Exhibit (b)
EXECUTION COPY
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CREDIT AGREEMENT
dated as of January 28, 2005
among
MLB ADVANCED MEDIA, L.P.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, L/C Issuer and Swing Line Lender,
JPMORGAN CHASE BANK, N.A.
as Syndication Agent,
and
the Lenders party hereto
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BANC OF AMERICA SECURITIES LLC,
and
J.P. MORGAN SECURITIES, INC.
as
Co-Lead Arrangers and Joint Bookrunners
Table of Contents
Page
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ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS............................................. 1
1.01 Defined Terms........................................................ 1
1.02 Other Interpretive Provisions........................................ 24
1.03 Accounting Terms..................................................... 24
1.04 Rounding............................................................. 25
1.05 Times of Day......................................................... 25
1.06 Letter of Credit Amounts............................................. 25
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS........................................ 25
2.01 Committed Loans...................................................... 25
2.02 Borrowings, Conversions and Continuations of Committed Loans......... 26
2.03 Letters of Credit.................................................... 27
2.04 Swing Line Loans..................................................... 35
2.05 Incremental Facility................................................. 38
2.06 Prepayments.......................................................... 40
2.07 Termination or Reduction of Commitments; Reduction of Available
Commitments....................................................... 41
2.08 Repayment of Loans................................................... 42
2.09 Interest............................................................. 42
2.10 Fees................................................................. 43
2.11 Computation of Interest and Fees..................................... 43
2.12 Evidence of Debt..................................................... 43
2.13 Payments Generally; Administrative Agent's Clawback.................. 44
2.14 Sharing of Payments by Lenders....................................... 46
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY....................................... 46
3.01 Taxes................................................................ 46
3.02 Illegality........................................................... 49
3.03 Inability to Determine Rates......................................... 49
3.04 Increased Costs...................................................... 50
3.05 Compensation for Losses.............................................. 51
3.06 Mitigation Obligations; Replacement of Lenders....................... 52
3.07 Survival............................................................. 52
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................................... 52
4.01 Conditions of Initial Credit Extension............................... 52
4.02 Conditions to all Credit Extensions.................................. 54
ARTICLE V.
REPRESENTATIONS AND WARRANTIES......................................... ..... 55
5.01 Existence, Qualification and Power................................... 55
5.02 Authorization; No Contravention...................................... 55
5.03 Governmental Authorization; Other Consents........................... 56
5.04 Binding Effect....................................................... 56
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5.05 Financial Statements; No Material Adverse Effect..................... 56
5.06 Litigation........................................................... 56
5.07 No Default........................................................... 57
5.08 Real Property; Liens, Etc............................................ 57
5.09 Environmental Compliance............................................. 57
5.10 Insurance............................................................ 57
5.11 Taxes................................................................ 57
5.12 ERISA Compliance..................................................... 57
5.13 Subsidiaries......................................................... 58
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act............................................... 58
5.15 Disclosure........................................................... 58
5.16 Compliance with Laws................................................. 59
5.17 Intellectual Property; Licenses, Etc................................. 59
5.18 Offices, Etc......................................................... 59
5.19 Indebtedness; Solvency............................................... 59
5.20 Affirmation.......................................................... 59
ARTICLE VI.
AFFIRMATIVE COVENANTS........................................................ 60
6.01 Financial Statements................................................. 60
6.02 Certificates; Other Information...................................... 60
6.03 Notices.............................................................. 62
6.04 Payment of Obligations............................................... 63
6.05 Preservation of Existence, Etc....................................... 63
6.06 Maintenance of Properties............................................ 63
6.07 Maintenance of Insurance............................................. 63
6.08 Compliance with Laws................................................. 63
6.09 Books and Records.................................................... 63
6.10 Inspection Rights.................................................... 64
6.11 Use of Proceeds...................................................... 64
ARTICLE VII.
NEGATIVE COVENANTS........................................................... 64
7.01 Liens................................................................ 64
7.02 Investments.......................................................... 65
7.03 Indebtedness......................................................... 65
7.04 Fundamental Changes.................................................. 66
7.05 Dispositions......................................................... 66
7.06 Restricted Payments; Etc............................................. 67
7.07 Material Acquisitions................................................ 67
7.08 Change in Nature of Business......................................... 67
7.09 Transactions with Affiliates......................................... 67
7.10 Burdensome Agreements................................................ 68
7.11 [Reserved.].......................................................... 68
7.12 Use of Proceeds...................................................... 68
7.13 Maximum Leverage Ratio............................................... 68
7.14 Capital Expenditures................................................. 68
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES............................................... 68
8.01 Events of Default.................................................... 68
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8.02 Remedies Upon Event of Default....................................... 70
8.03 Application of Funds................................................. 71
ARTICLE IX.
ADMINISTRATIVE AGENT......................................................... 72
9.01 Appointment and Authority............................................ 72
9.02 Rights as a Lender................................................... 72
9.03 Exculpatory Provisions............................................... 72
9.04 Reliance by Administrative Agent..................................... 73
9.05 Delegation of Duties................................................. 74
9.06 Resignation of Administrative Agent.................................. 74
9.07 Non-Reliance on Administrative Agent and Other Lenders............... 75
9.08 Duties, Etc.......................................................... 75
9.09 Administrative Agent May File Proofs of Claim........................ 75
ARTICLE X.
MISCELLANEOUS................................................................ 76
10.01 Amendments, Etc...................................................... 76
10.02 Notices; Effectiveness; Electronic Communication..................... 77
10.03 No Waiver; Cumulative Remedies....................................... 78
10.04 Expenses; Indemnity; Damage Waiver................................... 78
10.05 Payments Set Aside................................................... 80
10.06 Successors and Assigns............................................... 81
10.07 Treatment of Certain Information; Confidentiality.................... 84
10.08 Right of Set-off..................................................... 84
10.09 Interest Rate Limitation............................................. 85
10.10 Counterparts; Integration; Effectiveness............................. 85
10.11 Integration.......................................................... 85
10.12 Survival of Representations and Warranties........................... 86
10.13 Severability......................................................... 86
10.14 Tax Forms............................................................ 86
10.15 Governing Law; Jurisdiction; Etc..................................... 87
10.16 Waiver of Jury Trial................................................. 87
10.17 USA Patriot Act Notice............................................... 88
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Table of Contents
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.10 Insurance
5.13 Subsidiaries and Other Equity Interests
5.19 Offices
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
D-1 Pro Forma Compliance Certificate
E Assignment and Assumption
F Opinion
G U.S. Tax Compliance Certificate
CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended from time to time including, without
limitation, by an Incremental Loan Amendment, this "Agreement") is entered into
as of January 28, 2005, among MLB ADVANCED MEDIA, L.P., a Delaware limited
partnership (the "Borrower"), each lender from time to time party hereto
(collectively, the "Lenders" and individually, a "Lender") and BANK OF AMERICA,
N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Act" has the meaning set forth in Section 10.17.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent appointed in accordance with this Agreement.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify in
writing the Borrower and the Lenders.
"Administrative Questionnaire" means an administrative questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any 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.
"Aggregate Available Commitments" means, at any time, the sum of the
Available Commitments of all the Lenders.
"Aggregate Commitments" means, at any time, the sum of the Commitments of
all the Lenders.
"Aggregate Original Commitments" means the Original Commitments of all of
the Lenders in the aggregate amount of $125,000,000.
"Agreement" has the meaning specified in the introductory paragraph hereto.
"Applicable Rate" means the following percentages per annum, based upon the
Leverage Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agent pursuant to Section 6.02(b):
Pricing Eurodollar Letter of
Level Leverage Ratio Rate Credit Fee Commitment Fee Base Rate
------- ----------------------- ---------- ---------- -------------- ---------
1 Greater than or equal 1.250% 1.250% 0.300% 0.000%
to 2.50:1.00
2 Less than 2.50:1.00, 1.000% 1.000% 0.250% 0.000%
but greater than or
equal to 2.00:1.00
3 Less than 2.00:1.00 0.750% 0.750% 0.200% 0.000%
but greater than or
equal to 1.50:1.00
4 Less than 1.50:1.00 but 0.500% 0.500% 0.175% 0.000%
greater than or equal
to 1.00:1.00
5 Less than 1.00:1.00 0.375% 0.375% 0.150% 0.000%
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Any increase or decrease in the Applicable Rate resulting from a change in
the Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate delivered pursuant to
Section 6.02(b) is received by the Administrative Agent; provided, however, that
if a Compliance Certificate is not delivered when due in accordance with Section
6.02(b), then Pricing Level 1 shall apply as of the first Business Day after the
date on which such Compliance Certificate was required to have been delivered,
it being understood that if an overdue Compliance Certificate is delivered to
the Administrative Agent, the Applicable Rate shall be maintained or decreased
in accordance with such overdue Compliance Certificate effective as of the first
Business Day immediately following the date such overdue Compliance Certificate
is received by the Administrative Agent. Notwithstanding the immediately
preceding sentence, the Applicable Rate in effect from the Closing Date through
the date on which the Borrower delivers financial statements and a duly
completed Compliance Certificate with respect to the period ending March 31,
2005 shall be 0.625% for the Eurodollar Rate; 0.625% for the Letter of Credit
Fee; 0.1875% for the Commitment Fee; and 0.000% for the Base Rate. In addition,
for purposes of calculating the Applicable Rate, EBITDA for any Test Period
shall include the EBITDA of any Permitted Acquisition that has been consummated
during such Test Period.
"Approved Fund" means any Fund 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.
"Arrangers" means Banc of America Securities LLC and JPMorgan Securities,
Inc., in their respective capacities as co-lead arrangers and joint bookrunners.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee with the consent of any party whose consent
is required by Section 10.06(b), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear as
a liability on a balance sheet of such Person prepared as of such date in
accordance with GAAP and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that
would appear as a liability on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease were accounted for as a capital
lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Combined Group for the Fiscal Year ended December 31, 2003, and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for such Fiscal Year, including the notes thereto.
"Available Commitment" means as to any Lender, at any time, such Lender's
Commitment at such time, as reduced from time to time in accordance with Section
2.07.
