan Document or any amendment or modification thereof or
waiver thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect in any material respect when made or
deemed made;
(d) Parent or the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.02, 5.04
(with respect to the existence of Parent or the Borrower) 5.13(c), 5.15
or 5.16 or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be promptly given at the request of any Lender);
(f) Parent, the Borrower or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness, when and as the same shall
become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity,
PROVIDED that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Parent, the Borrower or
any Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Parent, the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
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(i) Parent, the Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Parent, the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) Parent, the Borrower or any Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 (after giving effect to
insurance payments, if any) shall be rendered against Parent, the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of Parent, the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
for which liability of the Borrower or the Subsidiaries is reasonably
expected to occur, could reasonably be expected to result in liability
of the Borrower and the Subsidiaries in an aggregate amount exceeding
(i) $5,000,000 in any year or (ii) $15,000,000 for all periods;
(m) (i) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any Collateral, having a value in
excess of $10,000,000, with the priority required by the applicable
Security Document, except (A) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted
under the Loan Documents or (B) as a result of the Administrative
Agent's failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under the
Security Agreement or (ii) the Obligations of the Borrower, or the
obligations of Parent or any Subsidiaries pursuant to a Guarantee
Agreement shall cease to constitute senior indebtedness under the
subordination provisions of any document or instrument evidencing any
permitted subordinated Indebtedness or such subordination provisions
shall be invalidated or otherwise cease to be legal, valid and binding
obligations of the parties thereto, enforceable in accordance with
their terms;
(n) a Change in Control shall occur; or
79
(o) any of the Operating Licenses or Authorizations shall have
been (i) revoked, rescinded, suspended, modified in an adverse manner
or not renewed in the ordinary course for a full term or (ii) subject
to any decision by a Governmental Authority that designates a hearing
with respect to any applications for renewal of any of the Operating
Licenses or Authorizations or that could result in the Government
Authority taking any of the actions described in clause (i), above, and
such decision or such revocation, rescission, suspension, modification
or nonrenewal (A) has, or could reasonably be expected to have, a
Material Adverse Effect, or (B) adversely affects the legal or
character qualifications of Parent, the Borrower or any of the
Subsidiaries to hold any of the Operating Licenses or Authorizations;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. For
purposes of this Article VIII, all references to the Administrative Agent are
deemed to include the Collateral Agent.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business
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with Parent, the Borrower or any Subsidiary or any Affiliate of any of the
foregoing as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02(b)), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to Parent, the
Borrower or any of the Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02(b)) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall not be deemed to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by Parent, the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any of and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such
81
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges 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 credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges 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 from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Parent or the Borrower, to it at 600 Telephone
Avenue, MS 7, Anchorage, AK 99503, Attention of Kevin Hemenway (Telecopy No.
(907) 297-3064);
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(b) if to the Administrative Agent, the Issuing Bank or the
Swingline Lender, to JPMorgan Chase Bank, Commercial Loan Group, 1111 Fannin,
10th Floor, Houston, Texas 77002, Attention of Cynthia A. Aguirre (Telecopy No.
(713) 750-2358), with copies to JPMorgan Chase Bank, 270 Park Avenue, 4th Floor,
New York, New York 10017, Attention of John Kowalczuk (Telecopy No. (212)
270-4584) and JPMorgan Chase Bank, 270 Park Avenue, 15th Floor, New York, New
York 10017, Attention of Stella Millas (Telecopy No. (212) 270-4164); and
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
the Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time. No
notice or demand on any Loan Party in any case shall entitle such Loan Party or
any other Loan Party to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Parent, the Borrower and the Required Lenders or, in the case of
any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties that
are parties thereto, in each case with the consent of the Required Lenders,
PROVIDED that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the maturity of any Loan, or the date of any scheduled
payment of the principal amount of any Loan or LC Disbursement, or any
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interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such scheduled payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release
Parent or any material Subsidiary Loan Party from its Guarantee under the
applicable Guarantee Agreement (except as expressly provided in such Guarantee
Agreement), or limit its liability in respect of such Guarantee, without the
written consent of each Lender, (vii) release all or substantially all of the
Collateral from the Liens of the Security Documents, without the written consent
of each Lender (except as expressly provided in such Security Documents), or
(viii) change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class, and PROVIDED FURTHER that
(A) no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
without the prior written consent of the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Term Lenders), or the
Term Lenders (but not the Revolving Lenders) may be effected by an agreement or
agreements in writing entered into by Parent, the Borrower and requisite
percentage in interest of the affected Class of Lenders that would be required
to consent thereto under this Section if such Class of Lenders were the only
Class of Lenders hereunder at the time.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred
(including, without limitation, expenses incurred in connection with due
diligence) by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation, execution, delivery and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket
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expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Collateral Agent, the Issuing Bank and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence, Release or
threatened Release of Hazardous Materials on or from any Mortgaged Property or
any other property currently or formerly owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that (i) such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee or (ii) such losses, claims,
damages, liabilities or related expenses of a Lender result from disputes among
such Lender and one or more other Lenders.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the Issuing
Bank or the Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the total Revolving Exposures, outstanding Term Loans and unused Commitments at
the time.