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"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.07 and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means for any day a fluctuating rate of interest per annum, in
effect from time to time, equal to the higher of (a) the Federal Funds Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its "prime rate." The "prime
rate" is a rate set by Bank of America based upon various factors including Bank
of America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Committed Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"BBA LIBOR" means the interest rate per annum equal to the British Bankers
Association LIBOR rate.
"BBA LIBOR Daily Floating Rate" means, as of any date, a daily fluctuating
rate of interest equal to the rate per annum (rounded upwards to the nearest
1/100 of one percent) equal to BBA LIBOR, as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as selected by
the Swing Line Lender from time to time) as determined for each banking day at
approximately 11:00 a.m. London time two (2) London Banking Days prior to such
date, for U.S. Dollar deposits (for delivery on the first day of such interest
period) with a one month term, as adjusted from time to time in the Swing Line
Lender's sole and reasonable discretion for reserve requirements, deposit
insurance assessment rates and other regulatory costs. If such rate is not
available at such time for any reason, then the rate for that interest period
will be determined by such alternate method as reasonably selected by the Swing
Line Lender.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning set forth in Section 6.02(g).
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as the
context may require.
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"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalent Investments" means instruments, denominated in Dollars,
that are (a) short-term obligations of, or unconditionally guaranteed by, the
United States government or its agencies, (b) commercial paper notes that are
rated P-1 or better by Moody's or A-1 or better by S&P, (c) auction rate
preferred securities, (d) certificates of deposit issued by and time deposits
with any Lender; provided, in each case, that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and is
not subject to any contingency regarding the payment of principal or interest
and (e) fully collateralized repurchase agreements with a term of not more than
90 days for securities described in clause (a) of this definition and entered
into with any Lender.
"Casualty Event" means any single event of damage, destruction,
condemnation, seizure or appropriation of all or any material portion of any
property of the Borrower or any Subsidiary.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) the Clubs become the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person
or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of less than 66 2/3% of the
equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower or the GP on a
fully-diluted basis (and taking into account all such securities that any
such person or group has the right to acquire pursuant to any option
right); or
(b) the Clubs become the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person
or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of equity securities of the
Borrower entitled to receive less than 51% of the dividends and
distributions made by the Borrower with respect to its equity securities on
a fully-diluted basis (and taking
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into account all such securities that such person or group has the right to
acquire pursuant to any option right);
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.
"Club" or "Major League Club" means any Major League Baseball Club that is
entitled to the benefits, and bound by the terms, of the MLB Constitution.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute or statutes.
"Combined Group" means, collectively, the Borrower, MLB Online Services,
Inc. and SportsOnEarth, LLC, together with any other Person that would be
required to be consolidated with such parties for purposes of preparing
financial statements for such parties in accordance with GAAP.
"Commissioner" means the Office of the Commissioner of Baseball, on its own
behalf and as agent for the Major League Clubs, together with such other
entities as may be appointed by the Officer of the Commissioner of Baseball or
such Major League Baseball Clubs to act in their interest or on their behalf.
"Commitment" means, as to each Lender, the sum of such Lender's Original
Commitment plus such Lender's Incremental Commitment.
"Commitment Fee" has the meaning specified in Section 2.10.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other or (c) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Interest Charges" means, for any period, for the Combined
Group on a consolidated basis, the sum of (a) all interest, premium payments,
debt discount, fees, charges and related expenses of the Combined Group in
connection with borrowed money (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, and (b) the portion of rent expense of the
Combined Group with respect to such period under capital leases that is treated
as interest in accordance with GAAP.
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"Consolidated Net Income" means, for any period, for the Combined Group on
a consolidated basis, the net income of the Combined Group in accordance with
GAAP for that period.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Derived Swing Line Rate" means a rate of interest per annum equal to the
BBA LIBOR Daily Floating Rate with respect to a Swing Line Loan plus the
Applicable Rate then in effect with respect to Loans bearing interest at the
Eurodollar Rate.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale,
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assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"EBITDA" means, for any period, for the Combined Group on a consolidated
basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for
federal, state, local and foreign taxes in respect of the income of the Combined
Group for such period, (iii) the amount of depreciation and amortization expense
deducted in determining such Consolidated Net Income and (iv) other
non-recurring expenses of the Combined Group reducing such Consolidated Net
Income which do not represent a cash item in such period, including, without
limitation, any deferred compensation accruals, minus (b) all non-cash items
increasing Consolidated Net Income for such period and minus (c) deferred
compensation payments and signing bonus payments made by the Borrower during
such period to the extent such amounts are not reflected as deductions to
Consolidated Net Income for such period.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, any of the shares of
capital stock or partnership interests of (or other ownership or profit
interests in) such Person, any of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock or
partnership interests of (or other ownership or profit interests in) such
Person, any of the securities convertible into or exchangeable for shares of
capital stock or partnership interests of (or other ownership or profit
interests in) such Person or warrants, rights or options
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for the purchase or acquisition from such Person of such shares or partnership
interests (or such other interests), and all of the other ownership or profit
interests in such Person (including member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, partnership interests,
warrants, options, rights or other interests are outstanding on any date of
determination
"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)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the BBA LIBOR rate, as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) as of 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time
for any reason, then the "Eurodollar Rate" for such Interest Period shall be the
rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a rate
based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
9
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), franchise taxes
imposed on it (in lieu of net income taxes), and backup withholding taxes, if
any, in each case imposed on the Administrative Agent, Lender, L/C Issuer or
other recipient of such payment as a result of a present or former connection
between such Administrative Agent, Lender, L/C Issuer or other recipient and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from such Administrative Agent's, Lender's, L/C
Issuer's or other recipient's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document), (b) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction described in clause (a) in
which the Borrower is located, (c) in the case of a Foreign Lender (other than
as provided in Section 10.13), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (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 such withholding tax pursuant to
Section 3.01(a), (d) any taxes that are attributable to such Lender's failure to
comply with the requirements of Section 3.01(e) or (e) any taxes that are
imposed as a result of any event occurring after the Lender becomes a Lender
other than a Change in Law.
"Federal Funds Rate" means, for any day, the fluctuating interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" means the letter agreement, dated January 4, 2005, among the
Borrower, the Administrative Agent, the Syndication Agent and the Arrangers.
"Fiscal Year" means the fiscal year of the Borrower, which commences on
January 1 of a calendar year and ends on December 31 of such calendar year.
"Force Majeure Event" means any act, event or condition (except, in each
case, for the payment of money) which is beyond the reasonable control of the
party asserting the Force Majeure (defined below), which wholly or partially
prevents or delays the performance of any of the duties, responsibilities or
obligations of the party asserting the Force Majeure. The term "Force Majeure"
shall include, but not be limited to, an act of God; an act of the public enemy;
civil disturbance or unrest; lawsuits; injunctions; lightning; fire, explosion
or other serious casualty; terrorist attack; strike, lock-out or labor dispute
other than a Work Stoppage; accident
10
or sabotage; unusually severe weather (including, but not limited to, hurricane,
earthquake, tornado, landslide or flood); war (whether declared or not);
condemnation or taking by the action or any governmental body on behalf of any
public, quasi-governmental or private entity; other governmental action or
change in law; or shortages or failures of sources of labor, material, energy,
fuel, equipment or transportation.
"Foreign Lender" means any Lender that is resident in or organized under
the laws of a jurisdiction other than that in which the Borrower is resident for
tax purposes. For purposes of this definition, the United States, each state
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Debt" means, for any Test Period, for any Person, the amount of
total Indebtedness of such Person outstanding on the last day of such period.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or any other political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
administrative tribunal, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra national bodies such as the
European Union or the European Central Bank).
"GP" means MLB Advanced Media, Inc., a Delaware corporation.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness payable or performable by another Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness, (ii)
to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness of the payment or
performance of such Indebtedness, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness, or (iv) entered into for the purpose of assuring in
any other manner the
11
obligee in respect of such Indebtedness of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Indebtedness of any
other Person, whether or not such Indebtedness is assumed by such Person (or any
right, contingent or otherwise, of any holder of such Indebtedness to obtain any
such Lien). The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term "Guarantee" as a
verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Honor Date" has the meaning set forth in Section 2.03 (c)(i).
"Identifiable Cost Savings" means, with respect to any Permitted
Acquisition, cost savings in connection therewith identified by the Borrower and
reasonably approved by the Required Lenders as those that will be realized
during the immediately succeeding 12-month period set forth in the Pro Forma
Compliance Certificate with respect to such Permitted Acquisition.
"Incremental Commitment" means, with respect to an Incremental Facility,
and as to each Lender, its obligation, if any, to (a) make Committed Loans
consisting of Incremental Loans to the Borrower pursuant to Section 2.01, (b)
purchase participations in L/C Obligations and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth under the heading "Incremental Commitment"
opposite such Lender's name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, in each
case, as such amount may be adjusted from time to time in accordance with this
Agreement.
"Incremental Facility" means the aggregation of Incremental Commitments of
one or more Lenders which are made available to the Borrower and become
effective on the same date pursuant to the same Incremental Loan Amendment.
"Incremental Loan" has the meaning set forth in Section 2.05.
"Incremental Loan Amendment" has the meaning set forth in Section 2.05.
"Incremental Upfront Fee" has the meaning set forth in Section 2.05.
"Indebtedness" means, as to any Person at a particular time, without
duplication, any of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
12
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) capital leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 10.04(b).
"Information" has the meaning set forth in Section 10.07.
"Interactive Media Rights Agreement" means the Major League Baseball
Interactive Media Rights Agreement effective as of January 20, 2000 by and among
the Commissioner, the Clubs, the Leagues, the Borrower, MLB Online Services,
Inc., the LP, Major League Baseball Enterprises, Inc., Baseball Television
International, Inc. and MLB Properties.
"Interest Payment Date" means, (a) as to any Committed Loan other than a
Base Rate Committed Loan, the last day of each Interest Period applicable to
such Loan and the Maturity Date; provided, however, that if any Interest Period
for a Eurodollar Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Committed Loan that is a Base Rate
Committed Loan, the last Business Day of each March, June, September and
December and the Maturity Date and (c) as to any Swing Line Loan, the Swing Line
Maturity Date.
13
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three, six,
nine or twelve months thereafter, as selected by the Borrower in its Committed
Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service, or any Governmental
Authority succeeding to any of its principal functions.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, the Letter of Credit, and any other document, agreement
and instrument entered into by the L/C Issuer and the Borrower (or any
Subsidiary) or in favor the L/C Issuer and relating to any such Letter of
Credit.
"Laws" means, with respect to any jurisdiction, collectively, all
international, foreign, federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests,
14
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit, which has not been reimbursed or refinanced as a Committed
Borrowing in the manner specified in Section 2.03(c).
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder
appointed in accordance with this Agreement.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify in writing the
Borrower and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to $5,000,000. The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Leverage Ratio" means, for any Test Period, the ratio of Funded Debt as of
the last day of such Test Period to EBITDA for such Test Period.
15
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan or Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
each Swap Contract with any Lender, the Fee Letter, and each other agreement,
certificate, document or instrument related to the Loans delivered in connection
with any Loan Document, whether or not specifically mentioned herein or therein.
"London Banking Day" means a day on which banks in London are open for
business and dealing in offshore dollars.
"LP" means MLB Media Holdings, L.P., a Delaware limited partnership.
"Major League Baseball" means the Clubs, collectively, and the
Commissioner as agent for the Clubs or on its own behalf, together with such
other entities as may be appointed by the Clubs or the Commissioner to act in
their interests or on their behalf.
"Material Adverse Effect" means (a) a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent) financial
condition of the Borrower; (b) a material impairment of the ability of the
Borrower to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against the Borrower of any Loan Document to which it
is a party.
"Material Contracts" means those material revenue generating contracts
entered into after the Closing Date by the Borrower the termination of which
would have a Material Adverse Effect on the Borrower's ability to perform its
obligations under any Loan Document to which it is a party.
"Maturity Date" means January 27, 2010.
"Maximum Incremental Amount" means $75,000,000.
"Maximum Rate" has the meaning set forth in Section 10.09.
"MLB Constitution" means the Major League Constitution (which amended and
superseded the Major League Agreement dated January 1, 1975, the Agreement in re
Major Leagues Central Fund dated as of December 8, 1983, as amended, and the
respective constitutions of the former American and National Leagues of
Professional Baseball Clubs).
16
"MLB Credit Facility" means the credit facility established under the MLB
Trust Indenture, and each of the MLB Credit Facility Documents.
"MLB Credit Facility Documents" means the "Transaction Documents" as
defined in the MLB Trust Indenture.
"MLB Entities" means the Commissioner, MLB Properties, Major League
Baseball Properties Canada, Inc., the Borrower and Major League Baseball
Enterprises, Inc.
"MLB Properties" means Major League Baseball Properties, Inc., a New York
corporation.
"MLB Trust" means the Major League Baseball Trust, a Delaware statutory
trust.
"MLB Trust Indenture" means that certain Indenture dated as of December
16, 2003 by and among the MLB Trust, Wells Fargo Bank, National Association,
successor by merger to Wells Fargo Bank Minnesota, National Association, as
indenture trustee and as collateral agent, and Bank of America, as
administrative agent as amended, supplemented or otherwise modified from time to
time.
"MLBAM Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Borrower dated November 6, 2001 as amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means, with respect to any Disposition, the excess, if
any, of (i) the sum of cash and cash equivalents received in connection with
such sale (including any cash received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness that
is secured by such asset and that is repaid in connection with the sale thereof
(other than Indebtedness under the Loan Documents), (B) the out-of-pocket
expenses incurred by the Borrower or any Subsidiary in connection with such sale
and (C) income taxes reasonably estimated to be actually payable within two
years of the date of the relevant asset sale as a result of any gain recognized
in connection therewith.
"Net Debt Proceeds" means, with respect to the incurrence or issuance of
any Indebtedness for borrowed money, (i) the gross cash proceeds received in
connection with such incurrence or issuance, as and when received, minus (ii)
all reasonable out-of-pocket transaction costs and expenses (including legal,
investment banking or other fees and disbursements) actually incurred in
connection therewith, satisfactorily documented and paid.
"Net Issuance Proceeds" means, with respect to the sale or issuance of
Equity Interests in (other than to employees or former employees of the Borrower
pursuant to an employee stock
17
option plan or other equity-based compensation plan, program or arrangement), or
any capital contribution to, the Borrower or any Subsidiary from a source other
than the Borrower or a Subsidiary or any MLB Entity, (i) the gross cash proceeds
received in connection with such sale or issuance or such capital contribution,
as and when received minus (ii) all reasonable out-of-pocket transaction costs
and expenses (including legal, investment banking or other fees and
disbursements) associated therewith actually incurred in connection therewith,
satisfactorily documented and paid.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower or any Subsidiary arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, and any Swap
Contract of the Borrower to which any Lender is a party whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the Borrower, any
Subsidiary or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Original Capital Contribution" means the aggregate amount of capital
contributed to the Borrower by the Clubs in connection with its formation and
initial capitalization and not previously returned totaling approximately
$77,000,000.
"Original Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans consisting of Original Loans to the Borrower pursuant to Section
2.01, (b) purchase participations in L/C Obligations and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth under the heading "Original
Commitment" opposite such Lender's name on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.
"Original Loan" means a Loan made pursuant to the Original Commitment.
18
"Original Facility" means the aggregation of Original Commitments of all
the Lenders.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Committed Loans
and Swing Line Loans, as the case may be, occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.
"Owners" means, collectively, the GP and the LP.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisition" means acquisitions by the Borrower of business,
properties and assets of, or Equity Interests in, other Persons so long as: (i)
the Borrower has certified and demonstrated that no Default or Event of Default
exists both before and after giving effect to such proposed transaction; and
(ii) on a Pro Forma Basis as set forth in a Pro Forma Compliance Certificate,
after giving effect to such acquisition, the Borrower is in compliance with
Section 7.13 taking into account the sources and uses of such acquisition and
the Identifiable Cost Savings relating thereto; provided that Project Teton
shall be included as a Permitted Acquisition subject to compliance with the
Leverage Ratio test set forth in clause (ii) above on a Pro Forma Basis as set
forth in a Pro Forma Compliance Certificate.
"Permitted Indebtedness" has the meaning given in Section 7.03.
"Permitted Investment" has the meaning given in Section 7.02.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
19
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning set forth in Section 6.02(g).
"Pro Forma Basis" means a method of calculation using financial
information of a specified date (and/or the applicable period relating to such
specified date, as applicable), but including in such calculation the financial
effect of the relevant or proposed transactions (in connection with which such
calculation is required to be made), as if such transactions had been
consummated on the first day of the applicable period or the date being tested
(as applicable). In the event that the Administrative Agent reasonably requests
additional information about such calculation or preparation and methodology,
the Borrower shall promptly provide such additional information.
"Pro Forma Compliance Certificate" means, for any Person, a certificate
substantially in the form of Exhibit D-1, prepared on a Pro Forma Basis with
respect to the relevant proposed transaction for which such Pro Forma Compliance
Certificate is required to be delivered and any other transactions relating
thereto, with such changes to such Compliance Certificate as may be reasonably
acceptable to the Administrative Agent.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, then the Pro Rata Share of each Lender shall be
determined based on the Pro Rata Share of such Lender immediately prior to such
termination and after giving effect to any subsequent assignments made pursuant
to the terms hereof. The initial Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Project Teton" means the contemplated acquisition of all or a material
portion of the outstanding capital stock of a business-to-business ticketing
solutions provider as previously disclosed to the Administrative Agent.
"Public Lender" has the meaning set forth in Section 6.02.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
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"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
at least 66-2/3% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, at least two Lenders
holding in the aggregate at least 66-2/3% of the Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition); provided that the Commitment of, and the portion
of the Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, any
vice-president, chief financial officer, controller, treasurer or secretary of
the Borrower or the GP, as applicable. Any document delivered hereunder that is
signed by a Responsible Officer shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of the Borrower or the GP, as applicable, and such Responsible Officer
shall be conclusively presumed to have acted on behalf of the Borrower or the
GP, as applicable.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of 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,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Borrower's stockholders, partners
or members (or the equivalent Person thereof); provided, however, that the
Borrower or any Subsidiary may purchase capital stock, Equity Interests or
options from employees or former employees pursuant to the terms of any employee
stock option plan or other equity-based compensation plan, program or
arrangement.
"Solvent" as to any Person, means that (i) the sum of the assets of such
Person, both at a fair valuation and at present fair salable value, as
established to the reasonable satisfaction of the Administrative Agent, will
exceed its liabilities, including contingent liabilities, (ii) such Person will
have sufficient capital with which to conduct its business as presently
conducted and as proposed to be conducted and (iii) such Person has not incurred
debts, and does not intend to incur debts, beyond its ability to pay such debts
as they mature. For purposes of this definition, "debt" shall mean any liability
on a claim, and "claim" shall mean (x) a right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured or (y) a right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. With respect to any such contingent
liabilities, such liabilities shall be computed at the amount which, in light of
all the facts and
21
circumstances existing at the time, represents the amount which can reasonably
be expected to become an actual or matured liability. The term "Solvency" shall
have a correlative meaning.
"Subsidiary" of any Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which the shares
of securities or other interests having ordinary voting power for the election
of a majority of the directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder appointed in
accordance with this Agreement.
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"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Maturity Date" means, with respect to any Swing Line Loan, the
earliest of (i) the day that is ten days after the date on which such Swing Line
Loan is made; provided that if such tenth day is not a Business Day, the "Swing
Line Maturity Date" with respect to such Swing Line Loan shall mean the Business
Day immediately succeeding such tenth day, (ii) the repayment date specified by
the Borrower in the Swing Line Loan Notice relating to such Swing Line Loan;
provided that such date is a Business Day, and (iii) the Business Day
immediately preceding the last day of the Availability Period.
"Swing Line Sublimit" means an amount equal to the lesser of
(a) $5,000,000 and (b) the Aggregate Available Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Available
Commitments.