(d) To the extent permitted by applicable law, neither Parent,
the Borrower nor any Subsidiary shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
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(e) All amounts due under this Section shall be payable not
later than ten days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), except that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, PROVIDED that no consent of the
Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of
Default under Article VII has occurred and is continuing, any
other assignee; and
(B) the Administrative Agent, PROVIDED that no
consent of the Administrative Agent shall be required for an
assignment of (1) any Commitment to an assignee that is a
Lender with a Commitment of the same Class immediately prior
to giving effect to such assignment or (2) any Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund or an assignment
of the entire remaining amount of the assigning Lender's
Commitment or Loans of any Class, the amount of the Commitment
or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or,
in the case of a Term Loan Commitment or a Term Loan,
$1,000,000) unless each of the
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Borrower and the Administrative Agent otherwise consents,
PROVIDED that no such consent of the Borrower shall be
required if an Event of Default under Article VII has occurred
and is continuing:
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement, PROVIDED
that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of
Commitments or Loans;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of
$3,500; and
(D) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire.
For the purpose of this Section 9.04(b), the term "Approved
Fund" has the following meaning:
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section, from and after
the effective date specified in each Assignment and Acceptance
the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names
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and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and Holdings, the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it),
PROVIDED that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Parent, the Borrower,
the Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of this Agreement (and,
if applicable, any other Loan Document), PROVIDED that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of
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Section 2.17 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, PROVIDED that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPV"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement,
PROVIDED that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan and (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPV hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the Unites Sates or any State thereof. In
addition, notwithstanding anything to the contrary in this Section 9.04, any SPV
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. As this Section
9.04(h) applies to any particular SPV, this section may not be amended without
the written consent of such SPV.
SECTION 9.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties
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hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17, 9.03, 9.12
and Article VIII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or its Affiliate to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Lender
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under this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each of Parent and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such State of New York or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against Parent, the Borrower or its
properties in the courts of any jurisdiction.
(c) Each of Parent and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT
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AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative
Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to a written
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower, (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender on
a nonconfidential basis from a source other than Parent or the Borrower or (i)
to any direct or indirect party of a Hedging Agreement (or to such party's
professional advisor), PROVIDED that such party (or professional advisor) agrees
to be bound by the provisions of this Section. For the purposes of this Section,
"Information" means all information received from Parent or the Borrower
relating to Holdings or the Borrower or its business, other than any such
information that was made available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by Parent or
the Borrower. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised customary procedures for
handling confidential information of the same nature as the Information in
accordance with safe and sound banking practices. Notwithstanding anything
herein to the contrary, each of the parties hereto (and any employee,
representative or other agent of such party) may disclose to any and all
persons, without limitation of any kind, the U.S. federal income tax treatment
and the U.S. federal income tax structure of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are provided to such party relating to such tax treatment or tax structure.
However, no disclosure of any information relating to such tax treatment or tax
structure may be made to the extent nondisclosure is reasonably necessary in
order to comply with the applicable securities laws.
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SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14. NOTICE OF LENDERS' RIGHT TO SUE. The mortgagor
or trustor (borrower) is personally obligated and fully liable for the amount
due under this Agreement. The mortgagee or beneficiary (lender) has the right to
sue on this Agreement and obtain a personal judgment against the mortgagor or
trustor for satisfaction of the amount due under this Agreement either before or
after a judicial foreclosure of the mortgage or deed of trust under AS Section
09.45.170 - 09.45.220.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ALASKA COMMUNICATIONS SYSTEMS
GROUP, INC.,
By /s/ Kevin P. Hemenway
________________________________________
Name: Kevin P. Hemenway
Title: CFO, Treasurer, Sr. VP
ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.,
By /s/ Kevin P. Hemenway
________________________________________
Name: Kevin P. Hemenway
Title: CFO, Treasurer, Sr. VP
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
By /s/ Gary L. Spevack
________________________________________
Name: Gary L. Spevack
Title: Vice President
JPMorgan Chase Bank
CIBC WORLD MARKETS CORP., individually
and as Syndication Agent,
By /s/ George Knight
________________________________________
Name: George Knight
Title: Managing Director
CIBC World Markets Corp. As Agent
CITICORP NORTH AMERICA, INC., individually
and as Documentation Agent,
By /s/ Caesar W. Wyszomirski
________________________________________
Name: Caesar W. Wyszomirski
Title: Vice President
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
Name of Institution Rural Telephone Finance Cooperative
------------------------------------------------------------
by /s/ Kenneth A. Fried
_________________________________________________________
Name: Kenneth A. Fried
Title: Assistant Secretary-Treasurer
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 25, 2003
Name of Institution FIRST NATIONAL BANK ALASKA
------------------------------------------------------------
by /s/ William P. Inscho
---------------------------------------------------------
Name: William P. Inscho
Title: Vice President
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
Name of Institution NATIONAL CITY BANK
------------------------------------------------------------
by /s/ David M. Denlinger
---------------------------------------------------------
Name: David M. Denlinger
Title: Vice President
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
Name of Institution KZH IMG-2 LLC
------------------------------------------------
by /s/ Dorian Herrera
---------------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
Name of Institution KZH CypressTree-1 LLC
------------------------------------------------
by /s/ Dorian Herrera
---------------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
Name of Institution KZH Sterling LLC
------------------------------------------------
by /s/ Dorian Herrera
---------------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
KZH CRESCENT-2 LLC
------------------------------------------------
/s/ Dorian Herrera
---------------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
SIGNATURE PAGE TO CREDIT
AGREEMENT DATED AS OF
AUGUST 26, 2003
KZH CRESCENT-3 LLC
------------------------------------------------
/s/ Dorian Herrera
---------------------------------------------
Name: Dorian Herrera
Title: Authorized Agent