"Syndication Agent" means JPMorgan Chase Bank, N.A. in its capacity as
Syndication Agent.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future income, stamp or other taxes, levies,
imposts, duties, deductions, withholdings, assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.
"Test Period" means a period of four (4) consecutive fiscal quarters
ending on the last day of each fiscal quarter.
"Total Outstandings" means, as of any date, the aggregate Outstanding
Amount of all Loans and all L/C Obligations on such date.
"Trade Date" has the meaning set forth in Section 10.06(b).
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Committed Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
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"Uniform Commercial Code" means the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) 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,
(i) any definition of or reference to any agreement, instrument or other
document (including any Organization Document) 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 or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) 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.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, applied in a
24
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document
in any material respect, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern Time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a "Committed Loan")
to the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender's Available Commitment at such time; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings shall
not exceed the Aggregate Available Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender's Available Commitment. Within the limits of each Lender's
Available Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section 2.06, in whole
or in part, and reborrow under this Section 2.01. Committed Loans
25
may be Base Rate Committed Loans or Eurodollar Rate Loans, as further provided
herein. Committed Loans shall include Original Loans and Incremental Loans, as
applicable. The Commitment of each Lender is set forth on Schedule 2.01
including such Lender's Original Commitment and Incremental Commitment, as
applicable.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Borrower's delivery of a Committed Loan Notice to the Administrative
Agent, which may be given by telephone. Notwithstanding the foregoing, if the
Borrower desires that a Swing Line Loan be converted directly into a Eurodollar
Rate Loan prior to the Swing Line Maturity Date with respect to such Swing Line
Loan, the Borrower may make a request for such a conversion in writing in the
applicable Swing Line Loan Notice, indicating the amount of the Swing Line Loan
to be so converted and the Interest Period applicable thereto, and, subject to
Section 2.04(c) and the other provisions of this Agreement regarding the amount,
frequency and availability of Eurodollar Rate Loans, the Lenders shall honor
such request and subject to Section 3.05 regarding payment of a Swing Line Loan
prior to the Swing Lien Maturity Date. Each such notice (other than Swing Line
Loan Notices, which are subject to Section 2.04(b)) must be received by the
Administrative Agent not later than (i) 1:00 p.m. three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Committed Loans, and (ii) 11:00 a.m. on the requested date of any Borrowing of
Base Rate Committed Loans. Each telephonic Committed Loan Notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Responsible Officer. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans (including a conversion of a Swing Line
Loan to a Eurodollar Rate Loan as described above) shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except
as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other,
or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed,
converted or continued, (iv) the Type or Types of Committed Loans to be borrowed
or to which existing Committed Loans are to be converted, and (v) if applicable,
the duration or durations of the Interest Periods with respect thereto. If the
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or
if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted
to, Base Rate Committed Loans. Any such automatic conversion to Base Rate
Committed Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
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(b) Following receipt of a Committed Loan Notice or a notice of conversion
of a Swing Line Loan into a Eurodollar Rate Loan in the applicable Swing Line
Loan Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Pro Rata Share of the applicable Committed Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Committed Loans described in the preceding subsection.
In the case of a Committed Borrowing, each Lender shall make the amount of its
Committed Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent's Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice and the
Administrative Agent, subject to timely receipt of such funds, shall make
commercially reasonable efforts to deliver such funds to the Borrower on such
Business Day. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to
the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if, on the date
the Committed Loan Notice with respect to such Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than seven Interest Periods in
effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrower, and to amend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the
27
Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of
Credit, (x) the Total Outstandings shall not exceed the Aggregate Available
Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Available Commitment, and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the Letter of Credit Sublimit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Borrower that the L/C Credit Extension
so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance, unless the
Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it; provided that, if the L/C Issuer is unable to
issue a Letter of Credit because of a restriction pursuant to this
Clause (A), the Borrower shall be permitted to request that another
Lender that is not subject to such restriction become the L/C Issuer
until such restriction is lifted and the original L/C Issuer can
resume issuing Letters of Credit hereunder;
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(B) the issuance of such Letter of Credit would violate any Laws
or one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $500,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars; or
(E) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer.
Such Letter of Credit Application must be received by the L/C Issuer and
the Administrative Agent not later than 11:00 a.m. at least two Business
Days (or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the stated amount thereof;
(C) the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate
29
to be presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may reasonably require. In the
case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day); (C)
the nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may reasonably require. Additionally, the Borrower shall furnish to
the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, the Administrative Agent or
the Borrower, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
12:00 p.m. on the third Business Day after the delivery of notice of a draw
on such L/C by the L/C Issuer (each such date, an "Honor Date"), the
Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing plus accrued interest for the
time subsequent to the Honor Date at the Base Rate. If the Borrower fails
to so reimburse the L/C Issuer by the Honor Date, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Lender's Pro Rata Share thereof. In such event, the Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Committed Loans
to be disbursed on the Honor Date in an amount equal to the
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Unreimbursed Amount, without regard to the minimum and multiples specified
in Section 2.02 for the principal amount of Base Rate Committed Loans, but
subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than the
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or
the Administrative Agent pursuant to this Section 2.03(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender shall upon any notice delivered by the Administrative
Agent pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Committed Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is
not so funded, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Committed Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the Borrower
of a Committed Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for
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the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance
with banking industry rules on interbank compensation. A certificate of the
L/C Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement or any other Loan Document;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any
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transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit (other than a loss or delay in transmission caused by the
gross negligence or willful misconduct of the L/C Issuer);
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person presenting proper documentation
(subject to Section 2.03(e)(iii)) and purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will promptly, (and in any event within two Business Days) notify the
L/C Issuer. The Borrower shall be conclusively deemed to have waived any such
claim against the L/C Issuer and its correspondents unless such notice is given
as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative
33
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any
of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing which is
insufficient to repay the related L/C Obligation in full, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Section 8.02(c) sets forth
certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Agreement, "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances or Cash Equivalent Investments (subject to customary advance rates of
the Administrative Agent for each item and type thereof) pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Lenders), and
derivatives of such term have corresponding meanings. The Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders,
a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP
shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee (the "Letter of Credit Fee") for each Letter of Credit
equal to the Applicable Rate times the daily maximum amount available to be
drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable on the fifth Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after
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the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily maximum amount of each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, while any Event of Default exists, all Letter of
Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit at the per annum rate of
0.05%, payable on the actual daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit). Such fronting fee shall be computed on a quarterly
basis in arrears. Such fronting fee shall be due and payable on the fifth
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender's Available Commitment; provided, however,
that after giving effect to any Swing Line Loan, with respect to each Lender,
other than the Swing Line Lender, (i) the Total Outstandings shall not exceed
the Aggregate Available Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of such Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Available Commitment. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.06 in whole or in part, and reborrow under this Section
2.04. Each Swing Line Loan shall bear interest at the Derived Swing Line Rate
until it is repaid or refinanced in accordance with Section 2.04(c). Immediately
upon the making of a Swing Line Loan, each Lender shall be deemed to have
purchased, and
35
hereby irrevocably and unconditionally agrees to purchase, from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Lender's Pro Rata Share times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower's delivery of a Swing Line Loan Notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $500,000, and (ii) the requested
borrowing date, which shall be a Business Day. There shall be no more than five
Swing Line Loans outstanding at any time. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative
Agent of a written Swing Line Loan Notice, appropriately completed and signed by
a Responsible Officer. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the proviso to the first sentence of
Section 2.04(a), or (B) that one or more of the applicable conditions specified
in Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower at its office by (i) crediting the account of the Borrower on the books
of the Swing Line Lender or (ii) wire transfer of such funds in immediately
available funds.
(c) Refinancing of Swing Line Loans.
(i) At any time prior to the Swing Line Maturity Date with respect to
an outstanding Swing Line Loan, the Swing Line Lender may, in its sole and
absolute discretion, and on the Swing Line Maturity Date with respect to
any outstanding Swing Line Loan not repaid by the Borrower on or prior to
such date, the Swing Line Lender shall, request, on behalf of the Borrower
(which hereby irrevocably authorizes the Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Committed Loan (unless the
Swing Line Loan Notice specifies a Eurodollar Rate Committed Loan and gives
proper notice thereof, in which case such Loan shall be a Eurodollar Rate
Committed Loan) in an amount equal to such Lender's Pro Rata Share of the
amount of such Swing Line Loan. Such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans (but subject to such minimums and
multiples for Eurodollar Loans), but subject to the unutilized portion of
the Aggregate Commitments and the conditions set forth in Section 4.02. The
Swing Line Lender shall furnish the Borrower with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Committed Loan Notice available
to the Administrative Agent in immediately available funds for the account
of the Swing Line Lender at the Administrative Agent's Office not
36
later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan (or
Eurodollar Rate Committed Loan, as applicable), to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Committed Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined
by the Swing Line Lender in accordance with banking industry rules on
interbank compensation. A certificate of the Swing Line Lender submitted to
any Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Committed Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's risk participation was funded) in the same funds
as those received by the Swing Line Lender.
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(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this
Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Committed Loan or risk participation
pursuant to this Section 2.04 to refinance such Lender's Pro Rata Share of any
Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for
the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 INCREMENTAL FACILITY
(a) Except as set forth below, so long as no Default or Event of Default
has occurred and is continuing, at any time and from time to time prior to
January 27, 2009, the Borrower may request, pursuant to the procedure set forth
in paragraph (c) of this Section 2.05, the addition of an Incremental Facility
which shall be added to and increase the Original Facility pursuant to which the
Borrower may request incremental revolving loans (each, an "Incremental Loan")
pursuant to Section 2.01; provided, however, that the Borrower may not make a
request for an Incremental Facility if after giving effect thereto the sum of
all then outstanding Incremental Loans and unused Incremental Commitments would
exceed the Maximum Incremental Amount. Each Incremental Facility shall:
(i) be in an amount not less than Twenty-Five Million Dollars
($25,000,000);
(ii) have such upfront fee as may be agreed by the Borrower and the
Lenders providing such Incremental Loans pursuant to the provisions of this
Section 2.05; and
(iii) except as specifically provided in this Section 2.05, otherwise
have all of the same terms and conditions as the Original Loans.
In addition, unless otherwise specifically provided in this Agreement, all
references in the Loan Documents to Loans and Committed Loans shall be deemed,
as the context requires, to include references to Incremental Loans made
pursuant to this Agreement. No Lender shall have any obligation to make an
Incremental Loan unless and until it expressly commits to do so in writing.
Incremental Commitments in respect of Incremental Loans shall become Commitments
under this Agreement pursuant to (y) an amendment (each, an "Incremental Loan
Amendment") to this Agreement executed by the Borrower, each Lender or other
approved financial institution
38
agreeing to provide such Incremental Commitment (and no other Lender shall be
required to execute such amendment) and the Administrative Agent, and (z) any
amendments to the other Loan Documents (executed by the relevant Loan Party and
the Administrative Agent only) as the Administrative Agent shall reasonably deem
appropriate to effect such purpose. Notwithstanding anything to the contrary
contained herein, the effectiveness of such Incremental Loan Amendment shall be
subject to the receipt by the Administrative Agent of a certificate of the
Borrower executed by a Responsible Officer certifying that immediately prior to
and after giving effect to the incurrence of the Incremental Facility (i) each
of the representations and warranties made by the Borrower in or pursuant to
this Agreement shall be true and correct in all material respects, (ii) the
Borrower is in compliance with the Leverage Ratio covenant contained in Section
7.13 as set forth in a Pro Forma Compliance Certificate delivered to the
Administrative Agent and (iii) no Default or Event of Default shall have
occurred and be continuing or be caused by the provision of the Incremental
Facility.
(b) Effectiveness of Incremental Facility. So long as (i) the Borrower
shall have given the Administrative Agent no less than five (5) Business Days
prior notice of the effectiveness thereof and (ii) any financial institution not
theretofore a Lender which is providing an Incremental Commitment shall have
become a Lender under this Agreement pursuant to an Incremental Loan Amendment,
the Incremental Facility being requested by the Borrower shall become effective
under this Agreement upon the effectiveness of such Incremental Loan Amendment.
Upon such effectiveness, Schedule 2.01 shall be deemed amended to reflect such
Incremental Facility and the applicable Incremental Commitments of each Lender
with a Commitment thereunder. In the event that an Incremental Facility shall
have become effective, the Lender or Lenders providing such Incremental
Commitments shall be deemed to have agreed, severally and not jointly, upon the
terms and subject to the conditions of this Agreement, with respect to
Incremental Commitments, to make from time to time during the period from the
date of the effectiveness of the applicable Incremental Loan Amendment through
the Maturity Date, one or more Incremental Loans to the Borrower pursuant to the
provisions of Section 2.01 in an aggregate principal amount not exceeding at any
time the Incremental Commitment of each such Lender at such time.
(c) Procedure for Incremental Facility Request.
(i) When the Borrower wishes to request one or more Lenders or other
financial institutions approved by the Administrative Agent (in each case,
such approval not to be unreasonably withheld) to provide proposals for the
providing of an Incremental Facility consisting of Incremental Loans to the
Borrower, the Borrower may solicit requests from any such Lenders or other
financial institutions for the provision of Incremental Commitments under
an Incremental Facility and, as applicable to such Incremental Commitments,
the upfront fee (the "Incremental Upfront Fee") to be charged by such
Lenders or other financial institutions in connection with the provision of
such Incremental Commitments. Upon the selection by the Borrower of Lenders
or other financial institutions pursuant hereto, the Borrower shall
promptly notify the Administrative Agent of the Lenders or other financial
institutions selected and the amount of the Incremental Commitments and the
Incremental Upfront Fee as agreed upon by the Borrower and such Lenders or
other financial institutions.
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(ii) From time to time, the Borrower and the Lenders shall furnish
such information to the Administrative Agent as the Administrative Agent
may request relating to the provision of an Incremental Loan, including the
amounts, interest rates, and dates of Borrowings thereof, for purposes of
the allocation of amounts received from the Borrower for payment on all
amounts owing hereunder.
2.06 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof (provided that continuations of the remaining portion of any
such Eurodollar Rate Loans shall remain subject to Section 2.02); and (iii) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the Committed
Loans of the Lenders in accordance with their respective Pro Rata Shares.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part but subject to payment of the prepayment
fees payable under Section 3.05; provided that (i) such notice must be received
by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $100,000. Each such notice shall specify the date
and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Available Commitments then in effect, the Borrower shall immediately
prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess.
(d) If the Borrower or any Subsidiary Disposes of any property or asset,
other than Dispositions permitted by Section 7.05, the Borrower shall prepay the
Committed Loans in an amount equal to 100% of the Net Cash Proceeds therefrom
immediately upon receipt thereof by the Borrower or such Subsidiary.
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(e) If the Borrower or any Subsidiary shall incur or otherwise become
liable for secured Indebtedness of the kind permitted under Section 7.03(d) or
(e), the Borrower shall prepay the Committed Loans in an amount equal to 100% of
the Net Debt Proceeds therefrom immediately upon the receipt thereof by the
Borrower or such Subsidiary.
(f) If the Borrower or any Subsidiary Disposes of any Equity Interests
(other than to the Borrower or another Subsidiary), the Borrower shall prepay
the Committed Loans in an amount equal to 100% of the Net Issuance Proceeds
therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(g) All prepayments shall be made together with accrued and unpaid interest
on the amount prepaid and all fees and other amounts then due and owing
hereunder (including any amounts due and owing as a result of such prepayment).
(h) With respect to prepayments under this Section 2.06, other than
prepayments made pursuant to clause (a) above, such prepayments shall be applied
first to outstanding Base Rate Committed Loans until such Loans are repaid in
full and then to Eurodollar Rate Committed Loans, beginning with such Loans with
the shortest maturity, until such Loans are repaid in full.
2.07 TERMINATION OR REDUCTION OF COMMITMENTS; REDUCTION OF AVAILABLE
COMMITMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Commitments, or from time to time permanently reduce the Aggregate
Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and
(iv) if, after giving effect to any reduction of the Aggregate Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders
of any such notice of termination or reduction of the Aggregate Commitments. All
fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.
(b) Upon the termination of the Interactive Media Rights Agreement or the
MLBAM Partnership Agreement or upon a Change in Control of the Borrower, the
Aggregate Commitments shall automatically terminate, the unpaid principal amount
of all Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to cash collateralize
the L/C Obligations as aforesaid shall automatically become effective, in each
case without further act of the Administrative Agent or any Lender.
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(c) Any reduction of the Aggregate Commitments, or the Aggregate Available
Commitments, as applicable, under this Section 2.07 shall be applied to the
Commitment, or the Available Commitment, as applicable, of each Lender according
to its Pro Rata Share. Upon the occurrence of any reduction pursuant to this
Section 2.07, the Borrower shall prepay the Loans in accordance with Section
2.06(a)(b), if applicable.
(d) Upon a termination of the Aggregate Commitments hereunder and the
repayment of all outstanding Loans, the Lenders, the Administrative Agent, the
L/C Issuer and the Swing Line Lender shall have no further rights hereunder
except those rights that expressly survive such termination.
2.08 REPAYMENT OF LOANS. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Committed Loans outstanding on
such date.
2.09 INTEREST.
(a) Subject to the provisions of clause (b) below, (i) each Eurodollar Rate
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate Committed Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to Derived Swing Line Rate.
(b) (i) If any amount of principal of any Loan is not paid when due,
whether at stated maturity, by acceleration or otherwise, such overdue amount
shall thereafter bear interest at the Default Rate to the fullest extent
permitted by applicable Laws until such overdue amount is paid in full.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due, whether at stated
maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such overdue amount shall thereafter bear interest at the
Default Rate to the fullest extent permitted by applicable Laws until such
overdue amount is paid in full.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at the Default Rate to the fullest
extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after
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judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
2.10 FEES. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a commitment
fee equal to the Applicable Rate times the actual daily amount by which the
Aggregate Commitments exceeds the sum of (i) the Outstanding Amount of all Loans
and (ii) the Outstanding Amount of L/C Obligations during the applicable quarter
(the "Commitment Fee"). The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the fifth Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. The commitment fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees.
(i) The Borrower shall pay to the Arrangers and the Administrative
Agent and Syndication Agent for their own respective accounts fees in the
amounts and at the times specified in the Fee Letter on the terms set forth
in the Fee Letter.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts, at the times and on
the terms so specified.
2.11 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid; provided that any Loan that is
repaid on the same day on which it is made shall bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by
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the Lenders to the Borrower and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed 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 in immediately available
funds with interest thereon, for each day from and including the date such
44
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Committed Loan included in such Committed Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
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 L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the L/C Issuer, 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 L/C Issuer, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds 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 Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this clause (b) shall be conclusive, absent
manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Committed Loan, to
fund any such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure
45
of any other Lender to so make its Committed Loan, to purchase its participation
or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, 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
Committed Loans and other amounts owing them; provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.14 shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in
any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Borrower or
any Subsidiary thereof (as to which the provisions of this Section 2.14
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 setoff 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.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and
46
clear of and without reduction or withholding for any Indemnified Taxes or Other
Taxes; provided that if the Borrower shall be required by applicable law to
deduct any Indemnified Taxes (including any Other Taxes) from such payments,
then (i) the sum payable to the Administrative Agent, Lender or L/C Issuer, as
the case may be, 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 L/C Issuer, 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 timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of clause (a) above, the Borrower shall timely pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the 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) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the
47
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit G to the effect that such
Foreign Lender is not (A) a "bank" within the meaning of section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in section 881(c)(3)(C) of the
Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN,
or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made. In addition, each Foreign
Lender shall deliver such forms promptly upon the obsolescence, expiration
or invalidity of any form previously delivered by such Foreign Lender. Each
Foreign Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by
the U.S. taxing authorities for such purposes).
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer 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, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, 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, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any
48
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.
(g) The agreements in this Section 3.01 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank eurodollar market, then, on notice thereof (by
telephone promptly confirmed in writing) by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice and without regard to any notice required to
be provided pursuant to Section 2.02 or Section 2.06, the Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Committed Loans (the choice to either prepay or convert being at the Borrower's
sole discretion provided that both options remain lawful), either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or (c)
the Eurodollar Rate determined in advance of the proposed Eurodollar Rate Loan
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan would not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify (by telephone
promptly confirmed in writing) the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended without affecting the Borrower's continuing right to obtain Base Rate
Loans. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Committed Loans in the amount specified
therein. In the event that the Required Lenders determine at any time following
the giving of such notice that such conditions no longer exist, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
Lenders, whereupon the Borrower's right
49
to request Eurodollar Rate Loans from the Lenders and the Lenders' obligation to
make Eurodollar Rate Loans shall be restored.
3.04 INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender or the L/C Issuer
in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by or with respect to such Lender or the L/C Issuer);
or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate 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 Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
the L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit) or to reduce the amount of any sum received or receivable by such Lender
or the L/C Issuer hereunder (whether of principal, interest or any other amount)
then, upon delivery of a written demand therefore by such Lender or the L/C
Issuer (with a copy to Administrative Agent), the Borrower shall pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered; provided that, if any Lender
requests compensation by the Borrower under this Section 3.04(a), the Borrower
may, by notice to such Lender (with a copy to the Administrative Agent), suspend
the obligation of such Lender to make or continue Eurodollar Rate Loans, or to
convert Base Rate Committed Loans into Eurodollar Rate Loans, until the event or
condition giving rise to such request ceases to be in effect; provided further
that such suspension shall not affect the right of such Lender to receive the
compensation so requested and Eurodollar Rate Loans then in effect shall remain
in effect until the last day of the Interest Period or Interest Periods
therefor.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender, the Loans made by, or participations
in
50
Letters of Credit held by, such Lender or the Letters of Credit issued by the
L/C Issuer, to a level below that which such Lender or the L/C Issuer or such
Lender's or the L/C Issuer's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the L/C Issuer's
policies and the policies of such Lender's or the L/C Issuer's holding company
with respect to capital adequacy), then from time to time, upon such Lender's
delivery of a written demand therefore (with a copy to the Administrative
Agent), the Borrower shall pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C
Issuer or such Lender's or the L/C Issuer's holding company for any such
reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section 3.04 and delivered to the Borrower shall
be conclusive absent manifest error. The Borrower shall pay such Lender or the
L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section 3.04 shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section 3.04 for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the L/C
Issuer, 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 L/C
Issuer's intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
3.05 COMPENSATION FOR LOSSES. Upon written demand of any Lender (with a
copy to the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any reasonable
loss, cost or expense (including any reasonable loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained)
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
(or other than the Swing Line Maturity Date with respect to a Swing Line Loan)
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13;
51
provided that the application of the provisions of this Section 3.05 shall be
without duplication to the application of the provisions of Section 3.01. The
Borrower shall also pay any customary administrative fees charged by such Lender
in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or 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 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not cause such
Lender to suffer unreimbursed costs or expenses 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.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, 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 3.01, the Borrower may replace such Lender in accordance with Section
10.13.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer (if
executed by the Borrower) unless otherwise specified, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date
before the Closing Date) unless otherwise specified and each in form and
substance satisfactory to the Administrative Agent and each of the Lenders:
52
(i) executed counterparts of this Agreement and each other Loan
Document, sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of the GP as the Administrative
Agent may reasonably require evidencing the identity, authority and
capacity of each Responsible Officer authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and certifications as the Administrative Agent may
reasonably require to evidence that the Borrower and the GP are duly
organized or formed, and that the Borrower and the GP are validly existing,
in good standing and qualified to engage in business in New York and in
each other jurisdiction where their ownership, lease or operation of
properties or the conduct of their respective businesses requires such
qualification, except to the extent that failure to so qualify could not
reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Paul, Weiss, Rifkind, Wharton & Garrison
LLP, counsel to the Borrower, addressed to the Administrative Agent and
each Lender, substantially in the form of Exhibit F;
(vi) a certificate of a Responsible Officer either (A) attaching
copies of all consents, licenses and approvals required in connection with
the execution, delivery and performance by the Borrower of the Loan
Documents, and stating that such consents, licenses and approvals shall be
in full force and effect, or (B) stating that no such consents, licenses or
approvals are so required;
(vii) a certificate signed by a Responsible Officer certifying (a)
that the conditions specified in Article IV have been satisfied and (b)
that there has been no event or circumstance since the date of the Audited
Financial Statements that has had or could be reasonably expected to have
(other than those disclosed herein or in the Schedules attached hereto),
either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of
the fiscal quarter of the Borrower ended September 30, 2004, signed by a
Responsible Officer;
(ix) a pro forma consolidated balance sheet of the Combined Group as
at December 31, 2004, giving effect to the initial Borrowings hereunder,
certified by the chief financial officer of the GP;
(x) satisfactory reports, dated as of a reasonably current date, of
Uniform Commercial Code, judgment and tax lien searches, and status and
assignment searches on the trademarks and other intellectual property owned
by the Borrower, in each case
53
conducted by search firms acceptable to the Administrative Agent with
respect to the Borrower (or any predecessors thereto) in each of the
locations described in the Perfection Certificate, together with such
termination statements and releases (or assignments) as the Administrative
Agent may request (other than Permitted Liens) revealed in the
aforementioned searches;
(xi) evidence that all insurance required to be maintained pursuant to
the Loan Documents has been obtained and is in effect;
(xii) detailed instructions satisfactory to the Administrative Agent
describing the flow of funds in connection with the Borrowings to be made
on the Closing Date and the payment of costs, fees and expenses and other
amounts contemplated hereby;
(xiii) a certificate signed by the chief financial officer of the GP
stating that the Borrower has no Indebtedness other than Permitted
Indebtedness and that the Borrower is Solvent after giving effect to the
making of the initial Loans hereunder;
(xiv) satisfactory completion of such due diligence as the
Administrative Agent shall reasonably require; and
(xv) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent reasonably may require.
(b) Any fees required to be paid by the Borrower to any party on or before
the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all Attorney Costs of the Administrative Agent to the extent invoiced prior to
or on the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(d) The Closing Date shall have occurred on or before January 31, 2005.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the Closing Date specifying its objection
thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
54
(a) The representations and warranties of the Borrower contained in Article
V or any other Loan Document, or which are contained in any document furnished
at any time under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have
received a Request for Credit Extension in accordance with the requirements
hereof.
Each Request for Credit Extension submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in this
Section 4.02 have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER. The Borrower and each of its
Subsidiaries (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Borrower and each of it Subsidiaries of each Loan Document to
which such Person is party, have been duly authorized by all necessary corporate
or other organizational action, and do not and will not (a) contravene the terms
of any of such Person's Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law. The Borrower and each Subsidiary is in compliance with
all Contractual Obligations referred to in clause (b)(i), except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
55
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. Except for such approvals,
consents, exemptions, authorizations, actions and notices as have already been
obtained or delivered, as applicable, no approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, the Borrower or any Subsidiary of this Agreement or any other Loan
Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by the
Borrower. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of the Borrower
and each of its Subsidiaries, enforceable against the Borrower and each of its
Subsidiaries that is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
in all material respects of the Combined Group as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Combined Group as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Combined Group dated
September 30, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition in all material
respects of the Combined Group as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
5.06 LITIGATION. On the date hereof, except as set forth on Schedule 5.06,
there are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to the
validity or enforceability of this Agreement or any other Loan Document, or any
of the transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.
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5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 REAL PROPERTY; LIENS, ETC. The Borrower and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The real property of
the Borrower and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries are in
compliance with all applicable Environmental Laws, except where the failure to
so comply could not reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies that are not
Affiliates of the Borrower and the policies provided thereunder are in such
amounts, and have deductibles and cover risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where the Borrower or the applicable Subsidiary operates. Schedule
5.10 correctly states the numbers, amounts and expiration dates of all insurance
policies held by or for the benefit of the Borrower and each of its Subsidiaries
in effect on the date of this Agreement, and includes the names of the issuing
companies and the properties (if applicable) and risks covered thereby.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid
all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary of the Borrower
is party to any tax sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Except as could not reasonably be expected to result in a Material
Adverse Effect, (i) each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws, (ii)
each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto and,
to the best knowledge of the Borrower, nothing has occurred which would prevent,
or cause the loss of, such qualification or (iii) the Borrower and each ERISA
Affiliate have made all required contributions to each Plan subject to Section
412 of the Code, and no application for a funding
57
waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA, which, with respect to clauses (i)
through (v), has resulted or could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect.
5.13 SUBSIDIARIES. The Borrower has no Subsidiaries and has no Equity
Interests in any Person other than those specifically disclosed in Schedule
5.13. The Owners own all of the outstanding Equity Interests in the Borrower,
free and clear of all Liens, and there are no options, warrants or rights of any
nature pursuant to which any Person may obtain any Equity Interests in the
Borrower after the date hereof.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) The Borrower (i) is not a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935 and (ii) is not required to be registered as
an "investment company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. As of the Closing Date, other than the Interactive Media
Rights Agreement, the Borrower is not a party to any contract or agreement the
termination of which could reasonably be expected to result in Material Adverse
Effect. The Borrower has disclosed to the Administrative Agent all corporate or
other restrictions to which it or any of its Subsidiaries is subject and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Each report,
financial
58
statement, certificate or other information furnished in writing by or on behalf
of the Borrower or any Subsidiary to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case,
modified or supplemented by other information so furnished) is true, correct and
complete; provided that, with respect to projected financial information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
5.16 COMPLIANCE WITH LAWS. The Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the knowledge of the Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.18 OFFICES, ETC. The chief executive office or chief place of business
(as such term is used in Article 9 of the Uniform Commercial Code as in effect
in any relevant jurisdiction from time to time) and federal employer
identification of the Borrower is set forth on Schedule 5.18.
5.19 INDEBTEDNESS; SOLVENCY. The Borrower does not have any Indebtedness
and is not directly or indirectly liable with respect to any Indebtedness, other
than Permitted Indebtedness. The Borrower is Solvent.
5.20 AFFIRMATION. Each Borrowing hereunder (a) shall constitute an
affirmation that the foregoing representations and warranties remain true,
correct and complete in all material respects as of the date thereof, and,
unless the Administrative Agent is notified to the contrary prior to the
requested date in each Committed Loan Notice or Swing Line Loan Notice, will be
so on the date of each such Borrowing (or if stated to have been made as of an
earlier date, were true and correct as of such date) and (b) shall constitute
the Borrower's representation and warranty that the information set forth in the
Committed Loan Notice or Swing Line Loan Notice is true, correct and complete.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within 120 days after the end of
each Fiscal Year (commencing with the Fiscal Year ending December 31, 2004), a
consolidated balance sheet of the Combined Group as at the end of such Fiscal
Year, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Administrative
Agent, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any "going concern" or
like qualification or exception or any qualification or exception as to the
scope of such audit; and
(b) as soon as available, but in any event within 60 days after the end of
each of the first three fiscal quarters of each Fiscal Year (commencing with the
fiscal quarter ending March 31, 2005), a consolidated balance sheet of the
Combined Group as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal quarter and for the portion of the Fiscal Year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous Fiscal Year and the corresponding portion of the
previous Fiscal Year, all in reasonable detail and certified by a Responsible
Officer as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of the Combined Group in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(f), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge
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was obtained of any Default under the financial covenants set forth herein or,
if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ending December 31, 2004), a duly completed
Compliance Certificate signed by a Responsible Officer;
(c) promptly after any request by the Administrative Agent, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors of the GP by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(d) promptly following the adoption thereof, any material amendments,
supplements or other modifications to the Interactive Media Rights Agreement or
MLBAM Partnership Agreement that could be reasonably expected to have a Material
Adverse Effect on the Borrower or that could reasonably be expected to result in
an event of default under the MLB Credit Facility;
(e) promptly after the same are available, copies of each annual report,
proxy or financial statement or other material report or communication sent to
the board of directors of the GP;
(f) promptly, such additional information regarding the business, financial
or corporate affairs of the Borrower or any Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent may from time to time
reasonably request; and
(g) promptly upon its approval by the Board of Directors of the Borrower,
the annual budget of the Borrower for the then current Fiscal Year of the
Borrower.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(f) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower's website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which such documents
are posted on the Borrower's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with
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any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that affirmatively
indicate to the Administrative Agent that they do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (x) by marking
Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such
Borrower Materials as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to the
Borrower or its securities for purposes of United States Federal and state
securities laws; (y) all Borrower Materials marked "PUBLIC" are permitted to be
made available through a portion of the Platform designated "Public Investor;"
and (z) the Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform not designated "Public Investor."
6.03 NOTICES. Upon a Responsible Officer having knowledge of any of the
following, promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in an Event of Default, including (i) any default by the Borrower under a
Material Contract of the Borrower; (ii) the initiation of any litigation,
investigation, proceeding or suspension between the Borrower and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower, including
pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any termination or dissolution action stipulated or permitted by the
Interactive Media Rights Agreement or MLBAM Partnership Agreement being
contemplated or in process by the Borrower or any of the MLB Entities against
the Borrower; and
(e) of any change in accounting policies or financial reporting practices
by the Borrower or any Subsidiary that has resulted or could reasonably be
expected to result in a Material Adverse Effect on the Borrower's ability to
perform its obligations under any Loan Document to which it is a party.
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Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; and (b)
make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such
63
Subsidiary, as the case may be; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Borrower or such
Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Administrative Agent or such Lender and at such reasonable
times (not to exceed two times per annum prior to the occurrence of an Event of
Default) during normal business hours, upon reasonable advance notice to the
Borrower, and in a manner so as to minimize disruption to Borrower's business
while providing the Administrative Agent or such Lender with the requisite
information; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions (i) for
general corporate purposes, including without limitation, working capital and
capital expenditures, not in contravention of any Law or of any Loan Document
and (ii) for Permitted Acquisitions.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Grant to any Person other than the Administrative Agent and the
Lenders a restriction on its ability to create, incur, assume or suffer to exist
any Lien upon any of its property, assets, revenues or Equity Interests, whether
now owned or hereafter acquired, or create, incur, assume or suffer to exist any
Lien upon any of its property, assets, revenues, or Equity Interests, whether
now owned or hereafter acquired, other than the following:
(a) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof; provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
(b) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(c) Statutory liens of landlords and carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business for amounts, which are not overdue for a period of more than 30 days or
which are being contested
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in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(d) Liens incurred or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, other than any Lien imposed by ERISA;
(e) Liens incurred or deposits to secure the performance of bids, trade
contracts, leases (other than Indebtedness), statutory obligations, surety and
appeal bonds, government contracts, tenders, performance and return-of-money
bonds and other obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(g) Liens securing judgments not constituting an Event of Default under
Section 8.01(h) or securing appeal or other surety bonds related to such
judgments; and
(h) Liens securing Indebtedness permitted under Section 7.03(d); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of cash
equivalents;
(b) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(c) Investments in Permitted Acquisitions; and
(d) unless an Event of Default has occurred and is continuing or would
arise therefrom, other Investments not exceeding $1,000,000 in the aggregate in
any fiscal year of the Borrower.
(The categories of Investments referred to in (a) - (d) hereinabove are
collectively referred to as "Permitted Investments".)
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
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(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03
and, unless an Event of Default has occurred and is continuing or would arise
therefrom, any refinancings, replacements, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at the
time of such refinancing, replacement, refunding, renewal or extension except by
an amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing and
by an amount equal to any existing commitments unutilized thereunder;
(c) obligations (contingent or otherwise) of the Borrower or any Subsidiary
existing or arising under any Swap Contract with the Administrative Agent or a
Lender;
(d) Indebtedness in respect of capital leases, Synthetic Lease Obligations
and other purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(h); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not exceed:
(i) for the 2005 Fiscal Year, $10,000,000, or (ii) for any subsequent Fiscal
Year, the greater of (A) $10,000,000 or (B) twenty percent (20%) of EBITDA for
the immediately preceding Fiscal Year; and
(e) unless an Event of Default has occurred and is continuing or would
arise therefrom, unsecured Indebtedness (in addition to any Incremental
Facility) in an aggregate principal amount not to exceed: (i) for the 2005
Fiscal Year, $5,000,000 at any time outstanding or (ii) for any subsequent
Fiscal Year, $20,000,000 at any time outstanding.
(The categories of indebtedness set forth in (a)-(e) hereinabove are
collectively referred to as "Permitted Indebtedness.")
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(i) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Subsidiaries; provided that when any wholly-owned Subsidiary is
merging with another Subsidiary, the wholly-owned Subsidiary shall be the
continuing or surviving Person; and
(ii) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to
another Subsidiary; provided that if the transferor in such a transaction
is a wholly-owned Subsidiary, then the transferee must either be the
Borrower or a wholly-owned Subsidiary.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to make
any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
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(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04;
(d) Dispositions required by Laws promulgated by Government Authorities
having appropriate jurisdiction over the Borrower or its properties; and
(e) Dispositions of property not exceeding $20,000,000 in value in any
Fiscal Year;
provided, however, that any Disposition pursuant to this Section 7.05 shall be
for fair market value.
7.06 RESTRICTED PAYMENTS; ETC. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default or Event of Default exists or would result
therefrom, and so long as the Borrower has delivered a Pro Forma Compliance
Certificate demonstrating that it is in compliance with Section 7.13 on a Pro
Forma Basis after giving effect thereto:
(a) the Borrower may make Restricted Payments to its Owners once at the end
of each Fiscal Quarter; and
(b) the Borrower may make Restricted Payments to its Owners up to the
aggregate amount of their Original Capital Contributions from Net Issuance
Proceeds, in which case the provisions of Section 2.06(f) hereunder shall not
apply solely to the extent of such Restricted Payments.
In addition, so long as no Default or Event of Default exists or would
result therefrom, the Borrower shall be permitted to make Restricted Payments
(i) to its Owners on a quarterly basis and as otherwise necessary to permit its
Owners to pay taxes on their distributive shares of the taxable income of the
Borrower, determined as if the Owners were individuals resident in New York
City, and after taking into account the Owners' distributive share of any net
loss allocated to the Owners and (ii) to employees or former employees in
respect of Equity Interests issued pursuant to an employee stock option plan or
other equity-based compensation plan, program or arrangement.
7.07 MATERIAL ACQUISITIONS. Acquire by purchase or otherwise any property
or assets of, or stock or other evidence of beneficial ownership of, any Person,
except purchases of inventory, equipment materials and supplies in the ordinary
course of business and except for Permitted Acquisitions.
7.08 CHANGE IN NATURE OF BUSINESS. Without the prior written consent of the
Required Lenders, engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its
Subsidiaries on the date hereof or any business substantially related or
incidental thereto, except Permitted Acquisitions.
7.09 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair
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and reasonable terms substantially as favorable to the Borrower or such
Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time
in a comparable arm's length transaction with a Person other than an Affiliate,
if such transaction would have a Material Adverse Effect on Borrower's ability
to perform its obligations under any Loan Document to which it is a party.
7.10 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to the Borrower or to otherwise
transfer property to the Borrower, or (ii) of the Borrower or any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (ii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.03(d) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien other than a Permitted Lien to secure an obligation of the
Borrower or any Subsidiary if a Lien other than a Permitted Lien is granted to
secure another obligation of such Person.
7.11 [RESERVED.]
7.12 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.13 MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio as of the end of any
fiscal quarter of the Borrower ending on or before December 31, 2005 to be
greater than 3.50:1.00 or ending on or after March 31, 2006 to be greater than
3.00:1.00.
7.14 CAPITAL EXPENDITURES. Make or become legally obligated to make any
expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding Permitted Acquisitions and normal replacements and
maintenance which are properly charged to current operations), except for
capital expenditures in the ordinary course of business not exceeding, in the
aggregate for the Borrower and it Subsidiaries: (i) for the 2005 Fiscal Year,
$15,000,000, or (ii) for any subsequent Fiscal Year, the greater of (A)
$5,000,000 or (B) fifteen percent (15%) of EBITDA for the immediately preceding
Fiscal Year.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required to be
paid herein, any amount of principal of any Loan or any L/C Obligation (ii)
within three Business Days after the same becomes due, any interest on any Loan
or on any L/C Obligation, or any fee due hereunder or (iii) within five Business
Days after the same becomes due, any other amount payable hereunder or under any
other Loan Document; or
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(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03, 6.10 or 6.11 or Article
VII; or
(c) Other Defaults. The Borrower or any Subsidiary fails to perform or
observe any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or observed
and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any Subsidiary herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $5,000,000, except in such instances in which
the requirement to make such payment (or any substantial portion thereof) is
being contested in good faith by appropriate proceedings diligently conducted,
or (B) fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, in each
case beyond any grace or cure periods, the effect of which default or other
event is to cause such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap Contract
as to which the Borrower or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than $5,000,000; or
(f) Insolvency Proceedings, Etc. The Borrower or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60
days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or
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warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower (i) a final
non-appealable judgment or order for the payment of money (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final non-appealable
judgments that have, or could reasonably be expected to have, individually or in
the aggregate, in either case, a Material Adverse Effect on the Borrower's
ability to perform its obligations hereunder or under the other Loan Documents
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order or (B) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the
$5,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $5,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder prior to the satisfaction in full of all the
Obligations, ceases to be in full force and effect; or the Borrower or any
Subsidiary contests in any manner the validity or enforceability of any Loan
Document; or the Borrower or any Subsidiary denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or
(k) Major League Baseball. Major League Baseball ceases to exist in its
present or substantially similar form; or
(l) Material Contracts. Any Material Contract is terminated following the
uncured default of the Borrower under such Material Contract; or
(m) Amendments. The Interactive Media Rights Agreement or the MLBAM
Partnership Agreement is amended in a manner that has a Material Adverse Effect
on the Borrower's ability to perform its obligations hereunder or under the
other Loan Documents or that results in an event of default under the MLB Credit
Facility.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
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(a) declare the Commitment of each Lender and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts shall automatically become due and payable and the obligation of the
Borrower to Cash Collateralize the L/C Obligations shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders and the L/C Issuer (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in this
clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings, amounts due in respect of any
Swap Contract with a Lender (other than payments in respect of the Swap
Termination Value of such Swap Contracts) and other Obligations, ratably among
the Lenders and the L/C Issuer in proportion to the respective amounts described
in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and amounts in respect of the Swap
Termination Value of any Swap
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Contract with a Lender, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Fourth held by
them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents 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 hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall not
have rights as a third party beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person 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 the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or
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by the other 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 expressly provided for herein or in the
other Loan Documents); provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the 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 (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
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 this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY 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 (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated 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 have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with appropriate legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not
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be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document 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 of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such 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.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States and, unless an Event of Default has occurred and is
continuing, with the consent of the Borrower which shall not be unreasonably
withheld or delayed. If no such 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 L/C Issuer,
appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Borrower and
the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section 9.06. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section 9.06). 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 retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
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 the retiring Administrative
Agent was acting as Administrative Agent.
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9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties 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 and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties 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 any related agreement or any document furnished
hereunder or thereunder.
9.08 DUTIES, ETC. Anything herein to the contrary notwithstanding, none of
the bookrunners, arrangers or syndication, documentation, or co- agents listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Borrower or any Subsidiary, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of
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reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent to vote in
respect of the claim of any Lender in any such proceeding.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. Except with respect to an Incremental Loan
Amendment, no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any
Subsidiary therefrom, shall be effective unless in writing signed by the
Required Lenders, the Borrower and acknowledged by the Administrative Agent and
approved by the applicable MLB Entities, if applicable, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory
reduction of the Aggregate Commitments hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary (i) to amend the definition of "Default
Rate" or to waive any obligation of the Borrower to pay interest or Letter of
Credit Fees at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C Borrowing
or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender; or
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit
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issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Lender in addition to the Lenders
required above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), 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 telecopier,
and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 10.02;
and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received. Notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
sent during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of
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an acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written
acknowledgement); provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower unless such Person has
acted with gross negligence or willful misconduct. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable and
substantiated out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent), the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable and substantiated out-of-pocket expenses
incurred by the L/C Issuer in
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connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all reasonable and
substantiated out-of-pocket expenses incurred by the Administrative Agent, any
Lender or the L/C Issuer (including the fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section 10.04, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such reasonable out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and the Syndication Agent (and any sub-agent thereof), each
Lender, the Swing Line Lender and the L/C Issuer, and each Related Party of any
of the foregoing Persons (each "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the reasonable fees, charges and disbursements of any
counsel for such Indemnitee), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Loan Party arising
out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
the L/C Issuer 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 or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Indemnitee, and
regardless of whether any Indemnitee is a party thereto, in all cases, unless
caused solely by the gross negligence or willful misconduct of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or (y) result from a claim brought by the Borrower
or any other Indemnitee against an Indemnitee for breach in bad faith of such
Indemnitee's obligations hereunder or under any other Loan Document, if the
Borrower or such Indemnitee has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section 10.04 to be paid by it to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Swing Line Lender, the L/C Issuer or such Related Party, as the
case may be, such Lender's Pro Rata Share (determined as of the time that the
applicable
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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 (or any such sub-agent), the Swing Line Lender,
or the L/C Issuer in its capacity as such, or against any Related Party of any
of the foregoing acting for the Administrative Agent (or any such sub-agent),
the Swing Line Lender, or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower and, except as specifically permitted under this
Agreement, the Lenders shall not assert, and hereby waive, any claim against the
Borrower or any Indemnitee, as the case may be, 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, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section 10.04 shall be payable
not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section 10.04 shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender,
or the Administrative Agent, the L/C Issuer or any Lender exercises its right of
set-off, and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
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10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section 10.06, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section 10.06, or (iii)
by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section 10.06, (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section 10.06 and, to the extent expressly contemplated hereby, the Indemnitees
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and Swing Line Loans) at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the Commitments are
not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each
of the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); (ii) 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 with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to rights in respect of
Swing Line Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender and, so long as
no Event of Default has occurred and is continuing, the Borrower unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire. Subject to acceptance
and recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section 10.06, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement,
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and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption 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 and subject to the obligations of Sections 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection 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
subsection (d) of this Section 10.06.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may 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 each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or other substantive
change to the Loan Documents is pending, any Lender wishing to consult with
other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Administrative Agent, but, so long as no Default or Event of
Default has occurred or is continuing, subject to the approval of the Borrower
(except in the case of participations to existing Lenders and their Affiliates),
which approval shall not be unreasonably withheld or delayed, sell
participations to any Person (other than a natural person or the Borrower or any
of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or
a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender's participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent, the other Lenders and the L/C Issuer shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in Section 10.01 (c) or (d) that affects such
Participant. Subject to subsection (e) of this Section 10.06, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if
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it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section 10.06; provided that any such Participant shall
have complied with the requirements of Section 3.01 including, without
limitation Section 3.01(f). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.08 as though it were a
Lender; provided that such Participant agrees to be subject to Section 2.14 as
though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant had no such transfer occurred. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 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 the requirements of Section 3.01,
including, without limitation, Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as L/C Issuer after Assignment. Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Loans pursuant to subsection (b) of this Section 10.06, Bank
of America may, upon 30 days' notice to the Borrower and the Lenders, resign as
L/C Issuer. In the event of any such resignation as L/C Issuer, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer
hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer. If
Bank of America resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)).
(i) Resignation as Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) of this
Section 10.06, Bank of America may, upon 30 days'
83
notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation the Swing Line Lender, the Borrower shall be entitled to appoint
from among the Lenders a successor Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as Swing Line Lender. If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Committed Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(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 purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, provided, that in the event of a subpoena or similar
legal process, the applicable party shall use commercially reasonable efforts to
provide the Borrower with notice thereof to afford the Borrower the opportunity
to contest the same, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 10.07, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section 10.07 or
(y) becomes available to the Administrative Agent, any Lender or the L/C Issuer
or any of their respective Related Parties on a non-confidential basis from a
source other than the Borrower.
For purposes of this Section 10.07, "Information" means all information
received from the Borrower, any Subsidiary or the MLB Entities relating to the
Borrower or any Subsidiary or any of their respective businesses, other than any
such information that is available to the Administrative Agent, any Lender or
the L/C Issuer on a non-confidential basis prior to disclosure by the Borrower
or any Subsidiary or such MLB Entity. Any Person required to maintain the
confidentiality of Information as provided in this Section 10.07 shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
10.08 RIGHT OF SET-OFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any
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time and from time to time, to the fullest extent permitted by applicable law,
to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower may be contingent or un-matured or are owed to
a branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the L/C Issuer and their respective Affiliates under this Section
10.08 are in addition to other rights and remedies (including other rights of
setoff) that any Lender, the L/C Issuer or their respective Affiliates may have.
Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof and (c) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the contemplated term
of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents 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 that, when taken together, bear the
signatures of each of the other parties hereto. 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.
10.11 INTEGRATION. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights
85
or remedies in favor of the Administrative Agent or the Lenders in any other
Loan Document shall not be deemed a conflict with this Agreement.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.13 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.14 TAX FORMS. If any Lender requests compensation under Section 3.04, 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 3.01,
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, and consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if
such Lender accepts such assignment); provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) 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);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
86
A Lender shall not be required to make any such assignment or 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.
10.15 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW.)
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY 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 APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.16 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY
87
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
10.17 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MLB ADVANCED MEDIA, L.P.
By: MLB Advanced Media, Inc.,
its general partner
By:
------------------------------------
Name:
Title:
[Signature Page to MLBAM Credit Agreement]
BANK OF AMERICA, N.A., as
Administrative Agent
By:
------------------------------------
Name:
Title:
[Signature Page to MLBAM Credit Agreement]
BANK OF AMERICA, N.A., as
a Lender, as L/C Issuer and as
Swing Line Lender
By:
------------------------------------
Name:
Title:
[Signature Page to MLBAM Credit Agreement]
JPMORGAN CHASE BANK, N.A., as a
Lender
By:
------------------------------------
Name:
Title:
[Signature Page to MLBAM Credit Agreement]